NORTH ATLANTIC MILITARY COMMITTEE i ef IALCOMITE MILITAIRE DE L'A TLANTIQUE NORD MCM-76 -77 31 October 1977 MEMORANDUM FOR THE SECRETARY GENERAL NORTH ATLANTIC TREATY ORGANISATION SUBJECT HUMANITARIAN LAW - REVIEW OF ARTICLES 35-60 OF PROTOCOL I Background 1 A mandate by the North Atlantic Council calls for a Military Committee examination of the military implications of paragraphs 33 through 53 of the 1st Additional Protocol to the Geneva Conventions of 12 August 1949 Protocol I The Protocol was developed by the Diplomatic Conference on Re-affirmation and Development of International Humanitarian Law applicable in armed conflicts which met in four sessions in Geneva in the period 1974-1977 Protocol I deals with international armed conflicts including under terms of Article 1 of the Protocol certain categories of national liberation struggles In the final stages of the Diplomatic Conference the articles of Protocol I were revised and re-numbered In this paper they are therefore addressed in accordance with the final numbering Scope of Military Study 2 The articles reviewed by the Military Committee Numbers 35 - 60 inclusive fall into the following categories a Part III - Methods and Means of Warfare Combatant and Prisoner of War Status Section I - Methods and Means of Warfare 1wcotPotAr£ 01 Corr 1 Article 35 - Basic Rules Article 36 - New Weapons Article 37 - Prohibition of Perfidy Article 38 - Recognised Emblems Article 39 - Emblems or Nationality Article 40 - Quarter Article 41 - Safeguard of an enemy hors de combat Article 42 - Occupants of aircraft Section II - Combatant and Prisoner of War Status Article 43 - Armed Forces l 1MS Control N 0 Q i - oooo Article 44 - Combatant and Prisoners of War · · ·Article 45 - Protection of P Article 46 - Spies Article - Mercenaries 1 C-M 77 24 NATO CONFIDENT MCM- 76-77 s who have taken i art in hostilities DistJipution completed at t2 •--- __ hrs on Jl 1 1J __ _ _ _ _ _ b Jtff - - - NATO CONFIDENTIAL - Part IV Sect ' on I Civilian Population 48 49 50 51 52 Ar· icle 53 Ar· icle Ar· icle Ar· icle Ar· icle Ar· icle Ar· icle 54 Ar· icle 55 Ar- icle 56 - General protection against effects of hostilities Basic Rule Definition of attacks and scope of application Definition of civilians and civilian population Protection of the civilian population General protection of civilian objects Protection of cultural objects and of places of worship Protection of objects indispensable to the survival of the civilian population Protection of the natural environment - Protection of works and installations containing dangerous forces Ari icle 57 Article 58 - Precautions in attack Ari icle 59 Ari icle 60 - - Precautions against the effects of attacks Non-defended localities Demilitarized zones 3 The aim if to determine the military implications for the Alliance including the effects for future defence capability of Articles 35 - 60 inclusive as listed tbove Factors taken into account 4 In the cor duct of the study ' l he following factors have been taken into account in the e amination of each Article • Whet er the article is i -eadily comprehensible in military terms and whether it gives Ecope for more than1 one reasonable interpretation • b Whether the article is'readily translatable without distortion or ambiguit into the simple straight-forward instructions which when the Protocol is ratified will necessarily be required in military manuals £• Whetl er the rules laid down are capable of practical application in field conditions NATO CONFIDENTIAL MCM 76 77 UATO CON 'IDENTIAL - Whether the rules are enforceable by commanders in the field in the light of conditions in the field applietdio Whether ilnj lieatien of the rules as drafted would inhibit Allied operational capability Review 5 The articles listed have been examined individually in the Enclosure to this paper reference In each case the text of the article is repeated for ease of These articles must be read in conjunction with the record of the Conference and the declarations and statements of understanding made by the Allied Nations Where appropriate these qualifications have been taken into account in framing the military observations on each of the articles under review Coordination within the Alliance 6 The Military Committee has previously emphasized 1 that the existence of different rules for commanders of different nationalities or even different National Government attitudes could pose substantial difficulties in certain circumstances A field commander ground or air or joint himself a member of a state whjch has placed on record an interpretation on implementation of a particular article or articles could command in war forces of other states or could be responsible for launching attacks from the territory of other states which have not so deposed $uch a commander could order military action which would be contrary to national policies or rules of his subordinate commanders or of the state on the territory of which he is fighting Conversely a field commander of a nation which has not qualified its observance of an article in any way could be constrained in ordering or approving legitimate military action by a subordinate commander of a nation which has qualified its position viz-a-viz the article It is of high military importance therefore that the member states of the Alliance adopt a common position on interpretation of each article and on any required interpretations Jleprisals 7 It is noted reprisals are forbidden by various articles of the Protocol They do not affect NATO defence planning but remain a matter for National Governments They are not considered further in this paper It is 1 MCM-89-76 para 27 NATO CONFIDENTIAL 76 7l -3- NATO CONFIDENTIAL however foreseen that consultation may be necessary in other fora with in the Alliance to coordin t3 National attitudes on this important issue Nuclear Aspects a It is an e1sential element of the Allied strategy and essential to Allied military security that the options to use nuclear weapons be retained There are certain arti les notably Articles 35 51 and 55 which would inhibit essential uses of nucl iar weapons if they were held to apply to nucle r weapons This crucial issue is fully appreciated throughout the Alliance and all the Allie·s accept · hat the articles of Protocol I shall not affect the use o nuclear weapons An w1derstanding to this effect presented by some Allied Nations appears in thu record of the Conference It is necessary that all Allies fully seized of the es11entiali ty of nuclear weapons to Allied defence and security will underwri te this recorded understanding The military observations on individual articles under review have therefore been based on the understanding that the rules introduced by the Protocol do not affect the use of nuclear weapons and that memb£r states of the Alliance will coordinate and consult to ensure that their riaticnal positions are in harmony and that this understanding shall be legally effec1ive throughout the·Alliance Application to Conventional Warfare 9 The delegations of NATO member countries at the Geneva Conference have clearly sought with a very high degree of success to so frame the rules that they should not inhibit legitimate and nec ssary Allied military activity Where this criterion has not been fully met in the wording of the Articles themselves individual Alliad Nations have placed on record interpretations or statements of understanding • designed to protect those Allied interests • 10 From the military point of view the Articles under review 35-- 60 qualified and interpreted in accordance with the interpretations recorded by some Allied nations would be acceptable militarily It is stressed that this finding depends to a gr3at ext t on the primacy of the definition included in ' ·· ' Article 52 of the Protocol of a military objective viz ii I• l NATO CONFIDENTIAL MCM - - · 76' - 7-1 -4- NATO CONFIDENTIAL In so far as objects are concerned military objectives are limited to those objects which by their nature location purpose or use make an effective contribution to military action and whose total or partial destruction capture or neutralisation in the circumstances ruling at the time offers a definite military advantage That definition is satisfactory and comprehensive Furthermore doubts which might have existed in some quarters that this definition could exclude certain legitimate targets or methods and means of combat have been resolved by the understanding recorded by some Allies at Geneva that in certain circumstances an area of land may be a legitimate military objective 11 The military findings on Articles 35 - 60 record in each case whether the article is militarily acceptable taken alone or in conjunction with reservations or statements of interpretation or understanding placed on record by Allied Nations In several cases the qualifications are considered militarily essential viz - 12 35 • Article Basic Rules J Article 41 Safeguard of an enemy hors de combat £• Article 44 Combatants and Prisoners of War - Article 50 Definition of Civilians and Civilian Population e Article 51 Protection of the Civilian Population f• Article 52 General Protection of Civilian Objects ii• Article 53 Protection of Cultural Objects and of Places of Worship h• Article 57 Precautions in Attack J Article 58 Precautions against the Effects of Attacks It is considered of critical military importance for the reasons set out in paragraph 6 of this report that all Allied member states which adhere to the Protocol should endorse the qualifications and interpretations listed at paragraph 11 and should take such measures as may be appropriate to make them legally effective NATO CONFIDENTIAL 7 h -11· -5- NATO CONFIDENTIAL 13 Should i t be found• in political and legal examination subsequent to this military review that from the political and or legal viewpoints there is doubt within any nation of the Alliance as to the validity of the military interpretations of the articles under consideration qualified and interpreted as recorded in the review of individual articles in this review or any doubt that the qualification and interpretations are sufficient to retain for the Alliance essential military options and capabilities further military review will be required of the articles on which such doubts may arise It is stressed however that from the military point of view the articles qualifie'ff by the reservations or statements of interpretation or of understanding placed on record by some Allied Nations are regarded as satisfactory for military purposes and do not place essential military options or capabilities at risk In their present form they are adaptable to framing of military regulations which will be readily assimilable and capable of implementation in war Findings 14 It is considered that - • It is essential for the security of the Alliance that all the Allies endorse the'position already taken by some Allies in Geneva that the Protocol does not affect the use of nuclear weapons and that this understanding shall be legally effective throughout the Alliance See paragraph 8 above It is similarly militarily essential that in applying the Protocol all concerned member Nations of the Alliance adopt the same interpretation and make that interpretation legally effective £• The findings of this military review do not prejudice content wording and nature of statements or reservations to be made nor the modalities of their implementation These must be decided upon by national authorities and so far as the Alliance is concerned considered by the appropriate political fora of the Alliance NATO CONFIDENTIAL McM 76 -i1 -6- NATO CONFIDENTIAL The specific articles on which interpretations could vary and on which co-ordination is required under 2_ above are listed at paragraph 11 above Consultation may be necessary within the Alliance to co-ordinate National attitudes on reprisals as indicated at paragraph 7 above _ FOR THE MILITARY COMMITTEE eral NOAR irector ional Military Staff DISTRIBUTION MILREPS CFMM CMC · DCMC DIMS A D P P A D INTL P P DIV TEAM B TEAM E S ocRETARY SEmillrARIAT IS Exec Seer Mr N L C Park Pol lif Div NATO CONFIDENTIAL MCM-76-77 SACEUR SACEUREP SACLANT SACLAN'I'REPEUR CINCHAN 2 12 g m SPARE REX ORDS IMS t oo 1 Permanent Representatives to NATO 10 each 4 10 -7- NATO CONFIDENTIAL ENCLOSURE TO MCM-76 -77 HUMANITARIAN LAW - REVIEW OF ARTICLES 35 - 60 OF PROTOCOL I THIS ENCLOSURE EXAMINES ARTICLES 35 - 60 OF PROTOCOL I INDIVIDUALLY NATO CONFIDENTIAL ENCLOSURE TO MCM-76 -77 -1- This Enclosure consists of 71 pages plus Annex 1 of 38 pages Annex 2 of 4 pages fil9 CONFIDENTIAL PART III METHODS AND MEANS OF WARFARE COMBATANT AND PRISONER OF WAR STATUS SECTION I METHODS AND MEANS OF WARFARE E l GLE 35 - BASIC RULES 1 In any armed conflict the right of the Parties to the conflict to choose methods or means of warfare is not unlimited 2 It is prohibited to employ weapons projectiles and material and methods of warfare of a nature to cause superfluous injury or unncessary suffering 3 It is prohibited to employ methods or means of warfare which are intended or may be expected to cause widespread long-term and severe damage to the natural environment NATO CONFID GW1'IAL ENC10SURI NCM-76 -77 to -2- NATO CONFIDENTIAL ARTICLE 35 - BASIC RULES Interpretation 1 Paragraph 1 of Article 35 is a re-statement or reminder of the existing rules The differenceSin language as compared with the original rules have no substantial effect Paragraph 2 is based on the existing provisions of the 1899 and 1907 Hague Regulations which at Article 23 • provide that ••• Il est notamment interdit ••• d'employer des armee dee projectiles ou des 'lllatieres propres a causer des maux superflus Paragraph 3 is a new rule Military Observa ions Paragraphs 1 and 2 of Article 35 are essentially the same as the existing rules 3 Paragraph 3 deriv es from and is similar to Article 55 It is designed to prevent widespread long term severe damage to the natural environment and is a new requirement The use of the words widespread long-term and 2 ·I i' severe was discussed in Collfittee III at Geneva They are to be taken as referring o damage meaeuredi in decades and more severe than that caused to World War I battlefields The Ar icle is thus directed to such damages as would be likely to prejudice over · a long term the continued survival of the civilian population or would risk c using it major health problems This rule would not inhibit the use of conventional high-explosive weapons nor existing methods and means of employing those munitions except possibly where the use of such conventional munitions on a target released other dangerous forces such as nuclear 9r flood-water Those special targets are the subject of a separate article 4 Paragraph 3 of Article 35 could prevent the use of certain types of nuclear weapons but application of the Protocol to the use of nuclear weapons is specifically excluded by a declaration ma de by some member states of the North Atlantic Council in Geneva Finding 5 Article 35 would not inhibit Allied military operations and would be acceptable militarily subject to acceptance by member states of the Alliance that the Protocol is not applicable to use of nuclear weapons and to arrangements being made by these states to make that position legally effective NATO CONFIDENTIAL ENCLOSURE to Mc'J i 76· ·- 1 ''i NATO CONFIDENTIAL ARTICLE 36 NEW WEA™ In the study development acquisition or adoption of a new weapon means or method of warfare a High Contracting Party is under an obligation to determine whether its employment would in some or all circumstances be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party NATO CONFIDENTIAL W P 0k0 Pll n MCM-7 · -e-7't i -·4 -- NA O CONFIDENTIAL ARTICLE 36 - NEW WEAPONS Interpretation This article requires States Governments to determine whether a new weapon means or method of warfare would be in breach of a rule It 1 does not in itself prohibit or inhibit development nor in itself prohibit employment This article codifies customary international law Finding 2 Article 36 is militarily acceptable NATO CONFIDENTIAL ENCLOSURE to HCM- 76 · 7i7-·77 NATO CONFIDENTIAL ARTICLE 37 1 PROHIBITION OF PERFIDY It is prohibited to kill injure or capture an adversary by resort to perfidy Acts inviting the confidence of an adversary to lead him to believe that he is entitled to or is obliged to accord protection under the rules of international law applicable in armed conflict with intent to betray that confidence shall constitute perfidy acts are examples of perfidy - The following a the feigning of an intent to negotiate under a flag of truce or of a surrender b the feigning of an incapacitation by wounds or sickness c the feigning of civilian non-combatant status1 and d the feigning of protected statue by the use of signs emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict Ruses of war are not prohibited Such ruses are acts which are intended to mislead an adversary or to induce him to_ act recklessly but which infringe no rule of international law applicable in armed conflict 2 and which are not perfidious because they do not nvite the confidence of an adversary with respect to protection under that law The following are examples of such ruses the use of camouflage decoys mock operations and mis-information NATO CONFIDENTIAL ENCLOSURE to MCM- -76-7 · ·1 -6 - NATO CONFIDENTIAL ARTICLE 37 - PROHIBITION OF PERFIDY Interpretation 1 Perfidy ie already forbidden by the law of war Hague Regulations Articles 23b and 24 This Article defines the existing Hague and customary law prohibition more precisely and clarifies its meaning and the scope or its application Military Observations 2 In general the Article would not inhibit military commanders or military operations It reflects current rules and practice Finding 3 Article 37 is militarily acceptable NATO CONFIDENTIAL ENCLOSURE to MCM 1' lr 7 -·1 - NATO CONFIDENTIAL ARTICLE 38 - RECOGNISED EMBLEMS 1 It is prohibited to make improper use of the distinctive emblem of the red cross red crescent or red lion and sun or of other emblems signs or signals provided for by the Conventions or by this Protocol It is also prohibited to misuse deliberately in an armed conflict other internationally recpgnised protective emblems signs or signals including the flag of truce and the protective emblem of cultural property 2 It is prohibited to make use of the distinctive emblem of the United Nations except as authorised by that Organisation NATO CONFIDENTIAL ENcLoSORE to - 8- NATO CONFIDENTIAL ARTICLE 38 - RECOGNISED EMl3LEMS Interpretation 1 Article 38 is in line with existing regulations Articles 42 and 44 of the First Geneva Convention and Allied practices It extends the existing rules to include protective emblems provided for in the Proi ocol for civil defence Article 67 and installations containing dangerous forces e g nuclear power stations It also forbids improper use of the United Nations' emblem Military Observations 2 There would be no military objection to the measures required by this Article Finding 3 Article 38 is militarily acceptable CONFIDENTIAL ENCLOSURE to MCM•- t 7T ' NATO CONFIDENTIAL ARTICLE 39 1 - EMBLEMS OF NATIONALITY It is prohibited to make use in an armed conflict of the flags or military emblems insignia or uniforms of neutral or other States not Parties to the conflict 2 It is prohibited to make use of the flags or military emblems insignia or uniforms of adverse Parties while engaging in attacks or in order to shield favour protect or impede military operations 3 Nothing in this article or in article 37 pa graph 1 d shall affect the existing generally recognised rules of international law applicable to espionage or to the use of flags in the conduct of armed conflict at sea NATO CONFIDENTIAL ENCLOSURE to MCM _ ·1J ' 71-· 7 -10- NAU10 COID IDENTIAL 1 ARTICLE 39 - EMBLEMS OF NATIONALITY Interpretation 1 This article is in line with existing rules in Article 23 f of the Hague Regulations of 1907 except that it extends the rule to prohibit the use of enemy or neutral military uniforms and clarifies al a e- aspect of law concerning wearing of these uniforms on which there has hitherto been some dispute Military Observations 2 Use of enemy or neutral military uniforms has hitherto been regarded as a legitimate ruse of war In practice however it has rarely been used It is considered that the prohibition would not significantly affect the Allies' defence capability Finding 3 Article 39 is considered acceptable militarily NATO CONFIDENTIAL ENCLOSURE to McM 7 7 7'7 7 -11 - NATO CONFIDENTIAL ARTICLE 40 - QUARTER It is prohibited to order that there shall be no survivors to threaten an adversary therewith or to conduct hostilities on this basis NATO CONFIDENTIAL ENCLOSURE to MCJ'P 7 77-' '7 -12- NA'i'O ·coNFIDENTIAL CLE 40 - Q UARTEif Interpretation 1 · This article repeats the existing law on this subject contained in Hague Regulations Article 23 d Military Observations 2 No military objection Finding 3 • This article is militarily acceptable NATO CONFIDENTIAL ENCLOSURE to MCM i e' l f ·· -1 j- NATO CONFIDENTIAL ARTICLE 41 1 SAFEGUARD OF AN ENEMY HORS DE COMBAT A person who is recognised or who in the circumstances should be recognised to be hors de combat shall not be made the object of attack 2 A person is hors de combat if - he is in the power of an adverse Party £ he olearly expresses an intention to surrender £• he has been rendered unconscious or is otherwise or incapacitated by wounds or sickness and therefore is incapable of defending himself provided that in any of these cases he abstains from a n hostile a ct and does not attempt to escape 3 When persons entitled to protection as prisoners of war have fallen into the power of an adverse Party under ' Ulusual conditions of combat which prevent their evacuation as provided for in Part III Section I of the Third Convention they shall be released and all feasible precautions shall be ta ken to ensure their safety NATO CONFIDENTIAL