ASSISTANT SECRETARY OF DEFENSE WASHINGTON D C 20301 c j g 71 In reply refer to A1ONAL 1—12817 77 MEMORANLJM FOR THE CHAIRMAN OF THE JOINT CHiEFS OF STAFF SUBJECT Protocols I and II — Humanitarian Law during Armed Conflict The extensve DOD Working Group revw on Protocols and Ii relating development'of humanitarian law applicable to the reaffirmation and in armed conflicts has beei completed Copies of the analyses have been prc vided to the Joint Chlefs of Staff representative on the work— 1 ing group Attached is a State Department draft1 Circular 175 on the U S position it is requested that the Joint Chiefs of on signing the protocols Staff reviewand provide their views on the analyses and circular would ask that you address the following Specifically I Are there any objections from a military standpoint to 1riited States becoming a party to these Protocols '1 II so what should be inluded in the U S statement upon Is the State Department approach as outlined in the draft signing circular satisfactory in this respect 2 And what interpretations understandings or reservations should be proposed during the ratification process 3 The Swiss government plans a signing cermony for 1 2 December 1977 if we agree to the U S slgnature on the Protocols it in Geneva would be advantageous if we could be prepared to do so on that date i therefore request that you provide us with the vews of the Joint Chiefs of Staff by close of business on 2 December acc'mbe Wter Attachment a s Attached I ' jncpzl D uty s tant D c lnternatc uial Security SecretarY ffai rs £ - TO The Secretary FROM L — Herbert SUBJEC T Circular 175 Request for Authorization to Sign Two Protocols to the Geneva Conventions of 1949 for th Protection of Victims of War 1 Hansell ISSUE FOR DECISION In aöcordance with Department Circular 175 authorization is requeste to sign the two Protocols which have recently been negotiated to the Geneva Conventions of 1949 for t1ie protection of victims of war It is also requeste that you sign the Full Power at Tab A to permit nthassadors Vandenheuvel and AldrIch to sign the Potoco1s bn behalf of the United States HISTORY OF NEGOTIATIONS The Swiss Government s depositary of the 1949 Geneva Conventions convened in 1974 a diplomatic conference to consider two draft protocols to the Conventions which had been prepared by the Inter— national Committee of the Red Cross The Conference held four annual sessions and càncluded in June 1977 with the adoption of the texts of the two Protocols The Final Act of the Conference and the texts of the Protocols are at Tab B The Protocols will be opened for signature on December 12 1977 —2— DESCRIPTION OE THE PROTOCOLS The Protocols make significant advances in the protections accorded bi international victims of armed conflicts law to the Protocol I dealing with international armed conflicts corrects a number of deficiencies in the 1949 Conventions for example by providing a considerable immunity from attack to medical aircraft by improving the procedures for the appointment of protecting powers to oversee the implementation of the law nd by requiring accounting for persons missing in acticn and the return of the remains of the dead II deaiing with non- Prot9bol international armed conflidfs expands dramatically the law applicable to civil wars which at present is found largely in one article Article 3 common to the four Geneva Conventions of 1949 Protoáol II is concerned almost exclusively with the protection of basic human rights both of combatants and non— - combatants Perhaps as important as their positive contributions to the development of the lawis the fact that the Protocols do not contain any provisions that ' '1d' ' ZD 4acceptab1e P X P' 6 f'rM ' to the United be States Considering the relatively recent experience of the Vietnam War and the opportunity for propaganda offered by the negotia— tiön of the Protocols it is a cause for considerable 3— satisfaction that the international confereace systert was able to produce such a responsible result Significantly the only article that seems politically charged Article 1 of the first Protocol which defines armed conflicts to include wars of national liberation was one of the very few articles international adopted at the first session of the Conference in 1974 In subsequent sessions the Conference found itself more absorbed in its humanitarian tasks and less ternptedby the prospect of prbpagandt Moreover the extreme language of Article 1 which defines wars of national Iiberation in terms of domination occupation colonial and racist regimes is explicable not primarily as a propaganda exercise but rather as an effort by the developing countries to ensure that this provision has no application outside of the present armed conflicts by various liberation movements in Southern Africa and by the PLO in the Middle East RESERVATIONS AND UNDERSTANDINGS Although the United States does not need to make a final decision concerning any reservations or under— standings until the time for ratification it would be appropriate and probably desirable to state formally at the time of signature any reservations or under— standings which we are reasonably certain will be —4— required We have identified only two understardings that we should state at the ime of signature with respect to respect to protocol I and only one with Protocol ii These statements are at Tab C understanding The most important statement of that excepting nuclear weapons from the new rules established by the Protoco is arguably unnecessary the Conference as it states a position taken throughout the United by the representatives 0f he United States v-V 4-coritradicted by y repreKingdom and France and sentative n view of importance of clarity on th this question however an particularly in the liqht prohibit means of warfare of Articles 35 arid 55 which and severe damage likely to cause widespread long—term desirable to to the national environment it seems the time of make this understanding for the record at signature • dep1oyrnent The understanding concerning the term that the in Article 44 is necessitated by the facts protection of term is of critical importance for the meaning wasdisputed the civilian population and its article was adopted We must insist at the time the his enemy by that a guerilla who takes advantage of moving pretending to be an unarmed civilian while attack fofeits toward the position from which he is to prisoner of his status as a legitimate combatant and —5— war and may be tried and punished for any offenses he has committed Although moSt representatives who spoke to this question agreed with us a few inter- preted the term deployment so as to require the guerilla to distinguish himself from the civilian population only just before he begins his attack In view of this division of opinion our understanding should be clearly and formally stated The understanding concerning Protocol II to interpret certain terms as they are defined in Protocol I is tehnica1 and results merely from the deletion of a definitive article when Protocol II was compressed at the end of the Conference The Department of Defense concurs in these understandings but also recommends that consideration be given to one reservation to the first Protocol This proposed reservation the text of which is at Tab D would preserve the right of reprisal against an enemy's civilian population in the event of system— atic arid massive attacks against our civilian popula- tion inviola€ion of Article 51 of the first Protocol That article prohibits all attacks directed against the civilian population ecpressly including attacks by way of reprisal The Department of Defense believes that this prohibition is unrealistic and will not be —6— respected in practice TFe State Department and the Arms Control and Disarmament Agency agree with that conclusion but believe that a reservation by the United States on the point is neither necessary nor desirable State and ACDA believe that such a reserva— tion would be misconstruedi and misunderstood as a statement of intention to ttack civilian populations and to justify such attacks as reprisals Certainly it is true that those who have in the past violated the laws of war have often tried to justify their actions as legitimate reprisals The Protocol goes tho far in an effort to remove that justification but that excess does not compel us to make a reservation In view of our understanding concerning nuclear weapons it would b particularly difficult to explain why we of all nations found this reservation necessary In any event since we should limit our reservations and understandings at the time of signature to those almost certain to be required we can reconsider this question at any time prior to ratificationshouldit seem advisable to do so - CONGRSSiONAL CONSULTATIONS Interested members of Congress have participated as advisors to the United States Delegation to the Geneva Conference and have been kept informed of the —7- progress of negotiations but there have been no forxal hearings or consultations with the Congress Prior to signature we intend to Qffer briefings to the rrtembers and staff of the Senate Foreign Relations Committee We anticipate no significant Congressional objection to the two Protocols ALLIED CONSULTATION Consultation with our NATO allies has of course occurred throughout theegotiations A NATO Military Committee Study has recntly been completed which finds the Protocol acceptable from the military standpoint but stresses the needs • bound by the same rules for all'of the allies to be b for the rules not to affect the use of nuclear weapons - and Cc for certain anthiguous articles to be interpreted uniformly by all allies in ways we stated for the record during tha closing sessions of the Conference Further allied consultations will be held as appropriate to ensure a coherentapproachto both the timing of siqnature and ratification and to the substance and texts of any reservations understandings and interpretations RECOMMNDATIONS 1 That you approve signature of these two Protocols on behalf of the United States Approve _____________ Disapprove ____________ —8— 2 That you sign the Full Powers at Tab A AttaOhrnerits Tab A - Full Tab B — Final Powers Act and Protocols Tab C — Statements of Understanding Tab D - Proposed Resevation Tab E — Memorandum of Law Drafted L GHAldrich is Ext 28460 Concurrences LIT — Mr Rovine PM- H— I0DOD ACDA - 10 11 77 TabC PROPOSED UNDERSTANDINGS A Protocol I 1 It is the understanding of the United States of AitLerica 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 2 It is the understanding of the United States of America that the phrase military deployment preceding the launching of an attach in Article 44 paragraph 3 means any movement towards a place from which an attack is to be launched B Protocol II It is the understanding of the United States of America that the terms used in Part III of this Protocol which are the same as the terms defined in Article Xof Protocol I shall be construed in the sar sense as those definitions Alternativelyl It is the understanding of the United States of rnerica that the terms defined in Article 8 of Protocol I have the same meaning when they are used in Part III of Protocol II L GHlUdrich jS x28460 10 11 77 TabD PROPOSED RESERVATION TO PROTOCOL I Notwithstanding the provisions of Article 51 paragraph 6 the United States of Jinerica reserves the right in the event of massive and continuing attacks directed against the civilian population to take reprisals against he civilian population of the State perpetrating these illegal attacks for the sole purpose and only to the extent necessary to bring the illegal attacks to an end L GHAldrich js x28460 10 11 77 TabC PROPOSED UNDERSTANDINGS Protocol I A 1 It is the understanding of the United States of merica that the rules established by this Protocol were not intended to have any effect on and do not regulate or prohibit the ise of nuclear weapons 2 It is the understanding of the United States of America that the phrase military deployment preceding the launching of ai attach in Article 44 paragraph 3 means any mo'ement towards a place from which an attack is to be aunched Protocol II B It is the understanding of the United States of Zterica that the terms used in Part III of this Protocol which are the same as the terms defined in Article lof protocol I shall be construed in the sarte sense as those definitions Alternatively • It is the understanding of the United States of America that the terms defined in Article 8 of Protocol I have the same meaning when they are used in Part III of Protocol II L GHAldrich jS x28460 10 11 77 1EMOPANDUM OF LPW •The accompanying Circular 175 memorandum requests authority to sign two Protocols to the Geneva Convention of 1949 for the Protection of Victims of War These Pro— tocols will be treated as treaties for the purposes of U S domestic law They will be submitted to the Senate fr advice and consent to the United States ratification The legal authority fo the U S becoming a party to these Protocols is the treaty power of the Cónstitu— tiori Article II section 2 clause 2 We do not believe that ei ther signature or ratifica— tion of the ProtOcols by the United States would require an environmental impact statement as a 'major federal ac— ion significantly affecting the quality of the human en- within the meaning of the National Environraen— vironxent tal Protection Act NEPA Any effect on the environment would be incidental and highly speculative cours bad these for the environment War is of To the extent that Protocols moderate the use of armed force in the in- terests of humanity and as in Articles 35 and 55 of the first Protocol in the interest of theriational environ— rnent they tend An to protect the environment argument conceivably might be made that our pro- posed statement of understanding concerning nuclear weapons should require an environmental impact statement but we do not believe such an argument would be sound tocoL was The Pro— not intended to create newrul•esprdhibiting or —2— restxicting the use of nuclear weapons and a statement form-ally recording that fact scarcely qualifies as a major federal action Even if the statement were not made at the time of signature or at the tinie of ratification the Protocol would still not affect the use of nuclear wepons the purpose of the statement is simply to remdve anj am— biguity and prevent future arguments On the basis of the foregoing there is no legal objection to United States signature of the Protocols George H Aldrich Deputy Assistant Legal Adviser Cleared Drafted L T -Mr Rovine L OES RJBettaUerUflCP DEPARTMENT OF DEFENSE LAW OF WAR WORKING GROUP REVIEW AN ANALYSIS OF PROTOCOLS I AND II ADOPTED BY THE DIPLOMATIC CONFERENCE ON INTERNATIONAL HUMANITARIAN LAW 1977 PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 AND RELATING TO THE PROTECTION OF VICTIMS OF INTERNATIONAL ARMED CONFLICTS PROTOCOL I 1 TEXT OF ARTICLE AS ADOPTED Preamble The High Contractiig Parties 1 11 Proclaiming their earnest wish to see peace prevail among peoples 2 1 Recall that evey State has the duty in conforrrity with the Charter of the United Nations to refraii in its international rela— tions from the threat or use of force against the sovereignty terriorial integrity or political independence of an State or in any other manner in— consistent with th purposes of the United N tions 3 1 Believing it necessary nevertheless to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures i-ntended to •reinforce their application 4 Expressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimatizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of thetjnjted Nations 5 Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments without any adverse distinction based on the nature • • The bracketted numbers are not part of the text They are the paragraph numbers referred to in the paragraph by paragraph analysis infra 1 I—Preamble-i or origin of the armed conflict or on the causes espoused by or attributed to the Partip to thP 6 coi lict Have agreed on the following REFERENCES 2 a Protoco I Article 1 Paragraph 2 b Protocol I Article 1 Paragraph 4 c Protocol I Article 96 Paragraph 3 d Hague Convrtion No IV Preamb1' e United Nations Charter Article 2 Paragraph 4 f • g United Nations Definition of Aggression Protocol II Preamble RELATIO TO U S POSITION 3 • ThePreamble is consistent with the U S position An important change in the United Statèposition for the 1977 Conference was that the last paragraph of the draft ICRC Preamble theDe Martens clause hädto •be modified The reason for this was that the draft Preamble indicated that in cases not covered byconventional or customary international law the civilian population and combatants remained under he pfotection of the principles of humanity and the dictates of the p ublic conscience It was the U S position that under'customary law as reflected in the Preamble to the Hague Convention individuals do•not remain directly under the protection of factors such as public op nion The Hague Preamble refers to international law principles as they result from principles of humanity and the public consci2nce It was also the U S position that a De Martens clatse was alsd superfluous given the adoption of article 1 paragraph 2 byCommittee I at the first session of the Confereice This was remedied b the deletion of the equivalent Pteambl clause by Committee I In addition it was the U S position that it would highly desirable to contain a clause on non— iscrirnination in the treatment of in ividua1s based on —che causes espoused by the arty to which they belong This was also eventually ageed to by Comrziittee I I-Preamble-2 4 COMMTS a akground The preamble was negotiated in an informal working group consisting of delegates from Committees I and III The preamble was a provision under the purview of Committee I and was dealt with by Working Group C chaired by Justice Hussain of Pakistan Representatives from Algerja Yugoslavia Vietnam the Soviet Union Madagascar rance the German Democratic Republic the Federal Republic of Germany the United Kingdom and the United States were in the informal working group throughout its four or five sessions Mexico participated at the final meeting of the informal working Syria was i'nvited to participate at the final group Algeria chaired the informal nieeting but not attend working group The preamble was negotiated within the framework that both the Socialist bloc and the Western group desired a The Socialist bloc specific paragraph in the preamble The desired a reference to the concept of aggression Western group wanted a reference to the non—discriminatory treatment of individuals based on charges that the soldiers involved or their State had committed ggression It was within this background that the preamble was negotiated The Soviet group had proposed at the Second Session a new article to precede Article 33 CDDH III 284 thatwould In have accomplished their main goal see Inclosure 1 addition they introduced an amendment to the preamble that would •have mentioned the United Nations General Assembly Definition of Aggression Resolution 3314 XXIX The Socialist countries made it very clear that they would drop their proposal for an amendment to Article 33 if they could achieve a reference to aggression in the preamble This was presented as a request to mention the U N Definition on Aggression Despite the Socialist countries' request several countries including many of the Given nonaligned felt that a preamble was not necessary this background it was quite likely that a blocking third could have been formed to defeat an attempt to have a preamble that contained only a reference to aggression especially since Western countries suspected that such a clause would be used to deny prisoner of war rights and the full application of the law to those who were charged Consequently the preamble was with being aggressors negotiated in an environment in which it was clear that a wpackage de3l had to be agreed to which would be I-Preimb1e-3 acceptable to all of the delegations involved The essential trade—off was that there would be a reference to aggression and a reference to non—discriminatory treàtmentbäsed on the •causes of the conflict The United States approached the preamble from the perspective that it was an opportunity to correct some of the deficiencies of Article 1 Paragraph 4 on wars of national liberation The ynited States opposition to that article had been largelylbased on the fact that it permitted the inference tha t individuals fighting for a just cause could be granted more protection than other individuals and the concomitnt implication that those fighting wars of national 1ibration could apply the law in a one—sided or discriminatry manner The preamble was an avenue to dilute substntially that implication • • • The informal working grou was able to draft a preamble which was later presented to he full Committee Plenary -However an agreed text was 4rived at only minutes before he official Committee P1enar that was to discuss the Preamble met and no delay could be obtained The clause most insisted upon by the United States was objected to by some Arab and African nations which had not been briefed by Algeria and Madagascar on the acceptability of the provision and consequently the relevanrlanguage desired by the United States was placed in brackets The working group met again arid achieved a new agreement which was found acceptable in the plenary of Committee I adopted by consensus andwas later adopted by consensus in the full Conference Plenary b • Paragraph—by—Paragraph Analysis of the Preamble Paragraphs 1 and 2 The first paragraph is i essentially the ICRC text and was not objectionable The second paragraph is taken essentially from Article 2 Paragraph 4 of the United Nations Charter This was a clause taken from the Socialist bloc amendment The final text adopted is essentially that of the u ri charter1 except that the word sovereignty is used The word sovereignty is also used in Article 1 of the definition of aggression It was insisted upon by the Yugoslovia see Inclosure 3 and the Socialist negotiators and the non—aligned agreed 0 The Western negotiators agreed to it some eluctantly U S and others in the knowledge that its omission or attempting to delete it in the full plenary would have invited a certain defeat The second part of it I-Preamble-4 • the phrase or in any other manner inconsistent with the purposes of the United Nations which is a part of the U N Chter was not requested by the Socialist bloc It was introduced in the Committee Plenary at the request of Mexico which did not understand why it was not included There was no objection to introducing the phrase During the negotiation on this paragraph France expressed strong concerns about it and previous versions The reason was their interpretation of the relation between the U N Charter and international law Although difficulties were encountered and the French opposed the paragraph France did eventually join in the consensus Paragraph 3 The paragraph on reaffirming arid ii developing the provisions of the existing law was adopted from the ICRC text and is not objectionable This was the one most insisted upon Paragraph 4 iii by the Socialist bloc Their original proposal see Inclosures 1 and 2 would have included a reference to the United Nations definition of aggression the inclusion of which was objected to by most Western countries This objection was based in part on the unacceptability of citing a United Nations resolution in the preamble to this treaty and secondly on a basic discorrtnt with the definition itself The arguments put forth by the Socialist and nonaligned delegates ias that they could not explain to their own people how the law of war relates to tne law on the initia€ion of force and aggression There was concern among the Western delegates that the Socialist countries were trying to find a mechanism whereby a discriminatory treatment of their enemies could This is reflected in their draft proposal be justified to amend rtic1e'33 which would have stated that no discrimination could be applied to the victims of the conflict which indicateda preference for stiting that the victims of aggression would get all of the benefits of the law while implying that those charged with aggression could be denied the equal treatment of the laws The proposal actually adopted in the Preamble is essentially the same as that drafted by the United States and the Netherlands at previous sessions and is reflected in It also reflects the 1976 and 1977 U S Position Paper It was a definite the language desired by the Easterrç bloc pre—condition to Western agreement to the provisions however that jt had to be counterbalanced by the following I-Preamble-5 paragraph The substance of the paragraph is consistent with the fundamental premises that the law of war itself is applicabl•eregardles of 'he legitimacy of the initial use of force and the fact that one party or both is acting in violation of the prohibition against aggressive wars This paragrah was insisted upon iv Paragraph_5 the mostThy the United States nd the Other Western The Driginal propqsal cf the United States countries and the Netherlands draft was ras follows Rez ffirming further that the rights and duties of arties to a conflict under the present Protocol are equally valid for all of them nd that the provisio of the Geneva • • Conventioi of 1949 and of the present Protocol mist be ap1ied impartially to all persons without any adverse distinction based on the causes spoused by the parties to which they belongor any political idealogical racial religious or similar criterion This clause was changed many times The phrase repr'oduced above was used as the negotiating text Certain of the clauses introduced in the final text we-r--e placed in for specific purposes The phrase all persons who are protected by those instruments was inserted for precision The original draftproposal would have covered all individuals regardless of the fact that the Protocol itself might not have been applicable to the relevant situation This was objected to by the Socialist countries It was indicated privately that their main objection was that this language could be construed as nullifying the Socialist reservations to Article 85 of the Geneva Prisoners of War Convention since the Socialist countries contended that those convicted •f war crimes were not entitled to the full treatment of that Convention When this was expressed by one of the Socialit countries Vietnant the Western countries indicated that that position was inconsistent with the 1949 Convention law arid the Protocol itself However it was clear that only those who were protected by the Conventions by its ekpress ter'ns were covered and there fore the phrase who are protected by those strunients was inserted to specify further the precise rameters of the provision It was dso the stated Western sition that the Socialist posi ioh was inconsistent with the objects and purposes of the Conventions and the I-Preamble-6 Protocol and that this was a matter that was clearly covered by the substance of the law Only reservations concept and these could bë' used'rtc attemp to 'ulify this All of the Western reservations would be invalitJ additional phrase was necessary for countries •thought the ciarity The phrase must be appliEi in all circumstances was The all circumstances language also a cornpromi e phrase clause was inserted at the request f Syria The final dispute of the last paragraph was th subject of great The original U S proposal which contained certain specified criteria such as political and idealogical ones was thought to be unnecessary and quite lengthy given repoduced in several the fact that this1nguage as also provisions of the l49 Convertions and indeed in the protocol itself It was de€ermined that this was not necessary ' since the discrimination clauses were already truly desired was in the text of the protocol r What was accusation by one the expression o the concept that an blligerent is engaging in belligerent that the other aggression cannot be used tonjustify the self—serving exclusion of prisoner—of—war rights and other protections The final phrase used in the of the law to the enemy provision consistsof two different concepts The preamble distinction based stresses that there should be no adver first on the nature or origin of the armed conflict or to the secondly on the c 'ises espoused by or attributed origint' The phrase nature or parties to the conflict phrases of the conflict was a comprortise for two different countries The phrase originally suggested by the Western was legality o' justifiability of the use of force A compromise formula was adopted to use the word I1egitimacy of the use ef force This was suggested by codify the It is noted that a Socialist bloc proposal to would have Socialist reservationJ to Article 85 GPW and which full protection excluded those convicted of war crimes from the Article 78 of the Conventions and the protocol proposed new bis was withdrawn by its sponsors This occurred after thern preamble negotiations The Soviets were aware that Wester n nations were quite prepared to speak against it and tht the that Arab States were going to strongly oppose it on the basis curtailment pit Article 44 Committee it was an amendment or the proposal tb III Article 42 A Soviet attempt to send a working group was rejecte at the Third Session 2 I-Preamble-7 a • • • • the representative of Madagascar At the formal Working Group level however this word received negative responses fron seral e1egations if luding those of Iraq Syria Oman Kenya and Mexico It was put in brackets and thus the small informal working group decided to find an acceptable alternative The attempt to reach a further consensus compromise consiste1 of reconvening the small group and inviting Syria and xico to