ENCLOSURE - to MCM '1t'-1T · · - '14- lMTQ' 'tONFIDENTIAL ARTICLE 41 SAFEGUARD OF AN ENEMY HORS DE COM BAT In terpre ta tion 1 The rules in paragraphs 1 and 2 are clearly worded and unambiguous They reaffirm Hague Regulations Article 23 c 2 Paragraph 3 refers to the Third Convention Part III Section I The paragraph reaffirms Article 19 of the Third Geneva Convention This so 'far as evacuation is concerned requires that prisoners of war shall be evacuated as soon as possible after their capture to camps situated in an area far enough from the combat zone f9r them to be out of danger Only prisoners of war who owing to wounds or sickness would run greater risks by being evacuated than by remaining where they are may be temporarily kept back in a danger zone Military Observations 3 Essentially this article clarifies an existing law on evacuation of prisoners of war and additionally requires the captor in releasing prisoners of war in a combat zone to take all feasible precautions to ensure their safety i e to do what he can in those conditions 4 The article applies only to special circumstances i e long-range patrols or Commando raids where there is no ability to handle prisoners of war in accordance with Prisoner of War Oonvention The obligation placed on commanders to take 0 feasible precautions is limited to doing what is practicable in the circumstances In the light of this the article is not objectionable nor inhibiting militarily Finding 5 This article is militarily acceptable subject to the interpretation 1 of feasible given under Article 57 being established namely that which is 'practicable or practically possible taking into account all the circumstances ruling at the time including those relevant to the success of military operations - 1 _ for ·f e f 1 reference the understanding reco cded in Article 57 is that ·· · - •• 1rfeasi0Ie·•r ·refers to that which is practical or practically possible takine into account all circumstances at the time including those relevant to the suc0ess of military operations NATO CONFIDENTIAL ENCLOSURE to l'ICM- tb 77 · -1 5- NATO COHFIDENTIAL ARTICLE 42 - OCCUPANTS OF AIRCRAFT 1 No person parachuting from an aircraft in distress shall be ma de the object of attadk during his descent 2 Upon reaching the ground in territory controlled by an adverse Party a person who has parachuted from an aircraft in distress shall be given an opportunity to surrender before being made the object of attack unless it is apparent that he is engaging in a hostile act 3 Airborne troops are not protected by this Article NAT i CONFIDENTIAL ENC SURE to MCM • 4 1-1T JfATO CONFIDENTIAL ARTICLE 42 - OCCUPANTS OF AIRCRAFT 1o Interpretation Therea±e no identifiable ambiguities in the wording of this article Military Observations 2 A rule prohibiting attack on persons ' t her than airborne roops or paratroops parachuting from aircraft in distress during their descent would be eatisfactoryp indeed desirable militarily The practice is already observed by Allied Nations as existing law an interpretation of Hague Regulations Article 23 c Finding 3 Article 42 is militarily acceptable and indeed desirable NATO CONFIDENTIAL ENCLOSURE to MCff f 71 77 -'f 7- NATO CONFIDENTIAL SECTION II COMBATANT AND PRISONER-OF-WAR STATUS filICLE 43 ARMED FORCES 1o The armed forces of a Party to a conflict consist of all organised armed forces groups and units which are under a command responsible to that Party for the conduct of its subordinates even if that Party is represented by a Government or an authority not recognised by an adverse Partyo Such armed forces shall be subject to an internal diecipHlria•ry system whichp inter alia 9 shall enforce compliance with the rules of international law applicable in armed confltcto 2o Members of the armed forces of a Party to a conflict other than medical personnel and chaplains covered by Article 33 of the Third Convention are combatantsp that is to say they have the right to participate directly in hostilitieso 3o Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency int6 its armed forces it shall so notify the other Parties to the conflicto NATO CONFIDENTIAL ENCLOSURE to MC'flr f-B 1 rn fil O CONFIDENTIAL S ICLE 43 - ARMED FORCES Interpretation 1 This article establishes the definition in the context of the Convention and the Protocol for armed forces of parties to a conflict it requires that such armed forces be under a command responsible to that party and that armed forces be subject to an internal disciplinary system Military Observations 2 This article codifies rules which set out clearly how armed forces sho·11ld be controlled to whom they shall be responsible and by whom discipline shall be exertedo It would not accord recognition as armed forces to dissident or guerilla formations which were not under a command responsible to a party to a conflict It is to be read in conjunction with Article 1 Finding 3 Militarily Article 43 is useful and indeed desirable NATO CONFIDENTIAL ENCLOSURE to McM- 7ir· 2 r7-- 7 -·19- NATO CONFIDENTIAL ARTICLE 1o 44 COMl3ATANTS AND PRISONERS OF WAR Any combatant 0 as defined in Article 43 9 who falls into the power of an adverse Party shall be a prisoner of waro 2o While all combatants are obliged to comply with the rules of international law applicable in armed conflicts 9 violations of these rules shall not deprive a combatant of his right to be a combatant or if he falls into the power of an adverse Party 9 of his right to be a prisoner of war 9 except as provided in paragraphs 3 and 4o 3o In order to promote the protection of the civilian population from the effects of hostilities 0 combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attacko Recognising 9 however 9 that there are situations in armed conflicts where 9 owing to the nature of the hostilities an armed combatant cannot ao distinguish himself 9 he shall retain his status aa a combatant 0 provided that 9 in such situations 9 he carries his arms openlys o during each military engagement 0 and go during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he ie to parti cipateo Acta which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37 paragraph 1 c o 4o A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit hie right to be a prisoner of war but he shall 9 neverthe_less9 be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocolo This protection includes protections equivalent to'those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offenoee he has committedo 5o Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combata t and a prisoner of war by virtu$ of his prior activitieso NATO CONFIDENTIAL ENCLOSURE to MCMc ¾ 7r · - 1rATO CONFIDENTIAL 6 Thie article is without prejudice to the right of any person to be a prisoner of war purs ant to article 4 of the Third Convention 7 Thie article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular uniformed armed unite of a Party to the conflict a In addition to the categories of persons mentioned in Article 13 of the First and Second Conventions all members of the armed forces of a Party to the conflict as de i ed in Articie of this Protocol ahall be entitled to protection under those Conventions if they are wounded or sick or in the case of the Second Convention shipwrecked at sea or in other waters 43 NATO CONFIDENTIAL ENCLOSURE to · MCM- 1b• 7T' NATO CONFIDENTIAL ARTICLE 44 COMBATANTS AND PRISONERS OF 'WAR Interpretation 1o Thie article introduces a new category of prisoner of war 9 namely those combatants who 9 although not wearing the uniform or insignia of the regular armed forces of a party to a conflict 0 are nevertheless recognised as members of the armed forces under command and military discipline of a party to the conflict 2o The right of such combatants to be treated as prisoners of · war is established in Article 44 paragraph 1o Para graph 2 rules that violations of international law shall not deprive a combatant of his right to be a prisoner of war Milita y Observations 3o Paragraph 3 offers potential difficulty in that 9 r cognising that in some special circumstances an irregular combatant e go a member of a resistance movement under a command responsible to a party to the co flict may not be able always to distinguish himself clearly as a combatanti thll' Article seeks in these circwnatances to relate identification as a combatant iI with his carrying arms openly 0 both during a military engagement and while visible to the adversary during deployment preceding the launching of an attack A combatant who fulfils those two conditions will be treated if captured as a prisoner of waro 4 I There could be considerable practical difficulty in applying paragraph 3 0 to determine whether a man in civilian dress captured in combat had carried hie arme openly whi e engaged in a military deployme t nreceding the launching of an attack i p which he is to pa rtici i a te Civi_li¢-clad loungers on a etreet corner co id 9 for example 9 produce conceale arms and fire • I on a patrol s and might ther justifiably claim that they had hot contravened I either of the two conditions in paragraph 3 '· • and i l of the article o Such circumstances 0 and many other conceivable scenarios in which irregulars in civilian dress could abuse the article 9 could well create an atmosphere in which troops took no risks and in which unarmed civilians might be put at greater peril than would be incurred if the rule did not exist NATO CONFIDENTIAL ENCLOSURE to McM r -77 NKTOT CON IDENTIAL 5 It is noted however that some Allied Nations have recorded at · Geneva an understanding that the first sentence in Article 44 paragraph 3 restates the g nerally recognised rule of distinction which means that combatants have to distinguish themselves from the civilian population in a clearly recognisable manner the situations described in the second sentence of paragraph Article 44 can in the NATO context exist only in occupied territory in wlff'bh territory armed forces of the occupying power would be constantly on the alert for armed resistance action combatants who fail to meet the minimum requirements of the - and sentence of paragraph 3 of the Article forfeit their combatant status a W' entitlement to be prisoner of war and may be treated and punished accordingly 6 These Nations have also recorded an understanding that the word deployment must be interpreted as meaning any movement towards a place from which an attack is to be launched 7 Certain delegations from othe f regional groups at Geneva have however expressed contrary views The article can only be considered mili tariJ y acceptable if the Allied nations accept the interpretation referred to in paragraph 5 and 6 above Finding 8 Article 44 is militarily acceptable subject to the following interpretations being established and made legally effective • The situa ti9n described in the second sentence of paragraph 3 of the article can only exis1 in occupied territory in 1 he NATO conte x t 1 The word deployment in paragraph 3 of the article means any movement towards a place from which an attack is to be launched • £• Failure to meet the requirements of the second sentence of paragraph 3 of the Article results in forfeiture of combatant status and the loss of entitlment to be a prisoner of war -----------------------·-------------------------- t i a recognised that in contexts other than NA 1 ro the situation described s-ccond sentence of para 3 of Article 44 may exist in the circumstances described in para 4 of Article 1 of the Protocol This will necessarily be taken into account by National authorities in making the finding at 8 legally effective NATO CONFIDENTIAL -2 ENCLOSURE to MCM ri - - 7-7 1 · frt the ARTICLE 45 1 PROTECTION OF PERSONS WHO HAVE TAKEN PART IN HOSTILITIES A person who takes part in hostilities and falls into the power of an adverse Party ihall be presumed to be a prisoner of war and therefore shall be protected by the Third Convention if he claims the status of prisoner of war or if he appears to be entitled to such statue or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power Should any doubt arise as to whether any such person is entitled to the status of prisoner of warp he shall continue to have such status and 9 therefore to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal 2o If' a person who has fallen into the power of an adverse Party is not held as a i riscbn r of war and is to be tried by that Party for an offence arising out of t he hostilities P he shall have the right to asse r t hie entitlement to prisoner-of war status before a judicial tribunal and to have that question adjudicated Whenever possible under the applicable procedure this adjudication shall occur before the t t'ial for the offencEic · The representatives of the Prot cting Power shall be entitled to at't nd the proc eedings·in·-Jhich that question is adjudicated unless 9 exceptionally the prOce'edings are held 1l · camera in the interest of State security In such a case the detaining Power shall advise the Protecting Power accordingly 3 Any person who has taken part in hostilities who is not entitled to prisd er-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection o·f Ar tio-le 75 of tltis Protocol In occupied territory any such person unless he is held as a 'spy shall also be entitled notwithstanding Article 5 of the Fourth Convention to his rights of communication under that Conventiono l ATO CONFIDENTIAL ENCLOBURE to ' MoM · f_ 77 • lfATO CONFIDENTIAL ARTICLE 45 - PROTECTION OF PERSONS 'WHO HAVE TAKEN PART IN HOSTILITIES Interpretation This article is unambiguous It extends the provision contained in Article 5 of the Third Geneva Convention Prisoners of War oncerning the determination of prisoner of war statuso It also amends Article 5 of the Fourth Geneva Convention Civilians by permitting a person other than a spy detained in occupied territory to retain his rights of communication under that convention 1o Military Observations and Finding 2 Acceptable NATO CONFIDENTIAL ENCLOSURE to MCM-7 -7-7 NATO COBFIDENTIAL ilTICLE 46 - SPIES Notwithstanding any other provision of the Conventionsq_or of this Protocol any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy 1o A member of the armed forces of a Party to the conflict who on behalf of that Party and in territory controlled by an adverse Party gathers or attempts to gather information shall not be considered as engaging in espionage if while so acting he is in the uniform of hie armed forces 2o o A member of the armed forces of a Party to the conflict who is a resident of territory occupied y an adverse Party and who on behalf of the Party on which he depends gathers or attempts to gather information of military value within that territory shall not be considered as engaging in espionage unless be does so through an act of false pretences or delil rately in a clande·stine mannero Moreoever such a resident shail not lose n1s right to the status of prisoner of war and may not be treated as a spy unless he is captured while engaging in espionageo 4o A member of the armed forces of a Party to the conflict who is not a resident of territory occupied by an adverse Party and who has engaged in espionage in that territory shall not lose his right to the status of prisoner of war and may not be treated as a spy unless he is captured before he has rejoined the armed forces to which he belongs NATO CONFIDENTIAL ENCLOSURE t2 't'f qM - ' 1 7 -7 - NATO COD'IDENTIAL ARTICLE 46 - SPIE Interpretation 1o Paragraphs 1 and 2 are atraighttorwardo The term nespionagen asused in paragraph 1 means spying as defined in Article 29 or the 1907 Hague namei1 0 _obt ining or endeavouring to obtain 0 ·by clandestine Regulationss means_ 0 or by false pretencea 0 information in the zone or operations or a b lligercrt with the intention ot communicating it to the hostile partyo Z 2o Paragraph is d itficult to interpret Presumably the intention behind the f'irst part or the· paragraph is to prevent an unl lcr upulpue authority from explciting pa graph 2 by treating members ct the enem r arme forces in occupied territory- and pres bly out or unifor on that account as spiee on 'i flims r or no evidenceo The •last sentence of the paragraph would ensure that a spy who had been identif ed bµt not made prisoner at the ·time and who had subsequently been taken 0 would n forfeit his entitlement to prisoner of war status on aoco t cf the E r ier identification as a ap y ' ' Paragraph 4 would have the-same effect as paragraph fer members ct the armed force a who have · not been overrun by an cccuping force but are subsequently oapturedo It reaffirms the existing law 4 The effect of this article taken as a whole 11 is to extend ·the pr visions ct the Hague Regulat f ona_Articlea 29 31 which cover regular forces to irregular f' ighter who belong to resistance movements and similar bodies of' the armed forceso 5o It is noted that the article restricts the application of the article to those who ngather •or attempt to gather informationn It would apparentl7 still remain open to the occupying power to enact an occupation law making the tranm isaion of information a JMU imie i le offenceo pun·• s a ble Militaq Obaervatiol 60 The proposed article would not be operationalir ill hibitingo Finding 7 Article 46 is acceptable militarily NATO CONFIDENTIAL ENCLOSURE to MCM-76-77 -27- NATO CONFIDENTIAL ARTICLE 47 - MERCENARIES 1 A mercenary shall not have the right to be a combatant or a pri iifon er of war 2 A mercenary is any person who - • is specially recruited locally or abroad in order to fight in an armed conflict • does in fact take a direct part in the hostilities is motivated to take part in the hostilities essentially by the desire for private gain and in fact is promised by or on behalf of a Party to the conflict material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party £• is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict • conflict is not a member of the armed forces of a Party to the and has not been sent by a Sti' t e which is not a Party to the tr conflict on official duty as a member of its armed forces NATO CONFIDENTIAL N Q1Q§ 1UlE_i2 MCM ---'i ll 77-' NATO CONFIDENTIAL ARTICLE 47 MERCENARIES Interpretation 1o Article 47 gives to a captor the discretion to decide whether a 11 mercenary should be treated as a combatant and be entitled to be a prisoner of waro A 11 mercenary 11 p as defined in the Article would NOT have the right to be combatant or a prisoner of war but could be accorded that status if _ thef P aa-ty to the conflict capturinglhim so desired 11 2o The Article then defines a mercenary in such a way as to exclude any member of the armed forces of a Party to the conflict 9 or of any state and sent by that stateo This effectively prevents observers or advisers 1 who are members of armed forces of states other than those engaged in hostilities being classified as mercenarieso 3o Paragraph 2 provides additional safeguardso All the conditions in 2 a through e must be satisfied before a prisoner is considered a mercenaryo Military Observations 4o There would be no risk for member Nations of the Alliance 9 that members of their armed forcesp or members of other Nations' armed forces attended as advisers or observers 9 would be classified as mercenarieso 5o In fact 9 i t is difficult to envisage where mercenaries 9 in the terms of the definition of the Article 9 could be employed in international wars except in wars between under-developed nations Finding 60 Article 47 is militarily acceptableo NATO_CONFIDENTIAL ENCLOSURE to r rcr-r- 7 ·•- 77 ·· ATO CONFIDENTIAL PART IV CIVILIAN POPULATION NATO CONFIDENTIAL ENC LQSURE to t • ·t f - 77····· i MCM 2 0 CONFIDENTIAL SECTION I GENERAL PROTECTION AGAINST EFFECTS OF HOSTILITIES CHAPTER I B SIC RULE AND FIELD OF APPLICATION ARTICLE 48 · - BASIC fRULE In oJPder t ensure respect for and protection of the civilian POJ ulation and civilian objects the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives NA O CONFIDENTIAL ENCLOSURE to r-r cM- J -'1 -77 -31- WATO COlDl'IDENTIAL ARTICLE 48 - BASIC RULES Interpretation 1 The intent of thie a ticl e is CS tilfi mbi ity lies in the impreeeion which may be convey d by tb wordin s - that civilian objects and military objectives are always mutually exclusive It is h wever _ ar trom other a Hicles particularly Article ' 52 _that a civilian object ·• may become a military objective The last plm•e co athe article could also be misinterpreted as implying that oniy obJects not persons may be attaoked It is however clear from existing laws e 6• the St Petersburgh atclaration and other articles of the Protocol that enemy combatants and ene1D7 oivilians i t they take a direct part in h o etili ties Article 51 paragraph 3 are legitimate targets l'lilitan Observations 2 · It is noted see Article 52 that ''In so f•r 'as objects are concern13d military objectives are limited to those o _jel ts which by their own nature location purpose or· uee make an effective 9 t ibution to military action and whose total or partial destruction apture or neutral Lsation in the circumstances ruling at the time offers a definite mili tar advantage Tbat definition meets military requirements Finding 3 Article 48 is acceptable militarily ATO CONFIDENTIAL ARTICLE 49 - DEFINITION OF ATTACKS AND SCOPE OF APPLICATION Attacks means acts of violence against offence or in defenceo 1o tl ae ad versary whether in The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted including the national territory belonging to a Party to the conflict but under the control of anadverse Party 2o 3o The provisions of this Section apply to any land air or sea warfare which may affect th civilian population individual civilians or civilian objects on land They further apply to all attacks from the sea or frqm the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the airo 4o The provisions of this Section are additional to the rules concerning humanitarian protection contained in the Fourth Convention particularly in Part II thereof and in other international agreements binding upon the High Contracting Parties as well as to other rules of international law relating to the protection of civilians and civilian objects on land at sea or in the air against the effects of hostilities NATO CONFIDENTIAL ENCLOSURE to MCM-7'' -•17' NATO CONFIDENTIAL ARTICLE 49 - DEFINITION OF ATTACKS AND SCOPE OF APPLICATION Interpretation 1 This article defines the field of application of Section I of Part IV Civilian Population - General Protection Against Effects of Hostilities In effect Articles 48 through 60 discussed in this paper 0 shall operate to protect civilia n population and individual civilians on land or civilian objects on land The article restricts application of the Protocol to civilians and civilian objects on land It excludes application of this section of the Protocol in the following situations 2o air to air air to sea sea to air land to sea sea to sea The article notes that this section of the Protocol protecting civilians shall apply to all attacks from the sea or the air against objectives on land but does not otherwise affect existing generally recogniaed rules of international law applicable to armed conflict at sea or in the airo Military Observations 3o The article does not in itself contain any rules for the conduct of lita ry operationso In defining the scope of the section of the Protocol and confining the application of that section to objectives on land it is sensible and con sistent with the existing policies and practices of Allied Nations Finding 4 Article 49 is acceptable militarilyo _MATO CONFIDENTIAL ENCLOSURE to licM _·77- NATO CONFIDENTIAL CHAPrER II CIVILIANS AND CIVILIAN POPULATION TICU 50 DEFINITION OF CIVILIANS AND CIVILIAN POPULATION 1 A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A 1 2 P 3 and 6 of the Third onvention and in Article 43 of this Protocol In case of doubt whether a person is a civilianp that person shall be considered to be a civilian 2 The civilian population comprises all persons who are civilians 3 The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character NATO CONFIDENTIAL ENC 9SURET t_C MCM- f 71 --35- NATO CONFIDENTIAL ARTICLE 50 - DEFINITION OF CIVILIANS AND CIVILIAN POPULATION Interpretation The intention is clear - anyone who is not a member of the armed 11orcee as defined in Article 43 is a civilian However the understanding which relates to Articles 51 and 57 - that commanders and others responsible for planning deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources also applies to this which is available to them at the relevant time article 1 Militar y Observations This article leaves no doubt as to the qualifioation for militaryor civilian status 2 Finding 3 Article 50 is militarily acceptable subject to the following understanding Military Commanders and others responsible for planning deciding 1lpon or executing attacks necessarily have to reach decisions on the basis 'of their assessment of the information from all sources which is available to them at the relevant time NA TO CONFIDENTIAL ENCLOSUBE to ECM - _ 77 ' ' NATO CONFIDENTIAL ARTICLE 1 51 - PROTECTION OF THE CIVILIAN POPULATION The civilian population and individual civilians shall enjoy general protection age inst dangers arising from military operations To give effect to this protection the following rules which are additional to other applicable rules of international law shall be observed in all circumstances 2 The civilian population as such as well as individual civilians shall not be the object of attack Acts or threats of violence the prjmary purpose of which is to spread terror among the civilian population are prohibited 3 Civilians shall enjoy the protection afforded by this Section unless and for such time as they take a direct part in hostilities Indiscriminate attacks are prohibited • Indiscriminate attacks are - those which are not directed at a specific military objective £• those which employ a method or means of combat which cannot be directed at a specific military objective or £• those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol and consequently in each such case are of a nature to strike military objectives and civilians or civilian objects without distinction 5 Among others the following types of attacks are to be considered as indiscriminate • an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city town village or other area containing a similar concentration of civilians or civilian objects and k• an attack which may be expected to cause incidental loss of civilian life injury to civilians damage to civilian objects or a combination thereof which would be excessive in relation to the concrete and direct militarv advantage anticipated 6 Attacks against the civilian population or civilians by way of reprisals are prohibited NATO·CONFIDENTIAL ENCLOSURE- to MCM- 1·1 -11 -3 1- lUTO CONFIDENTIAL 7a The presence or movements of the civilian population 01 indindu civilians shall not be used to render certain points or areas immune troa· military operations in particular in attempts to shield military •1- ieo ta'•• from attacks or to shield favour or impede military operations • to the conflict shall not direct the movement of the civilian population or •dividual civilians in order to attempt to shield military objectives trom attacks or to shield military operations V Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian opulation and civilians including_ the obligation to take the precautionary measures provided for in Article 57 80 • NATO CONFIDENTIAL ENCLOSURE to MCM ' b-7'7 · NATO CONFIDENTIAL ARTICLE 51 - PROTECTION OF THE CIVILIAN POPULATION Interprets tion 1 This article a sets down the rule that the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations • E • specifies that the civilian population as such as well as individual civilians shall not be the object of attack £• prohibits acts or threats of violence the primary purpose of which is to spread terror among the civilian population - prohibits indiscriminate attacks and defines indiscriminate attacks General Rules 2 The general protection afforded to civilians by this article is in accordance with current law and Allies' practices 3 Civilians who take a direct part in hostilities will not be protected from attack while doing so 4 These rules would prohibit attack on civilians either in concentrations or as individuals except those civilians taking a direct part in hostilities This is a question of fact thus civilians bearing arms as part of a military operation or engaged in sabotage are clearly taking a direct part in hostilities while civilians manning a military supply column or a military stores depot may not be However such targets are clearly legitimate military objectives and it is clearly established in other elements of the rules that military objectives may be attacked by any legitimate munitions or means whether or not civilians are present Such civilians are not protected against the incidental effects of these attacks Indiscriminate attacks 5 Paragraph 4 of Article 51 prohibite indiscriminate attacks defining these as attacks not directed at a specific military objective or NATO CONFIDENTIAL EN c o U IDt to MCM- rt-77 NATO CONFIDENTIAL those which employ a method or means of combat which cannot be directed at a specific military objective or the effects of which cannot be limited as required by the Protocol and consequently are of a nature to strike military objectives and civilians or civilian objects without distinction 6 Three forms of attack would be prohibited • attacks not directed at a specific military objective l • attacks by methods or means of combat which cannot be directed at a specific military objective • attacks the effect of which cannot be limited as required by the Protocol and consequently are of a nature to strike military objectives and civilian objects without distinction £• 7 The prohibition at paragraph 6 above requires atackQ to be directed at specific military objectives The prohibition at paragraph 6b bans any weapon or method which cannot be so directed Taken together they restrict the choice of targets to military objectives this is in accordance with NATO doctrine and has no inhibiting implications provided that the expression military objective is satisfactorily defined It has been mooted that the rules at 6a and b ooul d be interpreted in such a way as to prohibit the use for example of mines area fire harassing fire or unobserved artillery fire on the basis that such attacks would not be or could not be directed at specific military objectives It might be argued that such uses when directed a inst an area where there is only a possibility that the enemy intend to occupy or use the area would not be directed against a specific military objective That interpretation would place serious restrictions on military capability e g it colild apply in the laying of land mines by a Nation on its own territory However taking the article as it now stands and bearing in mind the qualification already made it is noted that 1Methods or means of warfare can always be directed and are directed against a military objective An area of land would only be subjected to such methods and means of warfare where in the considered judgment of the commander it may make an effective contribution to enemy action • NATO COIDIDDTIAL ENCLOSUBE to MCPI- -1- -11 NATO CONFIDENTIAL At Geneva some Allied delegations made an interpretative declaration related to military objective as defined in Article 52 which provides that an object may by its natUTe or location or purpose o r make an effective contribution to enemy military action Thie declaration specifies that a specific area of land may be a military objective if because of its location or other reasons specified in Article 52 its total or partial destruction captUTe or neutralization in the circumstances ruling at the time offers a definite military advantage In the military view the article as thus qualified would not inhibit essential military uses of the methods or means of warfare listed above mines area fire harassing fire unobserved artillery fire An area of land would clearly not be excluded from the category of objects which by their nature or location may offer legitimate military targets where in circumstances ruling at the time their total or partial destruction capture or neutralization offers a definite military advantage It would be contrary to the practicalities and lessons of the long history of warfare to maintain that an area of land is immune from capture or neutralization the seizure and control of land areas are crujial and essential to the conduct of war and to the objectives and tasks of armies and of Nations at war In the context of the Protocol an area of land would only be attacked in order to captUTe or neutralize it - the latter in the sense of denying its use to the enemy The total or partial destruction of an area of land per se is not a practical nor conveivable objective nor an achievable aim in conventional warfare It is stressed that this interpretation i e that an area of land may be a military objective and therefore may be attacked as such is essential military requirement If this were not so there would be a substantial restriction on the options available to Allied commanders and a serious degradation of combat capability It is therefore militarily essential that this interpretation is accepted and made legally effective by all member states Land Mines 8 Special consideration has been given to land mines because of doubts which have been voiced in some quarters as to whether this article could NATO CONFIDENTIAL ENC L_q _lJAi t Q MCM t't- -11 · -41- NATO CONFIDENTIAL prohibit or restrict the use of land mines on the grounds that land mines cannot be directed against a specific military targets and if laid may be exploded by and injure civilians e g refugees or others It is considered that these doubts are unjustified for the following reasons - 1 • Land mines are laid for specific military purposes in areas where their presence will delay disrupt or channel an enemy force or neutralize deny that area to enemy use In the circumstances prevailing at the time and in the light of all information available to the responsible commander they are clearly directed in two senses - both at the area and at an enemymilitary force l• The fact that civilians may cross a minefield and thereby suffer injury would not invalidate the fact that the mines had been properly directed Any civilians so injured would suffer damage incidental to the purpose and that in itself as recognised elsewhere in the Protocol does not prohibit resort to available methods or means of warfare It is clear from the proceedings of the Geneva Conference that certain proposals for restriction of use of mines were considered separately these proposals were referred to a further conference to be held not later than 1979 If Article 51 had been intended to forbid the ue e of mines these proposals would have served no purpose It is considered therefore that Article 51 was not intended by the Conference to have such overall effects £• _g If Article 51 had been inte nded to prohibit the use of land 1 mines it would for this reason alone need to be worded in much more specific terms 9 There is no doubt in the minds of the military staffs that in the light of the above Article 51 would not inhibit the laying of land mines for normal legitimate military purposes The prohibition at 6£ above is of a different nature It relates 1to the effects of weapons in the context of the various Articles of the Protocol e g 35 54 55 and 57 Rule of Proportionality This requires no further specific comment 10 NATO CONFIDENTIAL fil Q LOSURE to MCM-7t -t l NATO CONFIDENTIAL xamples of Indiscriminate Attacks 110 Paragraph 5 of the article goes on to specify that the following type of attacks among others unspecifiedp are to be considered as indiscriminates o An attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city town 9 villagep or other area containing a similar concentration of civilians or civilian objects and lo An attack see Article 57 which may be expected to cause incidental loss of civilian lifet injury to civilians damage to civilian objects or a combination thereof 9 which would be excessive in relation to the concrete and direct military advantage anticipated 120 The intention of this clause at 11 • above is clearly to avoid area bombing or bombardment of populated areas per seo It would prohibit blanket bombardment but would not inhibit attacks against specific military objectives within a populated areao It would not prohibit simultane concentrated attack against two or more legitimate military objectives in such an area if these military objectives were not clearly separate from each othere For examplev a company of tanks moving into and about a town or village or similar concentration of civilians is not immune from attack even though 9 because of their movement or cover they cannot be attacked individuallyo Rule of Proportionality 130 The clause at 51 • of the Article see also Article 57 relates the expectation of civilian damage to the anticipated military advantage and therefore·clearly leaves the judgement to the military commandero 14 It is noted that some Allies have placed on record in Geneva an understanding that the military advantages anticipated from an attack are intended to refer to the advantages anticipated from the attack considered as a whole and not only from isolated or particular parts of that attacko A further Allied understanding has placed on record that commanders mustp of necessity act on the information from all sources available to them at the relevant time It is only on these understandings which provide the necessary military latitude and protection from unjustifiably restrictive interpretation of this clause that the commander's discretion would not be unduly inhibiting and that this section of the Article would be satisfactory in military terms NATO CONFIDENTIAL ENCLOSURE to MCM-'7- -77-· NATO CONFIDENTIAL Use of Civilians as Shield 150 Paragraph 7 of the Article forbids the movement of the civilian population in order to shield support military operationso It should be read in conjunction with Articles 51 1 and 2 and Article 58 and is not inhibiting militarilyo Observance of Rules 160 Paragraph 8 of the Article - no military commento Finding 170 Article 51 is militarily acceptable subject to the following inter pretations being established -The military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole o and not only from isolated or particular parts of the attacko o Military commanders and others responsible for planning deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant timeo £0 The definition of indiscriminate attacks contained in paragraph 4 of the Article does not mean that there are means of combat or specific weapons the use of which would constitute an indiscriminate attack in all ircumstanceso Provided a commander in the light of all the information availa ble to him at the time li s satisfied that a potential target is a military objective he would not be inhibited by this definition from attacking it with means and weapons at his disposal 9 most suited to the circumstances and the targeto NATO CONFIDENTIAL ENCLOSURE to MCM- b 77 · · NATO CONFIDENTIAL CHAPTER III CIVILIAN OBJECTS ARTICLE 52 1 - GENERAL PROTECTION OF CIVILIAN OBJECTS Civilian objects shall not be the object of attack or of reprisals Civilian objects are all objects which are not military objectives as defined in paragraph 2 Attacks shall be limited strictly to military objectives In so far 2 as objects are concerned military objectives are limited to those objects which by their nature location purpose or use make an effective contribution to military action and whose total or partial destruction capture or neutralisation in the circumstances ruling at the time offers a definite military advantage In case of doubt whether an object which is normally dedicated to civilian purposes such as a place of worship a house or other dwelling or a school is being used to make an effective contribution to military action it shall be presumed not to be so used NATO CONFIDENTIAL E_N C LO_SUJ F to MCN- 7· ' -77 -·45- il D CONFIDENTIAL ARTICLE 52 - GENERAL PROTECTION OF CIVILIAN OBJECTS Interpretation 1 Paragraph 2 provides a wide ranging definition of militar7 bjectives limiting them only to those objects which by their own nature location purpose 2£ use make an effective contribution to military action Jmg whose total or partial destruction capture or neutralization in the circumstances ruling at the time offers a definite military advantage The range of military objectives thus defined is restricted only in 2 two senses 1- • that they make an effective contribution to military action - that attack on them offers a definite military advantage and The discretion to make those judgements in the circumstances ruling at the time is clearly one to be exercised by the commander launching the attack It is noted that the Allies have recorded in Geneva an understanding that commanders and others responsible for planning deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time That understanding provides the necessary military latitude 3 However the interpretation or the word limited could be the cause of some concern If a space meaning were attributed to the word this would impose restrictions on the use of certain weapons and on tactical employment of certain means which by their nature although directed at specific targets can affect rather large areas Such an interpretation could lead to bans or limitations to engagement of area targets by air forces artillery rockets missiles or naval fire to harassing and barrage artillery fire However read in conjunction with Articles 50 52 and 57 paragraph 2 iii it can only be interpreted as emphasing the care to be used in directing attacks only against military objectives NATO CONFIDENTIAL ENCLOSURE to tctii J 71 · -46 NATO CONFIDENTIAL 4o It is noted in this connection that in Geneva Allies have recorded an understanding thats A specific area of land may·be a military objective if because of its location or other reasons specified in Article 52p its total or partial destruction 9 capture or neutralization 9 in the circumstances ruling at the timep offers a definite military advantageo The first sentence of Article 52 paragraph 2 prohibits only such attacks as may be directed against non-military objectiveso It does not deal with the question of collateral damage caused by attacks directed against military objectiveso 5o Paragraph 3 deals with cases of doubt as to whether an object which is normally dedicated to civilian purposesi may be regarde as a military objectiveo It rules that if there is doubt whether an object e ogo a house or school is being to make an effective contribution to military action 0 it shall be presumed not to be so usedo For military purposes 0 would not necessarily mean occupation g for example enemy troops sheltering from direct fire behind a house or school would clearly be exploiting its existence and location for military purposes The building in question would therefore be liable to attack as a military objectiveo Although there will be occasions when it will be difficult for a commander to determine whether a civilian object is being used to make an effective contribution to military action in most such situations the object will by virtue of its locationp itself become a military objectiveo Military Observations 60 Bearing in mind the understanding on interpretation and application of this article to which Allies have subscribed and which they have placed on record in Geneva this article would not impose any significant operational restrictions Finding 7 Article 52 is militarily acceptable subject to the following interpretations being established s A specific area of land may be a