participates The phrase nature c1r origin which had previously been suggested by Vietnam was adopted The Federal Republic of Germany and the United Kingdom were esecia1ly happy with this phtse It was their view that given the legal literature in Socialist countries this phrase meant exactly the same thing that the Western countries desired Although they interpreted tWe phrase as they thouht SociaU st countries interpreted the phrase the U S representative was notcontent with it on the basis that it was not enough The U S delegation insisted on a phrase such as cauaes espoused by or attributed to parties to the onflict This phrase was received negatively by the cialist group and the Western 'group supported it but that it ws not necessary The impasse was broken however when Mexico lent its full support to the U S proposal which is found in the U S position paper for Mexico insisted that it was absolutely indispensable 1977 to have the phrase attributed to becüe in many cases propaganda charges are made accusing the other belligerent of being an aggresr It was necessary n that context to ensure that frivolous or false charges could not be used to deny combatants their protectiori The non—Western countries ended their objections after Mexico made its strong statemen On balance the provision was stronger than the United States originally hoped for The Socialist countries and other nations negociating the provision felt that it was a sufficiently balanced preamble so that they would be able to justify it to their own constituents Some negative response 'as expresseJ privately by some delegates who indicated a preference for a better treatment for the victims of aggression However they indicated that suc-h a position would not be acceptable in public MILITARY I MPLICA'rIONS This provision benefits mi1itar' peratfons in that it reaffims the basic princple that individuals cannot be denied their legal rights including prisoner of war I-Preamble-S status on the allegation that they are engaged in wars of aggression or are committing war crimes It is particularly relevant to the behavior of captors or detaining powers who have prisoners of war or others in their cusor1y It stresses the fact that the laws of war are applicable in a conflict regardless of conflict originated and regardless of whether how the or not one side claims that it is fighting a just war It increases the legal arguments that can be used to exert pressure and to influence public opiijion when a belligerent systematically fails to irnp ement the 'law It does not burden military operations in any manner- 6 RECOMMENDED U S ACTIb None The text is acceptablce to the United States and does not require any implementing legislation or further action through other international organizations I I—Prearnble-9 L_iiçi 3 z - page 13 III - PART METHODS Ai'•T MEANS OF COMBAT - STATUS FRIS ONER- OF- 1_sECTION I - METHODS AD v1EANS OF COMBAT NW ATICLE TO BE INSERTED BEOR ARTICLE 3 - C JE3IOI4 NON-DISCRIMINATORY APPLICTIC N AJfl OF HUMANITARIAN LAW Algeriä Banglade3b u1garia CDDHfI11f281I Li April Byeiorussiafl oviet Socialist 1975 Republic Czechos1ovaia •Orinal English Russian c Democratic Peonie's RenUb1C_of DemociaticRePU' i c Viet-Nam EgyDt German emocra Reoui1 ic r-lurtrary Irac or d oit Poland SuGarl Ukrar 1an_Socialist ReD1ic Urticri Socialist o Palestine ieratio 3arizat1 n - Insert a new article before artice 33 worded as follows Trie High Contracting Parties recognize the irnprtance of the definition ct agressiofl a' adopted by th United Nation Gen9ral Assembly t its twenty- the ninth session which inter alia serves to sa1 ' humanity from the horrors of' the war and to strengthen 'the protection of the civilian population andciviiifl objects and affirm their convicticn that acceptflCe of the r ules of international humanitarian iai et forth in the Geneva Conventions and this roiccol cannot be construed as justifying and legitimat iiflg in any wa y acts of aggression b the They agree that the protections accorded Geneva Conventions on the protection of victims of war of 19149 and by this P'otocoi shall be exteed without any discrimirtiC fl to a1 victims of thoriflict without rogard to the causes espcused b the • party to which they belong P 'ovisional title — proposd A by the cretaria Distr GF' EL CONFRENCE DPLOMATQUE CDD I •337 SUR I RArFr%MATtOt Er LE DU DROll fflTEfV NAt UMAT t E A•'1JCA1 E DAN LES CCNUTSAMES I A ril 17i7 Or ina1 ECLISH CONFEEC A DIPLOMATICA DIPlOMATIC COf4FERENCE SOSR ON THE RE FF MATIo A iD DEVELOPMENT OF D1TERNATONAL HUMANTAJA LAVI•APPLICALE IN ARMED CNFUCTS F1I1J1OMAT4ECIAH HO 7FPEFftWI y13pO 1HO'O BflOC7 0 1OTflef' fl 1 p 1T m 1pim ae1oro C ryMannTpur iooKcrnlux h TITO3 21 - LA V Zt DEL DERECO TERNACIOiAL kU ANITARiO APLICALE CN LO COFLICTOS ARMADOS LfI LJJ1 t J j1 • -- BULGATIA BYELOR1JSSIA S S R CUBA CZECHOSLOVA I 4 DEI'OCATIC PEOPLE 'S FPiJLIC OF IOFEA GEF1AJ DE' OCEk1IC EP1JBLIC HUNGArY O1COLIA POLAiD SOCIALIST REPUBLIC 0 1 VIET1'JAN11U RAIr YIA'J S S F U S S R DIAFT ADDITIONAL PROTOLI Add as para-raph 2 Reca11in that every State has to refrain ii the duty its international relations frOm the t1 rct or ue of force against the tet'ritorial inteprity or political independence of any State Add as paragra LI Bearin in ind the f'ndarentà1 irportance oC rsoluticn 33l Xxi' on the definition of azression adoptecJ by the United aticns Ceneral ksserly wish to reaffirm their conviction that rothinp- in the ceneva Conventions and this Protocol may he construed as justifvin or e1tirizin acts of agc resion or other acts '•h1eh are contrary to international la £ 606 LEGAL REGULATION OF USE O FORCE Pres Reicase USUN—32 74 Apr 12 19'4 Dept of Stat BuUeti Vol LXX 6 iO4 pp •1f -O1 The following is the text of the draft defin t tion adopted by the Special Committee a 'rb lnvasi1 No 1819 May aL tuer state or t' tm seth ifl' 'asion nr atq of anoter stare or TJieGenera Aubli b Lrrnbardu e mt La ii g it c1f on the fact that one of the fundamental purposes of the United Na ti' tIS is to naiiitain International peace and scanty and to take effctive anotbc— state or t azinthcr str'e e jli'tiye rneasares for the Prevention and rcw'lvOI 4 threats to the pace aad for the supprcsion of acts of aggrcssiun or ether breaches of the peace 1 ecal1 ng that the Security Council in accorthince ith Article of the Ca irrcr or the Unitcd Nations shall determine the existence of any threat to c Ti b n - ii another state d An attack ly marine znd muir 11 s tia coaee breach of the peace or act of aggression and shall make rccoucmendnion or decide what measures shall be taken in accordance with rticlcs 41 and -L to iu iintum or restore i ilcrnatioiiai peaec and security Recalling also the duty of statesunder the Charter to settle their interna- tional dis iute s by leacefut meats in order not to endanger international peace stcurity and justice Bearing in mind that nothing in this definition shall be interpreted as in any ivav 4Lf1' rit g tie scope of the Provisions of the Ct artcr with respect to the functions and lowers af the organs of tlic United Nations 'usidcriiq also that since açgressiin Is the most serious and dangerous furn of the ill€•gal use of force being friugbt in the conditions created by the exizLence of all types of weapons cfiuass destrucii'n with the possible threat of a world conflh•t and all it catastrophic conseqneIic s aggression should be dethied at the present stage Jaffirning the duty of states not to use armed force to deprive pc'pks of their right to sell-determination freedom and independence or to disrupt e The use of an cuumotier tate u ith ri concth c Provi ' • such territory L' on' f The aetbin of lpr'al -ut aumot err of aggrersion ag iu g The s n iho P • lars or mnercenari • o su i' rit- as to nmeu t tL en The Lets enumcrat deternmine that onr Charter territoriol t'-irv 4'Lilirmi Ig also I at the territory of a state shall not be violated be tnlng consldera u n s the oje-t even tcajoranily of military iccufatioii or of other IIieasIirt of f'r-e taken by an her state in cocit nveetion of the Charter and that it shall nut be th o'ject acIllisition by iaother state resulting from such e sIlres or nther'i e na et ri'c 0 iflternatic tal No territr'in u '-r or the threat there 'f ReafFirming cl o th- provisions of the Declaration on Priziclp1e of Internstional Luv cone ri r g Friei llv Relations and Cooperatjoi among States in acci rdanc with tl Charter of the l 'ntd Nations Convinces that the ndoption of a driiition of agcru'sion ought to—hai- the etct r f tei r a atential igre-sor io•lj y the deterin na iou ot t 'f r csnn and the inipleniontation of nie tsures t suppress them r iid windut Iso facilitate the protect ion of the rights and lawful inturests of 30d the rendering of QSSistctt p to tie victim Believing that although the question whether an net of aggression has bet'n flttuitt l must lie considered in the light of all the circumstances of each partP uiur ase it Is nevertheless desirable to formulate basic principles guidance frr such uletrr tiinatjon Adopt3 the following definition a ARTICLE 1 Agvressjou Is the use of armed force by a state against the sovereignt ter- ritorial Integrity or political indtpctaience of another atc or in any other zilanner Inconsistent with the Charter of the United Nations as 't out In this oi tuuil1 The t use of armed t r'-e by a state Iii couctrareuttion of the Chartef shail COIiStituIte prima 4n t 'vuh-ncc of an act of a r' si't although tIic eearity Cou 'c may In v— co-ncitv with the Charter conclude that a determmmjnjti1 an act e niu n has bo-n conmtuitel would not be ju titie In the lightthat of other relevant rir-umstnne s iuiehcding the fact that the acts concerned or ttear Consequences are not of sntlieient graritv ARTICT E •• the t e us o aggression T- PFin Lia i Nothing in this Ito rcj'idice the rizht t• fr na toe Cia tsr n th L'carmtmIu ' i•i• Lio s ai Co per c United Nations rar i'- forms of aPn u end and tdvk at I r C'arter and in conf°t C In i oir rr- ti and coch p 1'iIuia sli E rplanafor' uolg I a Is used ni i t Is a member of t1 ' U b iumcluds ri c 3 t' p following acts reardless of a declaration of war shall suajt to and ta acecrdanc-e with the jro- isions of article 2 qualify as an Ct Of e rec'i ed NcLung In this th definition ARTICLE 2 A ' ' • Gn the reconrr tu ry umitis On A r i i Vit e'mnti P that th exprt 'io 7 rosoirr 'ro WA AiD ' 'N Ei ORCE 'pr VoL LXX 697 a '1'be iri ns o' •r att1T 1 7 177 riiie 1 f' rce of a stntc of the territory of anotht'i 7tfltL' °r ai r L iiary OCCup•Uiot 'pver terupora ry re suttin froi i text of the dit t liernt such inva-ion or ttck or a y arnea' i''i by th use of force of the territory ' t a Lor mental purposes of th 1Iif 1 security and to ta cff- — lance c 'iL b1ocK arinther state arid shaU in e The use of ari ted fr rc of wliiti are within the territory of another tate r Itu the agrerneiit of on timstate iccivia ç State in contravention of the conditii i rcvided or in the agrcpnlent ti any etensioo such c rriorv ft'yonu the terirjnaUnn of time igrecinent of their presence in f The aetin of a state in allowing its territory whirh it has placed the disposal of aritthr state to be TISèfl by that Other state-fr perpetrating at act of aggressin igaust a third state g The sending oy or oil hehalt of a state of armed Iaed groups irreaumrs or mercellaries e Lnlm carry oat acts of r ned force against another state of such giavitv as to I11o I'lt to the acts l t tetl J5 y or its substantial involve— •ment therio reconiaicri a acc rdn with Artic and s curity arter o settle their iae—na ndaiiger lnte i iorial • baii be Interpreted a in nijy - Charter with repvt to Il • most serious and dnn'r u • he conditions created I rb • ion with the possihie z r1at 5The acts eoujacrated 'bov are not C t et rmine tlmat tht ferce to deprive reopi of nd pendcnce or to charter No or of ' 'C'•f -tir suiting from ticl ujii 'n O• cples n t Iiif ri i- tile a c ATICLEG Nothing ia t1Is deIinjjon shaft eons rue j as In any way nIarging or dimlnishlnn- lie scope of 'lie hart r including its l'rovisions concerning cases in which th u force i iinvfuL 'I act of aare'ssion ha l i ir ziitstanct of 14 tnuiate bnsic prilu iI i • aInst the novereignry - her state or in iriv t i 4 S Nations an st oUt lii th rite above-nmc mtjrnmod Declaration Aacrs S •j'lanr nole in this delicition the terni State ft 3 used' i huorrt prrj i4hmc to pmestor a of reeonjtinn or to whether a state is a nenmbcr o the Unte t r b n of w r iiiu i ••— 2 qunllty uit no 1 Nothing iii this definition and in particular 3 could In any way prejudice the right to 1f-d termjnatin freedom ArtIcle arid independenro as thrived fr n the Charter of l''Oh'IOM ' o ci iy depri cI ' f tint t riht and referred to in th Dec1nratitm on Prmnui lcs of Interxatioujal law lOII4c'rni Friendly RePttfons a'd ' ohierat on among tatt ia aeeird in ' with time ChaLer of the IJnlteJ N ' or' l'zmrtcuiarly l'rYiU Un icr e'1 iia I nd ru'ist rerinics or other forms of alien d'wnati tri liar time lit f tt c'se peoples to erruile end and to seek act receive support in a tt'rd i ncr' with f e principicsto that of the Chart'r an in conforaiitv with In their inl r'rir'fa'Ioti anti application atovo irovislons are interrelated 8z1r each pri-it'a liould I e cl'flstru 4 iiiththe context of the other provisions fith'of It 't art •r Iii It flhtb it I lii' that a deferiiiliatn I o jti tI •l fri I h actn e'oit' •riwtl f vh tever nature w ht'titer political economic military as a ii or ahall be ecu zec as laufu 'r' iig tai ' in 'c to hi Ito' the dcl •rmina i • to turr re itipia a I the t stite and the Security Council may cuntitute aggression under the provisions of the -• or Ct ierV A war of ag '-essioa is a crir ie against inter akinaL peace Aggression gives nrc to interna lonai r 9sorisiIiiity No tcrrir'a nequsition or seecLi ath'antxige resulting from aggression are ie Charter and tin-ti it I j lawful Ut e ' s 4 ARTICLE 5' all tiot be violatp'l S ope - ARTICLE4 aences aggession sh L'd Ie Or of tire ports or coasts of a state by the armed forces of Id An attaci tho arruiol forces of a stat on the land ea or air forces marine arid air fleers of another state th • be esisteice of ' L thre iL ' II or part tiroretif anouter tatc oval of threats to the l4e t other breaches of the Ifl•t' ti Aiti p q b iinba jntei t by tiC armed forces of against the territory of another sro the use ul any iveapelis by a t slate tatc against the territory of b I 'tions and ielt de c the Cowet cf a rrouip of st tts where appropriate •'On hc ce o n n latie n of Its wc klng r up the comcittt agreed on Apr 12 to include in irs ru'jioi't to the General Asstuilily the Ioliowir g eplann tory notuS on ' i ticli's 3 and 5' ' 1 With rth'renie to Article pa bL the Special -Committee agreed that the expr s1cq zany weapons rarra1 h is tised withuu mafng a distinction be- 1— Pmi-i FORCE LEGAL REGULATION OF USE OF Seciiiiiy Cou whether aggr of mass dcstrUctiOfl and any other kind tween conventional wearOnS weapons bad in mind In of weapOn of Interto Article 5 paragraPh 1 the Committee exptIitiou a hi tie Deciara thu on PrinciPleS Stttes lfl 1rticuthyth Irinciple contaicd CtPCri0fl among riendiy Ie itiOUS 't iuflS uatical Law cf nerin according to which No united Charter O the aecOr4l flee wIth the directlY or indirectly for intcrrfl the right toexternal other state affairs of any stat or gtoui of statesinhas the iIlterIl ll or rcSpOfl- threat to the 2 With reference tt en ny reason w'fltCVCt the willS intcrnatioua' 5 paragraPh With rerorence to ArthIe of this term prejudice to the scope that this 8i ii1tY are used without paragral h 3 the CoT lInittee states 1rinctpie5 nec to Article 5 4 With re1 prejIl'ice the established as to par raPh ShOUld nt be constrilehl sothadulissabitity of territorial acquisition to the of ictprnntiotlal law r- tinguse of force resulting from the thrpat or • do far more Ii arid CtUSC an male another statement on On October 18 i94 Mr Bosenstock Committeeof the U N General Asthe draft definitn to the Sixthsubject With respect to the effect and seni' during its debate on the adopted i y the Special Committee significance of the definition as Mr RoSefl3tOCk said the Assembly h has forwi'cled to would na What the Special Comiittee of Jcflnitn one arc notseek type defining not a subtitute for theserve oe no ns'ftii dictio1ar Tli it wouldbitt sphini to pr Vi ziiidaiice for the undern th' alistia 't forth in 4 the term as set standing of he meaning and function Article 39 af the Charter of the Uniter1 Ktions not seek to establish oiild Th defiion nioreover does not and tl t is not the fiuiction of of states for obliaLion5 and ritrhts has already cornTue United Nations Artle 9 of the harter concerning use of force in the tielil of riies The Defiutipleted nloi' iercisP Friendly 1clations Declaration t4niportaflt when it adopted the S11lt r uts from adik to nor Lion i 'SStOhi neither text underlines this fact in is draft Deciaratiofl - The Fr nd1y Re1 LtionS Declaration reaffirmation of the 1w the- Gencral Assembly a rccoiniendat1 The draft before us is Security Council in the for the designed to provide guidance Charter to mainunder the ercise of its primary rcponsih1lit international peace and secuto restoie tain and where necessary r ' jbs of the Preamble and tn wT t nl h rity The the intention of the drafters to work Articles and 4 clearlyofiedect raiitS discrelioll to the within tin' fr tniwork the Ci rt r General Assembly or tho is nothiin the 5curity Council Thereunder discretion of the Charter to alter the Security Council car do guidance to the can provide suieStJ t i'e Ccunci T1'e semLly the the Council is drawn Member5hP of Security Coun ii nd since there is every reasqn to as 1erjers11jP of the Assembly frofl the this important Security Coun ii will give due weight to sume ïccornirendation which is the product of t1e many We believe the draft d'finitiofl unanimoUS acceptance by the General years of careful work deserves of th need not to this view we are mindfulnc 'cmpline d The As mhlY In expressing have emphasis on what we too great an Pre'8 Rcka t On Decembe ndop cci witl 4 u the Special Cor Assembly's accc uty Permanent statement tc th The Uritc this definitic ninth Gener after so man our view an - in large re Sncial Con We ini epiicit and of violence jked cor to the expr forth in r prbr nice 1- f 1in ¶-L - srSeU the We belc and large wi 'ch afret so since a tiorhinc' i the Sr t the Gemwrt p0WC1' 10 derived Ito We 'e-i afiets the - 01 • The - of thiee i fur cti0'iin - anti this t • - PROTOCOL I PART I GENERAL PROVISIONS 1 TEXT OF ARTICLE AS ADOPTED Article 1 General principles and scope of application 1 The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances In cases notcovered by this Protocol or by other intetnational agreements civilians and combatants remain under the protection and authority of the principles of international law derived from established custom from theprinciples of humanity and from the dictates of public concsience 2 • • This Protocol which supplements the 3 Geneva Conventions of 12 August 1949 for the protection of war victims shall apply in the situations referred to in Article 2 common to those Conventions The situations referred to in the preceding paragraph include armed conflicts in which peoples are fightirg—-egainst •colonial domination and alien occupation and against racist regimes in the exercise of their right of self—determination as enshrined in the Charter of the United Nations and the DeclaratiOn on Principles of International Law concerning Friendly Relations and Co—operation among States in accordance with the Charter of the United Nations 4 2 REFERENCES Common Articles 1 and 2 Geneva Conventions of a 12 August 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1956 6 U S T 3114 T IA S No 3362 75 U N T S 31 Geneva Convention for the Amelioration of the Condition of the Wounded Sick and Shipwrecked Members of armed Forces at Sea 1956 6 U S T 3217 T I A S No 3363 75 tJ N T S Geneva Convention Relative to the Treatment of Prisoners of War 1956 6 U S T 3316 T I A S No 3364 75 U N T S 135 Geneva Convention I—1—1 Relative to the Protection of Civilian Persons in Time of War 1956 6 U S T 3516 T I A S No 3365 75 U N T S 287 - b Preamble Hague Convention No IV Respecting The Laws and Customs of War and Land 18 October 1907 36 Stat 2277 T S No 539 c United Nations Charter Articles 1 2 and 51 Protocol I d and Article 44 Preamble Article 96 Paragraph 3 Declaration on Principles of International Law concerning Friendly Relations and Co—operation among States •in accordance with the Charter of the United Nations October 24 1970 G A Res 2625 25 U N GAOR Supp 28 at 121 U N Doc A 8028 1970 e • Basic principles of the legal status of the combatants struggling against colonial and alien domination sand racists regimes G A Res 3103 28 U N GAORSupp P30 at 142 U N Doc A 9030 1974 f • g Protocol II Article I 3 • RELATION TO U S POSITION The United States supported paragraphs 1 2 and 3'of this provision At the Committee level it opposed paragraph 4 in the strongest of terms Nevertheless this provision was adopted by a large majority in Committee I The reasons for the American opposition are stated in Part IV of this review and analysis The United States instructions for the U S Delegation for the fourth session stated that it could refrain from opposing Article 1 including paragraph 4 if certain changes were made in the Protocol The most important change was that ny implication stemming from Article I that would reinstate the just warn concept in the sense that combatants could be treated unequally based on the cause for which they are fighting within a given war had to be negated In other words the Protocol had to state clearly that the law was equally binding on all parties to the conflict Article •96 paragraph 3 now contains an express statement that the rights and duties of the Protoco1 apply to all he parties to the conflict The preamble also states expressly that combatants cannot be treated in a 1—1—2 discriminatory fashion based on the causes for which they Consequently the most essential change are fighting that was' deemed imperative by the United States Delegation was made -The other necessary conditions were also made 4 COMMENTS A General Páragraph4 of this article was until the fourth session of the Conference paragraph 2 of Article 1 B General background The first three paragraphs of this article were not controversial Paragraph 4 was the most controversial article in the Protocols The negotiations on this article occupied the major part of the first session of the The negotiation took place in atmosphere of conference confrontation and all of the major parties claimed that their opponents were politicizing the hunanitarian law of the Geneva Conventions and the Protocol by virtue of their stance on this paragraph The mainnegotiations on Article 1 which occured in March of 1974 resulted in a clear impasse and an apparently irreconcilable confrontation between the Third World—which was allied with the East Bloc and most of Latin America versus the The differences were widely apart and the majority West finally closed the debate and put the issue to a vote The article was adopted at the 14th meeting of Committee I by a vote of 70 in favor 21 against and 13 abstentions The voting list by roll call is an inclosure The United States and its NATO Allies with the exceptions ofNorwy and Turkey voted against this provision A resolutiori was later adopted by the Conference welcoming the adoption of this article by the committee The adoption of the article in such a divisive fashion in Committee I resulted in a careful negotiation during the subsequet sessions by key delegations of different regional groups The purpose of these talks was to determine how the Protocol could be made acceptable to This proceeded those opposing Article I paragraph 4 on the realsitic assumption that Article I would remain It was clear to those who favored the in the Protocol provision that some of the major military powers including the United States would refuse to 1accept the Protocol if the key dangers they envisiged in this provision were 1—1—3 not remedied The basic position of the Western countries was that the other provisions had to be meaningful and reasonab le and they had to take into account Article 1 in such °aanner that the obligations on the parties were non—discriuilnatory As a result of the careful and successful work of this group certain new articles were adopted in particular Article 96 and the preamble The vote on Article 1 in the plenary of the Conference at the final session was markedly different as a result of the changes made due to theWester n opposition to Article l's implications The vote was 8 favor 1 against and 11 abstentions The United States abstained See inclosures in the final vote However it had requested during the plenary that the country reque sting a vote on this provision Israel withdraw its request so that the provision could be dopted by consensus It thus indicated clearly to the majority that it was not prepared to try to defeat this provision Whe the vote was insisted upon the United States abstained Paragraph by Paragraph An1ysis of Article I c Paragraph 1 This provisibri is based on common Article the 1949 Geneva Conventions and restates the general obligation to perform the obligations established in the Protocol and to exert influence to ensure that others do so 2 of of also Paragraph 2 This paragraph is a modern statement the De Martens Clause that is found in the Hague Convention No IV of 1907 It was considered to be important enough to insert into the text of the law as a provision of the ProtocOl rather than leave it to the preamble However the draft preamble had such 1anguagi inserted in it even after Article I was adopted It is noted that this provision like the 1907 one speaks of individuals under'the law rather than under the principles of humanity or dictates of public conscience in themselves It was an important United States objective to ensure that this remained so Paragraph 3 This provision indicates clearly that the Protocol is a supplement to the Conventions It does not replace the Conventions nor is it an additional separate Convention The provisions are to be construed in accordance-with the law in the preceding treaties 3 1—1—4 4 Paragraph 4 a General This paragraph is one of the most important The fundamental differences at the Conference between Western Countries and Third World Countries was never more evident than in this paragraph The paragraph had its origin in amendments by Third World Countries to the Very short Article 1 that was proposed by the I C R C which would have stated that the Protocols supplemented the 1949 Genea Conventions Three proposals were submitted initially wi th respect to wars of national liberation The first proposal was one by Algeria Norway Australia and Egypt and ten other states CDDH I ll There was a Soviet bloc proposal CDDH I 5 and a proposal by Rumania CDDH I l3 Ea'ch of these would have had the effect of making the law goierning international conflicts applicable to certain wars ought for self—determination These three proposals were subsequently withdrawn in favor of a somewhat amplified proposal that was sponsored by fifty—one states CDDH I 4l • This was incorporated with another amendment to Articl I proposed initially by Argentina Honduras Mexicoç Panama and Peru This amendment of Article 1 received wide—spread support from the States of the Third World and the Soviet Bloc and most of the Latin American countries The argument forcefully made by these states is presented in the- subsecuent subparagraphs onesjn th Protocol b Position of the western Countries The position of the United States and most of its Eropean allies with the exception of Norway and Turkey 1 was that the proposal re—introduced the just war concept into the humanitarian law of war The introduction of such a subjective criteria which in itself depended on the justice o f the cause far which a war was being fought introduced a dangerous and discriminatory e'ement into what has been a neutral and evenhanded body of law This was deemed likely to lead to an unequal treatment of the victims of a conflict depending on whether the cause for which the key fought was recognized as a just one This objection was the key one posed by the West Other arguments pointed out It is noted that among NATO Belgium Denmark Greece Luxembourg the Netherlands Norway Portugal and Turkey voted in favor of Article I at the finalsession The U K the F R G Canada France Italy and the U S abstained 1 1—1—5 It was argued for its inherent structural difficulties example that national liberation movements lack the mater ial means of giving full effect to the law of war In other wards they could not possibly assume all of the obligations stated in the 1949 Geneva Conventions some of which pertain to the treatment by a State of its own nationals and some provisions which deal with courts and other tribunals It was argued that wars of national liberation are only a temporary phenomenon and that the entire structure of the law should not be distored in order It was stated that the adoption of to accomodate them this concept would call for a complete revision of the United Nations Charter since it purported to justify certain It was also pointed out that the wars as legal ones definition of peoples is unclear and that it might require a State to treat an ethnic mirority as an international These entity protected by the interrational law of war arguments rested largely on the basis that under existing international law wars of naional liberation were not international wars They felir into the category' of internal or civil wars Position of the Third World Countries To comprehend he background of this provision it is necessary to understand the view point of the Third World and some of the reasons why they did not accept the—arguments put forward by the United States and other countries This is especially important since the provision is now in the Protocols and will become part of treaty law in the nPar It is also important in that the recommendation future for United States action with respect to Article 1 will be based largely on the' interpretation that should be This in turn depends on what those given to the provision who wanted Article 1 stated it meant and the negotiatirg record of the provision Paragraph 4'had its origin in the Third World's discontent with the scope of the 1949 Geneva Conventions and the meaning of international in Article 2 common to those Convention These countries generally recognized that wars of national liberation were not a world wide phenomenon in 1949 and that the traditional law of war established two kinds of categories international and internal wars Wars of national liberation the meaning of which is discussed infra came under the category of civil wars in 'the traditional law The rights that accrue combatants are markedly lesser in internal wars To ke one important right only as an example there is no 1—1—6 immunity from criminal prosecution for acts of war in the People fighting against the case of the civil wars established government can be executed for doing so whereaS those who-mcet the established criteria of combatants fighting international wars cannot be punished unless they have committed war crimes The Third World argued that the Diplomatic Conference on Humanitarian Law had a dual It was to reaffirm and to deve1 international purpose It was their view that the development humanitarian law of the law required that wars of national liberation be made international rather •than remain mere internal ones for purposes of the law of war This theory rested on the assumption that wars of national liberation are international within the meaning of general international law The main thread or motif in their arguments wasthat these wars in their simplified form are conflicts by foreign governments against the local population of a foreign country They are anti— colonial wars and are deemed to not be truely local They were deemed to be wars that were generally conflicts fought between Europeans and Africans or Asians The involvement of the foreign nation which colonized the territory or had in some other way established a presence in a foreign country was deemed to inject an international element into the conflict which rernoved—the situation from the category of purely internal wars An internal war in their view involved only those situations in which the same population was fighting another part of the zame population for example the American Civil War Russians fighting Russians Nigerians fighting other Nigerians It was their claim that the Protocol had to be conformed with reality This claim in itself rested on factors such as the interpretations given by t he United Nations on colonialism It was their view that under the United Nations Charter colonies or non—self—governing territories are given a separate status and are recognized not to be identical or equal parts of the metropolitan country administering them Secondly the claim rested on the view that most nations including the United States urged decolonialization and that colonialism was deemed to be improper in the modern world The Third World argued that a series of United Nations resolutions such as those granting independence to colonial people constituted the progressive march of history and law A corollary of this was the view that under the United Nations Charter peoples had a rj'ht to self—determination ' which is mentioned in Article 1 of the United Nations Charter and the - 1—1—7 Declaration on Friendly Relations In their view the phrase self—determination in the United Nations Charter It was their posi€ion t ht foreign colonialists prevented the exercise meant fCeedom to govern their own country of this right and they should therefore be entitled to struggle against them by armed conflict In their perception the Declaration on Friendly Relations permitted them to fight such wars Their argument thus rested on the view that they had a right to independence against foreign rule and therefore shuld enjoy the same rights which they would have as a State but for the fact that foreign troops were present in their country One of the most articulate spokesman for this view argued that the meaning given to international armed conflicts in the existing Genva Conventions was discriminatory and embodied in itself a 'just war theory In this view only wars betwen European powers or other states qualified as internatiqhal Thus only those fighting in these wars receivi the benefits of the law f war Individuals captured iby their enemy who qualify s legitimate combatants are generally accorded prisoner 'of war status and consequently enjoy the key immunity from prosecution for legitimate acts of war If the' war is an internal one there is only a requirement of humane treatment of the captured rebels In the view of the Third World such treatment was gratuituous and not sufficient Those fighting in wars of national liberation should not be punishable for common crimes The Western countircs were perceived as trying to preserve a system of law that benefited them but which minimized the rights of their This in the view of the Third World placed opponents the movements most favored by these countries at a disadvantage and in a lesser tactical position Their perception was that justice demanded that the humanitarin rules of warfare be expanded and that it give recognition to the key concerns of the rest of the world In addition to the line of thinking that was invoked in response to Western concerns about a new 'just war theory certain key delegations behind the amendment to Article 1 addressed directly the United States complaint about the potential unequal treatment of combatants within In addition to the arguments noted in the a given war preceeding paragraphs certain delegations including Egypt orway and Yugoslavia stated explicitly that the adoption f Article 1 would not imply a discriminatory treatment of combatants of the party that was not the liberation 1—1—8 group For exartple Norway which was a leading sponsor of the amendment stated that such a proposal did not contempl-ate irtroducing any 1orrn of discrimination between the parties t2LDH I Si 4 at 32 2 The delegate of Egypt Mr Abi—Saab pointed out that other delegations had criticized the proposal on the ground it confuses the jus ad bellum with the jus in bello what would be true if it sought Lo give prefeentia treatment to one of the parties to a co flict The Yugoslavian delegate Mr Obradovic stated that he did not agree that the insertion of a text of that kind pararaph 4 in Protocol I would lead to the ntroduction of Ia concep t of discrimination between the parties engaged in such conflicts and he fully supported that views expressed by the Norwegian representative on ihe subject CDDH I SR 6 at 48 At a later meeting' th Norwegian ambassador Mr Ofstad pointed out •that the adoption of paragraph 4 did not amount to acceptance of the so—callId just war concept it was intended to assure equl protection of all victims on bothsj des in wars of nat1onal liberation CDDH I SR 14 at 106 The dlegate of Nigeria Ambassador Clark stated that the paragzaph '1did not speak of just or unjust wars and appeard to suggest that it was an objective criteria and was not based on the cause on for which a war is being fought CDDH I SR 14 at ll0 It is important to emphasize however that-several other delegations referred consistantly to wars of national liberation as just and legal wars The specific statements about equality of treatment were not challenged during the debates on Article 1 is clear from the records It of the Conference as a whole that some delegations wanted the Protocols tQ contain the concept that discriminatory 2 Inaddition the delegate from Norway Mr Longva stated that tTthe probl n involved might be compared with that of upholdingthe equality between the Qccupiers and the occupied a problem which had never prevented military occupation from being regarded as international conflicts in the sense of €he Geneva Conventions id CDDH I SR 4 at 32 3 CDDH IJSR 5 at 34 The Egyptian deleg te also pointed out that yet it was the existing system that gave preferential treatment to one of the parties by refusing protection tothe national liberation movement on the contrary according to the amendment humane treatment 'should be afforded equa•lly to both parties 1—1-9 treatment could be applied especially the Vietnamese However in the negotiations on Article 1 this concept did not'find a place in the negotiating record and paragraph 1 should -aQt be interpreted in that light The Third World countries made several responses to the western position that wars of national liberation were ad hoc historical phenomena and that consequently such special situations shou4d not be inserted into a Protocol that was to deal with situations for many years They did not accept the complaint that the law should not be changed to accommodate peàuliar historical situations of political significance to certain countries and which were generally confined to limited geographical areas The countries favoting paragraph 4 responded that the law of war as it is currently codified reflects in its scope of applicability those special circumstances that have been of peculiar importance only to Western countries Fot example it was their position that after the 1874 Franco—Prussian war franc—tireurs and levee en masse were given special recognition in the 1899 Hague Convention 1Yet this was only deemed a historical phenomena it was eemed necessary to rectify the claimed injustice caused in the 1874 war against those resisting the invasion of their country Likewise it was their position that organized resistance movements of World—War II such as the Yugoslavian and Italian partisans could not obtain prisoner of war status because they did not meet the requir'éments of the 1907 Hague and the 1929 Geneva Conventions Consequently the 1949 Diplomatic Conference changed the law so that this peculiar historical situation could be also be accomodated They claimed that this was done even though such groups could not possibly apply all of the law codified in those treaties However the fact t hat the State to which these movements belonged coudd apply all of the law was not recognized In their view the Western countries had no reservations to accommodating the humanitarian law treaties to peculiar situations that affected European wars The attempt to defeat the expansion of this preferential treatment to those fighting wars of national liberation was deemed to reflect a lack of sympathy and compassion This was reinforced by claims that the West realized that the concept of levee en masse was no longer a necessary one because of different historical circumstances Consequently it was their view that just a the law was changed in past years o acáornmcdate political concerns of victorious and major military powers should the l w be ch n9ed now to accommodate the strong desires of the Third World - 1—1—10 The Western concern that those fighting wars of national liberation cojid rt implement all of the obligations of the Conventis was responded to with several arguments The most important argument was that as stated in the prtceding paragraph not all of the individuals entitled to protection under the 1949 Geneva Convention could in tact implement all c the obligations of the law Nevertheless is was not deemed sufficient to block these groups from achieving prisoner of war status in 1899 1907 and 1949 However their arguments centered on their belief that most of the obligations could be met in those wars of national liberation in which the leadership group assumed the obligations of the law It was•a Question of good faith application of the laws These c1ims were always made confidently ar coupled with the claim that the Western power s were not res ecting the law and had committeed If the Western power s violated the massive violations law they argued they should not be entitled to claim that a potential violation by group fighting wars of national liberation should prevent such a group from enjoying the law's protection if they were willing to apply it - In summary the Third World position was that the existing legal system was discriminatry The claimed obstinate attitude of key Western countdes especially the United States United Kingdom and Beigiurn was deemed to be based on an unwillingness to grant people allegedly fighting for their independence the right to enjoy the special privileges enjoyed by Europeans during their wars From their persectiue the only thing that these countries were willing to' grant to those allegedly fighting for their independence was the minimum treatment accorded to individuals in civil wars In their view this disposition did not take intoaccount modern reality modern law and the fact that tiLe majority of nations cleatly thought that these wars should be deemed to be international ones d Definaition of Wars of National Liberation The language used in thefourth paragraph was intended to refer to wars of national liberaton and this view was never disputed in the Conference even though the terms are not used in the treaty As pointed out by one delegation the term wars of nation-'l liberation had been deliberately avoiá d arid hid seen replaced by a reference to the right of lf—determination The claimed I—i—h reason was that thelatter was generally an accepted legal The words that were later concept CDDH I SR 2 at 8 inserted into th provision bout colonial and alien occupation and racist regime were justified on the basis •that various resolutions of the United Nations used these In the view of those favoring the language it phases The phrases are was part o f general internationai law used for example in the Decaration on Friendly Relations which was adopted by consensus in the United Nations General Assembly a consensus not oppcised by the United States and was used in the United Nations resolution on the status This argument of combatant- in wars of national liberation was not accepted by most Western countries A keyobjec4ion of th United Sttes to paragraph 4 was that the phra€ was subjective and thus could not be interpreted in ar objectiv manner An equally or more serious objection was that th language was of a political nature and that it did not therefore belong in a It was the view of the Western humanitarian treaty thatwhile the concddpt may be of value in a countries olitical forum such as the United Nations it had no place This interpretation was definitely in humanitarian law in the minority Given the fact that the proviToh is in the Protocols it is necessary to determine how it should be The rrovision could for ex-mple be interpreted interpreted jn a broad manner so that it encompasses every In other words the war fought for self—determin ition words alien racial and coloniaF' are deemed to be merely illustrative of 'warsfought for the of self—determination The other possibility is •that these examples reflect the only kinds of wars falling within the ambit of the Paragraph 4 wouJd thus be interpreted na rowly provision On-the basis of tLe long negotiating record on Article 1 it appears that the provision must be interpreted narrowly There are several reasons for this The original amendments proposed to the short one paragraph Article 1 proposed by the I CR C used only the phrase self— determination as a reference point tc define'what wars would be included The words alien colonial and racial Several countries objected to such a wide were not used of the right of se1f—deterrqirtion and several ording f these Third World countries indicated that they could only support the provision f it was indeed limited to 1—1—12 specific wars of national liberation This included Orce the countries such as India Brazil and Indonesia amendmerit were made other countries which did not support the provision such as Greece and the Federal Republic of Germany also pointed out that the provision was indeed The negotiating record on this point is not tdo narrow ambiguous ih any manner All wars for self—determination are not included Rather it appears that those favoring the provision interpret the word self—determination in a fairly narrow manner Although such a subjective phrase cannot be adequately defined several supporters of the language Perhaps the best example tried to do during the debates of what is meant by a war of'national liberation within the meaning of paragraph 4 ws given by Ambassador Clark Of tigeria at the first meet$ng that discussed the substance Ambassador lark stated that of paragraph 4 • • hie understood th right of self— determination not s encouraging secessional and devisive subversion in multi—ethnic nations but as applying to a struggle against colonial and alien domination foreign occupation and racist regimes CDDH I SR 2 at 13 emphasis added Such a statement was reinforced several times throughout negotiations It indicated a strong preference for excluding the type of civil strife by secessionist groups which is deemed to be a particular and dangerous threat to many Third World Thus the Egyptian delegate pointed out that nations delegations which were afraid that the principle would apply to all States where there was a variety of races linguages or religions need not be alarmed according to applied only the Declaration Lof Friendly Relations in cases where such grounds were used as a basis for The systematic discrimiantion CDDH I SR 5 at 34 representative of Guinea—Bissau stated that in such wars the adversaries were different people of different races from different geographical backgrounds The delegate of the United Republic CDDH I SR 5 at 38 of Cameroon Mr Mbaya stated that it was unacceptable to adopt a description of national liberation movements as a collection of individuals ir rebellion against their In his view such a description would own government apply to a group of Portuguese in febellion against the Portuguese government but could not possibly apply to it 1—1—13 • movements in Africa seeking to end foreign domination CDDH I SR 14 at 110 He continued by stating that nationalliberation wars were not civil wars the inhabitan±tof southern Africa were not Portuguese It was clear therefore that the victims of those wars must receive the protection of Draft Protocol 1 1 Perhaps the longest description of what a war of national libei-aion is although certainly not a precise one was given by the delegate of the Pan—Africanist congress who stated that The Africans of Mozambique Angola and Guinea—Bissau were nations and totally different nations from the Portuguese nation not part of it Th same applied to the inhabitants of all he islands which surrounded the Afrian continent and were under foreign domination to the African inhabitants of sout Africa Rhodesia and Namibia and to the a1estinians Separate and independent natonal existance of the peoples subject to oreign domination was recognized by the entire International community except of course by the alien groups which exercise authority over them CDDH I SR 6 at 46 In other words it appears the 'almost unamimous view of those arguing for this -z evision that the wars described were those fought against the colonial armies from Europe—they were not local forces The struggle waged by colonized peoples against the invaders therefore could not be included among the situations envisaged in draft Protocol II CDDH I SR 5 at 37 They were deemed to be as Mexico put it anti-'co1onil wars These wars all had a distinct foreign element in - them • The attention phrase alien occupation deserves special In the initial drafts of this provision and indeed in the various United Nations documents that were used to support this provision the phrase generally used was foreign and alien domination One of the delegates had proposed that the phrase alien occupation be used Ireland which abstained in both in the Committee 1 vote and at the final session thought that this language was biguous It pointed out to the assembled delegates that f one was to use a phrase such as 1that his country would d be sympathetic because Ireland had itself been 1—1—14 the victim of colonial and quasi—colonial domination for over 700 years However he did not lend his support to the provision because it was still too vague CDDH I SR 4 at 26 One delegation pointed out that there was a' distinct problem in having the phrase occupation in this provision because occupations were generally included in the concept of international armed conflicts as defined in Article 2 common to the 1949 Geneva Conventions The change that was made in the Protocols from the original language o foreign and alien domination to colonial domination and lien occupation seems to have been a drafting one rather than a substantive one Changing the language to the form currently made was proposed by India CDDH I SR 13 at 99 The precise reasons were not g ven Howver in a previous statement the delegation of Argentina tated that the phrase that was eventually used was seleted as a compromise between the texts of the different pxoposals for paragraph 4 It is thus legitimate to interpret the provision as a compromise between different languages stating evidently the same thing CDDH I SR l at 99 At apreceeding meeting the delegate of Morcco pointed out that a distinction should be drawn between occupation and aliefl domination resulting from a colonial regime ' And that his delegation would not object if there was a specific mention of the armed struggle of people-s--under colonial and alien domination and racial regimes ' CDDH I SR 3 at 19 It seems that the majority of speakers gave the word occupation a meaning roughly equivalent to that used in the United Nations resolution on the claimed illegal occupation of Mozambique by Portugal that was in effect in 1974 General Assembly Resolution 3061 Illegal occupation by Portuguese military forces of certain sectors of the Pepublic 9f Guinea—Bissau and acts of aggression committec3 by them against the people of the Republic 28 U N GAOR Supp 30 at 2 U N Doc A 9030 1974 Under this resolution alien occupation is deemed essentially equivalent to colonial occupation It does not encompass traditional military occupation as that is understood in Article 42 of the Hague Regulations of 1907 or in the Fourth Geneva Convention One will have to interpret the phrase in the same manner it is used in the Declaration on Friendly Relations upon which this right is purportedly based Under the declaration 1—1—15 • • The territory colony or other non—self— governing territory has under the Charter of - he Unitec Natrns a status separate and distinct frorn he territory of the state administering it and such separate and Jistinc€ statusunder the charter shall exist until the peopleo the colony or ion—se1f--goverhing errirory have exercised their right of selfrdetermination in accordance with theCharter and particularly its purposes and principles Nothing in the foregoing paragraphs shall be construed s autlorizing or encouraging any action which woiitld dismem er or impair totally o in paL-t the territorial integrity or politicl unity f sovereign and independent States conducting themselves in compliance with he principle of equal rights and self—det4rmination of peoples as described above nd thus possessed of a government representing the whole people belonging to the terr itory without distinction as to race creed or color When read in conjunction with---t-h4s paragraph the word occupation should be interpreted to mean strictly colonial occupatio Territories in which individuals regardless of theiL background have equal rights would not fall into this particular division Consequently territories such as PUerto Rico where an attempt was made to determine the wifl of the people would not fall under this provision People there have exercised according to the United States Government their right of self— determination In addition a territory such as the United States would not be considered to be an alien occupation versus the IndiLns becatse inter alia the conditions specifiedin the declarationö Frienly Relations are met A situation such as the South African presence in Naimibia would perhaps be the best example of the kind of occupation that is involved It appears in consequence that the phrase is largely unnecessary in that the authors of it intended it to mean es'entially what foieign colonialism means bit with a particular emphasis on the fact they do not acquire title by a long period of presence in a foreign territory 1-1—16 To summarize the discussion above the majority of countries that spoke in favor of Article 1 paragraph 4 avea narrow interpretation of what wars of national liberation are These countries were adamant in their view that not all wars fought for self— determination were covered As stated by the representative of Romania he could not accept a general reference to the right of self—determination alone because existing United Nations practice in that field covered only one aspect of the right of peoples to self—determination ' CDDH I SR 2 at 15 The delecate of Brazil gave what was perhaps a more complete pictute of the concept being expressed • distinctly • Such struggles might be deemed to be internal when the government in power control the entire territory an assume full responsibility for Its international relations On the ther hand as soon as the national liberation movement exercised effective control oer part of the territory and was recognized 1y members of the international comInurity the conflict was international The Brazilian delegation could agree to the inclusion within the purview of Protocol I only oL struggles to achieve self—determination carried by territories in the strict meaning of Chapter XI of the Charter of the United Nations— in other words territories that did not belong to the State controlling them CDDH I SR 4 at 31 The kinds of conflict that nations deemed covered by the general phrase wars of national liberation were those fought against the foreign element in Viet—Narn Guinea—Bissau Angola Palestine southern Africa and Mozambique The argument that the phrase wars of national liberation should be interpreted narrowly is perhaps the only legitimate one given the fact there is a Protocol II If all wars for self—determination were to be included within the category of Protocol make any sense Indeed I Protocol II would not Norway seemed to suggest this that there should be only one Protocol and that the-law of wars should apply to all kinds of war Lought when there is a sufficient degree of violence in its insistence I—1—16 The narrow interpretation suggested above appears to be one that is in the United States interest The United States has built a careful negotiating record on many provision_in the Protocol It has the right to interpret them in the light of the meaning given to them by the negotiators ind which was clearly placed into the record Consequently a deviation from the normal method of treaty interpretation would not only be contrary to the rules of treaty interpretation but would weaken the United States argument that other provisons in the Protocol would have to be interpreted in the ltight of their negotiating record In other words in order to ensure the interpretation given to other provisions is consistent with what the negotiators intended the United States should insist that Article 1 be interpreted in the light of this negotiating record In the United Stats position paper for the final session the United Statesdelegation had the authority to interpret the provision1in a broad manner Part of the reason •for this was tht the conjunctive is used betweeen the words alien4racist colonials' rather than the disjunctive which wasused in an original version of the provision However the change of the words into the conjunctive does not mean that every war hasto be against all three of these particular key word's It was in the nature of a drafting change Thus although the Situation in southern Africa may not be a colonial one it would be considered to be a racist one The situation of foreign domination which was intended to mean Portugal which no longer has a presence in Africa -of the kind it had at the first session at the conference would apply regardless of whether or not there was also a racist regime It is clear however that some nations believe that those they are fighting meet all three criteria The Palestine Liberation Organization for example stated that Israel fell within all three cagegories It is clear that the concept of wars of self— determination is a subjective one and will not lend itself to clear decisions o n whether a conflict is or is not covered by this phrase This problem is closely related to that of recognition which is discussed in the following paragraph e Recognition It is likely that many othebr countries especially the Third World will interpret the provision in a narrow 1—1—17 manner It wasP the United States expectation that if a broad interpretation were given to the Article some of these nations would be less enthusiastic about it because it would possiblj make Prot ol I applicable to their own country It appears that many of these countries now take the 'iew that in order to be a real war of national liberation there must be recognition by certain other countries n the world This vie i was suggested at the first session o' the conference Turkey's delegate who supported the provision on wars of national liberation stated that hi3 delegation had proposed the objective criterion of recognition of the national liberation movements by the reg ona1 intergovernmental organizations concerned There was no other way of