nmilitary objective ifp because of its location or other reasons specified in Article 52 its total o NATO CONFIDENTIAL ENCLOSURE to MCM- 1' 1 1 · TO CONli'IDBBTllL Jr pa tial destructign capture or neutralisation in the circUJDatancea ruling at tht t time offers definite military advantage l• The first sentence of Paragraph 2 of Article 52 prohibits only such attacks as may be directed as inst non-military objectives It does not deal with the question of collateral damage caused by attacks directed against military objectives • Military commanders and others responsible for planning deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to thttm at the relevant time £• BATO COD'IDDTIAL BBCLOSUBB to MCM-76-77 -48- NATO CONFIDENTIAL ARTICLE 53 - PROTECTION OF CULTURAL O JECTS AND OF PLACES OF WORSHIP Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954P and of other relevant international instruments it is prohibited • to commit any acts of hostility directed a inst the historic monuments works of art or places of worship which constitute the cultural or spiritual heritage of peoples to use such objects in support of the military effort • to make such objects the object of reprisals NATO CONFIDENTIAL ENCLOSURE to MCM- 7t 77 ' -49- SATO CONFD ENTIAL ARTICLE 53 - PROTECTION OF CULTURAL OBJBCTS AND OF PL lCES OF WORSHIP Interpretation This article prohibits attack directed at cultural objects also prohibits use oE such objects in support of the military effort 1 It Military Observations It does not supersede for those States which are parties thereto the relevant provisions of the Hague Convention for the Protection of Cultural Property This recognises in Article 11 2 that the imperative military necessity may require attacks to be made on cultural objects and also provides in Article 11 1 that the immunity of the object is lost if it is used for milita ry purposes 2 Not every place of worship can be considered to be part of the spiritual heritage of mankind 4 This article is acceptable militarily to NATO provided the Allied statements of understanding recorded at Geneva are taken into account specifically that when the objects are used in support of the military effort they lose the special protection of this Article Finding 5• Article 53 is militarily acceptable subject to the following interpretation being established These objects will no longer be protected under this article if they are used for military purposes NATO CONFIDENTIAL · ENCLOSURE to RCM 1 1'f ' ·1 --50- NATO CONFIDENTIAL ARTICLE 54 1o - PROTECTION OF OBJECTS INDISPENSABLE TO TBE SURVIVAL OF THE CIVILIAN POPULATION Starvation of civilians as a method of warfare is prohibitedo 2o It is prohibited to attack 9 destroy remove or render useless objects indispensable to the survival or the civilian population such as foodstuffs 9 agricultural areas for the production of foodstuffs crops livestock drinking water installations and supplies and irrigation works for the specific purpos of denying them for their sustenance value to the civilian population or to the adverse Party whatever the motive whether in order to starve out civilians 9 to cause them to move away or for any other motive 3o The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used by an adverse Party - • as sustenance solely for the members of its armed forces or £• if not as sustenance then in direct support of military action provided 9 however that in no event shall actions against these objects be tak n which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movemento 4o These objects shall not be made the object of reprisalso 5o In recognition of the vital requirements of any Party to the conflict in the defence of its national territory against invasion 9 derogation from the prohibitions contained in paragraph 2 may be made by a Party to the conflict within such territory under its own control where required by imperative military necessityo NATO CONFIDENTIAL F Nn r omrn tn ·r1cr1 · r · -51- lUTc CONFIDENTIAL ARTICLE 54 - PROTECTION OF OBJECTS INDISPENSABLE TO THE SURVIVAL OF THE CIVILIAN POPULATION Interpretation 1 The intention behind this article is clear - to prohibit any military action which would destroy or intercept foodstuffs either in their ural or processed conditions for the purpose of denying them to the civilian p pulation for their sustenance value 2 The wording of the article however is such that it erodes and substantially qualifies that intention thus • at paragraph 2 - the use of the phrase for the specific purpose of denying them for their sustenance value to the civilian population would not inhibit attacks which damaged or intercepted foodstuffs provided that the purpose of the attack was not to deny them to the enemy Incidental damage to foodstuffs would therefore not be a violation of this rule It would be possible to attack a wheatfield for the purpose of denying cover to enemy military forces exceptions to the prohibitions are inserted at paragraph 3 to permit military action for the purpose of destroying damaging or inter _ cepting foodstuffs used as sustenance solely for the armed forces or in di_rect support of military action but such actions are forbidden when it may be expected to leave the civilian population with such inadequate food or water to cause its starvation or force its movement That rule for its proper application would entail consideration of a wide variety of factors food and water stocks alternative resources means of transportation etc on which a commander is likely to be inadequately informed This could lead to the breakdown of the rule NATO CONFIDENTIAL ENCLOSUBE to MCM 7 7-1' · -5'l- NATO CONFIDENTIAL 3o Paragraph 5 recognises that there may be occasions when imperative military necessity will require that a nation defending its national territory breach this ruleo Military Observations 4o In land warfarep Article 54 is unlikely to be seriously inhibitingo It would not prevent military action against military objectives even if incidentally '°objects ind ispensable to the survival of the civilian population were destroyed 9 removed or rendered uselesso The restraint imposed by this article on land warfare would be little or no more stringent than the rules and constraints effective at present for Allied forceso 5o The existing laws of naval blockade are not affected by this articleo However 9 the provisions of this article could invoke the need to permit transit of vessels carrying food for civilians to ensure their survivalo envisaged that 9 in these circumstances o It is g- the rulep to be effectivej would require supplementary measures to enable food carriers to travel freely under broadly the same conditions for identification and prevention of abuse as medical transport under Article 38p Second Geneva Convention and under Articles 22 and 23 of Protocol Io 2 o additionally 9 forcesp as a conditionj could require procedures on relief to be followed which call for assurances that supplies are not diverted for military purposeso Failing such measures 9 identification of food carriers would prove impossible and the rule would break down in practiceo 60 If suitable arrangements for identification of food carrying vessels could be madep and the freedom of transit of such vessels were honoured and conditions for distribution were accepted the rule could work to Allied advantage since the European nations of the Alliance are reliant large extent on importation of foodstuffs Finding 7o Article 54 is militarily acceptableo NATO CONFIDENTIAL ENCLOSURE to - '7 -- -53- - to a filO CONFIDENTIAL ARTICLE 55 - PROTECTION OF THE NATURAL ENVIRONMENT 1 Care shall be taken in warfare to protect the natural environment against widespread long-term and severe damage This protection includes a prohibition of the use of methods or means· of' warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population 2 Attacks against the natural environment by way of reprisals are prohibited NATO CONFIDENTIAL ENCLOSURE to ' McM- - 11 -54- NATO CONFIDENTIAL ARTICLE 55 - PROTECTION OF TBE NATURAL ENVIRONMENT Interpretation 1o Article 55 is essentially the samep in military termsp as paragraph 3 of Article 35 Basic Rules which contains the same basic prohibitiono Indeed 9 Article 55 was drafted before Article 35 3 which is a condensed version of Article 550 Article 55 contains three additional elements o care should be taken to protect the natural environment against widespread long-term and severe damageo _2o it adds to the wording of Article 35 paragraph 3 the phraseg11 o o o and thereby to prejudice the heal th or survival of the populationev -2 o of reprisalso It forbids attacks against the natural environment by way 2o The additional elements at 1 o and o abovep would not add to the restraints in military termso As for 1£o above it is clear from the negotiating record that the phrase was intended to qualify the obligation having the effect of permitting such attacks on the natural environment provided they do not prejudice the health or survival of the populationo 3o Neither Article 55 nor Article 35 paragraph 3 is intended to deal with weapons and techniques developed for the deliberate purpose of environmental modification They are covered in the Environmental Modification Treaty signed earlier in 19770 The terminology used is similar but there are important differences Military Observations 4o The military comment on the core of this article are the same as those adduced for Article 35 paragraph 3o Finding 5o Article 55 is militarily acceptable NATO CONFIDENTIAL ENCLOSURE to MCM- -77• · 5- NATO CONFIDENTIAL ml CLE 56 - PROTECTION OF WORKS AND INSTALLATIONS CONTAINING DANGEROUS FORCES Works or installations containing dangerous forces namely dams dykes and nuclear electrical generating stations shall not be made the object of attack even where these objects are military objectives if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population Other military objectives located at or in the vicinity 1 of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population 2 ceases- The special protection against attack provided by paragraph 1 shall • for a dam or a dyke only if it is used for other than its normal function and in ragular significant and direct support of military operations and if suoh attack is the only feasible way to terminate such support l• for a nuclear electrical generating station only if it provides electric power in regular significant and direct support of military operations and if such attack is the only feasible way to terminate such support for other military objectives located at or in the vicinity of these works or installations only if they are used in regular significant and direct support of military operations and if such attack is the only feasible way to terminate such support £• 3 In all cases the civilian population and individual civilians shall remain entitled to all the protection accorded them by international law including the protection of the precautionary measures provided for in Article 57 If the protection ceases and any of the works installations or · military objectives mentioned in paragraph 1 is attacked all practical precautions shall be taken to avoid the release of the dangerous forces 4• It is prohibited to make any of the works installations or military objectives mentioned in paragraph 1 the object o f reprisals NATO CONFIDENTIAL ENCLOSURE to MCM · -l _7 - NATO CONFIDENTIAL 5 The Parties to the conflict shall endeavour to avoid locating any military objectives in the vicinity of the works or installations mentioned in paragraph 1 Nevertheless installations erected for the sole purpose of defending the protected works or installations from attack are permissible and shall not themselves be made the object of attack provided that they are not used in hostilities except for defensive actions necessary to respond to attacks against the protected works or installations and that their armament is limited to weapons capable only of repelling hostile action against the protected works or installations 6 The High Contracting Parties and the Parties to the conflict are urged to conclude further agreements among themselves to provide additional protection for objects containing dangerous forces 7 In order to facilitate the identification of the objects protected by this article the Parties to the conflict may mark them with a special sign consisting of a group of three bright orange circles placed on the same axis as specified in Article 16 of Annex I to this Protocol The absence of such marking in no way relieves any Party to the conflict of its obligation under this article NATO CONFIDENTIAL ENC T OSTT 'R ttdJvi ' 7i -11 · NATO C'ONFIDENTIAL ARTICLE 56 PROTECTION OF WORKS AND INSTALLATIONS CONTAINING DANGEROUS FORCES Interpretation 1 The intent and wording of Article 56 are clear This is a new provision which protects dams dykes and nuclear generating stations if attacks on them may cause the release of dangerous forces and nsequent severe losses among the civilian population Such installations 9 legitimate military targets under present law would no longer be so in the conditions specified in the article Military Observations 2 The proscribed facilities dams dykes and nuclear electrical genera1 ing stations are 9 in generalp identifiable Dams and dykes are difficult to breach with conventional weapons and would only be rare occasional targets Nuclear power stations are still relatively rare and more frequent in the West than in the Warsaw Pact countries 3 It is considered that the prohibition in Article 56 would not be unduly inhibiting militarily Finding 4 Article 56 is militarily acceptable NATO CONFIDENTIAL ENCLOSURE to MOM _ 1-G -88 -5 a·• NATO CONFIDENTIAL PART IV PRECAUTIONARY MEASURES ARTICLE 57 - PRECAUTIONS IN ATTACK In the conduct of military operations constant care shall be taken to spare the civilian population civilians and civilian objects 1 2 With respect to attacks the following precautions shall be taken • Those who plan or decide upon an attack shall - i do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives w i thin1 the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of thie Protocol to attack them ii take all feasible precautions in the choice of means and methods of attack with a view to avoiding and in any event to minimising incidental loss of civilian life injury to civilians and damage to civilian objects refrain from deciding to launch any attack which may iii be expected to cause incidental loss of civilian life injury to civilians damage to civilian objects or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated • k• An attack shall be cancelled or suspended if it becomes apparent that the objective is not a military protection or that the attack may be expected civilian life injury to civilians damage to thereof which would be excessive in relation military advantage anticipated £• one or is subject to special to cause incidental loss of civilian objects or a combination to the concrete and direct Effective advance warning shall be given of attacks which may affect the civilian population unless circumstances do not permit filO CONFIDENTIAL ENCLOSURE to 11CM '1-7 -59- NATO CONFIDENTIAL 3 When a choice is possible between several military objectives for obtaining a similar military advantage the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects 1 4 In the conduct of military operations at sea or in the air each Party to the conflict shall in conformity with its rights and duties under the rules of international law applicable in armed conflict take all reasonable precautions to ·avoid losses of civilian lives and damage to civilian objects 5 No provision or this article may be construed as authorising any I attacks against the civilian population civilians or civilian objects NATO CONFIDENTIAL ENCLOS __to MCM- 7l 77 -60- NATO CONFIDENTIAL ARTICL 57 - PRECAUTIONS IN ATTACK Interpretation 1 This article is designed to afford the maximum protection for civilians and civilian objects c·dmpa tible iith ief f e' o ttv€i £ 11t11' ry i 1Hori 1a eainst mi l i'ta ry o·-b je ctives- J in the · plann tng···a'rld c fond ii ci t · o•f mil 1·t i ry '70'perations Military Observations Article 57 setting out precautions to be observed by military commanders in order to spare and minimise damage to the civilian population pivilians and civilian objects at first sight seems to place a number of restrictions on commanders which could be gravely inhibiting 2 3 However each of the clauses which could be so inpibiting and or militarily impracitica ble is qualified in such a way that the discretion of the commander is not eroded 4 Paragraphs 2 a i ii of the a±t cle require a commander to do everything feasible to ensure that targets are neither civilians or civilian objects and to choose means and methods of attack with a view to avoiding or in any event minimising loss or damage to civilians and civilian objects In that context Allies have placed on record an understanding that feasible refers to that which is practical or practically possible taking into account all circumstances at the time including those relevant to the success of military operations The use of the word feasible and the understanding recorded provide latitude for essential military judgement and action in combat 5 Similarly Clause 2 a iii and 2 b evoke the rule of proportionality - i e that damage to civilians should not be excessive in relation to the military advantage anticipated This enables the judeement to be exercised and the necessary action to be taken by the commander concerned rhis paragraph imposes no new obligations on commanders 6 The military requirements are further protected by additional understandings placed on record by Allies at Geneva viz NATO CONFIDENTIAL to MCM- H -11· OSURE 'I -61- NATO CONfIDENTIAL • Commanders and others responsible for planning deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time The reference in Articles 51 and 57 to military advantage anticipated from an attack are intended to refer to the advantage anticipated k• from an attack considered as a whole and not only from isolated or particular parts of that attack 7 This article bearing in mind the understandings cited above is not operationally inhibiting Finding a Article 57 is militarily acceptable subject to the following interpretations being established The word feasible in paragraph 2 of the Article and throughout Part IV of this Protocol means that which is practicable or practically possible taking into account all the circumstances ruling at the • time including those relevant to the success of military operations The rule of proportionality is defined as in Article 51 and Recommendation 1 to Article 51 namely the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the k• attack as a whole and not only from isolated or particular parts of the attack £• Decisions for attacks shall be based on information as defined in Article 51 and the understanding recorded at paragraph 14 in the Military Observations on Article 51 namely that military commanders and others responsible for planning deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time NATO CONFIDENTIAL ENCLOSURE to MCM- - ff -62-- NA l'O CONFIDENTIAL ARTICLE 58 - PRECAUTIONS AGAINST TBE EFFECTS OF ATTACKS The Parties to the conflict shall to the maximum extent feasible A• Without prejudice to Article 49 of the Fourth Convention endeavour to remove the civilian population individual civilians and civilian objects under their control from the vicinity of military objectives Avoid locating military objectives within or near densely populated areas • Take the other necessary precautions to protect the civilian population individual civilians and civilian objects under their control against the dangers resulting from military operations LATO CONFIDENTIAL • EllCLOSURE _to i mM- 7 b 77 NATO CONFIDENTIAL ARTICLE §8 - PRECAUTIONS AGAINST THE EFFECTS OF ATTACKS Interpretation 1 The intention behind this article is clear civilians to the extent practicable from military objectives to segregate Paragraph£• is a catch all embracing and reinforcing the other articles in Chapter IV aimed at protection of civilians and civilian objects Military Observations 2 It is noted that elsewhere a military objective is defined 1 as so far as objects are concerned as limited to those objects which by · their nature location purpose or use make an effective contribution to military action and whose total or partial destruction capture or neutralisation in the circumstances ruling at the time offers a definite military advantage That definition is comprehensive excluding no object which makes an effective contribution to enemy military action 3 Wars are fought in territories as they exist i e with no geographic distinction existing or in peacetime conditions possible between objects which make an effective contri bl tion to military actions and those which do not An armaments factory or fuel refinery for example unquestionably makes an effective contribution to military action but will be located because of the need for staff and logistic infrastructure support in an area populated by civilians It is not practicable to avoid locating such military objectives within or near densely populated areas if they were based in a wilderness they would create their own densely populated areas Similarly it would be odd at least if Governments were to endeavour to remove the civilian population and individual civilians from the vicinity of the armaments factory or refinery vital to the war effort which is their livelihood and their reason for being in the area which such removal would stop or slow down work making an effective perhaps vital contribution to military action and thus to survival of the state concerned 1 Such a removal is not feasible See Article 52 NATO CONFIDENTIAL ENCLOSTTR to MCM · - 1 · · -64- NATO -CONFIDENTIAL 4 Article 58 is apparently built on the assumption that it is possible to isolate or segregate some types of military objectives from centres of the civilian population and civilian objects - and that these two latter are by def inition not military objectives It may be feasible to accomplish some separation of military objective and concentration of civilians in such cases as prepositioned military stores or certain military installationsg whereas in other situations it is not feasible because civilian military facilities tend to be interwoven in any developed countryo If a state fails to accomplish •1ch feasible separations howeverg the only practical consequence is higher c-i vilian casualties in the event of armed conflict 5 The NATO-agreed stay-put-policy and the pre-planned intentional deployment of military facilities and installations positionsg command boats maintenance and supply depots could be regarded as being inconsistent with the requirements of Article 58 But realities in developed countries have to be taken into account this has been done by some Allied countries in the statement on feasible'io The requirement of Article 58g taking into account the afore-mentioned interpretation should not be read as an imperativep bu t rather _as an exhortation Article 58g thus interpreted would not impose any specific burden on military commanders The wording leaves sufficient flexibility for necessary military action Finding 6 Article 58 is militarily acceptable subject to the interpretation of the word feasible being established as in t ·m cCJll '1ci ezv S ilan d d 01 re e-oid·Ja at' Art 57 1 namely that which is practicable or practically poasible 0 taking into account hll the circumstances ruling at the time including those relevant to the success of military operations 1 See Article 57 Finding Paragraph 8 on page NATO CONFIDENTIAL ENCLOSURE to MCM 71 77 ' 6i NATO CO IDENTIAL CHAPTER V LOCALITIES AND ZONES UNDER SPECIAL PROTECTION ARTICLE 59 - 1 NON-DEFENDED LOCALITIES It is prohibited for the Parties to the conflict to attack by any whatsoever non-defended localities llll ans 2 The appropriate authorities of a Party to the conflict may declare as a non-defended locality any inhabited place near or in a zone where armed I forces are in contact which is open for occupation by an adverse Party ocality shall fulfil the following conditions Such a 1- • All combatants as well as mobile weapons and mobile military equipment must have been evacuated No hostile use shall be made of fixed military installations or establishments £• No acts of hostility shall be committed by the authorities or by the population and No activities in support of military operations shall be under- taken 3 The presence in this locality of persons specially protected under the Conventions and this Protocol and of olice forces retained for the sole purpose of mai taining law and order is no contrary to the conditions laid down in paragraph 2 4 The declaration made under paragraph 2 shall be addressed to the adver13e Party and shall define and describe as precisely as possible the limit13 of the non-defended locality The Party to the conflict to which the declaration is addressed shall acknowledge its receipt and shall treat the ilocality as a non-defended locality unless the conditions laid down in paragraph 2 are not in fact fulfilled in which event it shall immediately so inform the Party making the declaration Even if the conditions laid down in paragraph 2 NATO CONFIDENTIAL ENCLO§URR __ to l CM- ' - Tf -66- NATO CONFIDENTIAL are not fulfilled the locality shall continue to enjoy the protection provided by the other provisions of this Protocol and the other rules of international law applicable in armed conflict 5 The Parties to the conflict may agree on the establishment of nondefended localities even if such localities do not fulfil the conditions laid down in paragraph 2 The agreement should define and describe as precisely as possible the limits of the non-defended locality if necessary it may lay down the methods of supervision 6 The Party which agreement shall mark it so with the other Party which especially on its perimeter 7 is in control of a locality governed by such an far as possible by such signs as may be agreed upon shall be displayed where they are clearly visible and limits and on highways locality loses its statue as a non-defended locality when it ceases to fulfi l the conditions laid down in paragraph 2 or in the agreement referred to in paragraph 5 In such an eventuality the locality shall continue to enjoy the protection provided by the other provisions of this Protocol and the other rules of international law applicable in armed conflict A NATO CONFIDENTIAL ENCLOSURE to MCM-rb-77 -67- NATO tONFIDENTIAL ARTICLE 59 - NON-DEFENDED LOCALITIES Interpretation 1 Thie article clarifies and develops the existing law contained in Hague Regulations Article 25 2 If a n_on-defended locality were occupied by advancing forces the locality would cease to be a non-defended locality and would therefore be open to attack Military Observations 3 This article which clarifies the existing rules meets Allied military requirements Finding 4 •• Artie le 59 is acceptable militarily NATO CONFIDENTIAL ENCLOSURE to MCM-i '7G 77 · -68- NATO CONFIDENTIAL ARTICLE 60 1 - DEMILITARISED ZONES It is prohibited for the Parties to the conflict to extend their military operations to zones on which they have conferred by agreement the statue of demilitarised zone if such extension is contrary to the terms of this agreement 2 The agreement shall be an express agreement may be concluded verball or in writing either directly or through a Protecting Power or·any impartial humanitarian organisation and may consist of reciprocal and concordant declarations The agreement may be concluded in peacetime as well as after the outbreak of hostilities and should define and describe as precisely as possible the limits of the demilitarised zone and if necessary lay down the methods of supervision 3 The subject of such an agreement shall normally be any zone which fulfils the following conditions s • All combatants as well as mobile weapons and mobile military equipment must have been evacuated l• No hostile use shall be made of fixed· military installations or establishments No acts of hostility shall be committed by the authorities or by the population and £• S• Any activity linked to the military effort must have ceased The Parties-to the conflict shall agree upon the interpretation to be given to the condition laid down in sub-paragraph S• and upon persons to be admitted to the demilitarised zone other than those mentioned in paragraph 4 The presence in this zone of persons specially protected under the Conventions and this Protocol and of police forces retained for the sole purpose of maintaining law and order is not contrary to the conditions laid down in paragraph 3 5 The Party which is in control of such a zone shall mark it so far as noeeible b V- such signs as may be agreed upon with the other Party NATO CONFIDENTIAL ENCLOSURE to · CM ° -b • fC' 4 5 NAT0 CONFIDENTIAL which shall be displayed where they are clearly visible especially on its perimoter and limits and on highways 6 If the fighting draws near to a demilitarised zone and if the Parties to the conflict have so agreed none of them may use the zone for purposes related to the conduct of military operations or unilaterally revoke its s·tatus 7 If one of the Parties to the conflict commits a material breach of the provisions of paragraphs 3 or 6 the other Party shall be released from its obligations under the agreement conferring upon the zone the status of deJDilitarised zone In such an eventuality the zone loses its status but shall continue to enjoy the protection provided by the other provisions of this Protocol and the other rules of international law applicable in armed conflict NATO CONFIDENTIAL ENCLOSURE to MCM- 7 - 7 f -70 - NATO CONFIDENTIAL ARTICLE 60 - DEMILITARISED ZONES In terpre ta tion The purpose of this article as that of previous Article 59 concerning 1 non-defended localities is to provide immunity LtQ the population living in those localities and to preserve the localities themselves because of their intrinsic value 2 Legally the main differences between non-defended localities and demilitarised zones lies in the manner in which their respective status has to Namely be established - Non-defended localities are protected once their specific de facto non-defence situation is established the status of non-defended localities may be confirmed in an unopposed unilateral declaration l Demilitarised localities acquire their statue by virtue of express agreements Tne two categories of localities differ as regard site and purpose - 3 In matter of site a non-defended locality is near or in a • zone where armed forces are in contact v ile demilitarised zone may be anywhere since no specifications are contained in the article l In matter of purpose the institution of non-defended localities tends to protect them from tactical bombing or shelling while that of demilitarised zones tend to protect them against strategic bombing or shelling 4 The basic conditions to which the localities have to f'ulfil are common to the two categories but in regard of the activities for the non' defended localities no activities in support of military operations must be undertaken whereas for the demilitarised zones any activity linked to the military effort must have ceased 1 Military Observations 5 No military d i sad antages can be identified Finding 6 Article 60 is lmilitarily acceptable N ITIAL - -- ·-- ' ' I NATO CONFIDENTIAL ANNEX t to ENCLOSURE ·tQ iffcM ' J-l ·7'7 COMPENDIUM OF COMMENTS AND STATEMENTS OF UNDERSTANDING BY REPRESENTATIVES OF ALLIED NATIONS TO THE FOURTH SESSION OF THE DIPLOMATIC CONFERENCE ON THE REAFFIRMATION AND DEVELOPMENT OF INTERNATIONAL LAW APPLICABLE IN ARMED CONFLICTS RELEVANT TO MILITARY CONSIDERATION OF ARTICLES 35 - 60 OF ADDITIONAL PROTOCOL 1 TO THE GENEVA CONVENTIONS NOTE These comments and statements of understanding are extracted from the provisional record of the final plenary meetings of the Conference They do not therefore include statements of understanding made during the deliberations of Committee III which Committee developed the articles under review this Compendium should therefore be read in conjunction with the report of Committee III as necessaryo Further since the statements were extracted from the provisional record 9 they may not reflect the precise content or wording of the final recordo Nevertheless it is considered that the Compendium gives a summary sufficiently comprehensive and accurate of the interpretations given to articles currently under review by NATO Hq NATO CONFIDENTIAL ANNEX 1 to ENCLOStJ ro · · 't'o MCM- - 'l- ' i1t1 j This Annex is to be downgraded to NATO UNCLASSIFIED when detached from its Enclosureo -1- 'I'h is 1 m ex consfr k of j13 a g'es 0 ·NATO ·coNFIDEBTIA L COB'l'ENTS Statements by - Title Article 35 Basio llules GE UK 36 New Weapons FR IT UK 44 Combatants a nd Prisoners of War 45 Protection of Persons Who Have Taken Pa rt in Hostilities l3Ep IT 47 Mercenaries CA IT 0 NL PO 48 Basic Rule FR 50 Definition of Civilians and Civilian Population CA see also statements on Articles 51 52 57 by FR IT NL UK US 51 Protection of the Civilian Population CA 9 FR GE IT NL 9 TU UK 52 General Protection of Civilian Objects UK Protection of Culturai Objects and of Places of Worship UK CA DA FR 9 GE 9 IT NL 9 N0 9 PO TU UK 53 us CA FR GE IT NL us CA GEg IT NL us 55 Protection of Natural Environment CA 9 ftp IT 9 NL 57 Precautions in Attack FR GE IT 9 TU 58 Precautions Against the Effects of Attacks CA FR GE IT UK General Relating to the Protocol as a whole and inctudin g 1urulersdiandings and or comments on inter alia REPRISALS AND THE LIMITATION OF THE SCOPE OF PROTOCOL 1 TO CONVENTIONAL WARFARE NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to PlCM 7-_ 7-t -1A- FR • ·UK cUS 1 us NATO c·ONFIDENTIAL ARTICLJ J 35 - BASIC RULES OLD NUMBER 33 WRITTEN EXPLANATIONS OF VOTE FEDERAL REPUBLIC OF GERMANY ------·--------------------The delegation of the Federal Republic of Germany joined in the e'oneensue on Article 33 now 35 with the understanding that paragraphs 1 and 2 reaffiZ'm customary international law while paragraph 3 of this article is an important new contribution to the protection of the natural environment in times f international a rmed conflict Bearing in mind the special scope of application of Additional Protocol1 it is the understanding of the Federal Republic of Germany that the interpretation of the terms wide-spread long-term and severe has to be consistent with the general line of thought as it emerged from the deliberations on this article in Committee III as reflected in its report CDDH 215 Rev 1 In no caee should it be interpreted in the light of the respective terminology of other instruments of environmental protection that have a different scope of application altogether UNITED KINGDOM The United Kingdom joined in the consensus on Article 33 now 35 ln relation to paragraph 3 of this article however I wish to state as we stated on adoption of this article in Committee that we regard this paragraph as otioserepetition of Article 48 bis now 55 and would have preferred that paragraph 3 not be included in this article We consider that it is basically in order to protect the civilians living in the environment that the environment itself is to be protected against attack Hence the provision on protection of ho environment is in our view rightly placed in the section on protection of Now that Article 33 has been adopted with paragraph 3 we shall interpret that paragraph in the same way as Article 48 bie now 55 which in lrviliems our view is a fuller and more satisfactory formulation NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MGM no 1-T -2- NATO CONFIDENTIAL ARTICLE 36 - OLD NUMBER 34 NEW WEAPONS EXPLANATIONS OF VOTE ORAL EXPLANATIONS OF VOTE MR FREELAND UNITED KINGDOM said that his delegation was pleased to be abl join in the consensus on Article 34 now 36 He thought it appropriate to say on this occasion that in the past the provisions of international law had always been taken into account informally by his country during the process of weapons development and as a result no weapons were in service with the British ArmF Forces which would infringe international obligations on the design and use of weapons in armed conflict The codification and further development of international law in this field which would come out of the Additional Protocols had provided an opportunity for the codification of existing practice and his country was therefore in the process of establishing a formal review procedure to ensure that future weapons would meet the requirements of international law MR DI BERNARDO ITALY said that his delegation had joined in the consensus on Articles 33 now 35 and 34 now 36 bearing in mind above all the principles which inspired them It could not however conceal its perplexity about the wording of those provisions which could not be interpreted as introducing a specific prohibition operative in all circumstances attendant on the study development acquisition or adoption of particular weapons and methods of warfare MR PAOLINI FRANCE said that although the provisions of Article 34 now 36 had been drawn up for a humanitarian purpose they were by their nature connected with the general problem of disarmament His delegation had always maintained that the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts was not an appropriate forum for dealing with such problems That was why the French delegation although it bad not opposed the consensus on the adoption of Article 34 now 36 wanted to make it clear that it would have abstained if a vote had been taken NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to · MCM - 7ic 7qc -3- NATO CONFIDENTIAL ARTICLE 44 - OLD NUMBER COMBATANTS AND PRISONERS OF WAR 42 EXPLANATIONS OF VOTE ORAL EXPLANATIONS OF VOTE MRo VON MARSCHALL -e for Article FEDERAL REPUBLIC OF GERMANY said that his delegation had voted 42 now 44 at the fifty-fifth meeting of Committee III because from outset it had been convinced that guerrilla warfare should be firmly placed under the rules of international law it had never concealed however that it had serious misgivings lest some of the terms of the article might prove harmful the protection of the civilian population if guerrillas were not required to istinguish themselves sufficiently from the civilian population At the fiftieth meeting of Committee III on 8 June 1976 his delegation had made the following statement It the Federal Republic of Germany continued to be of the opinion that the basic aim of draft Protocol 1 namely the greatest possible protection of the civilian population could be endangered by paragraph 3 of the article His delegation had accordingly reserved its right to review its position 9 even in plenary if its doubts had not in the meantime been dispelled by an agreed understandingo From Committee III's report it appeared that the various delegations had largely succeeded in reaching agreement on the interpretation to be given to the provisions of Article 42 now 44 Even so some serious misgivings remained and as a result a fair number of delegations had felt compelled to abstain in the _nal votingo His delegation had also abstained and it wished that abstention to be understood as an appeal for further efforts to reach complete agreement on an interpretation of the article which would be fully in keeping with the basic aim of Protocol 1 namely the protection of the civilian population He would restrict himself to the foregoing remarks at that point but would submit explanations of vote in a more detailed form to the Secretariat in writing NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM- 7-tc-77 -4- NATO CONFIDENTIAL MR DI BERNARDO ITALY said that his delegation had abstained essentially because of the ambiguity of paragraphs 3 and 4 of Article 42 now 44 but considered that the article was not unacceptable in itself Paragraph 3 embodied and reaffirmed without amendment or derogation a basic rule of existing international law the need for combatants to distinguish themselves from the civilian population By its very nature the exception made to that rule in the same paragraph must be interpreted in a restrictive manner It was aimed at protect i ar members of resistance movements in so far as they came within the context of an· armed conflict between states With regard to the minimum conditions to be met his delegation noted with satisfaction the fact that the combatants concerned must carry their arms openly during each military engagement and during the military deployment preceding the launching of an attack That would of course include any movement of the military formation towards the place from which the attack was to be launched It was essential that the distinction principle should remain the basis of international humanitarian law because on respect for that principle depended the protection of the civilian population However his delegation would have preferred a more precise wording The text left itself open to unacceptable interpretations Furthermore paragraph 4 providing that combatants failing to meet the requirements set forth in paragraph 3 should nevertheless be given protections equivalent to those accorded to prisoners of war 9 obviously meant that such combatants lost their ight to be regarded as prisoners of war and could consequently be prosecuted and punished as non-protected belligerents while still benefiting from the other guarantees to which prisoners of war were entitled MR FREELAND UNITED KINGDOM said that his country had abstained in the vote on this article While the United Kingdom shared the desire to accord humanitarian protection as prisoners of war to a greater number of combatants it had to balance this against the need to maintain the protection given to the civilian populatia911 During the debate in Committee III his delegation had pointed out that in the case of guerrillas these considerations must of necessity be opposed to each other and NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM J t 77 -5- NATO CONFIDENTIAL that any failure to distinguish between combatants and civilians could only put the latter at risk Hie delegation had noted that this risk might well become unacceptable unless a satisfactory interpretation could be given to certain parts of the article The doubts of his delegation on these matters had not been 'resolved to an extent which would permit them to support the article In its explanation of vote at the Committee stage his delegation had described these doubts and points of particular concern He thought it necessary to restate now the main aspects of his delegation's interpretation of the article particularly relation to its paragraph 3 In the first place it was his delegation's understanding that the basic rule contained in the first sentence of that paragraph meant that combatants had to distinguish themselves throughout military operations in a clearly ltecognizable manner Secondly it appreciated from the second sentence that there will be situations in which a guerrilla fighter cannot so distinguish himself from the civilian population but it considered that these situations could exist only in occupied territory Thirdly it was concerned about the use in sub-paragraph b of the word deployment It must interpret this expression as meaning any movement towards a place from which an attack was to be launched Lastly his delegation wished to make it clear that combatants who failed to meet the requirements set out in paragraph 3 must be regarded as having forfeited their combatant status and may be tried and punished accordingly BELGIUM The Belgian delegation refers to the explanation of vote which it ve when Article 42 now 44 was adopted by Committee III FRANCE The French delegation voted in favour of Article 42 now 44 and refers to the