avoiding wrong ierpretatións of an untoward nature wbich would constitute interference in tle internal affairs of States 't CDDH I SR 5 at 39 Brazil also suggested this at the first sessiOn when it said that a Thational liberation movement exercised effect control over part of the territory and wasrecognized by the international community and therefore the conflict was international CDDH I SR 4 t 31 Indeed it appears that inanyof the countries 'thought that only such groups had ally status This is based in part on the fact that for purposes of the United Nations recognition of a national liberation movement by the appropriate intergovernmental rea ional organization is deemed necessary Only those national liberation movements recognizd by such groups were invited to the Diplomatic Confere ce under the Rules of Procedure Rule Indeed in informal meetings many delegates of the 5S Third World expressed surprie that anyone could suggest 'that those groups not recognized by the appropriate regional group were covered by Protocol I During the final session of the Conference it became very evident that many of these Third World countries were very concerned about the possible application of Protocol I to internal rebellions in their own countries that were based on the claim that the conflicts were one for self—ceterrnjnatjon Thus when speaking on Article 96 paragraph 3 which deals witti unilateral declarations by national liberation movements that they will undertake to apply the Protocol severil delegations stted expressly that recognition was necessary For example the delegate _of Mauritania stated that only genuine liberation ovements had status ard that in the light of Rule 58 to the authoriti s representing genuine f the Rules of Procedure Article 96 and Article 1 should only apply 1—1—18 liberation movments recognized by the regional intergovernmental orgizations concerned CDDH I SR 67 T'e delegate of Indonesia stated at 14 • Emp1sis adde that it applied only to the groups which were recognized by their regional grouping CDDH I SR 68 at 3 The delegate of Turkey repeated his stance of the first session to the effect that his country had traditionally supported the action of national libera ion movements recognized by regional inirgovernmedtal organizations His delegation had accordingly voted in f'avor of paragraph 3 CDDH I SR 68 at 5 The delegate from Oman stated that he fully suç Orted the veiws of the delegate of Mauritania and in particular nis statement that the provisions on wars on national liberation were applicable to liberation movements which had been recognized by i 'ternational and regional inter—govErflfflefltal organizations CDDH I SR 68 The delegate of Zaire stated that it supported at 7 authentic liberation movements The ights granted under that paragraph however should be enjoyed by liberation movements recognized by regional and international organizations and should not be extended indiscriminately to subversive movements CDDH I SR 68 at8 The vote on Article 1 in the final conference In the plenary was not marked by many such sttternents vote on Article 1 the Government of Turkey repeated its position and statE that in its view the Article applied to armed conflicts recognized by regional bodies such as the League of Arab States or the Organization of African Unity which were widely accepted CDDH SR 36 at 23 The Government of In donesia stated that it voted in favor of Article 1 ith the understanding that the liberation movements referred to irparagraph 4 of Article 1 are limited only to those liberation movements which have been recognized by the respective regional intec—governrnental organizat ions cuncerned such as the OAU and the League By making our vote conditional to the of Arab States factor of recognition by these regional inter—governmental organizations we endeavor to insert an element of objectiveness in evaluating whether a movement can be regarded as a liberation movement or not CDDH SR 36 Annex at 4 These numerous statements suggest that the provision will be construed narrowly by severa' Third World It is not un1ikelj that some countries might Governments make formal understandings that they interpret it in such 1—1—19 Whether or not such an interpretation that a manner recognition is necessary is a good one is unclear but it will perhaps mean if applied that countries on the American continent will have to recognize a national liberation movement in the Americas by way of the Organization of American States in order for a group to fall under Article 1 Thus the utility of Article 1 in its practical implementation would be further reduced even more f Meaning of Armed Conflict 1€ is of paramount importance considering Article 1 to emphasize that it applies only to armed conflicts It does not apply ihenever a group claims that it is fighting a war of national liberation The provision could have clearly stated otherwise if States so desired The atmosphere of confrontation in which the Article was negotiated and the fact that anyone with a proposal was able to insert the essential elements of his proposal into paragraph 4 sUggests that States had a full opportunity of stating otherwise if they had wanted to The words harmed conflict import a certain intense degree of violence States or at least a capability to engage in such violence have such a capability and the Converiitions arid the Protocol apply when States are engaged in military operations against It is noted in this connection that during each other the final debate on Article 1 the United Kingdom made a statement to this effect He Mr Freeland wished to nake a general point of interpretation which aoplied not only to the class of armed conflicts referred to in paragraph 4 but also to the traditionai class of inter—State conflicts referred In either case for to in paragraph 1 the Protocol to apply there must be armed That term was defined neither conflict in the Conventions of 1949 nor in Protocol His Government considers however that I the term armed conflict in that context implied of itself a certain level of intensity of fighting which must be present before the Conventions or the Protocol could apply in any situation In Article 1 of Protocol II dealing with internal armed conflicts Committee I—1--19a I had defined the level of intensity which must be reached before Protocol II could apply That definition which had been adopted by concensus had been worked out In his carefully and after long debate delegation's view the armed conflict to which Protocol I could apply could not be of less intensity than those to which Protocol II would apply 'His delegation would accordingly interpret the term 'armed conflict as used in Protocol I in that Sense A similar statement was made by the CDDH SR 36 at 16 Governinentof Australia which pointed out that Australia understands that the Protocol will apply in relation to armed conflicts which have a high level of intensity CDDH SR 36 Annex at 2 The oral statement of the United Kingdom and the written statement of Australia were not contested by any of the other delegations at the Conference Riots isolated acts of violence or fighting by a group which does not control a sufficient amount of territory or which is not able to conduct sustained and concerted military operations would not qualify as meeting the minimum degree of violence necessary for the conflict to be an armed conflict within the meahinof the Protocol An analoguous standard can be deemed to be applicable II to wars of national liberation under Protocol I This particular interpretation of the threshold needed for the Protocol to apply is important in one respect which was not mentioned in the course of discussions of This is the issue of how the law of belligerency Article 1 is releated to the Geneva Conventions or the Protocol It is noted in this connection that during the 1949 Diplomatic Conference a resolution was passed by the conference to the effect that the adoption of the rules contained in the Geneva Conventions did not prejudice the law on the recognition of belligerency This should be considered in the light of the fact that at least according to one view if a state of insurgency eventually becomes a state of belligerency and the belligerency is recognized by third nations then the entire law of war applies to This theory which has been the particular conflict espoused by Lauterpacht and others has not been accepted fully by the United States •Howevr it should be recognized that recognition of belligerency does not occur in the modern day as such Under the t aditional law 1—1—20 however a high threshold of violence was necessary in order for States to be permitted to recognize belligerency As a practical matter it is not yet certain whether Article 1 paragraph 4 would no in fact cover situations of violence that could in the past have been deemed to be classic belligerencies in which the entire law of war would apply if third states recognized them as such In this connection one theory that should not be discounted is that recognition by regional organizations as suggested by some Third World countries ir relation to Article 1 serves the same function as the recognition of belligerency did in earlier days However these matters were riot definitively settled in the Conference and the interpretation to be given by the United States should be on a case—by—case basis g Sumriary on Artic1e 1 Article 1 paragraphs l 2 and 3 are not Paragraph 4 whic has been offensive to troublesome st Western countries and the tnited States contains central difficulty This difficulty which was noted j the Government of Israel in its explanation of vote on Article 1 is that it has a built—in nonapplicability No State will in effect concede that it is a clause — racist colonial or alien regime in anrwar and thus will not apply the Protocol on that basis Countries against which this provision was aimed such as Rhodesia South Africa and Israel are highly unlikely to become parties to this instrument and even if they did •there is a high likelihood that they would enter reservations to all the troublesome provisions in the Protocol Consequently although paragraph 4 is a definite political victory for the Third World countries in terms of substance it will not confer greater protection to those engaged in such From the standpoint of the Articlets main conflicts utility it will provide a political avenue for Third World countries to put pressure on the governments concerned to apply the law On the other hand a certain amount of political leverage will be available for their opponents For example acts directed against civilians in violation of the provisions of the Protocols by groups claiming to be national liberation movements would no longer be common crimes for which the persons committing them could be ''1 as common criminals In many cases they would be rrned to be war crimes or grave breaches under the As such they will be etraditable offenses tocol Consequently this provision may serve as a further device 1—1—21 for the countries concerned o engage in political controversies over the actions of the other party Viewing the provisions of paragraph 4 in the light most favorable to the Third World countries the provision has the advantage of placing equal rights and obligations on those enaged in wars of ationa1 liberation The Palestine Liberation Organiztiori delegate at the conference stated that it was strange that certain countries opposed the provision because the pebple who would benefit by making those fighting wars of national liberation bound by the obligations of the law would be their enemies and the civilian population If one does not consider the problem of dissemination of the law bnd the necessity to educate the members of thearrned forces in the legal obligations established this position is tenable However the main value of Article 1 paragraph 4 is that in the eyes of the Third World it constitutes the minimum degree of justice that was needed to update the law of war As stated by one delegate the Third World countries participating in the Conference were not willing to accept a codification of the law of war that orily benefitted the Western powers The adoption of Protocol I's new scope of applicability in their view conforms to reality and meets their minimum interest ' 4 Perhaps the view of the Third World countries can be conveyed in a favorable manner by an exanple that is sometimes used to define what a war of national liberation is Under this example the American war of independence is deemed to be a war of national liberation It is clear that Article 1 would only apply to contemporary conflicts However the Ameiican Revolution provided the Third World countries in their literature the quientessential reason why they should made international conflicts If one assumes that the revolt of the American colonies that occurred in 1776 were to occur today in the absence of Article 1 paragraph 4 the colonial state could have stated that the rebels were not entitled to prisoner of war status At best the coiibatants were entitled to the minimum humanitarian standards established in the law on internal wars Due to this captured American colonials would not be entitled to prisoner of war status and could be tried for treason common crimes such as murder for killing enemy soldiers and sabotage for destroying their property Under the AmnericaDeclaration of Independence the colonials claimed that they were not any longer under British rule This was based on 1—1—22 5 EFFECT ON U S COMMANDERS This provision woul obligate United States military commanders to apply the Geneva Conventions and the Protocols in any war fought against a recognized national liberation The decision on whether such a group would be group entitled to this statuswould have to be made at the highest level of the United States Government However certain provisions of the 1949 Conventions are based on a fundamental premise that differs from a central premise This deals with nationality Thus Articles in Article 1 4 and 118 of the Fourth Convention are based on the view that those entitled to protection are not nationals of However those engaged in wars of the Detaining Powet liberation may have the same nationality as that conferred In addition each by the government they are fighting party might claim that the provisions dealing with belligerent occupation are not applicable to them since they are on their own territory and are dealing with their nationals Consequently U S commanders will be pected to apply the Conventions and the Protocols with ractical-jeconciliation of the Conventions terms and those of the Protocols i e they will have to apply the Conventions mutantis mutandis in the light of Article 1 6 RECOMMENDED U S ACTION A No United States understanding or reservation Footnote Continued several theories including the view that the colonials had In modern inelienable rights to determine their own Government parlance to use President Woodrow Wilson's phrase they had However under the existing a right to self—determination regime of law that exists independent of the Protocol the law of war does not grant to those seeking their claimed independence any substantial right to fight without the danger that once captured theycan be executed The claim that was made by Americans in their revolutionary war that they should be treated honorably as prisoners of war which was made at the time would It would not be acceptable under the 1949 Geneva Conventions In the Third World's der paragraph 4 of Article 1 rspective the equity is compelling in favor of wars in liberation and the Arerican Revolution was claimed iona1 to a perfect earnp1e of this 1—1—23 • is desirable or needed A reservation would be deleterious to United States interests Given the significant United States opposition to this article in the past the following reasons are given for this recommendation The course of action recommended is based largely on the fact that it T 4s a stated public United States view •that Article 1 paragraph 4 was objectionable due primarily to the possibility of the unequal treatment within a given war of the combatants based on the causes for which they were fighting In response to this concern and in recognition of the fac t that the West had to be accornodated on thiS view th Conference adopted Article 96 which states explicitly that The Conventions and this Protocol are equally binding upon all parties to the conflict The phrase 'tparties to the conflict is used in substantive provisions to refer to groups covered by Article 1 In addition the preamble to the Protocol states xplicitly that the provisions of the Geneva Conventions - the Protocol ' must be fully applied in all circumstances to all persons who are protected by those instruments without any adverse distinction based on the nature or origin of the armed conflict oron the causes espoused by or attributed to the PartIéto the conflict A reservation would thus be deemed by many countries to be a hypocritical act It would be interpreted as confirming the suspicion of some Third World countries that the United States opposition was based on ulterior motives and that it was due to support for colonialism It could also be seen as a decision to not apply minimum human rights in armed conflicts in which the United States might be engaged i ii Given the necessary conclusion that Article 1 paragraph 4 will in accordance with its well— established negotiating history have to be interpreted narrowly this provision shou d not injure United States Reasonable interpretations of this provision interests will exclude sporadic acts of violence or terrorist activities from the category of armed conflicts Even if one makes the questionable assumption that the United States would find itself involved in a conflict that could the description of paragraph 4 it is doubtful that fit t would not find itself applying tbe entire law of war 'The major reason for this is that in the past it has been the United Staes policy to apply the law of war applicable 1—1—24 in international conflicts to what we re essentially civil This was true during the American Civil War conflicts and it was true in Viet—Nam However those provisions that were-not legally applicable even assurning that the war was international such as those on inilitary occupation during Viet Nam were not applied Doubtlessly if the United States were to be engaged in a conflict that ether countries thought was a war for national liberation the political pressure exerted on the United States to apply the law would be extremely inteise Under those circumstances the United State would find itself on the defensive and perhaps making the policy decision to apply the humanitarian provisions of the Protocol It is noted in this connection that from the standpoint of the scope of applicability of paragraph 4f the narrow interpretation given by several states that reognition by a regional organization is necessary would reduce the effectiveness of paragraph 4 even more Reconition ofa conflictin the Americas would apparently require the recognition of the Organization of American Sttes It is thus unlikely ±t this provision would ever e legally applicable to United States ui0 Perhaps the most important reaso n why the United States should not consider a reservation is that a large number of countries if not thelnájority would consider it to be a reservation that is incompatible with the object and purpose of the treaty and would thus result in rejections of the United States reservation It is not unlikelythat some States rejecting the U S reservation would consider it to be so fundamental that the United States would not be treated as a party to the treaty Countries can be expected to reject treaty relations wi th the U S with respect to the Protocol under Articles 20 and 21 of the Vienna Convention on the Law of Treaties is noted in this connection that several countries indicated in the plenary of the full conference after the defeat of the proposed articles on reservations that Article 1 should not be deemed to be reservable because it was from their perspective the main object and purpose of the treaty to include wars of national liberation within the scope of the humanitarian law applicable to international armed conflicts It ' iv It should be noted that the main substantive jection to the provisio n is the politicized nature of language used from the standpoint of Western countries ver the contents are not taken in context with the 1—1—25 remainder of the Protocol of a nature to require a United A reservation would serve only the States reservation function of expressing displeasure with the language used It would not be worth the potentially serious consequences It is noted that the that would be likely to ensue deietion of the politicized language was a possibility at the beginning of the Conference The Egyptian Norwegian and Algerian draft of Article 1 would have only used the relatively neutral words of self—determination However due to the very seriçus opposition of the 'United States and other countties tlis particular paragraph did Consequently once it not receive sufficient support became clear to the Conference that no provision on this subject was acceptable to most countries in the West the more objectionableJan guage eiitered into the new paragraph An attempt to rectify this situation at this particular time would not be appropriate Noirnplenentating legi51atiOn is needed for this provision B 1—1—26 PROTOCOL I PART I GENERAL PROVISIONS 1 TXTQFARTICLE AS ADOPTED Article 2 Definitions For the purposes of this Protocol a tFirst Convention 'Second Ccnvention Third and Fourth Convention' riean respectively Convention the Geneva Convention for the Aneliorajon of the Condition •of the Wounded and Sick in Armed Forcesin the Field of 2 August l919 the Geneva Convention fo Amelioration of the Condition of Wounded S ek and the Shwrecked rembers of Arrod Forces at Sea of 12 August the Geneva Convention relative to te Treatment of 19'9 Prisoners of War of 12 August 199 the Geneva CcnvetiDr relative to th Protectjon of Civi jar Persons in Tii or War of 12 fuu3t 19 49 'the Conventon ans the foui' Geneva Conventions of 12 August 19 for te protection of war Victims - b • c • coi'lict rules of international law applicable in arrnd means the rules applicable in arced conflict set forth in international areements to which the arties to the conflict are Parties and the enera1Iy recognized principles and rules of international law which are applicable to armed c'nflict ProtectnF Power rnear s a neutiaI or other Stale not a Party to the conflict wbch has been designated by a Party to the conflict a ci accEpted by the adverse Party and has agreed to carry cut the functions assigned to a Protecting Power under the Convencic'ns and ttiis rotccol d substitube means an organizatic m acting in pi 2e of a Protecting Po er in accordance wh Article 5 1—2—1 2 REFERENCES a P otocol I Article 8 Terminology -b Protocol I Article 5 Appointment of Protecting Powers and of their substitue 3 RELATION TO U S POSITION Consistent It was an impotant U S change to delete a proposed subparagraph c that would have defined protected persons and protected objects The reason for this was that the use of •these terms was to be avoided in the Protocols as a whole This was due to the ambiguity and confusion that their use ha resulted in This was accomplished It was also a U S goal to have definitions of a party to the conflict and of authorities under Article 1 representing those engaged in wars of national liberation This was not pursued at the conference for two reasons First the Conference Secretariat indicated beginning of the Fourth Session that the definitions ide was to be limited to the subject matters already oposed or already in the provision The main reason for this appears to have been to avoid an unnecessary expenditure of time Second a proposal defining those entitled to protection or recognition under Article 1 could have led to a more negative outcome than that posed by Article 1 It was anticipated that the definition clause could be use to include or exclude certain groups that may or may not be entitled to the status of liberation groups thus resulting in an additional political controversy Most important however was the fact that the adoption of Article 96 Committee Article 84 Paragraph 3 made it largely unnecessary to have an express definition of those engaged in wars of national liberation The easop for this is that the proposed U S definition would have been based on the fact that only those groups that made declarations under a specified procedure would be entitled to the benefits of the Protocol It should also be noted that it was deemed probable to the Western delegates consulted that a definition of wars of national liberation would have been opposed by a large number of States 4 COMMENTS 1This provision is a self—explanatory one The -nition of substitute provides merely a cross—reference Article 5 which provides a full definition in paragraphs 1—2—2 4 and 7 5 EFFECT ON U S COMMANDERS - -None 6 RECOMMENDED U S ACTION No United States action is necessary on this provision 1—2—3 PROTOCOL I PART I GENERAL PROVISIONS 1 TEXT OF ARTICLE AS ADOPTED Article3 Beginning ndendof application Without prejudice to the provisions which are applicable at all times the Conventions and this Protocol shall apply from the beginning of any situation referred to in Article 1 of this Protocol a • 2 The application of the Conventions and of this Protocol shall cease in the territory of Parties to the conflict on the general close of military operations and in the case of occupied ter ritories on the termination of the occupation except in either circumstance for those persons whose final release repatriation or reestablishment takes place thereafter These persons shall continue to benefit from the relevant provisions of the Conventions and of this Protocol until their final release repatriation or re—establishment b • REFERENCES a First Geneva Convention of 1949 Article 5 b Third Geneva Convention of 1949 Article 5 c Fourth Geneva Convention of 1949 Article 6 Protocol I Article 85 Paragraph 4 b Repression d of breaches of tlis Protocol 3 THE RELATION TO U S POSITION The additions proposed by the U S in Consistent CDDH I 49 are covered in paragraph 2 of the adoptedarticle Paragraph 2 refers to persons who continue to benefit from relevant provisions of the Conventions and the Protocol e g Articles 4 and 5 Geneva Civilians Conventions and Article5 of the Prisoners of War Convention and the Convention on the Wounded and Sick 1—3—1 • COMMENT This provision specifies the time period during Whether or not the Protocol is applicable is governed by Article 1 of the Protocol The individuals who are protected beyond the clause of hostilities include generally civilians in occupied teritory and prisoners of war who have not yet been finally repatriated or released This provision reaffirms the existing concept that the law of war does not cease to be applicable ori the basis that military activities have ended f a terrritory is occupied It reaffirms the view that the law on occupation must be applied throughout the period of occupation which generally means the time until a final greement is reached on the occupied territories which the Protocol• is apPlicable Paragraph 2 contains a crss—reference to those provisions noted above which explicitly èxtend protection to certain classes pf persons beyond the generalklose of nilitary operations hi3 article in effect arrends the third paragraph of Article ó GCC by eliminating the reference to terrrdnation of the app1iction of the CCC in occupied territory one yer after the general close of military operation Israel desired a cross—reference to Article 1 referring to enemy hors de combat which was not incorporated inthe present article Paragraph 2 raises the issue of whether those individuals otherwise qualifying for P status ' ho fall into the hinds of the cJversary belligerent after the general close of hostilities are to receive P status The other possibility is that only 1 1—3—2 I '' DEC i3 individuals whose P status had vested prior to that period After the unconditional surrenders of or1d have that Statuso rnairiLaiteT that surrer5ered troos were iot ar II he entitled to Pi status The rinent 1ancuace of te l2 Geneva Prisoners pf '1at Convention those who ere cptured 0' the l49 Geneva Conf2rence so t at the enemy was a surrender Lie status would vest even if ther Pad been irase used in the GPc is hose who have iallen into tie those AliS p chaneat Lana the l94 GCC us2s hnS of tfle advdrsary On he other riilitary operations1 when the phrase ' general closeof discussing the end of the aolication o certari provisions of that Conv€ition TniS latber phrase is siil ar to the one Fro a plain eaninq of Protoco 1 I used in rticle 3 interpretation of ArticL '3 taken in isolationfroii the rest who tall into the Prtocol it' ou1d be concluded tt othose military hanãs of the adv rsary ter the close Article 42 of rotocol hostilities are not o receive P status ecnploys the ohrase used in the GPil ieG fallen I however t'ne hands of th aiversarv • Given the fact that the of the into irttenion of this lanjuae was to ensure that Pi status would vest even after the c1os of nilftary operations a lain exiress meaning ip terretatiOfl of Article 42 would lead to the conclusion that Pi staius ' ould vest for those iniivi1uals otherwise of J litary operations entitled to it even after the close Under general international la apparently contracuiCtory and provisions in a treaty are to be inter tec reasonably Comequently in such a rranner that they can be reconciled i-jterreted as a Article 3 of the Pijtocol shoulc not e So long 42 cutailment of the express language of Article aversary I with the phrase fallen into tl'ie hands of the its well establisheci neaniriq reaiis in rtic1e 42 rtic1e deriviig inidividual3 who 3 cannot reasoriily Le construed as adversary after the aeneral close fall into the hariás o an• s of rLilitary operations of their P status II they are entitled to that status 1—3—3 otheriis 5 EFFECT ON U S COMMANDERS This royision' dIl nefit U S commanders administering occupied territory for periods longer one year by confirming their powers for the duration than of the occupation 6 RECOMMENDED U S ACTION This prou'ision does no€ require any statement of understanding or other actionH - 314 PROTOCOL I PART I GENERAL PROVISIONS 1 TEXT OF ARTICLE AS ADOPTED Article 4 Legal status of the Parties to the conflict The application of the Conventions and of this Protocol as well as the conclusion of the agreements provided for therein shall not affect the legal status of the Parties to the conlict Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in questLpn 2 3 REFERENCES a Geneva Conventions o 1949 common Article 3 b Draft Protocol II Cc4rnrnittee Article 3 RELATION TO U S POSITION Consistent 4 COMMENTS This provision reflects the well accepted view that the applicatiOn of the Conventions or the Protocol does not affect the legal status of the Parties to the conflict This includes the status of resistence movements or other such groups The provision is in essence designed to nullify what would otherwise be a lack of incentive to apply the law of war If the application of humanit3rian law standards were to be a serious political liability sUch as implying recognition for those who are in revolt against the established government countries would try to avoid the application of the law more adamantly Article 4 of Protocol I is based in essence on common Article 3 of the 1949 Conventions which deals with civil wars Its inclusion in the Protocol reaffirms this concept both as to states fighting each other e g if there is no diplomatic recognition between them as in the Arab— Israeli situation and in the new case of wars of national 1iberatior 1—4—1 ' 4 • L a The second sentence of Article 4'represents a conipromise It desired an explicit reference with the Arab group to occu pied territory in this provision This sentence is consitent with existing international law and is The primary reason why the Arab therefore not harmful dountries wanted this concept to be stated explicitly is that it has been largely only implicit in the existing It is found in those provisions on codified law of war occupied territory which indicate that the occupant cannot change certain laws and that th occupant is a mere It is aso implicit in certain transitory government provisions of the 1949 Civilians Convention such as Article This provision prohibits the settling of occupied 149 Taken as a whole such provisions have territories traditionally been ipterpreted s prohibiting the alteration of an occupied territory's statths Arab group desired the express reference primarily becuse the Isareli occupation authorities have annexed Jerusa em and have performed activities in the West'Bank of the Jordan which they deem are aimed at changing the statu of the occl2Died Arab This is especiallfrtrue in what the Israeli 4-erritories Iernrnent now refers to as Juda and Sarnaria or the West nk of'theJordan Although the United States and almost Thll other nations have supported the Arab contention in the United Nations and other forums the fact that the Israeli Government has made claims cha1Jnging the status of the occupied territories prompted the Arabs to achieve an explicit text on this issue Israel did not oppose the provision 5 EFFECT ON U S COMMANDERS None 6 RECOMMENDED U S ACTION No United States understanding or reservation is needed on this provision No implementing legislation is required 1—4—2 PROTOCOL I PART I GENERAL PROVISIONS 1 TEXT OF ARTICLE AS ADOPTED Article 5 Appointment of Protecting Powers and of their substitute 1 It is the duty of the Parties to a conflict from the beinin conflict to secure the supervision and implementation of the Convenions and of this PrDtocol by he application of the of •that Protecting Powers including inter alia the designation ard acceptance of those Powers in accordance with the following system of paragraphs Protecting Powers shall have the duty of safeuardin the interests of the Parties to the conflict From the beginnin of a situation referred to in Article 1 2 each Party to the conflict shall ithout e1ay desi nat e a Protecting Power for the purpose of pp1ying the Conventions and this Protocol and sha11 likewise yithout delay and for the saEie purpose permit the activities of a Prptec ti ng Power which has been accepted by it as such after designation by the adverse Party If a Prot cting Pojer ha not been designated or accepted froi 3 the beginning of a situation referred to in Article l the Int•e natioral Committee of the d Crcss without prejudice c th- rigit of' any other impartial hurianitarian organization to co ilk shall offer its good oifices t o the Parties to the cc•f Jct h view to the designation without cielay of a Protectirtg owr o the Parties to the conflict cons'nt For that purpose it iy inter alia ask etch Faty to prc'ie it t i a list of at 1ea t five Sates 1 hicl- that arty considers acceptable to act as Protecting Power on its behalf in relation to an aveI'se Party arid St tes asic each aavtrse Party to provc a list of at least which it would accept as the Protecting ocr cf tie rirst Part these lists shall be corru unicatcd -o th Co-1 nittee within t'o 'c' shall corpre them ad seek after the reeipt of hc rc'que3t the agreement of anIropoed State named cri both Jists 1—5—1 If desite the foreoin there is no PotectinPower the Parties to the cc'nflict shal accept without dla''an offer which may be made by the Thternation J Committee of theRe Cross or by any other organization which of ers all uarantees f rnpartality cosu Latons with tne said Parties and these ccnsuitations to act as a bf functioiiin ozsuch sUbstitute is subject to he and efficacy after aue taking into accunt tn rosut substitute The coisent of the Parties to confict every effort shall te madc bythe Parties to the conflict to facilitate the operations of the substitute in the prformance o its tasks under the Conentionz and this Protocol In accord ce withArtc1e the desination and acceptrce 5 of Protecting er for the purpose of aDi ir the Conventicn and this Protocol 3hall not affct the le al status of the corflict or of 6 The conflict and ar the r's rx roryai1cluo1nr occuoeu terrr maintenance of diplomatic re1aons between Partes t- th or the entrustin of those of its nationai a Party's ieres tb relatjnj to diplorayc relatjon3 15 the designatjp of Protecting Powers for the ou ocsenD of rules of international law obstacle to the Protection of to a third State in accordance with app1yin the Conventions and this Protocol Any includes subseuet mention in this Protocol of a Prot€ctin also a uUstitute 0 2 REFERENCES a First Second and Third Geneva Conventions of 1949 b Fourth Geneva Convention of 1949 1949 common Articles 8—11 1—5—2 Articles 9—11 Forer 3 LAT C' U PcSITION is generally consistent with the US Article The oi Iigatiofl to accept the I C f C as a poition substitute is not as strong s bias eircd by the P S Artic1 5 hs been the fcus of U S attetts to a strengthen the system of ProtE'ctng Pcwers and substitutes In particulr the 13 3 and otet iestern States have eired to rroviáe for a r echanism whIci ou1d ensure that in the event protecting Powers could not be obtaineá te Parties wOu1t at 1est agree in advaice to accept the I C RC as a substitute There are two common art icles in eccn of the 1949 enev3 Conventions which cstb1ish a echnisr or obtaiiny protecting Pcwer or substitutes arid which apear to he quite stronj Corzion rtic1es ó arid 10 ot the First second and Thiri Conventions ric1es 9 and 11 of the Fourth Conventic aqrah 3 of coim on Article 10 of the first three Covntio1s 11 of the Fourth Convention is however culified the subject to the provisions of tiis rtic1e b tide hrase 1anquue ' This - can be interpreted as making the obligation in rarb 3 subject to tETfirt oaraqraort of common rtic1e wiich provides that he ' igh Contracting Parties rnay E any tithe aaree to entrust to n organization the duties ircu tent on the rrotecting Poier • Eihasis aGrei Eeoc in this fashion the ccetace of a the su stitute in the ce of rc'rpii 3 of tne ccon rtic1e recuires con't sual acreeent by trie parties and i not therceore nceiariiy randtor1 Tbi interretation s consistent with the soviet ri Eastern 1oc reservetions to Article 11 o the fjrt thrc Ccjrventicrs arid Article 11 f tie Fourth Conv'n'tion These reservatiorLs srecifically require the consent cf the aries betore aneutrl State or a huranitrin crniziOn iv undertaKe the functiots crforr e by the Protctiry Pc E r c The U 3 bo e tnat rtic1e 5 would go beyond this provision concnt based a9roach by incorporating strictly whereby Stt WOUIC consent in avanc to accept the I C R C as a subtit11te if no other Protecting Power or ubtitute cculd be greeä u o rtic1e 5 falls 3hort ef ft lly tininy this ck tive It do es however4 sijriicant1y str€-nc then the it iore uit±icult for It digerent to refuse to have ither a rt tra1 gcverr e nt cr cting oer svst- I -5-3 an irnoartial nurtaflitarian organization such as tie I c C observe t e• tr eet1rent accorded to prisoners of war d rtic1e 5 cler1y st forth the utv o the Parties secue 'e survisinanU impleiientation 01 to the Geiev Conventions and the new ProtOcol bythe apolication of the systeT of rotectirj Powers Each Party to the Conflict is uriceir the tocce7t Protcting Powers The article duty to designate also provides that the I C C zithout prejudice to the richt of any other iiip rtia1 hun anitarian organizatiri to co 1i ceise shall offer its good cff ices to the Parties witn a view to the designation wichcut ei ay of Protectiry Parties For that curodse it rny ask each Party to provide a list of at ieat Fina1ly if there is no protecting Power krticle 5 rrovides that the rties to the conflict ust accept i offer naóe by the I0C C or cther five States whic h it would accept irti21 hunitria oryanization to act as a substitute for te Protecting Power The functioning of the substitute is expreslr made con5itiona1 upon the consent of the Parties to conflict COii1ET ven before the beginning of the Conference the tJ urged that the Protecting Poer systeu i'proved It rued that thi system w s the most critical e1eent in ensuring that In June 1971 at the First the 1a woulá be imr'lernented a0 Confererce of Goverent Exetts the U S xerts subritted craft procecrure for the aoointment of Protctinq 2cwer r ater0 hese id4ea3 proved to be the genesis of craft article The draft rtic1e 5 of Protocol I •ac proos by the I C R0C a In 172 te U S cxerts sub itted a fornal inurit on thi contained a series of procedures to facilitate the aQoointent of Protecting Powcrs including a iecnanis for the sub iion In its crucial praqrh ricuever ot tne IC P C lists to I C RC draft resentec two alternatives0 that the Parties to tie conflict woui have to the Cne providca accept s a tlloac an oiter de by the I C R C to Power Tue cther at as a sbstitutc orthat thetheProtectinc I C ' C could 3sune the fur cticn finalnandatorv 1te rntive of orovide prcvi ed tnt the Parties tc the conf1icto sub titute TJ fvore theforrrer solution because in its The it s thc onlyway to ensure tha'c if view the functior o a Protectir Power wculc in fact be rr Eor' E agreeó Aic1e 1i else ti1e There are 1ngtiiv icusiors nd negotiaticn cocrnic ' Easterr bloc cou tries rnc ard some otker courir•jes iere irsistent tnt there nust be n greeent of T — c— the Parties inv1'ved cn any Protecting Power or subtitute and that it wa both urideirble and unrealistic to iose a protectin'tj subsçiLut witLout th consent of the Etates Pow9r involvei On the other hand heU ar1d a nmber of other Westeri Eur ooean countries took the rosition that it w osib1e for St'ces 'to ajree in bechinc P rtieto th new Prctocc1 th t tlicv would accej7t ri impartii organization such as the I C P C Power as a final fl1bck 3ubstitute for the Protecting c The firl comproise on this point pro'iäes the Parties to th ccflict shall accet ithcut tnat dc-lay n offer which may be Red Cross •or by any rade by th International Coirnittee of the other orçanization which offers all guarantees of imoareility and efliccv to act as a The func' iorting of such a substitute is suject 'to the consent of the Parties to the conflict all efforts shlI be made by the Parties to fci1itate the oeration of a The Substitute in fu1fi1licg its tasks sc-cond of tiii oargrach which récuires the consent of the Fartie for tie '1functioriing of the substitute oces not qualify the substitute enence baic ohliatjon to accept an otier rde by an prorite organization to ct as a substitute 1ather it reconi•zes the obviot s fact nt the Parties especi 311y the detaining Power rust give its consent in order or the substitute to operate effectively The cooDeration Parties in r'attrs such as cbtainin visas and of ti eustitute w l1 therefore be essenta I tthile •t'ie Li s Ee1etation ou1 have preferred a stronger toriu1ation the transcrtation for rreentative ccrprorise text wa consiereby the U S e1eation to he a 5igniticant strenqtheninQ of the Protectinq Power ystei I-55 5 EFFECT ON U S COMMANDERS 4— • L No major direct effect is anticipated that this provision will be of major assistance to those in charge of prisoner' of war compounds and s1ouldenable them to perform their activities in a manner that will meet U S interests If fully implementeJ this provision should enable the betteL treatment of prisoners of war and other detained individuals during waris in which the Protocol will be applicable it 6 RECOMMENDED U S ACTION No U S underst'iing or reervation i s needed to this article It is noteá in this cnnection that the present article is the strongest formuThtion which could have been achieved at the Conference without resulting in widespread reservations to the article Ii was an important U S • • goal to ensure that if there wa an article on reservations the Protocol Article 5 should be nonreservable onsequently since this provision is not strictly mandatory under allcircumstances due to the desire to accomodate States which would not accept a fully mandatory systems any reservations to this provision by other countries should be presume d to be invalid and be •r ejecEë 1—5—6 PROTOCOL I PART I GENERAL PROVISIONS TEXT OF ARTICLE AS ADOPTED 1 Artic1e 6 _QUalified Persons The High Contracting Parties shall also in peacetime endeavour with the assistance of the National Red Cross Red Crescent Red Lion nd Sun Societies to train qualified peronnel to facilitate the application of the Conventions and of this Protocol and in particular the activities of the Protecting Powers 1 The recruitment and training of such personnel are withiti domestic jurisdiction 2 The International Committee of the Red 3 Cross shall hold at the disposal of the High Contracting Parties the list of persons so trained which the High Contracting Parties may havehave established and may have transmitted to it for that purpQse The conditions governing theemployrnent 4 of such personnel outside thenational territory shall in each case be the subject of special agreements between the Parties concerned 2 REFERENCES a • Hague Convention Number IV Article 1 Geneva Conventions of 1949 common Articles 47 48 127 144 b protocol I Part V Execution of the Conventions c and of this Protocol Articles 80—84 3 RELATION TO U S POSITION Consistent 4 COMMENT This provision is essentially a Iest efforts clause to train individuals who are qualified to apply the I—6—1 Protocol It is based on similar provisions in the 1949 Genev a Conventions which lso 'Real with the training of individuals It i also ielat d in part to Article 1 of Hague Convention Number IV which deals with the instruction of military personnel --ft is noted tha the original version of this provision made the 'obligation now stated in paragraph3 a mandatory one As finally adopted this obligation is no nger mandatory 5 EFFECT ON U S COMMANDERS None 6 RECOMMENDED U S ACTION No United States r-servation or understanding is needed in this provision The training of qualified individuals in the military is already a part of the military's responsibiIities The training of individuals in the 'i1ian society will perhaps be a responsibility that er agencies of the U S Government or the Red Cross have to assume if the Protocol recninendatiOn is to be fully implemented 1—6—2 PROTOCOL I PAR' I GENERAL PROVISIONS 1 TEXTOF ART qLE AS tDOPT'T Article 7 Meetings The depositary of this x'otocol shall convene a meeting of the Hig Contracting Parties at thE request of one or more of the said Parties and upon the approval of the majority of the said Partie to consider gereral prclems concernin the applications of the Conventions and of this Protocol 2 3 REFERENCES a Protocol I Article 7 Amendment b Article 98 F evisionof Annex RELATION TO U S POSITIO Consistent 4 I COMMENT This provision provides authority to the Swiss Government to convee a conference to consider problems relating to the application of the Protocol It does not provide for the amendmentof the Protocol which is provided for in Article 97 However it does provide a forum for considringproblems relating to the implementation of the law and will perhaps provide an avenue to convene a meeting under the Swiss Government rather than the United Natiors if the United States were to find it advanteous tocorsider problems relating to the Protocpls at'an international meeting The reference gereral problems is intended to disc ourage rneetings for the purpose of discussing particular political problems The article does not permit the International Committee of the Red Cross to call such t meetings on-its own initiative 5 EFFECT ON U S COMMANDERS None 1—7—1 6 RECOMMENDED U S ACTION No U undrstandjnj oservatjon is needed on this provision nor is implementing legislation needed 1—7—2 PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION 1 GENERAL PROTECTION ARTICLE 8 - 1 Artice Tennino1gy TEXT OF ADOPTED ARTICLE - Tcrrnin oioy 8 For the purposes of this Protocol a woundcd and sickT rni itry c eivi who because of trauna disease or whether other pbycai c'i' mental dior cr or disability are in need of recdcai as 'tn' or crc and who refrain from any act of hostility These tr 1o t 1' r at ernjtv case new—born babies and other persr ay t e e of immediate iedical asi3tance or cares zc th -' mean persons or expectant mothers and who 'efravi frrr nv rt b ' shipwrecked persons whether military o v4liar n or i at sea ormeans in otIr waters as a reuit of Irif'i ir e ffecLn thei or' th vessel or aircraft carryr thcm ar tho efr in from any act of hostflity These person prcvr tb they contir-ue to refr in from any act of hostility shall cntre o be conic1red shipwrecked during their resci e until they an't r status urer the Conventions or this Po occ c to persons ai ne y confUct xciusi-e1y to the me icaI nr3 er pcrraph or to the arninistration of nied ca1 •o the oper t onor Jministrat±on of medical transports Su 'a'ty medical personnel means thc3e ros er r€ the Lssignrqents may Ue 1 eit•ber permanent or temporary ca prsonne TIe terri i ncJ of a Pay to th conf1ct th c1udin be cr±bed tbos to clvii cfence oran ztions ii JJc1 f' nat ona fled Cross C' i - rc Lioniersoiliei an Sun Societ ies n 1itary the ' o iuntixy by or civilian1 Fit and Secor1d Corentio'is ar d a d scci etic Part' t th 3nf a a other nationi ic -11 r cnn of cUa1 u ts or' Lrrprts i'•'i in ' di racognized and t c 9 a VpejjgjQ5 pesorin1 means military or civijj persons who are exclusively f as chap1a-s engaged in te work fl stry ana attached 1 ii to the armed forces of a Party to the units or to medical to the Conflict 111 medical transports their conflict of a Pay to medical units or Articie 9 paragraph medical transpox'ts described in or 2 iv to civil defence organizatj5 of a Party to the Coflfljct The attachrnent of religious personnel may be either temporary and the relevant provisions permanent or para g'ap k apply to them mentioned under sub e medical units means establis whethei rnilJ tav or civilian organze the trea rnt s3arc for collection nt and other unts for medical purposp trarsportatioi 1 ss or inclding firztajj treatnent or for the prevention of disease of the wounded sick and amp1e Jospjtals and other The terni inc1ude similar traflsfj0r det3 such uit fledca1 temporary units blood orventive rnedcjne centres and the medical and pharmaceutical stores institutes of mite may be md fixed or rnoble permanent or medical medical transportation 'ater or air means te converace by of te Wounded s ck shipwrecked e1igous persorr1 persoine3 medical equipme or medicalmedical rotected by the Conventions supp13 and by this f Protocol tedicai transports ' means any means of traPsportat4 lether military or permanent C1U3jVI to or ternpárary medical transportatoi and assi ned Illpetent under the control of a ' h i civilian iithorty of a Party to the conflict ' dical vehicles - means any medical transports by lana medical ships and craft means any medical transports by ter j dica1 aircraftt means any 1-8-2 med±cal transports by air IlPerinanent medical personnel perr anent medical units medical tranpo'ts1' mean tt1L3C S3igfled exclusively to medical purposes for an indeterminat period Temporary 1' 1tnpr•mancnt medieaa pcisonnel terporary medical units and temporary medical transports mean those devoted exclusively to medical purtoses for limited periods during the whole of such Dcricds Unless otherwise spefied 'the ter T1icai prsonnej medical units and 'tmedical transports cover both permanent and temporary cateories 1 distinctive emblem means the distinctive emblem of the red cross red crescent or red liqn and sun or a white ground when used for th protection of medica units and transports or medical and religious personnel equipment or supplies m distinctive the identification for in sgna1 meaps any signal or message specified exc1usively of medical units or transpcrts Chapter III of Annex 1 to this Prot occ'1 2 REFERENCES See 2 in Review and Analysis bf component subparagraphs on o1lowing pages Par RELATED TO U S POSITION 3 Except as stated in the subsequent review and analysis of component subparagraphs this Article conforms to the U S position COMMENT 4 a The title of the Article was changed from Definitions to Terminology at the recommendation of the Drafting Committee in order to avoid confusion with Article 2 which covers broader definitions - b At the recommendation of the Drafting Committee Article 8 was consolidated with Article 21 Definitions Relevant to Medical Transport This action was consistent with the U S position which recognized this possibility and interposed no objection unless the effort would interfere with higher priority work of the Drafting Committee O c In order to facilitate the translation of the Article into Russian fting Committee at the urgent insistenáe of the Soviet Delegation 1-8-3 numbered the subparagraphs instead ofusing lower case letters as was done in shorter enumerations Apparently the 1949 Diplomatic Conference had similar problems cf III Convention Art 4 I Convention Art 16 Annex I Art 4 It is noted that the July 1977 text prepared by the Secretariat used lower case letters As it is riot known which system will be used in the final text the ensuing text will be prepared with reference to both d Detailed discussions as to the substantive provisions of the definitions appear as follows Paragraph Qflnj 5 Secretariat Txt 1 a 2 b 3 c 5 e 4 d 6 - lO f - j 11 12 13 k 1 m Decsription Wounded and Sick Shipwrecked Medical Units Medical Personne1 Religious Personnel Medical Transportation Permanent—Temporary Distinctive Emblem Distinctive Signal MILITARY IMPLICATIONS See subsequent review and analysis 6 RECONMENDED U S ACTION No understandings or implementing legislation is necessary 1-8-4 1-8-7 I-89 1-8-12 1-8-14 1-8-16 1—8-18 1—8—18 3 OCT 1977 PROTOCOL I PART II WOUNDED SICK AND SIIIPWRECKED SECTION I' GENERAL PROTECTION - Article 8 1 Teinology a - l -- i Wounded' and Sick TEXT OF ADOPTED ARTICLE Article 8 - Terminology For the purposes of this Protocol wounded and sick mean persons whether military a o r civilian who because of trauma disease or other physical or mental disorder or disability are in need of medical asistance or care and who refrain from any act of hostility These terms also cover maternity cases new-born babies and other persons who may be in need of immediate medical assistance or care such as the infirm or expectant mothers and who refrain from any act of hostility REFERENCES I Convention Arts 12 13 II Convention Arts 12 13 IV Convention Art 16 Protocol I Arts 9 10 13 14 16 17 22—31 37 41 44 3 85 RELATION TO US POSITION a The definition of wounded and sick is consistent with the U S The use of the quotation marks in wounded and sick in the first sentence is intended to promote flexibility in referring to the wounded and sick or to wounded sick and in other articles position b The original U S position was that only those who are in serious need of medical assistance and care should be considered to be wounded and sick CDD1-1111127 It was the U S view that the objective serious would sc en out such trivial trauma as a simple cut or such ailments as a simple headache This proposal was met with substantial resistance from medical members çf Committee II who pointed out that a simple cut might i to tetanus and a headache might be a symptom of menengitis Under circumstances the U S and UK withdrew their proposal In doing so 1-8-5 a CT 77 the U S andUK representatives expressed the understanding that the word need excluded trivial and nondisabling ailments COOl Il SR 5 pp 36-38 The second sentence is substantially consistent with the U S position The drafting change is intended to clarify the reasons for assimilating the words wounded and sick to persons who are neither wounded or sick in the popular sense but whose physical condition is nevertheless such that there is a high probability they they will be in need of immediate medical care and assistance Accordingly such persons are deemed to be entitled to the same protection and respect as those suffering from trauma or disease c COMMENT 4 The definition of wounded and sick which broadens the classes of persons entitled to respect protection assistnce and care under the conventions is particularly significant in relationto Article 10 Protection and Care as well as those dealing with entitlemert to conveyance in medical transports Articles 21 22 23 24 25 26 28 301 nd 31 I MILITARY IMPLICATIONS See 'iar 4 under Article 10 6 RECOMMENDED U S ACTION No understandings or implementing legislatiOn required 1-8-6 C' '7 PROTOCOL I 'PART II WOUNDED SICK AND SHIPWRECKED SECTION I GENERAL PROTECTION Article 8 - 1 OF Article 8 - Teninoloy b - 21 - Shpwrecked ADOPTED ARTICLE Terminology For the purposes of this Protoco' shipwrecked means persons whether military or civilian who b are in peril at sea or in other watei°s as a result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any act of hostility These persons providqd that they continue to refrain from any act of hostility shall continue be considered shipwrecked during their rescue until they acquire anot1er status under the -Conventions or this Protocol 2 REFERENCES II Convention Arts 12 13 18 III Convention Art 16 Pictet Commentary II Convention 3 p 89 RELATION TO U S POSITION a The adopted text is consistent with U S position are clarifying drafting changes The variances As a drafting change the U S proposed that the essentials of the definition include those who are in peril at sea or other waters because they have fallen overboard or as a result of the destruction loss or disablement of the vessel or aircraft in which they are traveling it also proposed that shipwrecked shall be construed to incude those who have been rescued until they are established ashore or acquire another status provided they continue to refrain from any act of hostility The Committee concurred in the objectives of the U S proposal but as a matter style preferred the phrase as a result of misfortune affecting either or the vessel or aircraft carrying them as encompassing both those b 1-8-7 who have fallen overboard and those whose peril results from destruction disablement or loss of the vessel or aircraft The variance as to the second sentence is not substantive 4 COMMENT Under Article 12 Second Conveition the word shipwrecked was limited to members of the armed forces and the limited class of civilians The applicability of that mentioned in Article 13 Second Convention article was also limited to the shipwrecked at sea Article 8 b broadens the definition by extending its applicability to 1 all persons whether military or civilian provided they are in peril and refrain from any act of hostility and to 2 internal waters a b While considering articles dea5ing with medical transport Arts 22-31 it was noted that the provisional definition of shipwrecked It was also noted that a literal omitted those who had fallen overboard reading of the definition would exclude persons who had been taken aboard a rescue vessel because such persons are no longer in tpeil at sea or her waters See report of working group which considered medical This might have raised a technical question transport CDDH II 296 to whether it is lawful for such person to be conveyed aboard a medical transport if they are neither sick nor wounded See Article 8 f and g The changes made by Corrunittee II are intended to preclude such narrow The second sentence makes it clear that shiptechnical constructions wrecked persons taken aboard a medical ship or craft or aboard a medical aircraft will continue to be eligible for such transportation during the Thereafter their status will be either wounded entire rescue process sick PW