explanation of vote which it gave in Committee III MRo BLOEMBERGEN NETHERLANDS said that his delegation had voted in favour of icle 42 now 44 despite a certain lack of clarity in the text It was glad to see the protection implied in combatant status extended to fighters who had That broadening of the scope of protection was hitherto been unprotected especially beneficial in situations such as might arise in ware of national NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MC'f 1 76 77 1 -6- NATO CONFIDENTIAL liberation Hie delegation hoped that the new beneficiaries of combatant statue would be prompted to comply with the requirements set forth in Article 42 now 44 thereby enhancing the protection of the civilian population against the effects of hostilities Article 42 now 44 thus perceived should improve the protection both of the legitimate combatant and of _the civilian population In all circumstances of course in which the distinction between combatants and the civilian population was weakened implementation of the article would be jeopardized The Netherlands delegation was convinced that the fundamental rule distinction between combatants and the civilian population had not been weakened by Article 42 now 44 it stressed however that the article should not be construed as entitling combatants to waive that distinction It understood the phrase military deployment in sub-paragraph b of paragraph 3 to mean any tactical movement towards a place from which the attack is to be launched MR SERUP DENMARK said that his delegation had abstained in the vote on Article 42 now 44 in Committee III because it ·had appeared unduly to blur the distinction between civilians and combatants which was of fundamental importance in building the structure of the two Protocols It had also felt that thetext was far from clear and that its practical applicability was open to serious doubt The Danish delegation was still concerned about the practicability of Article 42 now 44 as adopted but through intensive study and reflectionj it had reached a better understanding of the correct meaning and interpretation of the article Since Denmark had suffered the hardships of a military occupation it was understandable that the Danish delegation should focus on that aspect of the article which related to the treatment and status of members of resistance movements who had not been able to fulfil the often difficult conditions of distinguishing themselves from civilians and were then captured by the Occupying Power On that point his delegation felt that in comparison with the status resulting from an interpretation of Article 4 of the Third Geneva Convention the provisions of paragraphs 4 and 5 of Article 42 now 44 represented substantial progress F that reason it had been able to cast a poei ti ve vote· on Article 42 now 44 in the plenary meeting i NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to l ICM 7b 77 1- NATO C6NFIDENTIAL MR MARRIOTT CANADA said that his delegation regretted that it had had to abstain in the vote on Article 42 now 44 particularly in view of the importance of the problem It was concerned about the perhaps necessary vagueness of the language adopted in some paragraphs but hoped that time would make the meaning more precise Concerning the interpretation of the article it wished to state that the situations described in the second sentence of paragraph 3 could exist c ws y in occupied territory paragraph 4 of Protocol 1 or in armed conflicts as described in Article 1 2 that the phrase military deployment preceding the launching of an attack in paragraph 3 meant any movement towards a place from 3 that combatants who failed to meetJ the m l nimum requirements of the second sentence of para graph 3 forfeited their combatants status and might be tried and punished accordingly and 4 that which an attack was to be launched armed forces personnel attached to resistance mov mente in occupied territory were entitled to operate under the same rules as the embers of resistance movements MR ALEIXO PORTUGAL said that while welcoming the adoption of Article 42 now 44 which reflected new realities by granting prisoner of war status in the event of capture to combatants not belonging to regular armed ·forces his delegation had felt obliged to abstain in the vote because of its serious doubts with regard to the interpretation of the text Furthermore it questioned whether the protection of the civilian population was duly safeguarded Paragraph 3 appeared to embody a general rule and an exception with l gard to the general rule the con oept of a military operation preparatory to an attack was unclear and might cover a variety of situations moreover the description of the exceptional situations was ambiguous and his delegation doubted whether it was adequate to meet the innumerable practical problems which would arise There were two further imprecise concepts military deployment p-rA11eding the launching of an attack and in paragraph 5 by virtue of his _ r activities Such lack of clarity might be harmful for combatants in view of the variety of possible interpretations NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM- 7- o-77 -8- NATO CONFIDENTIAL His delegation considered that in order to ensure the protection of the civilian population• paragraph 3 should specify that combatants must clearly and unequivocally distinguish themselves from the civilian population by means of a distinctive sign It also considered that the exceptional rule in the second sentence of the paragraph did not ensure reasonable protection for the civilian population MR ALDRICH UNITED STATES said that he had not intended to make an oral explanation of his delegation's vote on Article 42 now 44 but that the a r t had been the subject of so much inflated rhetoric and had been so distorted that he felt compelled to state clearly the understand-ing of the United States Government His delegation supported Article 42 now 44 since it represented an important advance in the law and should improve the treatment of all memberE of the armed forces held prisoner by an adversary It would be possible to comply with the article fully without significantly reducing the protection of civilians and the civilian population The article conferred no protection on terrorists It did not authorize soldiers to conduct military operations while disguised as civilians However it did give members of the armed forces who were operating in occupied territory an incentive to distinguish themselves from the civilian population when preparing for and carrying out an attack The basic rule contained in the first sentence of paragraph 3 meant that throughout their military operations combatants must distinguish themselves in a clearly recognised manner Representatives who had stated or implied that the only rule on the subject was that set forth in the second sentence of paragraph 3 were wrong As regards the second sentence of paragraph 3 it was the understanding of his delegation that situations in which combatants could not distinguish themselves throughout their military operations could exist only in the exceptional circumstances of territory occupied by the adversary or in those armed conflicts described in Article 1 paragraph 4 of draft Protocol 1 In those situations a combatant who failed to distinguish himself from the civilian population though violating the law retained his combatant status if he lived up to the minimum requirements set forth in that sentence On the other hand the sentence was clearly designed to ensure that combatants while engaged in a military operation preparatory to an attack could not use their failure to distinguish themselves NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM-ft - -11 -9- NAT CONFIDENTIAL from civilians as an element of surprise in the attacko Combatants using their appearance as civilians in such circumstances in order to aid in the attack would forfeit their status as combatants That meant that they might be tried and punished for acts which would otherwise be considered lawful acts of combat That was justified because such combatants necessarily jeopardized the civilian population whom they were attempting to serve As regards the phrase military deployment preceding the launching of an attack in paragraph 3 his delegation understand it to mean any movement d s a place from which an attack was to be launched In its view combatants must distinguish themselves from civilians during the phase of the military operation which involved moving to the position from which the attack was to be ' launQhedo MR OYSAL A ticles TURKEY observed that his delegation had explained its views on 42 now 44 when it had been adopted in Committee IIIo At that time hil legation had voted in favour of the article although it did not fully meet Its expectations The problem was to find ways and means of providing maxi- m um protection for those who took part in hostilitiest including members of national liberation movements Turkey had always supported liberation movements that were duly recognized and was satisfied that such movements would benefit from the provisions of the article A combatant was under the strict obligation to meet the minimum requirements laid down in the article when he claimed that he was entitled to prisoner of war status hould he fail to do so he would forfeit his combatant status and would therefore not benefit from the provisions of the article MR LONGVA NORWAY stating that his delegation had voted for Article 42 now 44 in Committee III returned to the explanation of vote it had given at that time 42 now 44 was among those articles of draft Protocol 1 Articles 1 41 now 43 42 lli now 45 and 84 now In addition his delegation considered that Article 96 to which in accordance with the Vienna Convention on the Law of Treaties no_reservations could be made As far as the title of the article was concerned h_ aelegation would have preferred it to emphasize the most important element namely improvement in the protection of the civilian population NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM- 7 _ 77 · ' -10- NATO CONFIDENTIAL WRITTEN EXPLANATION FEDERAL REPU13LIC OF GERMANY ------- -----------When Article 42 now 44 was adopted in Committee III on 22 April 1977 the delegation of the Federal Republic of Germany voted in favour of this article because it was convinced from the outset that the practice of guerrilla warfare should be firmly placed under the rules of international law My delegation never did conceal however 9 that it had serious doubts whether some terms of this A-r--1 e might not prove harmful to the protection of the civilian population if guerrillas were not required to distinguish themselves sufficiently from the civilian population Already at the 50th meeting of Committee III on 8 June 1976 the delegation of the Federal Republic of Germany made the following statement The Federal Republic of Germany continued to be of the opinion that the basic aim of draft Protocol 1 namely the greatest possible protection of the civilian population could be endangered by paragraph 3 of the article CDDH III SR 5O paragraph 22 The delegation of the Federal Republic of Germany therefore reserved the right to review its position even in the plenary meeting if its doubts were not dispelled by an agreed understanding In our view such an agreed understanding is to be based on the following pre-conditions - 1 If paragraph 3 of Article 42 now 44 9 in the drafting of which this delegation took an active part 9 is to fulfil its important and necessary Puruose it has to be interpreted quite honestly and precisely in the light of the 6ustomary law rule of interpretation codified in Article 31 9 paragraph 1 of the Vienna Convention on the Law of Treaties 9 which prescribed that a treaty llall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose 2 Keeping strictly to this rule of interpretation the understanding of the Government of the Federal Republic of Germany concerning sevA-r provisions of Article 42 now 44 is the following gNATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to HCM- 7 7 7 ' -11- NAfO CONFIDENTIAL As to the introductory sentence of paragraph 3 the Report of Commi·tte e III on Article 42 now 44 already states that this sentence restates the generally recognised rule of distinction It is thereforep the understanding • df this delegation that the basic rule set forth in Article 42 now 44 paragraph 3 9 first sentence 9 that combatants are obliged to distinguish themselves from the civilian population means that these combatants have to distingui sh themselves in a clearly recognizable manner • However paragraph 3 second sentence takes adequately into 'IUlt the situations occuring in some modern types of international armed conflict I is theretf'ore the understanding of this delegation that paragraph 3 9 second sentencep applies only to exceptional situations such as those occurring in occupied i territories 0 The term deployment which was introduced by this delegation has caused the main difficulties of interpretation as being a specific military term It is therefore the understanding of this delegation that the £• phrase in paragraph 3 sub-paragraph b military deployment preceding the launching of an attack means any movement toward a place from wliich an attack is to be launched As far as paragraph 4 of Article 42 now 44 is concerned this delega tion is able to restate its position already declared at the Third Session of the Conference namely that neither the internal law nor the basic views of the Federal Republic of Germany with regard to the subject of paragraph 4 create any obstacle to the implementation of this provision in full application of the Third Geneva Convention of 1949 In our view the substance of paragraph 4 means ae t theThdrd Convention is and will remain the strict standard for the protection referred to in paragraph 4 of Article 42 now 44 Nevertheless combatants who fail to meet the minimum requirements of the second sentence of paragraph 3 forfeit_ the·ir combatants status and may be tried and punished accordingly We have been glad to see that the Report of Committee III reflects a high degree of agreement on such a common understanding of the provisions of •Article 42 now 44 · We also noted however that some serious doubts still e t and that a good number of delegations therefore felt compelled to abstain u -the finai voting on Article 42 now 44 This delegation has also abstained a d it wantt thi abstention to be understood as a signal for further and intensive ' 0 •o Q e f' f9rt -to reach an agreement on an interpret tio of this -article that ' i · -' ' • -· · · ·· · · ' · • ' a -Ily meets the re·quirements of the basic aim of Protocol 1 nameltr the - protection· of the civilian population I NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to lll 'im Ji I 16 i I- · M ' -12- NATO COD'IDUTL L ARTICLI 45 OLD NUIIBKR 42 PROBCTIOB or BB8QIS WJIO B lp IJlf PJ Pilf D HOSTILITIES is ORAL llPLillATIOHS OF VO'l'BS MR DI BERN ABDO ITALY 9 ob • ervins that Article 42 lli now 45 incorporated a text which his delegation had co-sponsored expressed satisfaction at the ·adopti of the article by consensus since it was of great importance in the development of humanitarian lawo BELGIUM welcomed the adoption of Article 42 J2 now 45 by consensuso It was at the time of a combatuit O • capture that the q·ueation of his status arose and it was the captor who would take the necessary decisiono Paragraph 2 of the article would provide con• iderable protection for the captured person in those circumatanceso MRe DE EREUCKER Paragraph 3 had the effect of a king the provisions of Article 5 of the Fourth Geneva Convention of 1949 lea• aevareo NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to · oN • itt 4wlt -13- NATO CONFIDENTIAL OLD NUM BER 42 qua er EXPLANATIONS OF VOTES ORAL EXPLANATIONS OF VOTES MRo MARR40TT CANADA 0 speaking in explanation of vote 9 welcomed the recogn tion by the N ge ian apr 5entative that mercenaries were entitled to the fundamental antees p v l®d in Artiole 650 Although hie delegation would have wished to see a n expl n c i t t-e ferel A 18 to Article 65 now 75 in Article 42 qua ter 9 now 47 P it con6idered that the absence of such a reference did not prejudice the application of A Jr -t i le 65 to mercena '181 io - MRo A JO PORTUGA1 0 speaking in explanation cf vote 9 said that his delegation conaidered that merc riee were adequa ely covered by Article 65 now 75 o MR' DI E H B il9rq TAL fy pea king in e x plaI1 ation of vote 9 said that hia ica egai io1a 'h U j@l ning in the consensusp felt that paragraph 2 was not altog ther s tiisfa- tc 'y 9 nee t t left s ime margin of discretion as to whether a person was a mer Je • lla r-y o r -rfto -8 ie cLslegation cci 1aider d that mercena rieep thc ugh not ent tled to pr h orher ei f wc x E ita t·Jla 9 we ce cove red by Article 65 now 75 9 which ccir b i ed th s fOCc dai r r d al safeg i ds to be given tc sll pe -sons not enjoying more 0 fa srr s b2 e · t s e tm r3nt O r aga1 lesa fJ-f the gra vi ty of the or me s wi -th which they r- £ gb t I i 3 cb arged a NETHER1 ANDS - c G •0 - The Nst ei - ands d laga tio m hae shared the consensus on Article 42 qua ter n© ir 4'7 9 motvithstandir g c 3 rtain misgh·ings about th a artic la o Ch c delegatio is convinced of the necessity of action being taken a ll st J n p i IBJi atei t e cUvi ty of merceD arieso ·wl ' fl t ¢On 1 Z a ring t r ia phis omenon it appears to us imperative to atta1c k ·th J r CJ •lem at tl i r ite 9 ioeo the practice of re ru itment of m roenarieso Th 8e mo r 11y mc dt ppal ling pra ct i cea should be impeded by effei tive legal miearir121rel Bv w-h z-t nrer c they cic rar 9 and their authCJra profi iecutedo TO CONFIDENTIAL rNEX i to rcLOS'JRE - ' N1' 'W · f' zg ·' -· NATO CONFIDENTIAL The present article iaeaks to ·tackle the problem not at its roots but at the etage wher e the mercenary is already in his field of operation 0 where it will be found extre ely difficult to take effective action against himo My delegation 'i pports these sff'ortso We are somewhat worried by the fact that in the list of criteria contained in ibis articlep the motivation of a person has baen brought into playo We should like to reiterate our position that the application of humanitarian law and the granting of humanitarian treatment should not be made dependent on some one s motivation for taking part in the arm• con flicto Moreosver 0 t he element of motivation will be dif'ficul t to 1 1- ta blish and coul•d give rise to r iore than one interpretationo Furthermorep the Netherlands delegation reiterates the applicability ta mercenary of the fundamental guarantees embodied in Article 42 J now 47 and 65 now 75 £ Protocol 1 0 which has been recognised by the Rapporteur of' Committee III in his report of the same Committee that was adopted by consensuso At this moment 0 I would ike t i expre1Bs my appreciation for the efforts of Ambassador Cla k of Nigeria in fi ding a c mpro ise solutiono We -have noted with satisfaction that Ambaseaior Claz k in his decl retions explicitly recognised the applicability of all f'u n dam e 'ltal rigtiitia to mercenar5 resD including those enshrined in Articles 42 biiB now 45 and 65 rww 75 of Pl 'oto ol 1 o We still regret 0 howeverD the absence o f ci peeifi c J Oefe enoe to the f'mid m en tal guarantees mentioned among the provisions of the article itselfo NATO CONFI ENTIAL filIEX 1 to ENCLOSURE to - · ·-·t i c 3 1____ ·• iAT0'1 'CONFIDENTIAL ilTICLE 48 m BASIC RULE OLD NUMBER 43 EXPLANATION OF VOTE ORAL EXPLANATION OF VOTES FRANCE mDa - Article 43 now 48 0 which enunciates the basic rule of Section I of Part IV con erned with the general protection of the civilian population against the effects of hostilities 0 is the first of a series of articles which 9 after the manner of those in Part III relating to methods and means of combat 9 goes outsj de the specific context of humanitarian law for regulating the laws of waro Although this article was drafted with a humanitarian purpose in view 9 it he a direct implications as regards a Stategs organietl tion and conduct of defence againet an invadere That is why the French delegation while not ha ving oppoe1ed · the consensus on the adoption of this article 9 wishes to make it clear that 9 if there had b en a vote 9 it would have abstained therefromo NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM 01 D ITT MBER 4 j d is th e vi w of the Car adian delegation that c ommander s and others ' 'S p c n ±J fa f r i'i 3 m n i tg 9 de i tting upon i r executing att ack3 necesea V ' - Ito r 5aoh d oirei or f on ·tlme ba8l5 o f the ir i£ii J 1 e' illl' 3e 6 U y b e ant 1alfte t them i E'liS8 SBil 62lt at of wba tever inform a tion from t O e relevant timeo Th is interpretation ca p p11erA toi t e wh Q Je o ' ' thla rei ee ti on o t' ' tk e Protocl including Arti clee 45 and 4T n QW 50 and 52 o Tb I 'C 'i f'1 I' B ir'c- 'Ln Ar·tlc l is 46 and 50 now 51 and 57 9 respecti·vely to n D 1 ta ' ' l a w·a t i ge m'fui' Gl pateiid frc i L an s ' taok are intended to refer to the ad ll' t aglf s Lt r Jya terd t Jm the t'tack e rms idered as a whole 9 and not only from UNITED S 'ATES OF AMERIJA J 1' • l - x C -l ' C 1 -- - • C lC u - i c -- 1- -Jo o N C Er T lll •j tJ'jt t•Bd Sta tes i' r ten explanation c DJJLW bex 5 i a l ' aJ pU s t n ew A rti 0 lae 2Q 0 51 N ths r landi io NATO CQNF DENTIAL ANNEX l tq ENO UJSURE i e 9_ -MCM · 6i if - 11 9 or vote on Article 52 and 580 57 BA O CONFIDENTIAL 'All CLE 51 PROTECTION OF THE CIVILIAN POPULATION OLD NUMBER 46 EXPLANATIONS OF VOTES EXPLANATIONS OF VOTES AOLINI FRANCE said that his delegation 9 while agreeing with the funda1mental purpose behind Article 46 now 51 9 felt that it went beyond the scope of humanitarian law and tended 9 in particularg to limit a nation 8 s right of self- de fenceo His delegation especially objected to paragraphs 4 5 and 6 whicb 0 in its opinion were too complex·i and likely to