civilian or member of the armed forces of the side which rescued them Except to the extent that Article 8 b is explicitly applicable in inte nal waters there is no substantive change in the obligation to search for resc e and assist the shipwrecked as provided in the Second and Fourth Conventions These See Article 18 Second Convention and Article 16 Fourth Convention articles were considered to remain applicable and were not restated in Protocol I cf Art 8 Protocol II c 5 MILITARY IMPLICATIONS This definition restates present U S understanding and is consistent existing US practice in a broad construction of the provisions of 'econd and Fourth Conventions RECONMENDED U S ACTION is necessary 6 No understandings or implementing legislation - PROTOCOL I PART II WOUNDED SICK AND SHIPWRECRED SECTION I GENERAL PROTECTION Article 8 - Terrninology c -Medical Personnel and e -Medical Units Art 8 3 and 5 - 1 TEXT OF ADOPTED ARTICLES Article 8 - Teiinology For the purpose of this Protocol medical personnel means these persons assigned by a Party to the conflict exclusively to the medial purposes enumerated under subparagraph e or to the administratio of medical units or to the operation or administration of medical transports Such assignments may be either permanent or temporary The tenn includes c - i medical personnel of Party to the conflict whether military or civi1ian inc1uding those described in the first and Second Conventions and those assigned to civil defence organizations ii medical personnel of national Red Cross Red Crescent Red Lion and Sun Societies and other national voluntary aid societies duly recognized and authorized by a Party to the conflict iii medical personnel of medical units or medical transports described in Article 9 paragraph 2 medical units means establishments and other units whether e military or civilian organized for medical purposes namely the search for collection transportation diagnosis or treatient - including first-aid treatment - of the wounded sick and shipwrecked or for the prevention of disease The term includes for example hospitals and other similar units blood transfusion centres preventive medicine centres and institutes medical depots and the medical and phaniaceutical stores of such units Medical units may be fixed or mobile permanent or temporary 1-8-9 2 REFEtENCES I Convention Arts 19 24-27 33 35 II Convention Arts 22 24-27 37 IV Convention Arts 18 20 Protocol Arts 12 13 i 3 RELATTQ TO 15 18 2131 61 66 u s POSITION With minor modifications of a nonsubstantive nature Conittee II adopted these definitions as proposed by the U S Delegation a The only variance in Art 8 e is the insertion of the parenthetical remark thnt first-aid treatment is on of the medical purposes for which a medical unit may be organized b 1inor clarifying changes were made with respect to Art 8 c a Under the First and Second Conventions military medical units and their personnel have extensive and detailed protection They may display the distinctive emblem at all times Under the Fourth Convention comparable protection is provided only to civilian hospitals and their personnel But hospitals may display the distinctive emblem only in war time while their personnel have that privilege only in occupied territories and zones of military operations One of the major purposes of Part II Protocol i is to extend comparable protection to other civilian medical units and their personnel The definitions of medical units and medical personnel lays the foundation for the accomplis1ment of this purpose in Articles 12 13 14 15 18 19 and 20 They are also relevant to entitlement to be conveyed in medical transport Articles 21-31 The medical purposes identified in Article 8 e are based on those listed in Article 24 First Convention and Article 20 Fourth Convention The terms diagnosis and first-aid treatment were added at the insistence of several delegations The U S Delegation believed that both diagnosis and fii'st-ztid treatment are included within the term treat t but did not object to the apparent redundancy if others believed that i would enhance cinrity It is also to be noted that the Ccrnmittee's report makes it clear that the medical purposes mentioned in Article 8 c and e include il tre tment and that the term hospital and other similar unitslv udes CLrnvalescent or physical rehabilitation centers providing medical b Itruent CDDH II 396 p 5 1-8-10 In Article 8 the word operation was omitted from the term and administration of medical units which had appeared in the provisional definition adopted at the 1974 session The omission was based on the belief of Committee II that the operations of medical units consist of the functions inherent in medical purposes as used in Article 8 e and that therefor the use of toperation in relation to medical units is a redundancy On the other hand the purpose of transports is to provide transportation and therefor the use of operation or drninistration of medical transports is necessary to include medical transport crews' within the coverage o f medical personnel c operation The coramittee also noted that its intrpretation of the term those exclusively to the administration of medical persons assigned units includes persons who look after the administration of medical units and establishments withut being directly concerned in the treatment of the wounded and sick This would incude office staff transport drivers plumbers cooks nd other skilled workers They form an integral part of the medical units and estab1ishmens which could not function properly without their work Article 8 c ii is the functonal equivalent of Article 26 of the First Convention and extends also to he medical personnel of national Cross Societies and other nationa voluntary aid societies serving ie civilian population d e With respect to Article 8 e the reference to medical nd pharmaceutical stores pertains only to such property as belonging to or is used and stored by the units There was no intention to provide special protection to such supplies in the possession of the pharmaceutical industry or in the process of distribution It was recognized that the pharmacuticai industry is closely colocated with the chemical industry which maybe a military objective and that a country's normal distribution system was not such that medical supplies would have their own supply line and distribution Accordingly it would be impossible to protect all medical stores in a country 5 MILITARY IMPLICATIONS Extension to new classes of civilian medical units and personnel of special protection and entitlement to display the distinctive emblem may impose a requirement for additional controls and measures to prevent abuse On th other hand organization of additional civilian medical units and personnel tends to relieve the requirement for medical personnel sujport civilian wounded and sick inherent in Article 10 — is RECONNENDED U S ACTION No understandings or implementing legislatioci necessary 1-8-il PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION I GENERAL PROTECTION Article 8 -_ 1 Terminology d - 4 Religious Personnel TEXT OF ADOPTED ARTICLE Article 8 - Terminology For the purposes of this Protocol d religious personnel means mlitary or civilian persons such as chaplains who are exclusively engaged in the work of their ministry and attached i ii iii iv to the armed forces of a Party to the conflict to medical units or me ical transports of a Party to the conflict to medical units or medical transports described in Article 9 paragraph 2 or to civil defence organizations of a Party to the conflict The attachment of religious personnel may be either permanent or temporary and the relevant provisions mentioned under subparagraph k apply to them 2 REFERENCES I Convention Arts 24 28 40 II Convention Arts 36 37 42 Protocol I Arts 15 18 61 66 Annex Arts 1 3 2 4 RELATION TO U S POSITION The adopted definition of religious personnel differs from that proposed the U S in CDDH II 313 in that recognition is accorded to religious onne1 attacied temporarily to the armed forces or to medical units The proposal was based on the earlier action of Committee II in Article 15 1-8-12 which limited the designation and the incidental entitlement to wear the distinctive emblem to permanent religious personnel The adopted definition also takes cognizance of the inclusion of religious assistance as a civil defence task During the Third Session the Holy See supported by Austria France Nigeria Nicaragua and the U K launched a determined drive to broaden the scope of religious personnel commensurate to the broadening of civilian medical personnel by the entitlement of temporary personnel to display the The Holy See's proposal prevailed over the view that distinctive emblem the proliferation of entitlement to qear the distinctive emblem increases the danger of abuse and would diminish the respect accorded the distinctive The Holy See's proposal was ultimately adopted by Consensus emblem 4 COMrENT a Compared to the proliferation of entitlement to wear the distinctive elTiblem inherent in the extension of the privilege to a large class of temporary civilian medical personnel the addition of chaplaIns temporarily Several deleattached to the armed forces or medical units is minimal tions mentioned that although Chaplains attached to the armed forces been entitled to wear the distinctive emblem since 1929 they seldom Thvail themselves of this privilege Conforming changes were adopted by consensus with respect to Article 15 and Chapter I of the Annex b 5 MILITARY IMPLICATIONS See 6 par 4 RECONMENIDED U S POSITION No undestanding or implementing legislation is necessary 1-8-13 • PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION I GENERAL PROTECTION Article 8 -Terminoiogy f -Medical Transportation g Medica1Transport h - Medical Vehic1es i Medicai Ships and Crafts j Medica1 Aircraft Art 8 6 iO TEXT OF ADOPTED ARTICLES 1 Article For f 8 - TerrninoloM the purposes of this Protocol medical trnsportation means the conveyance by land cr air of' the •iouided sck shipwrecked meuical personnel water icu personne1 medical the equipment or medical and by this Protocol uppli ceO by g medical transports means any means of transpotatiOri h itedical 1 t1nedica1 ships and craft means any medical trcnspLrts by Conventions whether military or civilian permanent or temporary assiznd exclusively to medical transportation and under the coni ro f a competent authority of a Party to the conflict vehiclest' means any medical transports by 1anc water j 2 medical aircraft't means any medical transports b1 Jr REFERENCES I Convention Arts 35 36 II Convention Arts 22 24-27 38-39 43 IV Convention Arts 21-22 1-8-14 3 RELATION TO U S POSITION Except for minor drafting changes of a nonsLthstantjve II adopted as Article 21 the Committee text proposed in CDDFI II 79nature Belgium Canada and the U K by the U S The drafting committee decided Article 8 and Article 21 dealing with to consolidate definitions for medical transportation 4 CONNENT a The provisions of the Protoo1 dealing with ships and craft will apply not only at sea hut on otherwaters as well This basic policy decision was made in 1974 by Commitjee ii provisona1ly in Article 8 b the definition of shipwrecked This policy was confirmed when 8 b was adopted finally at the i976 Article session b Religious personnel have been added to the authorized of medical transports passengers The term religious personnel is defined in Article 8 d 5 MILITARy IMPLICATIONS Entitlement to protection •and the use of the distinctive emblem is clarified 6 RECOMMENDED U S ACTION No understandings or implementing legislation i necessary 1-8-15 PROTOCOL I PART II WOUNDED SICK AND SHI1'WRECID SECTION I GENERAL PROTECTION Article 8 - Terminology k - Peanênt-Tempory trt 8 11 Formerly Arts 8 e and 21 TEXT OF ADOPTED ARTICLE 1 Article 8 - Terminology I For the purposes of this Protocol permanent medical personnel permanent medical units and k permanent medical transports mean tFose assigned exclusively to medical purposes for an indeterminate period Temporary medical personnel's temporary medical units and temporary medical transports mean those devoted exclusively to medical purposes for limited periods during the whole of such periods Unless otherwise specified the terms medical rsoinel medical units and medical trinsports cover both pernaneut temporary categories - 2 REFERENCES I Convention Arts 25 29 35-36 II Convention Arts 36-39 IV Convention Arts 20 21 3 RELATION TO U S POSITION This Article was based on the U S position for Article 8 e Article 21 b of the texts adopted by Committee II consolidation is consistentwith U S position 4 The COMMENT With respect to Art k it should be noted that permanent medical rrsonne1 uni s arid transports are assigned exclusively to m2dical whereas temporary personnel units and transports re devoted hoses usively to such purposes 1-8-16 In this connection it should be noted that assignment by a Party to the conflict exclusively to medical purposes is required for all medical personnel whether they be permanent or temporary Art 8 c The use of the term devoted exclusively with respect to temporary units and personnel is intended to make it clear that their protection and entitlement to display the distinctive emblem occurs only when they have in fact ceased to do any work other than medical work and that it continues only so long as the person unit or transport remains exclusively devoted to medical work It was considered that assignment to medical work receipt of an order to perform medical work nd the actual cessation of nonmedical activities may not coincide in time 5 MILITARY IMPLICATIONS The emphasis on temporary medica1personnel units and transports although not novel in practice will impose a requirement for additional controls and measures to prevent abuse RECOMMENDED U S ACTION No understandings or implementing legislation is necessary 1-8—17 PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION I GENERAL PROTECTION Article 8 - Teino1ogy 1 - Distinctive EmJm - Distinctive Art 12 and 13 1 TEXT OF ADOPTED ARTICLES Article 8 - Termino1oy For the purposes of this Protocol distinctive emblem means tHe distinctive emblem of the red cross red crescent or red lion and s4n on a white ground when used for the protection of medical units and ttansports or medical and religious personnel equipment or supplies 1 in distinctive signal't means a4 7 signal or message specified for identification exclusively of medial units or transports in Chapter of Annex I to this Protocol 2 REFERENCES I Convention Art 38 II Convention Arts 41 43 IV Convention Art 18 Protocol I Arts 18 21-28 37 38 85 Annex I Chapters II and III Resolutions 6 7 1949 Diplomatic Conference Resolutions #17-19 IV 1974-1977 Diplomatic Conference 3 RELATION TO U S POSITION a The Conference adopted the U S proposal for th e distinctive emblem but changed the conjunctive andtt to the disjunctive or in the last line The change is an improvement b Article 8 m is entirely consistent with the U S proposal 1—8-18 - COMMEN a The provisional definition of distinctive emblem did not distinguish between the protective use of the emblem Arts 39 43 First Convention Arts 41-44 Second Convention and Art 18 Fourth Convention and the indicative use for showing affiliation with national or international Red Cross orgaiization Arts 44 53 First Convention Committee II used the term so defined in Articles 18 2 3 4 5 7 8 28 Annex I Articles 1-4 5 An explicit distinction between the protective use and the indicative use became necessary because the text of Article 38 ecognized Emblems adopted by Committee III prohibits the improper use of the protective emblem of the Red Cross Red Crescent and Red Lion and Sun In reconsidering Artic1 8 1 in the light of Comiittee hIts action Committee II decided to retainthe term distinctive emblemU but revise its definition so as to make it clear that only the protective use of the emblem is relevant to Protocol I The indicative use of the emblem is amply protected under Articles 44 arid 53 of the First Convention The Conference modified Article 38 toconfdi-m to Committee II's terminology b Article 8 m is in full harmony with Article 18 5 and 6 and Chapter III of the Annex by providing that the signals identified in Chapter III are for the exclusive use df medical units or7 transports y MILITARY IMPLICATIONS See par 5 under Articles 18 26 bis and 30 6 RECOMMENDED U S POSITION a No U S understanding is required For follow-on actions concerning establishment of distinctive signals see Discussion under Annex I Articles 6 7 and 8 Resolutions 17 IV 18 IV 19 IV of the Diplomatic Conference b 1-8-19 PROTOCOL 1 PAT II WQUNDED SICK AND SHIPRECKED SECTION I Article 9 - GENEPJL PROTECTION Field of Application TEXT OF ADOPTED ARTICLE 1 — Fild of aiiilitjon 1 This Part trc provsions of W-'Ch are jntendc to arleliordte the condition of the vrounded sick i 1ckecj Shall apply to all thcse affected by a situationreferred to n Article l without any adverse distinction founded o race co1our sex 1anguàge rel igion or belief political or ther opinicn national or social origin iea1th birth or other sttus or on any Other similar crierja Article 9 Tne relevant oroisions of Aj1clc 27 and 32 of the Firt t'nton shall apply to permand 2 dica1 units and transports er than iicspita1 sbips to whichl rticle 25 of the Second oriventjon aples and their personni made available o a Party to the conflict for humanitarian purposes a by a neutral or other State ich s not a Party to that conflict b by a recognized and authorized id cociety or such a St të c 2 by an impartial internatj 'nmarijtai'n ornizatjo REFERENCES I Convention Arts 3 12 27 II Convention Arts 3 12 25 III Convention Arts 3 16 IV Convention Arts 3 13 Protocol I Arts 10 75 Protocol If Art 2 1-9-1 3 oT i 7 3 RELATION TO U S POSITION a Par 1 as amended by Committee II at its ninety-ninth meeting CDDH II SR 99 is consistent with the U S position The Committee II substitution of the words all those affected 1 by a situation referred to in Article 2 common to the Conventions is not a substantive variance from the proposed U S language all combatants and non-combatant military personnel of the parties to a conflict and to the whole of the civilian population of the parties to a conflict For consistency with the formulation used by Committee I the drafting committee substituted Ar4icle 1 of the Protocolt for Article 2 common to the Conventions At the First and Second Sessions the U S had strongly urged that an 2 illustrative list of criteria upon whid h adverse distinction may not be made in relation to medical care be inq1uded in this article or in Article 10 similar to that which is inicluded th Article 3 comon to the Conventions and in Articles l2 i2 6 l3 of the respective Conventions CDDH II 50 Connittee II however favored the deletion of this list for fear that criteria not included the4ein might be disregarded notwith- str-in the clear showing that the liL was only illustrative CDDH II 40 isored by Australia b At its last substantive meeting Committee II considered and adopted a proposal co-sponsored by Australia and the U S CDD I II 435 to reconsider and revise Par 1 by the insertion of an illustrative list identical to the one used by Committee III in Article 75 Par 1 Protocol I and by Committee I in Article 2 Protocol II CDDH II SR 99 4 COMMENT a Par 1 serves a function similar to that of IV Convention Article 13 by making it clear that Part II of the Protocol applies comprehensively to all persons including a Party's own nationals affected by armed conflict or occupation for the purpose of ameliorating the condition of the wounded sick and shipwrecked Thus it applies not only to those persons who are wounded sick and shipwrecked but also to those whose duty it is to help them and those who are in a position to affect their condition in any way The restoration of the comprehensive nondiscrimination clause and the illustrative list of criteria irrelevant to the care of the wounded and sick is a welcome clarification b Par2 Article 27 of the First Convention establishes the procedures 1 'eby a recognized society of a neutral country can provide medical units and personnel to a Party to the conflict These procedures are 1-9-2 T 77 a Consent of its own government b Units must be under the control of a Party to the c The Neutral Government shall notify its consent to the adversary of the Party accepting the assistance d The Party accepting the assistance must also notify the adversary before actually employing the units conflict These procedures were used by Commission I in the 1972 Conference 2 of Government Experts as a convenient 9eans for controlling outside assistarice by medical aircraft Article 9 extend$ those procedures to the extent that they are relevant to the provision of permanent medical units their personnel and transports by neutral states recognized and authorized aid societies and by impartial international humanitarian organizations Article 25 of the Second Conv-ition governs the procedure under 3 which hospital ships are made availab1e This is reaffirmed and developed in Article 22 Protocol I 4 Red rces ates source The deletion of the ref-erenceJin Par 2 c to t ICRC and the League Cross Societies at the request of the two organ cions broadens the from which medical units and tansports may be c ained The United Delegation supported this result inasmuch as it provides a possible of medical assistance for developing countries particularly with respect to medical aircraft It was the U S position since 1972 that so long as medical aircraft are under the control of a responsible authority the source of the medical aircraft is not important 5 MILITARY IMPLICATIONS Minimal Par 1 and Par 2a are merely reaffirmation of existing law Par 2b is consistent with the practice of Stztes To the extent that app ication of Par 2 improves an adversary's medical service it tends to relieve the strains on U S medical care for disabled enemy combatants 6 RECONIENDED U S ACTION No statement of understanding or implementing legislation is necessary at this time 1-9-3 j oci 977 PROTOCOL 1 PART II WOUNDED SICK AND SHIPWRECKED SECTION I GENERAL PROTECTION Article 10 - 1 Protection and Care TEXT OF ADOPTED ARTICLE Artc1 10- Frotcc t on àndcarjj I All the wounded sick and shipwrecked belong shall be respect and protected to •whichever Pai hv In all circutances they 4hafl be treated humanei and a1 2 to the fullcst extent pDactiable arid Wltn tE delay te medical care and atrition r'equired by h3i'condItiofl There shall be receive possible any grounds no 1 stinctiork among -them foudd other than medical ahes 2 REFERENCES I Convention Arts 12 15 II Convention Arts 12 18 III Convention Art 13 — IV Convention Arts 6 13 16 Protocol I Arts 8 a b 9 75 Protocol II •Arts 7 8 17 3 RELATION TO U S POSITION a Par 1 is not inconsistent with the U S position a clarifying drafting change The variance is Par 2 as adopted was a compromise between those who wished to state that medical care shall be accorded without any discrimination CDDH II 40 and those who preferred to provide guidance with respect to nondiscrimination by providing an illustrative list enumerating criteria whic i are irrelevant to medical care and assistance The U S favored the latter course DH II 50 The revision of Art 9 1 rioted in the review of that artic1 provides the necessary guidance s does the last sentence of Par 2 of Ftic1e 10 b 1-10-1 hvsicai ower 01 ui1fil at or oii1o which scriously o' menta a endangers Ja1th rr integrity of any person ho is in the ary other tnan the one on wh ch he depends and 'bh any rf' the prohibitions in parar'raphs 1 and 2 or aii to cc snply with the iequirernents of paragraph 3 shall be a 'ave rcach of tbi Protocol ther v3o ate Tht p'z r13 right to rofue described in paragraph 1 have the In case of refua1 medial personnel sh1i obta±r1 ' r1tten stater ient to that effect signed or y urCcal e ration deavour b the patient Fp c Party to the onf1ict iznowied shall keep •a medical xecord f 'ery donatidn of blood f t'ansfusjon or skin for g'aftin y refrrt- o 1n paiagaph 1 if t'-iat donation is made under i e re pcn3jbjiiti of thai Party In addition ech Party to the nf1it thal1 endcai rour to keep a record of all rIedical procedures drta1 en w±t rc bo any person who is deairic c o pvec of liberty as a result of interned a situtjon in I These rPcords shall be availalc at all refrred tirns r eriir eclion by th' Protecting 2 • • • 3 Power REFERENCES I Convention Arts 12 50 II Convention Arts 12 51 III Convention Arts 13 130 IV Convention Arts 32 147 Protocol I Arts 75 85 3 Protocol II Arts 4 2 a 5 2 e RELATION TO U S POSITION a Pars 1 and 2 are consistent with the U S position as proposed in CDDH 11 43 It should be noted that notwithstanding the Fourth SessLon vision of par 4 excluding a Party's own nationals frcm being the object of the grave breach denounced in par 4 the U S expressed its understanding that pars 1 thru 3 and inferentially pars 5 and 6 apply not only to persons in the power oi an adverse Party but also to any other person including a Party s own nat4 ls who are in any way deprived of liberty as a result of armed or occupation See Discussio in par 4 CDDI I SR 37 Annex P4 1-11-2 Par 3 is consistent with that position except that donations of b skin for grafting was included to the permissible donations at the suggestion of the USSR and other medical delegates who expressed the view that such skin donations are useful in the treatment of burn cases Par 4 was added in order to obtain a consensus for pars 1-3 See The revision proposed by France in the Fourth Session comments below was adopted by consensus with the support of the U S c Par 5 was the result of a cornpromise with Arab States who maintained d pressure for the adoption of a provi ion requiring written consent for all surgical interventions e Par 6 was also a safeguard necessary for achieving a consensus for pars 1-3 COMtENT 4 The first three paragraphs are based on CDDH II 42 co-sponsored by a strali Austria Netherlands Poland Sweden Switzerland United Kingdom Poland's co-sponsorship was significant because that S and U S S R 1elegation had previously led opposition to any medical or pharmaceutical It had also opposed any qualification by words imparting testing on humans criminality such as UunjustifiedU to the prohibition against acts or omissions which endanger the health of persons protected by the article The US on the other hand considered that some word imparting criminality such as unlawful or unjustified was indispensable The first sentence states the general principle prohibiting Par 1 b unjustified acts or omissions which endanger the physical or mental health of persons protected by the Third and Fourth Conventions i e persons in the power of n adverse Party As it was noted that Art 65 c of the ICRC draft now Art 75 included an inartfully drafted provision providing similar protection for persons who would not receive more favorable treatment under the Conventions and the Protocol including the Parties' own nationals the U S proposed and Committee II adopted the view that the application of Article 11 cover both classes of persons In response to a Canadian statement which suggests that paragraph 4 in its Lamendei form limits the application of the Article to a country's own nationals CDDH SR 37 p 7 The U S delegation made the following explanatory statement I My delçgation was a co-sponsor of the formula adopted as Article 11 Protection of Persons My Government believes it important that its understanding of paras 1 and 2 be stated as a matter of record 1-11-3 JCT 77 Paras 1 and 2 apply to 1 'Persons who are in the power of an adverse Party Prisoners of War and all civilians protected by the Fourth Convention whether in the territory of the Detaining Power or in Occupied Territory It includes those who are relatively free to pursue their normal pursuits as well as those who are interned or otherwise deprived of liberty It applies also to 2 other persons including the Party's own nationals who are interned detained or otherwise deprived of liberty as a result of hostilities or occupation It is the' further understanding of my Government that the evils against which this article is directed are 'unjustified acts or omissions by or on behalf of the occupying or Detaining Power or Authorities that endanger the physical or mental health or incegrity of the persons described in Par 1 CDDH SR 37 Annex pp 3-4 byaDetaij ' The second sentence prohibits the application of medical procedures to the persons described in the Article Which are not indicated by the state of health of the patient This reaffirmation of the standards clearly expressed with respect to Prisoners of War in Article 13 of the Third Convention and the extension of that principle to other persons described in Article 11 1 2 Whichis not consistent with the generally accepted medical standards applied in the community to free persons under similar medical circumstances This standard is an innovation and is intended to prevent the use of experimental procedures with respect to persons described in the article even if intended for therapeutic purposes if the procedure is not approved by the governing medical standards of the community for application to patients generally Several delegations expressed the understanding that among the procedures prohibited are the administration of mind altering drugs not intended for therapeutic purposes for the benefit of the subject Par 2 c The prohibitions in paragraph 2 implement and provide emphasis to the general prohibitions in paragraph 1 against medical procedures which are not indicated by the state of health of the person concerned Thus the pro u ibition against mutilation does not preclude surgical procedures including amputations which are judged by responsible doctors to be essential to the health of the patient and