hamper defensive opera tions in y count oy o TURKEY said that paragraphs 4 and 5 were open to different interpretationso He therefore proposed that the Conference should vote on Article 46 now 5i paragraph by paragrapho MRo SOYSAL Tb Turk lsh pro1vosel was re jected by 36 votes to 19 8 with 34 abstentionso the reg-a eat of the epresentative o f France the vote on Article 46 now 51 wae ·taken by roll call 2 T 1 l is a _ h a vi ng been drawn by lot by the President n was called upon to vote u In fe vo· Tunisia Union of Soviet Socialist Republics 9 Uruguay Venezuela Yemen 0 Democratic Yemen 9 Yugoslavia 9 Saudi Arabiap Argentina 0 Australia 9 Austriap l3angladesh 0 Belgium Brazil Bulgaria 0 c nadap Chile 0 Cyprus 0 Ivory Coast 9 Cuba Denmark 0 Egypt 9 United Arab Emirates 9 Ecuador 0 Spain 0 United States 0£ America 9 Finlandp Ghana 9 Greece 0 Gua temala 0 Hondurasp Hwiga ry 9 India 0 NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE°to MCM- 7-b a 77 NATO CONFipENTfil Incl onesi a 9 Ir6 qp I ran 9 Ir eland 9 Israel 9 Libyan A ira'b JP mahi -r ·iya 0 JS n 3 ioa 0 lspan 0 Jordan 0 Kuwa i t 0 Le ·t a non O l il x embc• i rg 9 Mexi¢c 9 Mongolia 9 Mozambiq e P N iC'Jaragu a 9 Ni ta 9 N r w s y O New Zea land 9 Oman 0 'i Jg-d nda 9 Pakiaten 9 Pa nama 9 Netherlands 9 Pe ru 9 J hilippinee 9 Poland 9 Portuga 1 9 Qatar 9 Syrian Arab Republic 9 German Democratic Republicp Democratic People 0 s Republic of Korea 0 Socialist Republic of Viet Nam 9 ByelorJ s6ian Soviet Socialist Republic 9 Ukrainian Sc cr i et Sot ialist Rep· ll blio 9 United Rep ibl c c f Tanzania O Romania 9 United Kingdomp HoJ y 5ee 9 S-u M Q 51 Sri 1 i nk a 9 Swedenp Switzerland 0 Cze hosic ·lf·ci kl ao Against 0 0 France Tmks-y- 9 Za i re 0 Afghanl i itan 9 Alge ria 9 Federal Republic Abstaining cf Germany 9 Vr i•t d Rep'tiblic of Cameroon 9 Colombia 9 I·ta ly 9 Ksnya 0 Mad agascarp Ma lip Morooco 9 Monaco 9 Re 'll blic of Korea 0 Senegsl 9 Thailando Article 46 now 51 was adopted _ Y 77 viote a in favour 9 1 against and 16 ab rte n Ucm o MRo FREE1AN D UlUTED KINGDOM Article 46 now 51 o s s i d that h ie delegation had voted in favcn r of lt con ider ed that the first three paragraphs contained a valuable reaffirmation o f ezis-ting o·u stomaey ru les of international law designed to pr ·teot iv5 lie nso While it also welcomed the prohibition on indiscriminate atta cka contained in paragraph 4 9 it thou ght ·that the language of that paragraph was not entirely clearo His de agatio a considered that the definition of indisc imina te a tta cks 6on·ta i r ed iL 1 tr a t paragraph was not intended to mean that thera were means of ccm'ba t t he u ese of which would constitute an indiscriminate attack in all c i rc·m11etaneea o In cvt he i · words 9 the pa ra graph did not in its elf prohi'bi t the use of any spe©ific weapono Ratherp the paragraph took account of the fact that the lawful use o f means of combat depended upon the circumsta nceso O CONFIDENTIAL AN11EX ·1 to ENCLOSURE°to MCM 77 NATO CONFIDENTIAL His delegation considered that the reference in paragraph 5 b to what had become known ae the rule of proportionality was a useful codification of a concept which was rapidly becoming accepted by all States ae an important principle of international law relating to armed conflict Hie delegation considered that the reference in that sub-paragraph and in Article 50 now 57 to military advantage anticipated from an attack was intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack Finally he referred to a point which he considered would apply in relation both to this Article and to all the other Articles in this section of the Protocol Hie delegation welcomed all the provisions which were designed to protect civilians and civilian objects and which accordingly placed reetrai rite on military action However it was clear to his delegation that military commanders and others responsible for planning deciding upon or executing attacks necessarily had to reach decisions on the baeie of their aeeeeement of the information from all sources which were available to them at the relevant time MR DI BERNARDO ITALY said that hie delegation had abstained in the vote on Article 46 now 51 chiefly because of serious doubts about paragraphs 4 and 7 Its attitude to paragraph 4 related in particular to the vague language of eubparagraphe b and c in which the definitions of indiscriminate attacks could give rise to misunderstanding There was nothing in paragraph 4 to show that certain methods of means of combat were prohibited in all circumstances by the Protocol except where an explicit prohibition was established by international rules in force for the State concerned with regard to certain weapons or methods It was not intended that the Protocol should infringe upon the competence of other bodies better equipped to deal with the subject even from the technical view-point That interpretation was explicitly confirmed by Article 50 now 57 paragraph 2 a ii which referred to the necessity of taking all feasible precautions i e according to the circumstances in the choice of means and methods of attack with a view to avoiding and in any event o minimizing incidental lose of civilian life injury to civilians and damage to civilian objects NATO CONFIDENTIAL ANNEX 1 to ENC LO SURE to MCM- t -77 -20- NATO CONFIDENTIAL His delegation's attitude to Article 46 now 51 paragraph 7 wa based on the following considerations The prohibition on the use of the presence or movements of the civilian population to shield or attempt to shield military objectives from attack pre-supposed that the State in question had large areas of uninhabited territory at its disposal case That however was frequently not the There were a large number of states whose territory was densely populated even near its frontiers The provision could therefore in no case be interpreted as preventing or hindering a state that wished to do so from organising an effective system of defence That was a fundamental right which no Government could renounce The validity of that interpretation was largely confirmed by Article 51 now 58 sub-paragraph b which stated that the Parties to the conflict sho to the maximum extent feasible avoid locating military objectives within or near densely populated areas MR MARRIOTT CANADA said that his delegation's interpretation of the term indiscriminate attack was the same as that of the United Kingdom His delegation would submit a detailed statement in writing MR SOYSAL TURKEY said that the wording of paragraphs 4 and 5 of Article 46 now 51 were open to differing interpretations that could prejudice the application of the Protocol as a whole His delegation had therefore abstained in the vote on the article It nevertheless had a positive attitude towards the spirit of the article as a whole and towards its aim of protecting the civilian population MR SHELDOV BYELORUSSIAN SOVIET SOCIALIST REPUBLIC said that his delegation · had voted in favour of Article 46 now 51 which was one of the most important articles of the Protocol It would submit its further comments in writing MR MARSCHALL FEDERAL REPUBLIC OF GERMANY said that his delegation would submit its explanation of vote in writing MR BLOEMBERGEN NETHERLANDS said that it was his delegation's interpretation of Article 46 now 51 that the reference to the military advantage anticipa te1 I from an attack paragraph 5 b was intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular phases of that attack The same remarks applied to the similar reference in Article 50 now 57 NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM- - -77 -21- NATO CONFIDENTIAL 'EN EXPLANATIONS OF VOTES CANADA The Canadian delegation voted in favour of this article since in its view many of its provisions are codification of customary international law However the Canadian delegation also feels that some other provisions could give rise to interpretations which in our view would be contrary to the interest and purpose of this article For that reason our delegation deems it a propriate to explain its interpretation The definition of indiscriminate attack contained in paragraph 4 of Article 46 now 51 is not intended to·mean that there are means of combat the use of which would constitute an indiscriminate attack in all circumstances It is our view that this definition takes account of the circumstances as evidenced by the examples listed in paragraph 5 to determine the legitimacy of the use of means of combat FEDERAL REP1IBLIC OF GERMANY The Federal Republic of Germany could not cast a positive vote on Article 46 now 51 of Protocol 1 because the wording of this article lends itself to possible misinterpretations We have not voted against the article however but were able to abstain for it is our understanding that the definition of indiscriminate attacks contained in paragraph 4 of Article 46 now 51 is not intended to mean that there are means of combat the use of which would constitute an indiscriminate attack in all circumstances I Rather the definition is intended to take account of the fact that the legality of the use of means of combat depends upon circumstances as shown by the examples listed in paragraph 5 Consequently the definition does not prohibit as indiscriminate any specific weapon MQreover the reference in paragraph 5 b to military advantage anticipated fro ni ··ruJ12a ttacfkoi1S a nterlded · ta · Jre fi' er ·to thB ·•aciva l tage· 1an t tci pa ted' i_ roni tae- t£'6tack cons±de r ecil Jas· · wlic·lefarid ·riot only from isolated or particular parts of that attack It is also the understanding of the Federal Republic of Germany that rrticle 46 now 51 paragraph 6 applies insofar as - according to the preceding paragraphs - the civilian population as well as individual civilians enjoy protection against military operations NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM- rt -7r • -22- NATO CONFIDENTIAL NETHERLANDS It is the interpretation of the Netherlands delegation that the references in Articles 46 now 51 and 50 now 57 to military advantage anticipated from an attack are intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular phases of that attack UNITED STATES OF AMERICA NOTE The United States written explanation of vote on Article 57 old number 50 also applies to new Articles 50 illLEVANT TO ARTICLE 46 21 52 and 58 Now 51 ARTICLE 74 now 85 of Protocol 1 FRANCE Although not opposed to the consensus the French delegation wishes to state that had there been a vote on Article 74 now 85 it would have abstained It cannot support sub-paragraph b of paragraph 3 of Article 74 now 85 When the Conference was considering Article 46 which we were against we stressed the ambiguity of the definition of indiscriminate attacks The French delegation cannot agree to having military actions that ar a so ill defined regarded as grave breaches and according to paragraph 5 as war- crimes In the circumstances it could not but oppose paragraph 3 b With regard to the provisions of aragraph 4 we think that the grave breaches covered by points a b and c should normally be subject to the same legal conditions as those stated in paragraph 3 that is to say that to be regarded as grave breaches they should cause death or serious injury to body or health This interpretation alone makes it possible to preserve the necessary uniformity of the law on the grave breaches covered by Article 74 now 85 which are similar in kind NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM- l _ -77 -23- NATO CONFIDENTIAL ARTICLE 52 - GENERAL PRO'lJCTiOM OF CIVILIAN OBJECTS OJ aD JTIJMBER 47 EXPLANATION OF VOTES ORAL EXPLANATIONS OF VOTES At the request of MR PAOLINI FRANCE the PRESIDENT put Article 47 now 52 to the vote Article 47 now 52 was adopted by 79 votee to none with 7 abstentions MR PAOLINI FRANCE referring to the stipulation in the first sentence of paragraph 2 of Article 47 now 52 that attacks shall be strictly limited to military objectives said that as his d le8'tion had already indicated in connection with Article 46 there were mant situations in armed conflicts in which it was difficult or even impossible to determitte precisely the limits of a military objective particularly in large tbwna and in forest areas in either of which enemy armed forces and groups of civilians might be intermingled Hie delegation was therefore unable to accept such a restriction which by the strictness of its terms could seriously prejudice the exercise of the legitimate right of self-defence and it had therefore been obliged to abstain in the vote MR DI BERNARDO ITALY said that his delegation had voted in favour of Article 47 now 52 but wished to emphasise that its interpretation of the first sentence of paragraph 2 was the same as the interpretation it bad adopted tor the similar provision in Article 46 now 51 MR AKKERMAN NETHERLANDS said his delegation would aubmit written atatement on Article 47 now 52 MR 1 FREELAND UNITED KINGDOM said that his delegation bad voted in favour of Article 47 now 52 It was glad to see the partial definition of military objective which is contained in it It appeared to his delegation to provide NATO CONFI»ENTIAL j to ENCLOSURE to MCM- - ° 1-lo-77 ANNEX -24- NATO CONFIDENTIAL a needed clarification of the law It noted in particular that a specific area of land may be a military objective if because of its location or other reason specified in the article its total or partial destruction capture or neutralisation in the circumstances ruling at the time offered a definite military advantage His delegation also welcomed the reaffirmation in paragraph two of the customary law rule that civilian objects must not be the direc't object of attack It did not however interpret this paragraph as dealing with the question of incidental damage caused by attacks directed against military ob aitives In its view the object of the first sentence of paragraph two was to pro- hibit only such attacks as may be directed against non-military objectives MR 9 MARRIOTT CANADA MR ALDRICH UNITED STATES OF AMERICA and MR MAHONY AUSTRALIA said that their delegations would submit written statements on the article WRITTEN EXPLANATIONS OF VOTES CANADA In the view of the Canadian delegation a specific area· of land may also be a military objective if because of its location or other reasons specified in Article 47 now 52 its total or partial destruction capture or neutralisation in the circumstances ruling at the time offers a definite military advantage It is also our understanding that the first sentence of paragraph 2 prohibits only attacks that could be directed against non-military objectives It does not deal with the result of a legitimate attack on military objectives and incidental damage that such attacks may cause FEDERAL REPUJ3LIC OF GERMANY The Federal Republic of Germany has been able to vote in favour of Article 47 now 52 of Protocol 1 because it is our understanding that a spe-ic area of land may be a military objective if because of its location or other reasons specified in Article 47 now 52 its total or partial destruction capture or neutralisation in the circumstances ruling at the time offers a definite military advantage NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM- i -77 -25- NATO· CONFIDENTIAL The first sentence of Article 47 now 52 paragraph 2 is a re-statement of the basic rule contained in Article 43 now 48 namely that the Parties to a conflict shall direct their operations only against military objectiveso It does not deal with the question of collateral damage caused by attacks directed asainst military objec ives FRANCE The first sentence of paragraph 2 of Article 47 now 52 lays down that vcatta ks eball be strictly limited to military objectiveegu o The French delegation 0 as it has already pointed out in·the case of Article 46 no'ii 51 9 draws attention to the fact that in a good many situations of armed conflict it would be very difficult if not impoesiblep especially in large towns er wooded areae 9 either of which might harbour indiscriminately enemy military forces and groups of civilians more or lees closely mixed togethero It is therefore unable to accept such a prohibition which 9 owing to its categorical terme 0 is likely to be seriously prejudicial to the exercise of the r atural right of legitimate defence 9 and has consequently been obliged to abstain f rom otingo NETHERLANDS With regard to Article 47 now 52 9 the Netherlands delegation inter- prets this article to mean that a specific area of land may be a military obje - tive if 9 because of its location or other reasons specified _in Article 47 now 52 its total or- parti l__ i ° i- f 9-tJ J5 e 4 ' J 1 1 LJ f 9 in the cirie llllstanoes ruling at the time 9 offers a definite military advantageo Furthermore 0 it is the view of the Netherlands delegation that the first sen tence of Article 47 nOiw 52 paragraph 2 prohibits only such attacks as may be direoted against non-military objectives and consequently does not deal with the question of collateral damage caused by attacks directed a inst military objeotiveso I Q Q Arti@lie 47 now 52 is a significant· ·and important development in the hWll'anit risn law applicable in armed conflicto The distinction between civilian ob j sots and military objecti ves will be made easier to identify and NATO CONFIDENTIAL ANNEX 'i to ENCLCISURE to ·MCM ••71 - _Tl · NATO CONFIDENTIAL recognise In that regard it is the understanding of the United States that a specific area of land may be a military objective if because of its location or other reasons specified in Article 47 now 52 its total or partial destruction capture or neutralisation in the circumstances ruling at the time offers a definite military advantage The first sentence of Article 47 now 52 paragraph 2 prohibits only such attacks as may be directed against non-military objectives It does not deal with the question of collateral damage caused by attacks directed agains military objectives NOTE The US written explanation of vote on Article 57 old number 50 also applies to new Articles 50 51 NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM-7t-77 and 58 -27- NATO CONFIDENTIAL ARTICLE 55 - PROTECTION OF CULTURAL OBJECTS AND OF PLACES OF WORSHIP OLD NUMBER 47 bis WRITTEN EXPLANATIONS OF VOTES CANADA ----In the view of the Ca nadianr deieiikatiort ' -bhis' a ift1ri'lte •'W nht intA'ndP d to replace i ne ex1si 1ng_ customary law tlrohibitions refleeted -fn' -A Fti -1 1907 Hague Regulations Reepec'tJ W ' i ne uawe 7 nf' the ano ·cuetome of'· Wa ±t'nh'LAnn n-rnt 'fcting a variety of cultural and religious ob- ieots Rather the· rtlcfe ' 11tablish e a special protection for a 11m1 ted qla es or ob 1ects which because· · of their · recognised importance constitute a 'Dart·of the cultural herita a-e n£ ma nkind We were happy to note that the 'article wa 'e ma de ''without nreiudir A '·· t n he provisions of the Hague Conventions for•the Protect e n f CulturS l Property thereby implicitly recognising the exceptions provided for in that convention FEDERAL REPUl3LIC OF GERMANY -------------------------- It is the understanding of the Fed i ai R_epubli ·of Gerriu i ny_ that Article 47 bis now 53 establishes a special proteriti-0n tor a limited class of objects ' _ - which in the particular circumstances cone ti tut · a na rt of the• cultural or spiritual heritage of mankind Such objects remain proteclied whether or not they have been re stored The illegal use of these o bjects for military purposes however will cause them to lose the protection provided for in Article 47 bis now 53 as a result of attacks which are to be directed again et such military uses In such a case the protected object become a military objective It is further the understanding ot th Federal Rep-ab ic Qf Germany that Article 47 lli now 53 was not ·intended to npiace the x i_sti ne customary law prohi bi tione reflected in Article_ 27 of the 1907 Hague R guia tions Respecting he Lawe and Customs of War on Land protecting a variety of cultural and religious objects The understanding of the Federal Republic 0£ GeTmany concerning Article 47 lli now 53 is limit d to thi Protocol and does no ajfect any obligations under the Hague Convention for the Protection of Cuitural Property of 14 May 1954 NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MGM- i 1b -11 · NATO CONFIDENTIAL I'rALY The Italian delegation has the honour of being or-e of the sponsors of the amendment proposed by a number of countries to Article 47 bis now 53 and it therefore welcomes the adoption of that amendment and of the article as thus amended as a whole My delegation wished to emphasise throughout the various se sions of the Conference the very keen interest it takes in the problem of the protection of cultural objects and of places of worship The article we have adopted is a most useful addition to the system of guarantees introduced by the Hague Convention of 14 May 1954 and it embodies principles that are of fundamental importance to my country The desire to ensure for nations the preservation and enjoyment of the historic monuments works of art and places of worship which constitute their common cultural or spiritual heritage is in line with the universally shared aim of safeguarding for human beings in situations of armed conflict not only their own physical safety but also respect for and preservation of those expressions and evidences of civilisation which are the foundation of all intellectual and moral progress NETHERLANDS ----------Article 47 bis now 53 established a special protection for a limited class of objects which because of their recognised importance constitute a part of the cultural heritage of mankind It is our understanding that the illegal use of these historical objects for military purposes will cause them to lose effective protection as a result of attacks directed against such military uses UNITED KINGDOM My delegation has joined in the consensus on this article as amended by document CDDH 412 Rev 1 We note particularly the use of the expression