which are consistent with pted medica standards 1-11-4 In response to an expression of concern that par 2b could be construed as stopping all reasonable and appropriate medical or pharmaceutical testing by the medical profession and the phaaceutical industry in occupied the U S representative in Committee II expressed the following territory understanding It is our understanding that the prohibition in par 2b within any occupied territory applies with full force to any such experiment conducted by or on behalf of the occupying authorities but has no effect on reasonable medical or scientific experiments conducted within the occupied community by its own medical and scientific profession under generally accepted esearch standards for testing on human subjects It is our further understanding that no medical or scientifth experiment may be conducted on person who is interned detained or deprived of liberty as a resu1 of hostilities or occupation whatever his nationality or affilation may be ' wherever he may be if such medical or scientific xperimentis not indicated by the state of health of the person conerned and if it is not consistent with accepted medical standards wlich would be applied to free persons under similar medical cirumstances Our understanding is based oi our recognition that full free and informed consent is a necessary prerequisite to medical and scientific testing on human subjects Such consent cannot be presumed in any relationship between occupying authorities and the people of •occupied territory nor with respect to any person who in connection with the hostilities or occupation is deprived of his liberty by internment detention or any other formof restraint Statement made in Committee II Drafting Committee 1975 Session Par 3 provides a narrow exception to the prohibition of par 2c d whereby the persons described in par 1 may make voluntary donations of This blood for transfusion or of skin for grafting under rigid safeguards exception was proposed in recognition that these two life saving substances are available only from human sources The fragile consensus for CDDH 11143 was almost upset when the USSR e and Poland joined Mali and Bangladesh in opposing Par 3 for fear that a Detaining Power would use PWs and other detainees as living blood banks for he Detaining Power's armed forces notwithstanding the carefully prescribed safeguards under which donations of blood would be accepted orking group achieved a consensus by proposing that violations of the jndards in pars 1 -3 be a grave breach of the Protocol and by proposing the record keeping provisions of par 6 1-11-5 f The IJ S Delegation accepted par 4 only after it was modified by making willfulness an element of the offense and after the proscription of the paragraph was limited to acts or omissions whic h seriously endanger the persons protected by theartic1e It is consistent with par 1 Art 13 Third Convention In accepting par 4 however Conmiittee II agreed to review it after it had an opportunity to examthe Article 85 Repression of Breaches of the present Protocol CDDH 2l Rev 1 As adopted by Committee II at the Second Session Par 4 referred to any person described in par 1 thus inc1iding within the scope of the grave breach acts against a Party's own nationals During the Third Session Conittee I completed its work on Article 85 t refers to Article 11 as having defined a grave breach In relevant art the Report of Committee I sta tes a number of delegations pointed out that the acts or omissions defined in Article 11 paragraph 4 ought not technically speaking to create a grave breech if committed against a countryts own nationals The delegations concerned asked the Chairman of the Committee to raise the matter with the Chairman of Committee II srnuch as a Party's own nationals may be objects of the grave breaches pounced by the First and Second Convention Conunittee II did not consider sual to draft paragraph 4 it So as to include all persons protected under pars 1-3 within its scope Nevertheless Article 11 is broader than other provisions for the protection of the wounded and sick It was deliberately broadened so as to encompass the scope of ICRC draft Article 65 c which is intended to protect persons who would not receive more favorable treatment under the Conventions or the Present Protocol including a Party's own nationals It is noteworthy that in Article 85 2 Committee I limited the scope of grave breaches against the wounded sick cr shipwrecked to such persons of the adverse Party protected by this Protocol or against medical or religiou personnel medical units or medical transports under s the control of the adverse Party By this action Committee I excluded from the scope of the additional grave breaches civilian wounded and sick and medical personnel who are not an adverse r'1 %'D7Itj Party For consistency with the policy adopted by Committee I the U S delegation supported the effort of Belgium France and the Netherlands to reccusider par 4 and to amend it so as to exclude a Party's own nationals as objects of the grave breaches denounced in par 4 The French proposal was adopted by consensus CDDH II 438 CDDH II SR 99 g - Par 5 was adopted by consensus after the Arab co-sponsors of stated in lieu of their original proposal would have required written consent as a prerequisite to ary surgical II 7O agreed to the formula 1-11-6 cT 277 intervention of any wounded or sick person The U S position was to oppose the Arab proposal y turning the substance around to an endeavor clause for obtaining a written refusal of surgery the objectionable features of the original proposal were avoided Moreover the adopted formula does not interfere with U S practice of compelling its military personnel to undergo needed surgery overthe patient's objedtion if such involuntary surgery is directed by a medical board With regard to par 6 it should be noted that an occupying power is required to keep records on donations made under the responsibility of that It would have been unreasonable to expect the occupying power to power maintain records with respect to donations made by individuals in occupied territory within their own medical facilities and under the direction of the medical personnel of the occupied territory f 5 MILITARY IMPLICATIONS There are created some administrative procedures for the Commander of a PW camp or the military commander f an occupied ter-ritory with respect to keeping records Medical service tc persons detained on account of tile J conflict will have to be closelyjnonitored to ensure compliance with standards provided in this articie 6 RECOMI€NDED U S ACTION a Oppose any effort on the part of U S allies to construe Article 11 as excluding protection to a Party's own nationals except to the extent that Par 4 has that effect If any States interpose expressions of understanding similar to that made by Canada the U S statement of understanding noted in Par 4 should be repeated at the time of signature b As Pars 1-3 and 5-6 are self-executing no new legislation is required at this time except as to par 4 Implementing iegislatiot as to par 4 should be considered along with implementing legislation as to Art 85 1-11-7 PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION I GENERAL PROTECTION Article 12 - 1 Protection of Medical Jnits TEXT OF ADOPTED ARTICLE Medical be respected and protected at all tines units 3ball object of attack Para'aph 1 hal1 apply to civilian riedical units pro' 'ided and shall 2 that not be the thy a b to one of the 'artes to ar econized and aut horizc by the conflict the cernpetent authority 01' o of tie Parties to the conflict cr Cc a'e aut1oi'ized in conforrityih Article 9 pararraph of t is iotocol or Article 27 of the First Convention The Part± o the conflict are 3 of invited to notify each c ter the 1oc n f 1 ir fixed medical unite The abserie exempt any of th Pris frc the notifica icn h U b1ig3tiot c cmp y with -• the provisiors of parar'aph 1 icc' shall ncdicc 1 un±tz b cd Ln try objectlve3 fror an tv rtIe to the ccn1ict ah11 €xure that nuica eith-t aainst militaxy cbj ctve3 do not trc c 2 tacks REFERENCES a As to Pars 1-3 I Convention Art 19 II Gonvention Arts 22-25 27—28 IV Convention Art 18 Protocol 1 Arts 21 22-23 24-27 1-12-1 3 OCT 377 b 3 As to Par 4 I Convention Art 19 III Convention Art 23 IV Convention Arts 18 28 RELATION TO U S POSITION Although some drafting changes were made Article 12 as adopted is entirely consistent with the U S position The added reference to Article 9 par 2 is a needed improve nt • 4 COMMENT The distinction drawn in par of the ICRC text between permanent and temporary medical units became r4lundant when the Coitrnittee adopted a definitionof permanent medical units and tttemporary medical units See Article 8 k a • - b The second sentence of par 4 ij a reaffirmation of the secord par Article 19 First Convention The ualification whenever possible account of the fact that frequently mobile units must be in areas of danger in order to perform their medical mission 5 MILITARY IMPLICATIONS This article reaffirms U S practice of not attacking medical units military or civilian and not using medical unIts to protect niilitary objectives from attack 6 RECOMMENDED U S ACTION No statements of understanding or implementing legislation are required 1-12-2 COL I PART II WOUNDED SICK AND SHIPWRECKED SECTION I GENERAL PROTECTION Discontinuance of Protection of Civilian Medical Units Article 13 - 1 TEXT OF ADOPTED ARTICLE 3 — — Jt 4 cIe —'' -- - -—1flUancr — of rotectori oV j 1r -—--- he pro ec1' - to which civilian medical units re cntitlcd i not t -iIe they are used to conmit outside thcir r n taricn function acts hu'mful to t h ene w ec oriiy aI'tei a wardn has beri given the C tonb1e time•1irnit and after such a'n± h $ tec C T1 o11o i' i tha 1 not be considered as acts h ifu to 24 a • b that the perorrc1 of te unit a'e eouipped ith 5 ncUvithz J weapons fo t eir own defence or for the wounded and sick in tLeir charg2 that te of unit is guarded by a picket or by e t1es or b n escort Cc tkiat ra1i arrn3 and armunitio taken from the wou de sk and not yet handcd to th proper 8ervice 1 r' the unic 'i tt jri1ers of th anvd orces or other ccibatant in the unit for edica 1 reasons 2 REFEIENCES I Convention II Arts 21-22 35 Convention Arts 34 35 Protocol I Arts 29 51 3 65 Protocol II Art 11 1—13-1 3 RELATIONTOU S POSITION a Pars 1 and 2 b c and d are consistent with the U S position It is similar to Art 22 1 First Convention Par 2 a was added b It should be noted applicable to the personnel of military medical units in this connection that Aiticle 21 First Convention does not specify th t the arms carried by military medical personnel may only be small arms or light individual weapons this latter qualification was inserted on the insistence of Mexico 4 COMMENT The provision dealing with loss of protection and warning is substantially similar to Articles 21 and 22 First Convention Articles 34 and a 35 Second Convention and Article 19 Fourth Convention b The U S did not oppose the addition of par 2 a but indicated in accordance with negotiating instruction that the provision is without to the right of the Party in control of the area to disarm the sonnel if this is deemed necessary as a security measure The debate in Committee III and the Plenary concerning Article 44 formerly 42 emphasizes the importance of carrying arms openly which may be the sole criteria for distinguishing between combatants and civilians The implications of this development have had a under some types of war significant impact on Cotnittee II in its deliberations on the conditions under which civil defence personnel may be entitled to special protection Several delegations which supported Art 13 2 a in the ground combat zone by anology to Article 21 First Convention expressed second thoughts to the effect that changing rules as to entitlement to piivileged combatant status warrants reconsideration of par 2 a As Committee II after extensive debate and prolonged consideration ultimately adopted a compromise solution which permits civil defence personnel to carry light individual weapons for the restoration and maintenance of order in distressed areas and for self defense it was not feasible to reconsider Art 13 The Committee's action with respect to Art 65 par 3 resulted in expressions of understanding adopted by the Committee as well as statement of underTwo of standing by delegations one of which was supported by the U S See Discussion as these understandings are €qually relevant to Art 13 to Art 65 3 under pars 4g Page 1-65-8 1-65-13 14 The term light individual weapons is not well understood 1 Drding to the Mexican representative who participated in the deliberations erning Art 5 3 the term probably isinterided to exclude the types of ons issued to heavy ieapons sections of Infantry Platoons or those of 1-13-2 OCT I77 the heavy weapons Platoon of an Infantry Company in the 1920s and 1930s It This would exclude such weapons as mortars and 50 cal machine guns Although no was probably intended to refer only to rifles and handguns committee understanding emerged except cross reference to Art 13 which provides no guidance several delegations concurred in an understanding that the term excludes fragmentation rendes and similar devices as well as weapons which cannot be effectively handled or fired by a single individual and those which are basically intended for materiel targets CDDH II SR 95 p 11 CDDH II 467 par 73 sought to clarify the matter by explaining the An agreed note This expressed purpose for which civil defense personnel may be armed the understanding that civil defense personnel may be arred for self defense against marauders and other criminal individuals or groups They may not engage in combat against the adverse Party and may not use If however they are unlawfully attacked by force to resist capture individual members of the adverse Party's forces they may use their weapons in self defense after having made a reasonable effort to identify themselves as civil defense personnel CDDH II 467 par 78 See also FM 27-10 The Law of Land Warfare par 223b 2 Par 1 might be construed to restrict the ability of ii1itary c ements to defend themselves against attack from weapons operating within In this connection the rule under Article 21 ivilian medical units First Convention arid Article 34 Second Convention pertaining to military medical units is identical Nevertheless direct attack endangering the military element would invoke th right of self defense and would ju stify an iumediate response if necessary for the safety of the military The requirements for warning is qualified by the element under attack terni whenever appropriate thus affording justification for dispensing See Art 51 3 with a waiting period if the threat is urgent and inunédiate During the Third Session Committee II reconsidered par 3 d by d consensus and changed the formulation by using timedical reason instead This formulation was considered more reasonable of medical treatment because there are many legitimate reasons for military persons to be within a medical unit or establishment other than to receive treatment For example they may be in such a unit for a periodic physical examination to receive immunization shots to donate blood bring in patients and others 5 MILITARY IMPLICATIONS 'The article is consistent with present law' and ierely sets out rules ich protect civilian medical units urtless they coztit acts harmful to enemy 1-13-3 6 RECOMIENDED U S ACTION In order to adapt the significant understandings expressed with respect to Art 65 3 to the ana1ogou problems presented by Art 13 2 a the U S should express understanding along the following lines at the time of signature It is the understanding of the United States that the term 1 light individual weapons as used in Article 13 excludes frgrnentation grenades and siniil r devices as well as weapons which cannot be handled or firedby a single individual and those which are basically intended for materiel targets such as armored vehicles' or aircraft 2 It is the understanding of the United States that medical personnel may be armed only for their own defense or for that cf the wounded and sick in their charge against marauders and other criminal individuals or groups They may not engage in combat against the adverse Party and they may not use force to resist capture If however they are unlawfully attacked by individuals of the adverse Partyts forces they may use their weapons in self defense and in defense of the wounded and sick in their charge after having made a reasonable effort to identify themselves 1-13-4 PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION I GENERAL IFORNATION Article 14 - Lirninations on Requisition of Civilian Medical Units 1 TEXT OF ADOPTED ARTICLE tci3 1 I Limitt3onscnreaujo__ui Th O pyn Power has the duty to ensure that the rc' a1 ced3o1tcvar population n occupied tErritory continue to no th recore r' iiitLm C1V11a ' medical unit i their equipment thr m ici or the srvtc the their personnel so long as these otIrce3 ax'o rece sary for for th civiiian puiat or iori of adequate medical r the continuin medical •caë' of any o d an EZ 2 Tlie Occupying Po'ier shall treatments that the general ru1r in pagrph 2 cortiu o h' observed the Occupying Power may requisition the said 1'es iee subject to the fo1lowin particular conditions 3 Provided a thai the resources are necessary for the adcquate immediate medical treatment of thc wounded ind members of the armed forces prisoners of war of the Occupy± ei r f b that the equiition continues only while such nec ity Cc that exists and immediate arrngemertS ar nde to ensure that L needs of the ivi1in pooulation as ' ll a thcs of any wounded arid sick unOr t ratncct who are affect b the requisiJon ct to be st1sfd medical 1-14-1 cci 77 REFERENCES 1907 Hague Regulations Art IV Convention Arts 55 57 52 RELATION TO U S 2OSITION 3 The U S position which was to support the ICRC text with a claria fying amendment relative to prisoners of war was rejected in favor of a stronger 1iitation on requisitions CDDH II 21 Austria Canada Finland Sweden and others b Par lis a brief reaffirmation of Article 56 Fourth Convention c Par 2 is not inconsistent with Article 57 Fourth ConventioLl Par 3 is inconsistent with tl- U S pósition in the following d respects It eliminates the pershne of the occupation administration those entitled to benefit from 4equisitioned medical units The U S 1 that prisoners of ar be spcifica11y nentioned as being in the class was accepted 1 An unambiguous priority for the retention by the civilian population of adegute medical care was established without regard to the urgency of the need for medical facilities of the wounded and sick of the Armed Forces 2 CONMENT 4 a The U S was successful in blocking an effort to provide a priority for the same standard of medical care as t hat enjoyed the requisition So long as th standard is limited to adequate care the articleis acceptable civilians prior to medical of the occupation administration is b The deletion of member c The adoption of Article 14 with respect to civi1n medical units of the Fourth Convention Article 57 with respect probably consistent with Aticle 52 Hague Regulations as requisitions must be for the matter of the Army of occupation not alter the effect civilian hospitals does I - 14-2 5 MILITARY IMPLICATIONS The military cormnander of an occupied territory may be somewhat circumscribed in the requisition of civilian medical units but no adverse effect to the U S is foreseen 6 RECO€NDED U S ACTION No statements of understanding or implementing legislation are necessary 1-14-3 PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION I GENERAl PROTECTION Article 1 15 — Protection of Civilian Medical and Raligious Personnel TEXT OF ADOPTED ARTICLE ArticIc 15 Proteeticn o' civiJan Ini iict1 and riiou prscrr i Civilian edica1 ponnei shall be re ecc-d nd protec ted 2 If needed all available h1o thalI he affc'ded to ci' 1i n rnec ica1 fler onnel in an area where civilian •rnical sevces dirup e h raon of combat activity 1 3 The Occupying Power shall affo'd civilian rnc•ici person-e1 ui oecLii terr±to s every assistar ce to enab'e tLm o perf'r beet of tir ahlity their hu-anitarim ruct ions The up qin Pc' cr may rot require tnat ir th ferfcr anc o tnc änctions srch ersorrei si a11 ive pr or-i ty tc the trcti'-t any pron except on edcal grourds They sh11 not le corpc to carry out ta3ks which are nol compatible with their V1e r •4 t _ Lh• • l'umiii r civi' a r rnedic1 per-' acc s to any place wher'• tr srvce are e sentia1 to such suDc-rv ory nc1 zfey i eaures tbe relevant Part ' • o the• cou1ct may cern necessary L reiigc C ilian ci sha I seued and protct The provisions of the Conventions and of this Protocol ccncrnr 5 the protection anc idcrtif caticn of iredJa1 p csornei shall apply equally to such peron •2 REFERENCES I Convention Arts 24 27 II Conventic -t Arts 36 37 IV Convention Arts 20 56 58 1-15-1 3 RELATION TO U S POSITION a Pars 1 3 and 4 of the Committee text are subject to minor drafting changes consistent with the U S position b Par 2 of the ICRC draft which the U S supported was deleted as it bcame unnecessary when the definition of civilian medical personnel Art 8 c was clarified by the adoption of Art 8 k This provision takes it clear that temporary medical personnel are medical personnel only when they are devoted exclusively to medical purposes c Par 2 formerly 3 The term If needed all available help was for All possible help Because the term 'coinbat zone was found to be a military term of art which may have different connotations substituted in different countries a relevant nontechnical description of the area where civilian medical personnel may need assistance from the Parties was used d Par 5 At the instance of the Holy See strongly supported by Conmittee deleted reference to other persons performing similar functions The deleted words were intended to provide protec± to civilian spiritual advisers of a non-religious nature The U S Austria the supported the ICRC text as drafted which reflected the position of the At the Third Session the Holy See supported by Austria arid others persuaded Committee Ii to reconsider the second sentence arid to delete the word permanent thus extending equivalent status to chaplains temporarily attacbed to civilian medical units At the Fourth Session the provision was amended again to align the text to the definition of religious personnel in Par 8 d r1ands 4 COMMENT a Concerning par 3 the Committee elected not to follow the recoinmendation of a mixed working group of Committees II and III members whose task it was to study different terms used in the Conventions and the draft Frotocols for areas where military operations were in progress The decision to use non-technical and relevant descriptive language seems to be appropriate It will however require that in connection with other art ic1 s 18 26 59 great care be exercised in the selection of relevant language to descr ibc the area or place in which a rule of the Protocol shall apply b At the Third Sossion the last sentence was chatiged for consistency with the formula adopted by Committee II in Article 9 Protocol II The forrnuiationprohibits compelling medical personnel to carry out tasks are not compatible with their humanitarian mission This was conred to be more rasona51e than the previous forrnu1atioi which protected thefr coapu1sory employment on tasks unrelated to their mission 1-15-2 c Par 5 cvilanreligiusprsonrel Under Articles •24 28 and O of the First Convention chaplains attached to the anned forces are accorded the same protection and status as medical personnel This includes the right to wear the distinctive emblem Par 5 as redrafted in line with the definition in Art 8 d now extends the same protection to chaplains attached to medical units medical transports and civil defense organizations 5 MILITARY flLICATIONS There is established a requiremen4 to give if needed all available help to civilian medical personnel in combat areas However use of the word available qualifies the help to be given and should not impede combat requirements Such help tends to relieve the requirement for medical personnel support implicit undr Article 10 6 PECOMMENDEDU g ACTION ____________ There is _ islation no need for any statementof understanding or implementiiig 1—15-3 PROTOCOL I PART II WOU1DED SICK AND SHIPWRECKED SECTION CEI'TERL PROTECTION Article 16 - General Protection of Medical Duties 1 TEXT OF ADOPTED ARTICLE Article 16 - Genera protctio of nedica ut Is L Under no circumstances shall any person he punished for carrying out nrdioai acivitic comp ii ible with medical ethics regardless of the person benefitin t- crefrorn P suns enac in r le icJ ctivcs sr not be compelled 2 to perform acts or to carry ou - rk ont rary t the rules of medical ethics or to other med L i 'u os sigrc1 for the benefit of the and sick or tc the rovis ions of th Convent ion ' r this i'rot ccl or l o refrai ftc erforiring acs or fr'm irry ng out 'rcrk required by t he rulcs and provisions No person enaed in edica1 activities zhali be compelled o 3 give to anyr bconpin either to an adverse Party or to his o i ari excr a required b' the 1a of thc latter Party any inforaiion ooncerriirg• the ••ounac and sc1 who are or who lavc been un6er i s care if such ir frrai on wou i ri his opiniori prove harfu1 Lo the patients conc'rrie or to their f n1 s Reu1ation for he compulsory notification of coinrunicab1e diseases 2 shall however be respectd REFERENCES ICRC Report Conference of Govt Experts 2d Session 1972 Report on Art 19 Pars 1 47-1 56 Protocol I Arts 8c 11 15 17 Protocol II Art 10 1-16-1 CT 77 3 RELATION TO U S POSITION This article as adopted is fully consistent with the U S position 4 CONMENTe •a This article applies to all persons engaged in medicil activities It thus is not limited to medical personnel as defined in Article 8 c It covers private practitioners nurses medical attendants as well as members of military and civilian medical units b read As it emerged from the drafting committee par 2 is difficult to As an aid for construction the following is provided ttPersons engaged in medical activities shall not be compelled a to perform acts or to carry out work contrary to 1 the rules of medical ethics designed for the benefit of the wounded and sick or to other rules designed for the benefit of the wounded or sick 2 the conventions 3 this Protocol or to refrain from performing acts or from carrying out b work required by the rules of medical ethics designed for the benefit of the wounded and sick other medical rules designed for the benefit of the wounded and sick the conventions or this Protocol The origin of this paragraph must be traced to the Second Conference of Government Experts in which the U S experts expressed a concern that many rules of medical ethics particularly those designed to enhance the status and economic well being of the medical prof'ssion prohibit members of the profession from cooperating with and training uncertified personnel in the performance of medical procedures Although such rules may be appropriate in some communities they would preclude members of the profession from training paramedical personnel of the armed forces who may be required by circumstances to perform independently rnnor surgery or other medIcal procedures in the absence of a licensed physician cognition of the problem occasioned by lack of medical doctors aboard Lps and in isolated military units caused ConmiisS ion to limit the scope f the comparable provision to professional rules designed for the benefit of the wounded and sick i 1-16-2 In this connection Par 1 53 of English and Franch versions of the Report of Commission I Second Conference of Government Experts erroneously indicates that an arne ndment to accomplish this was not adopted The acLual report of Commission I contained the following relevant remarks The attention of the commission was drawn to the fact that in some small ships or isolated units or places urgent medical acts including small surgery may be performed also by skilled personnel who are not professionally trained medical personnel in cases where ther9 are no medical personnel available and that such practice m9y be contrary to some professional rules An amendment was formu ated to cover this situation However after discussion a new formulation of paiagraph 3 was adopted which sufficiently covered the above mentioned situation 1 53 The record of what acutally happened was established during the Second Session of the Diplomatic Conference See CDDH II SR 16 paras 46-47 With respect to par 3 the original ICRC draft provided that No c person engaged in medical activity may be compelled to give to any authority of the adverse Farty information concerning the wounded and sick The ICRC commentary construed adverse Party to refer to the side opposed to that to which the wounded and sick belong As it was the understanding of most delegations including that of the U S that the ethical duty of noncUsclosure is subject to the requirements of the medical persons national law a debate on the subject was conducted during the Second Session By a vote of 27-1 with 10 abstentions Conuuittee II adopted a U K proposal to change the opening phrase to read No person engaged in medical actiiiities shall he compelled to give to any member of the party adverse to him infoimation concerning the wounded and sick See Discussion under Article 10 Protocol II with respect to this issue raised at the Second Session with respect to par 3 of that Article During Drafting Committee's consideration of Article 16 the ICRC d representative sought to change the French and Spanish texts by deleting their equivalent to adverse to him for linguistic reasons When it was pointed out that this drafting change affects a substantive issue which had been determined