spiritual heritage which qualifies the reference to places of worship and makes it obvious that the protection given by this article extends only to those places of worship which do constitute such spiritual heritage Many holy places are thus covered but it is clear to my delegation that the article is not intended to apply to all places of worship without exception NATO CONFIDENTIAL to ENCLOSURE to ANNEX 1 MCM- ' t -77 -29- NATO CONFIDENTIAL Secondly my delegation does not understand this article as being intended to replace the existing customary law prohibitions reflected in Article 27 of the 1907 Hague Regulations which protect a variety of cultural and religious objects Rather this article establishes a special protection for a limited class of objects which because of their recognised importance constitute a part of the heritage of mankind It is the understanding of my delegation that if these objects are unlawfully used for military purposes they will thereby lose effective protection as a result of attacks directed against such unlawful military uses UNITED STATES OF AMERICA ------------ ---------- We are pleased to see that the nations represented at this Conference so overwhelmingly endorse and support a special recognition for objects of cultural or spiritual heritage of mankind It is the understanding of the United States that this article was not intended to replace the existing customary law prohibitions reflected in Article 27 of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land protecting a variety of cultural and religious objects Rather the article establishes a special protection for a limited class of objects which because of their recognised importance constitute a part of the special heritage of mankind Other monuments works of art or places of worship which are not so recognised nonetheless represent objects normally dedicated for civilian purposes and are therefore presumptively protected as civilian objects in accordance with the provisions of Article 47 now 52 We note that the use of these objects in support of the military effort is a violation of this article Should they be used in support of the military effort it is our clear understanding that these objects will lose the special protection of this article NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM- -77 -30- NATO CONFIDENTIAL ARTICLE 55 - PROTECTION OF NATURAL ENVIRONMENT OLD NUMBER 48 bis EXPLANATION OF VOTES ORAL EXPLANATIONS OF Vt TES MR DI BERNARDO ITALY said that hie delegation would be glad to join in a consensus on the adopt Lon of Article 48 fil now 55 The article marked a big step forward in the protection of the natural environment in the event of international armed conflict In view of the specific aims and the scope of application of Additional Protocol 1 he thought that the adjectives widespread long-term and severe qualifying damage should be interpreted MR MARRIOTT CANADA and MR ALDRICH UNITED STATES OF AMERICA said that their delegations would eubm i t their comments in writing MR BLOEMBERGEN NETHEHLANDS stressed that Article 47 E now 53 provided special protection for a limited category of objects which by virtue of their generally recognised iD1portance constituted part of the cultural or spiritual heritage of mankind WRITTEN EXPLANATIONS OJ' VOTES FRANCE Article 48 bj now 55 concerning the protection of the natural environment lays down rules for the conduct of war As such it has direct implications for the oJ ganisation and management of a country's military defence against invasion The French delegation aware that the article was drafted with a humanitarian aim which it shares did not oppose the consensus on the adoption of the article but wishes it to be known that had there been a vote it would have abstained NATO CONFIDENTIAL ANNEX 1 to NCLOSURE to MCM- ' U-77 -31- NA O CONFIDENTIAL ARTICLE 57 - OLD NUMBER 50 PRECAUTIONS IN ATTACK EXPLANATIONS OF VOTES ORAL EXPLANATIONS OF VOTES MR PAOLINI FRANCE said that his delegation fully endorsed the overall humanitarian aim of Article 50 now 57 which sought to reduce the effects of military operations on the civilian population as far as practicable However paragraph 2 of Article 50 now 57 like the provisions of Article 46 now 51 on indiscriminate attacks was open to restrictive interpretations likely to hinder the exercise of the natural right of self-defence unable to join a consensus on the article His delegation was therefore Replying to the President he asked that Article put to a vote Article 50 now 57 was adopted by 90 50 now 57 should be votes to none with 4 abstentions MR SOYSAL TURKEY said that as far as his delegation was concerned the word feasible in Article 50 now 57 and other articles should be interpreted in the light of all the factors present at a particular time and specifically those relating to the success of military operations WRITTEN EXPLANATIONS OF VOTES FEDERAL REPUl3LIC OF GERMANY --------------------------· The Federal Republic of Germany has voted in favour of Article 50 now 57 of Protocol 1 on the understanding that commanders and others responsible for planning deciding upon or executing an attack necessarily have to reach 1decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time NATO CONFIDENTIAL to ENCLOSURE to ANNEX 1 MCM- _ 77 -32- NATO CONFIDENTIAL Furthermo re it is our understanding that the reference to military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of' that attack Finally 'W3 interpret the word feasible as meaning what is practicable or practically possible taking into account all circumstances at the time including those relevant to the success of military operations As to the Legal quality of Article 50 now 57 on which one delegation has comme1ted the Federal Republic of Germany holds the view that this article is a rule applicable in international armed conflicts and therefore is in no way connect d with the question of aggression the prohibition of which is a problem of the aw of prevention of war ITALY The Italian delegation voted for Article 50 now 57 because it appreciated the impo tance from the standpoint of humanitarian law of a provision that impos lS the obligation of taking serious precautions in attack in order to spare civil ans and civilian objects to the greatest possible extent Despite pri· iseworthy intentions Article 50 now 57 being a compromise text is ' eficient in clarity because of its generally vague wording As to the i valuation of the military advantage expected from an attack referred to in sub-p ragraph 2 a iii the Italian delegation wishes to point out that that expectfd advantage should be seen in relation to the attack as a whole and not in reJ ation to each action regarded separately In several places Article 50 now 57 speaks of taking all feasible precautions This tErm is basic to the whole structure of Article 50 now 57 It indicates that the obligations it imposes are conditional on the actual circumstances really allowing the proposed precautions to be taken on the basis of the available infc rmation and the imperative needs of national defence I would like to emphasize that all the foregoing comments relate to all the articles in the section of the Protocol concerned in particular Article 46 now 51 as regards the military advantage expected and Articles 46 now 51 and 51 now 58 as regards the meaning of the word feasible NATO CONFIDENTIAL ANNEX 1 to ENC LO SURE to MCM- 7-€ -77 -33- NA'ro CONFIDENTIAL IT I'EN EXPLANATIONS OF VOTES UNITED STATES OF AMERICA -- ---------------It is the view of the United States that Article 50 now 57 represents a major step in the reaffirmation and development of humanitarian law applicable in armed conflict Not only does it codify for the first time the rule of proportionality but it also gives to military commanders uniformly recognised guidance on this responsibility to civilians and the civilian population in carrying out attacks against military objectives Commanders and others responsible for planning deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time Thie of course is appropriate for the entire section including Articles45 now 50 and 47 now 52 The reference in Articles 46 now 51 and 50 now 57 to military advantage anticipated from an attack are intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of that attack It is the understanding of the United States ·that the word feasible when used in this Protocol for example in Articles 50 now 57 and 51 now 58 refers to that which is practicable or practically possible taking into account all circumstances at the time including those relevant to the success of military operations NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM- 7t 77 -34- NATO CONFIDENTIAL ARTICLE 58 - PRECAU'I1IONS AGAINST THE EFFECTS OF ATTACKS OLD NUMBER 51 EXPLANATIONS OF VOTES ORAL EXPLANATIONS O F ' MR PAOLINI FRANCE said that Article 51 now 58 relating to precautions against the effects o attacks had a humanitarian purpose - namely protection of the civilian populatit n - to which the French delegation subscribed particularly so far as sub-paragraphs a and c were concerned On the other hand he wished to express his keen sense of anxiety about the provisions contained in sub-paragraph b since provisions of that kind could not in practice be applied in all regions of the world having a high population density He wished to point out that the expression to the maximum extent feasible used in such provisions if they were to be applied in the concrete case of France could not really become operative given the distribution and density of the population unless it were accepted that French territory would not be defended That amounted to saying either that it was impossible to apply the provisions of sub-par- graph b or that such provisions if they were actually applied would preven• France from exercising its right of self-defence which was unacceptable In the circumstances his delegation would be unable to vote in favour of those provisions It could not therefore participate in the consensus and called for a vote to be taken At the reguost of the French delegation a vote was taken by show of hands on the ado_ption of Article Article NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM- --77 51 now 58 51 now 58 was adopted by -35- 80 votes to none with 8 abstentiQalh_ - NATO CONFIDENTIAL m _ 'REELAND UNITED KINGDOM unhesitatingly welcomed this article which was designed to reinforce the protection already given by earlier articles to civilians and civilian property In armed conflict however this protection could never be absolute and this fact was reflected in the article by the use of the expression to the maximum extent feasible His delegation interpreted the word feasible whenever it was used in the Protocol as referring to that which ispracticable or practically possible taking into account all circumstances at the time including those relevant to the success of military operations WRITTEN EXPLANATIONS OF VOTES CANADA It is the understanding of the Canadian delegation that the word feasible when used in this Protocol for example in Articles 50 now 57 and 51 now 58 refers to that which is practicable or practically possible taking into account all circumstances existing at the relevant time including those circumstances relevant to the uccess of military operations UNITED STATES OF AMERICA --------------------- The United States written explanation of vote on Article 57 old number 50 also applies to new Articles 50t 51 52 and 2§ _ • '· I ·• ' - ' - FEDERAL REPU SLIC OF GERMANY The Federal Republic of Germany bas voted in favour of Article 51 now 58 of Protocol 1 because it is our understanding that the word feasible refers to that which is practicable or practically possible taking into account all circumstances at the time including those relevant to the success of military operations ____ _J TALY The Italian delegation voted for Article 51 now 58 because it has the merit of indicating the precautions that each Party to the conflict should take aga inst the effects of attacks in order to reduce the dangers for the civilian population and civilian objects NATO CONFIDENTIAL ANNE X 1 to ENCLOSURE to MCM- - t-77 · -36- NATO CONFIDENTIAL The words to the maximum extent feasible at the beginning of the article in question however clearly show the real aim of this rule this is not a question of absolute obligations but on the contrary of precepts that should be followed if and to the extent that the particular circumstances permit This is particularly true of sub-paragraph b Avoid locating military objectives within or near densely populated areas Thus it is clear that a State with a densely populated territory could not allow that provision to hamper the organisation of its defence The right of self-defence against and of resistance to any aggression has overriding force It is thus unthinkable that the intention of Article 51 now 58 should be to place that right in jeopardy NATO CONFIDENTIAL ANNEX 1 to ENCLOSURE to MCM- 711 -11 -37- ANNEX 2 to ENCLOSURE to NATO CONFIDENTIAL ' JICI'-1- f - 77 STATEMENTS RELATING TO THE PROTOCOL AS A WHOLE AND CONTAINING UNDERSTANDINGS AND OR COMMENTS ON I INTER ALIA I REPRISALS AND THE LIMITATION OF 1 OP § J Ror pqgoL 1 TO CONVENTIONAL WARFARE 8F En consequence la delegation franfaiee tient a preciser tree nettement que eon gouvernement ne eaurait admettre en aucun cae que lee dispositions du pro·bC«J JLe 1 puieeent porter atteinte au droit naturel de legi time defense que la t arance entend exercer dane ea plenitude conformement l'article 51 de la charte iee Rations tlniee ni que lee dispositions de ce protoco1e puieeent lui interdire l'emploi d'aucune arme epecifique qu'elle juge neceeeaire a ea defense Le gouvernement fran aie a prie acte dee 1973 de ce que le CICR n'avait pas inclue dane ees projete une reglementation dee armee atomiqueso En participant l'elaboration dee dispositions des protocblee additionnele le gouvernement fran aie n'a done prie en consideration que lee conflits m mee avec dee armemente conventionnels Il tient par suite a marquer qu'il coneidere pour ea part que lee regles dee dits protocolee ne e'appliquent a pas lqemploi dee armes nucleaireeo Le gouvernement fran9aie rappelle a cette occasion qu'il a indique maintee reprises qu'il tait dispose a tudier avec lee a puissances directement concerneee et en vue de parvenir a un d sarmement general at contr316 lee problemes poses par l'existence dee armemente nucleairee UNITED KINGDOM ----------The Ad Hoc committee's work on weapons has of course been entirely concerned with conventional weapons It is clear to my delegation that this is also true of the work of the rest of the conference In plenary at the first session we expressed our concurrence in the view that the draft protocols were CONFIDENTIAL A@X g-to ENCLOSURE ·to CM fl r 7· -1- Thi1$ A -mieJ C i Q E _®wng raded to NATO UN0 4$SIFIED when detached from its Enclosure Thie Annex consists of 4 pages 1 NATO CONFIDENTIAL not intended to broach problems concerned with atomic bacteriological and chemical warfare Nothing in the 4 years work since then or in the texts themeelveep has caused us to depart from that view It therefore continues to be my government's understanding that the new rules introduced by the protocols are not intended to have any effect on and do not regulate or prohibit the use of nuclear or other non-conventional weapons Such questions are rightly the subject of agreement and of negotiations elsewhere UNITED STATES The United States welcomes the adoption of Protocol 1 We are satisfied that this Protocol represents a major advance in international humanitarian law an advance of which this Conference can be proudo We hope that it will be signed and ratified by all the States represented in this Conference The Delegation of the United States is particularly happy to welcome the inclusion in the Protocol of the provisions on the protection of medical aircraft which will for the first time give such aircraft significant immunity from attack We also welcome the articles designed to ensure accounting for those who are missing in action and the protection of the remains of the dead We believe the provisions on protecting powers although they fall short of our desires represent an improvement over the Geneva Conventions and will at least make it more difficult and embarrassing in the future for a State to refuse to permit external observation of how it treats its prisoners In this connection we welcome the clear statement in the preamble that no person protected by the Conventions or the Protocol can be denied these protections through charges of aggression and the statement in Article 44 that a soldier cannot be deprived of hie statue as a prisoner of war byallegations of war crimes History has shown unfortunately that protections such as these are needed The Delegation of the United States looks with satisfaction on a number of other important advances in the law made by this Protocol In particular we note the prohibition of indiscriminate attacks including target area bombardment in cities the clear and helpful definition of military objectives the prohibition of starvation of civilians as a method of warfare NATO CONFIDENTIAL ANNEX 2 to ENCLOSURE to _ _ Jl t - 2- MATO CONFIDENTIAL and of destruction of crops and food supplies and the special protection with reasonable exceptions accorded dams dikes and nuclear power stations My delegation believes the Conference can take satisfaction in having aohieved the first codification of the customary law rule of proportionality in having worked out a good definition of mercenaries that should not be open to abuse and in setting minimum humanitarian standards that must be accorded to anyone who is not entitled to better treatment During these plenary sessions we have already commented on a number of articles which beoause of compromise or vague language required clarification I shall not repeat those previous statements but there are a few remaining questions on which I wish to comment The problem of assuring compliance with the Conventions and the Protocol not only by individuals but also by governments i a- extraordinarily difficult In addition to the provision on protecting powers we welcome the emphasis placed on dissemination on the provision for legal advisors to the military forces and on the responsibility of commanders and others in authority to take steps to prevent violations These provisions will promote increased training for both civilians and the armed forces and such training is necessary to improve compliance with the law The structure of grave breaches established in the Conventions was taken over by the Protocol and enlarged upon We welcome the provision on grave breaches but in order to avoid possible misunderstanding we would emphasize that to constitute a grave breach an act must violate one or more substantive rules of the Protocol or the Conventions The provisions on responsibility and cooperation of governments are important for the reaffirmation of existing law However as between adversaries reciprocity and mutuality of interest remain perhaps the most powerful pressures for compliance of reprisals The Protocol has gone far to remove the deterrent This has been done for understandable and commendable reasons in view of past abuses However in the event of massive and continuing violations of the Conventions and the Protocol this series of prohibitions on reprisals may prove unworkable Massive and continuing attacks directed against a nation's civilian population could not be absorbed without a response in kind NATO CONFIDENTIAL ANNEX 2 to ENCLOSURE to MCM- 7-i -77 -3- By denying NATO CONFIDENTIAL the possibility of such a response and not offering any wor able substitute the Protocol is unrealistic and in that respect cannot be expected to withstand the test of future arrned conflicts As I mentioned earlier the Government of the United States considers that the Protocl is designed to afford the greatest possible protection to civilians and other victims of war during international armed conflict To that end it imposes a number of significant restraints on the use of means and methoda of warfare From the outset of the Conference it has been our understanding that the rules to be developed have been designed with a view to conventional weapons During the course of the Conference we did not discuss the use of nuclear weapons in warfare We recognise that nuclear weapons are the subject of separate negotiations and agreements and further that their use in warfare is governed by the present principles of international law It is the understanding of the United States that the rules established by this Protocol were not intended to have any effect on ·and do not regulate or prohibit the use of nuclear weapons We further believe that the problem of regulation of nuclear weapons remains an urgent challenge to all nations which must be dealt with in other forums and by other agreements NATO CONFIDENTIAL ANNEX 2 to ENCLOSURE· t o MCM- •-17 -4- NORTH ATLANTIC MILITARY COMMITTEE COMITEI MILITAIRE DE L'ATLANTIQUE1 NORD NATO RESTRICTED CORRIGENDUM to MCM-76-77 7 November 1977 CORRIGENDUM Q MCM-76-77 8 31 OCTOBER 1977 SUllJECTs Humanitarian Law - Review of Articles 35 - 60 of Protocol 1 Holders 0£ the above document are requested to make the following editorial amendments aP se 3 - Para 4 e Line Enclosure Page 3 Line 4 1 - Delete implication Substitute application - Delete difference Substitute differences Page 11 Para 1 Line Page NATO RESTRICTED CORRIGENDUM to MCM-76-77 27 Para 1 Line 5 -1- Delete as Substitute an Delete billigerent Substitute belligerent This document consists of 2 pages NATO RESTRICTED Page 27 Para 5 Line 4 - Delete permisaiible Substitute punishable Page 41 Para 7 Line 18 - Delete crutial Substitute crucial f-B CL_ hi eutenant General GEAR G OOJ Director International Military- Staff DISTRIBUTIONs As for basic document NATO RESTRICTED CORRIGENDUM to MCM-76-77 -2-