deliberately by Conurtittee II a working group of the Drafting Committee developed the new version which makes it clear that the prohibition against compulsory disclosure applies to anyone belonging either to 1 an adverse Party or 2 his own Party except as required by the law of his Party Allmembers of the Drafting Coimnittee except the delegation of France were willing to accept the formulation as a drafting change Under the practice of the Drafting Corrittee a single objection to a change as being substantive precludes Drafting Committee changes Accordingly the revision was ref2rred to Committee II which adopted the new fc'rmulatioriby consensus Thereafter Norway and the USSR expressed reservations as to the substance indicating that the prohibition of con pulsion to disclose infotitiation should not be subject to national law under ny 1-16-3 V PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION I GENERAL PROTECTION Article 1 17 - Role of the Civilian Population and of Aid Societies TEXT OF ADOPTED ARTICLE Article l7 - Role of the Civilian Population and of Aid Societies 1 The civilian population shall r$pect the wounded sick and shipwrecked even if they belong to the adverse Party and shall commit no act of violence against them The civilian population and aid societies such as national Red Cross Red Crescent Red Lion and Sun Societies shall be permitted cven on their own initiative to collect and care for the wounded sick and shipwrecked even in invaded or ccupied areas No one shall be harmed prosecuted convicted or punshed for such humanitarian acts The Parties to the conflict may appeal to the civilian population and the aid societies referred to injparagraph 1 to collect and care for the wounded sick and shipwrecked aid to search for the dead and report heir location they shall grant both protection and the necessary acilities to those who respond to this appeal If the adverse Party —'gains or regains control of the area that Party also shall afford the same protection and facilities for so long as they are needed 2 2 REFERENCES I Convention Art 18 II Conventions Art 21 IV Convention Art 63 Protocol I Art 41 Protocol II Art 18 2 RELATION TO U S POSITION a Although substantially reorganized paragraphs 1 and 2 incorporate the substance of U S proposals In lieu of shelter care and assistance used by the ICRC or shelter and caie the Committee elected to use care believing that us includes all types of humanitarian aid to the wounded sick and kipwrecked whether medical or relief b 1-17—1 c The U S had also supported a par 3 which was patterned in part on Article 21 Second Convention In substance it provided that a Party to the conflict may appeal to commanders of civilian ships to take on board and care for the wounded sick and shipwrecked and to collect the dead It also provided for special protection and facilities to ships and craft responding to such an appeal Because Australia wished to araend par 3 by applying its principles to civilian aircraft as well Committee II deferred action on that paragraph until the Conunittee had completed its work on medical aircraft The U S delegation opposed the Australian amendment because it would create a class of protected aircraft which were not bound by the carefully negotiated conditions for medical aircraft laid down in Articles 24-31 During the debate on this mati er at the Third Session the U K delegations expressed the view that the principles of par 3 were incorporated in the broad terms of par 2 and that par 3 was therefor redundant and unnecessary An oral amendment proposed by the U K to delete the 3d paragraph was adopted by a vote of 22-11 u S with 13 abstentions 4 CO fi€NT a i The relation of this Article to Articles 15 and 16 should be borne mind 1 Article 15 deals with the protection of civiliin medical personnel as defined in Article 8 i e those who are members of medical units They are entitled to wear the distinctive emblem Article 16 refers to persons engaged in medical activities and 2 provides protection for their medical or professional standing It would apply io medical personnel as defined in Article 8 as well a all other persons engaged in medical work such a private practitioners nurses medical attendants etc The latter are not entitled to wear the distinctive emblem Article 17 deals with the voluntary aid provided by the civilian population spontaneously or pursuant to an appeal for help and by voluntary relief societies Except for the medical members of relief societies who are recognized and authorized as medical personnel under Article 8 they do not wear the distinctive emblem Their protection consists of their status as civilians their exemption from punishment for their humanitarian activity and assistance in the performance of such activity 3 Although the U S supported the substance of par 3 its deletion on the ground of redundancy does not change the underlying principle that — ships and craft may be solicIted to perform humanitarian tasks sea or on other waters Rather than risk the revival of Australian b jlian 1-17-2 3 proposal to introduce a class of protected aircraft outside the regime established for the use protection and control of medical aircraft the U S delegation acquiesed the deletion of par 3 Relevant to par 1 at its 99th meeting Committee considered a c request contained in the report of Conirnittee III dealing with Article 38 Ms now Art 41 Safeguard of an enemy hors de combat cDDHIIII 361 par 25 p 9 which states in relevant part Committee I sic should be asked to consider whether Article 17 which it has already adopted should be amended by adding a reference to the protection of persons hors de Certainly it seems that such persons should be combat respected by the civilian population The Committee believes that the proper place for this is to be stated in Article 17 rather than in Article 38 bis In response to the Committee III proposal the U S representative stated Article 38 bis Lnow 41 provides In par 1 that persons who are or should be recognized as hors de combat shall not be made the object of attack The same article provides that a person is hors de combat if a he is in the power of an adverse Party PW or protected civilian or b he clearly expresses an intention to surrender or c he has been rendered unconscious or is otherwise incapacitated by wounds or sickness and therefore is incapable of defending himself The relevant provisions of Article 17 provides The civilian population shall respect the wounded sick and shipwrecked even if they belong tothe adverse party and shall commit no act of violence against 1 them is defined in Art 44 2 now Art 49 as acts of violence against the adversary whether in defense or offense AccordingLy Art 17 which prohibits acts of violence against the wounded sick and shipwrecked covers the class of hors de combat persons contemplated by Art 38 bis 2 c '1Attacks During the Second Session Conifaittee II had occasion to consider a proposal by Israel for inserting the words and combatants who ate hors de cornbat'' after wounded and sick CDDRIII 14 During the 1-17—3 debate on Article 17 several delegations indicated their objection Sone argued that it as not within the competence to the pràposal of Committee II which was limited to the protection of the wounded Other opposed it on the ground that a person sick and shipwrecked who is hors de combat but who is neither a prisoner of war nor wounded sick or shipwrecked cannot be put on the same footing as No delegation persons protected under the First Convention e xcept the sponsor supported the proposal although some expressed the view that Article 38 is the propriate place for its consideraThe sponsor thereupon withdrew the proposed amendment CDDH tion The withdrawal of the pro11 SR 17 par 33 41 46 51 56 58 posal was justified Persons who are hors de combat by reason of being wounded sick or shipwrecked't are covered by Article 17 1 Persons who are in the dower of an adverse Party are already 2 protected against unjustified violence by either rni itary or civilian persons under the Third Convention if they are PWs or under the Fourth if they are civilians Persons who are hors de combat under Art 38 bis2 b because they expressed an intent to surrender are entitled to respect and protection from the adverse Party which Art 38 bis already covers but not from their own side A healtFy combatant who wishes to defect or desert to the other side may be forcibly restrained from As doing so by his military comrades and by the civilian police the wounded and sick are entitled to respect and protection whether they are friend or foe Article 17 is not the appropriate place to specify the protection which Art 38 bis par 1 implicitly provides 3 CDDHIII SR 99 pars 14-15 The proposal was rejected by consensus For Israeli understanding see CDDH SR 37 Annex p 5 to the effect that the protection of Art 17 applies also to persons parachutthg from aircraft in distress and other persons hors de combat 5 MILITARY flPLICATIONS It requires civil an This article is of benefit to military commanders popul tion to respect the wounded and sick of both sides and authorizes the Parties to the conflict to appeal to the civilian populaticn to provide such care RECONDED U S ACTION No understandings or implementing legislation is necessary 1-17-4 PROTOCOL I PART II WOUNDED SICK AND • SHIPWRECKED SECTION I GENERAL PROTECTION Article 18 1 - Identification TEXT OF ADOPTED ARTICLE A't ir' 18 — Idcntif$ction cb Party to the conflict shJl enth avour to nur€ that id cai and reiiiou personnIha redii1 unJs rid trarcY Us cnti'fb1e a' 'e 1 Lc i'rt to t e conflicl 'saI1 also 'oaf to 2doct o inp ment methods ad piocedrs ui ch 'ii1 make it pc d0 recogrzc tdical units and traspoits which u e 'n Iacc a nr2 cti rctive sig a1s Ir ocpie' eiritory nd n r'v uhcr fl'tLr w to he 1t iic1y to take piacS civilian m d c31 pers3nic civilian reli au eronnel should be reco n i bi y the distinctive cmbiem a rd an identity card crtfying tb±r Si U3 of the coFetcn1 utort ried c1 ' th the tran poi s saI e mare d l the Qlstlr ctive ehim The sh p a -o craft refired to in Article 22 cf tbis irotocol shall be mar'cJ ii accora-ice with the provi ions cf the SCfld Convention 5 Ifl dc itiori 1o the distinctive e b1e a Party to the con' lIIay as rcvided in Chapter III of Annex I to this Protocol authc ri e the use of cistinctive i nal to identifj medical u tS nd tanport E ceptiona1 ly in th speci i casc covered ir that Cn•apter medical transports may se di irctiv iuals ' it ' disp1a 'in the ciistinctve emh1rn The applicatiioi if the DrcviiQn3 of pargr iphs 1 to 5 oi 6 AtIC is ovcrni Uy CFapters I to lIT ôf ir cx I to thi3r i snated in Lha' r' III of thu Ar tex 1rotoco Unit3 and trcnports not e s ic al exckusive usc ' purpc r oth r than to used 'or pv r3 d th€' n l- t L zi t7 r sport specJfd 2 tht CaIet c3 - 1-18—1 3 UCT i977 This'Article does riot authr rize any 7 use of the distinctve emblem in peactim tJan is pre cri'uei u Oi the First Convention chis ncc1 The pIovisicn of the Conventions an relating to superiisior of the us cf' th dit iict±ve 6 t the prevention and repress ' n of applicable •2 to distinctive signals any misuc tflf REFERENCES Arts 30 40 41 Convention Arts 41-43 IV Convention Arts 18 20 Protocol I Arts 8 l m 37 3 85 Annex I Chapters 1-111 Protocol II Art 12 I II Convention Resolutions6 7 1949 Diplomati Conference Diplomatic Conference Resolutions #17-19 IV l97L4l97r 3 RELATION TO U S POSITION a Paras 1 and 2 incorporate the U S proposal for par 1 of the ICRC text Par 3 was drafted along the lines indicated in Article 20 Fourth The Committee rejected requirement for documentation of civilian medical unit but agreed to retain a requirement that those who wear the distinc ive emblem should also carry an identity card which could be used to yen y their status as medical personnel b Convent on Par 4 clarifies the rules as to marking of medical units and ships along tie lines of Article 39 First Convention Articles 41 43 Second Convent on and Article 18 Fourth Convention c Par 5 is substantially consistent with the U S proposal except d that th authority to use distinctive signals without also displaying the• distinc ive emblem was left for determination in connection with the See Annex I Art 5 2 Annex e Par 6 is consistent with the important change proposed in the U S Par 5 ICRC Draft sitior 1-18-2 cT 7 f Par 7 is useful clarification of the limitation on the use of 'tue distinctive emblem in time of peace g 4 Par 8 is consistent with the U S position - COMtENT Article 18 provides the basis for the system of identification and marking prescribed in detail in the Annex 5 MILITARY rnPLICATIONS Commander will retain authority tq determine the extent to which his personnel and units are ientifiable lie will have to endeavor to install and maintain measures to sure that his forces recognize the adversary's medical units an4 transports using the distinctive emblem and distinctive signals See lso Article 29 own medical RECO1ivENDED U S ACTION There is no need for any statement of understanding or implementing legislation at this time 1-18-3 PROTOCOL I PART II WOUNDED SICK A1D SHIPWRECKED SECTION I GENERAL PROTECTION Article 19 - Neutral and Other States Not Parties to the Conflict 1 TEXT OF ADOPTED ARTICLE Article 19 - Neutral and other States not Parties to the co2 t Neutra and otter States not Parties to the conflic sha L1 appiy th2 rcdevart piov sions of thi3 Protocol to persons protected by this Part who may be received or intErned within their terrt or and to any dead of the Fries o that conf Lt wflom 2 they may find REFERENCES - I Convention Art 4 II Convention Art 5 III Convention Art 4b 2 3 RELATION TO U S POSITION The U S proposal to insert the conventions and before this Protocol was not adopted because it was believed that the provision of Article L1 Ffrst Convention and Article 5 Second Convention adequately provides for the application of the relevant Convextions to military wounded sick and shipwrecked Although the categories of wounded sick and shipwrecked protected under the Protocol is broadcr than those protected under Articles the protections provided for in 4 I and 5 11 of the Conventions Protocol I particularly Articles 11 44 72—78 are sufficient to ensure humanitarian treatment for any person not covered by the First and Second Conventions 4 •COM1ENT Persons protected by this part is the equivalent of the wounded sick and shipwtecked persorn and medical and religious personnel a 1-19-1 b The term relevant provisions of the Protocoltt was chosen by the Drafting Cormnittee as a satisfactory substitute for the ambiguous by analogy or the peda ntic mutatis-mutandis See Articles 9 and 68 5 MILITARY IMPLICATIONS As the U S may frequently be a State which is not a Party to a conflict there will be a requirement for training and a wa reness of responsibility under the Protocol for the handling of persons protected by Part II who may be received or interned within U S territory and any dead found in U S territory In this connection it must be noted also that such a training requirement is also indicated with respect to Federal and State authorities who will have the u timate responsibility for the treatment of wounded and sick civilia ns and perhaps even for interned belligerent combatants 6 R1COMMENDED US ACTION No statements or implementing legislation are necessary 1-19-2 PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION I GENERAL PROTECTION Article 20 - 1 Prohibition of Reprisals TEXT OF ADOPTED ARTICLE Artc e 20 - Prohibition of reprisals Reprisals against the perns Part are proh LoitcJ 2 objects p tectc by hi3 and - REFERENCES I Convention Arts 21-22 46 II Convention Arts 34-35 47 III Convention Art 13 IV Convention Arts 19 33 Protocol I Arts 13 23 27 31 51 3 65 3 RELATION TO U S POSITION This Article confonnsto the U S Position 4 CONMENT a Article 20 reaffirms existing law Under the First and Second Conventions reprisals against military wounded sick shipwrecked medical personnel medical units transports and their property are prohibited Article 13 of the Thfrd Convention prohibits under all circumstances reprisals against prisoners of war or retained medical and religious perAric1e 33 of the FourLh Convention prohibits reprisals against sonnel protected civilians including civilian medical personnel hospitals and medical transports The only development of this principle is to extend the prohibition against reprisals to the adverse Party's civilian wounded sick and shipwrecked his civilian medical and religious personnel and I20-1 his civilian medical units while they remain under the hostile Party's control The prohibition against reprisals against medical units and transports is valid only so long as they remain protected Provisions for loss of protection if the protected unit or object is used for hostile acts o other acts harmful to the enemy is expressly provided in I Convention Arts 21 2 II Convention Arts 34 35 IV Convention Art 19 and Protocol I Similarly the wounded sick and shipwrecked Arts 13 23 27 31 and 65 are protected only so long as they refrain from acts of hostility Arts 8 a and b 51 3 b In view of the adequate provisions for cessation of protection it would seem that the extension of the Convention prohibitions of reprisals against civilian wounded sick shipwrecked medical personnel units and transports is unobjectionable even if the prohibition is not predicated on reciprocal observance by the adversary The protected persons and objects are not capable of making any significant contribution to the enemy's war effort Nevertheless the delegation of Egypt interposed the following reservation during the Plenary c The Egyptian delegation considers that the application of Article 20 of Protocol I makes it imperative that both In Parties to the conflict should equally abide by it the case of a breach by a Party to the confliôt of the provisions of Article 20 the other Party shall be entitled to take action accordingly CDDH SR 37 Annex P 3 It is probable that Egyptian delegation sought not only to reserve against the limited extent to which Article 20 enlarges the prohibition now contained in the First Second and Fourth Conventions but agains the application of Articles 46 1147 and 33W under the Conventions themselves As a belated reservation to the 1949 Conventions through a purported reservation to their reaffirmation is not admissible it is hoped•that Egypt may be persuaded to refrain from making such a reservation at the time of signature It is possible that the U S and others may interpose reservations to the less meritorious prohibitions in Articles 51 and 52 without in any way affecting existing norms against reprisals Reservations such as Egypt's reservation to Article 20 would discredit her more meritorious reservations should she elect to make them against the reprisal prohibitions of Articles 51 and 52 II 5 MILITARY IMPLICATIONS None This Article restates existing international law except as stated Par 4a above 1-20-2 6 RECONMENDED U S ACTION a Seek to persuade Egypt not to press its reservation tothe Article If Egypt makes the reservation at time of signature the U S should b expressly reject it particularly to the extent that it purports to modify Egypt's existing obligations to observe in all circumstances the provisions of Article •46 of the First Convention Article 47 of the Second Convention and Article 38 of the Fourth Convention c No implementing legislation is required 1-20-3 PROTOCOL I PART TI WOUNDED SICK AND SHIPWRECKED SECTION II MEDICAL TRANSPORTATION 1 COMMITTEE II ACTION DELETING CERTAIN ICRC DRAFT ARTICLES ICRC Draft Articles 22-Search for Wounded 23-Application 24-Protection and 25-Notification within a chapter entitled Joint Provisions were deleted Chapter headings within the Section were also eliminated 2 RELATION TO U S POSITION The deletion of ICRC Draft Articles 22 23 and 24 were proposed by the U S and its co-sponsors With some modification they were willing to accept ICRC Draft Article 25 Notification Committee II however considered that except for Article 21 Definition the articles carried in the Joint Chapter were unnecessary and confusing 3 COMMENTS Section II of the ICRC draft sought to unify all provisions pertaining It was organized into two chapters one dealing with transport medical int provisions applicable to all forms of medical transport by land sea and air and the second dealing with exclusively with medical air transport a Based on the proposals of theU S and its co-sponsors CDDH II 80 b Committee II found that there were too many differences inherent in the nature •of land sea and air transports to justify the technique of unification The articles in the ICRC draft joint chapter tended proposed by the ICRC •to be statements of general rules modified by exceptions applicable to sea The result was both confusing and inaccurate and air transport Accordingly the Committee elected to treat land water and air c transport separately stating the conditions of protection and loss of protection in articles pertaining to transport in each element With respect to the article on Notification the Committee concluded that detailed provisions applicable to water and air transport were required and should be provided Notification was not however a necessary practice with respect For these reasons ICRC Article 25 Art 22 in CDDH II 80 to land transport was also deleted 4 MILITARY IMPLICATIONS The deletions save interminable confusion and ambiguities RECOMMENDED U S ACTION No action is necessary PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION II MEDICAL TRANSPORTATION Article 21 - Medical Vehicles 22 1 TEXT OF ADOPTED ARTICLE vehic1e Medical vehicles shall e speced and protected 5 t e Article 2 — Medical same way Protocol 2 a mobile medical units under the Conventions and th5s REFERENCES I Convention Arts 19 21-22 35 IV Convention Arts 18-19 21 Protocol I Arts 8 f g h 12-13 18 Annex Arts 3-7 Protocol II Art 11 3 RELATION TO U S POSITION There is no substantive difference between the U S position for medical vehicles proposed as Article 23 and that adopted The Committee however shortened the text by stating ageneral rule applicable to all medical vehicles instead of separating them into tilitary and civilian medical vehicles and referring to the specific rules applicable to each 4 COMMENT Inasmuch as the Conventions provide different provisions for the protection and loss of protection of military medical mobile untis Articles 19 21 22 First Convention and that of civilian mobile medical units Articles 18 19 21 Fourth Convnetion Articles 12 and 13 Protocol I there is some loss of clarity in the adopted text This can be corrected by insuring that the military manuals address the distinction between military and civilian vehicles 1-21-i 5 MILITARY IMPLICATIONS No significant impact 6 RECOMMENDED U S ACTION No understandings or implementing legislation is necessary 1-21-2 COL I PART II WOUNDED SICK AND SHIPWBECKED SECTION II MEDICAL TRANSPORTATION Article 22 - Hospital Ships and Coastal Rescue Craft 1 TEXT OF ADOPTED ARTICLE Article 22 — 1 Hospital ships and coastal resu craft The proviions of the Conventions relating to • a vessels drcribed in rtic1es 22 2LI 25 and 27 of theEecond Convention b their lifeboats and small craft c their pronne1 and crews and d the wounded sick and ip i'ecked on hoari Aall also app1y where these vesscls carry civi1 an wounded sick and sh pwreckcd iho do not belong to any of the categories Such mentioned in Article 1301' the Second Ccnveiition civilians shall nob however be subject to surrender to any if they Party which I -not their o n or to 'capture at sia find themse 2es i the po 1 of a Party to the conflict other than their own they shall ho covered by te Furiti Convention arid by tbs Protocol 2 The protection provided by th3 Conventions to essels described in Arbicle 25 of the Secord Crven1iori shall extend to hospital ships made available for hunanitarian purposes to a Paity to the cenflict a by a neutral or other State which is not a Party or to that conflict b by an impartial interr atn1 humanitarian crganization provided that in eithe' case the 'icie are compiicd with 1-22-1 reciuiruints set out 3 that 1v1 cvibe n Article not been made Th Parties to the conflict are nevertheless nvid to nfo 'm each ot o' any details of such craft which li ii facilitate their Small craft 7 of' he Second ConvéntjorL shall be prtect cvcn ifth2 notificaJ o11vibed by that Article has i enLifcation and recognition 2 REFERENCES I Convention Art 20 II Convention Arts 14-17 22-35 36 43 IV Convention Art 21 Protocol I Arts 8 f g i 9 23 44 8 3 RELATION TO U S POSITION Although substantial drafting changes were made to the U S proposal in CDDH II 80 the substantive provisions of the U S proposal are incor-rated in the adopted text These are Reaffirmation of the provisions of the Second Conventions relative to the Status and Protection of State Owned Hospital Ships Convention II Art 22 Hospital Ships of National Relief Societies and Private Individuals Convention II Art 24 Hospital Ships Lent by Relief Societies of Neutral States Convention II Art 25 and Coastal Rescue Craft Convention II Art 27 their lifeboats and small craft their personnel and their crew Convention II Art 36 and the immunity of all such ships and craft from attack from land Convention I Art 20 a b Clarification of their authority to serve civilian wounded sick and shipwrecked as well as the persons listed in Article 13 Convention II See Article 35 Convention II c Special provision restricting capture at sea of civilian patients of hospital ships who are not subject to PW status under Article 13 •Convent ion IL• d Elimination of the 10 days notice requirement for coastal rescue craft Par 3 e Extension of the categories of authorized sources of hospital - ships consistent with Article 9 Par 2 to neutral or other States not Parties to the conflict and to impartial international humanitarian organizations 1-22-2 COMMENT a See Par 2 The adopted text is consistent with the U S proposal Except for a relaxation of the notification requirements for coastal rescue craft this Article is a reaffirmation of the Second Convention and Article 21 of the Fourth Convention b As Article 13 Convention II which enumerates those protected by that Convention in the same terms as Article 4 Convention III lists those entitled to PW status includes several classes of civilians it was considered necessary to expressly provid protection to other classes of civilians No reference is made to Articles 43 or 44 as no new classes of civilians entitled to FW status are created There is certainly no reason for exempting the new combatants mentioned in Articles 43 and 44 from the provisions of Article 14 Second Convention authorizing warships at sea to remove the wounded sick and shipwrecked provided they are in a fit state to be moved and the warship can provide adequate facilities for necessary medical treatment In this connection Par 8 of Article 44 provides that the First and Second Conventions apply to new categories of combatants c See Analysisof Article 9 Par 4b 4 for a discussion of the request the ICRC and the' League of Red Cross Societies to amend Article 23 2 b by deleting reference to these two organizations The U S supported the deletion 5 MILITARY INPLICATIONS As this is largely a reaffirmation of existing law it has minimal impact except for clarifying ambiguities in present law 6 RECOMMENDED U S ACTION No understandings or implementing legislation is necessary 1-22-3 - uiOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION II MEDICAL TRANSPORTATION Article 23 - 1 Other Medical Ships and Craft 24 TEXT OF ADOPTED ARTICLES Article 23 — O'her dic_sh' arci_c aft Medical ships and craft obr tthan those referred to in Article 22 of this Pi'otoco anI it icie 35 of thc 3econd Convention shall ther t sea or in ote w ers b respected and protectd er tne Conventions and this in the ai way as mebile ccai its 1 Since this protection c4n rüy be effective if they can be identified and reogn±zed as rnedicl hips or craft such vessels shouldbe marked w the ditinctive emblem and as far as possible comply witb the second paragraph o4 Article 3 of the Second Conventon Protocol a — — e ships and craft referred i b in paragraph 1 shall remain subjcct laws of war Any warship cri the surface able immediately to Lrce its command may order them to stop order them off5 or make hem take a certain course and they shall obey every such command Such shim and craft may not any other way be diverted frcrn their medicalmission so long as they are nedec for the wounded sick and shipwrecked on board The protection provided in paragraph i shall cease only under he conditions set out in Articles 3L and 35 of the Second Convention A clear refua1 to obey a command given n accordance with paragraph 2 shall be an •act harmful to the enemy under rticIe 3 of the Seccnd Convention 3 LaIt7 to the conflict may notify ny adve'se Party as far in advance of sailing as possible of the narne description expected time 4 J of sailing course and estimati peed of e medical silip orcraft particularly in the case of shic of over 2OOO gross toris and may provide any other inforiation wiich would facilitate identification and recognition information The adverse Party chail acknowledge receipt of such 1-23-1 s The provisions of Article 37 of the Second Convention shall apply tomedicaland religious personne in such ships and craft The provisions of the SecondConvention shall apply to the wounded sick and shipwrecked belonging to t categories refer ec to in Article 13 of the Second Convention and in Article LLj of this Protocol who may e on board sucn medical ships and craft dounded sick and shipwrecked 6 civilians who do not beiong to any ofthe caeories mentioned in Article 13 of the Second Conver tion snail not be subject at sea either to surrender to any Party which is 1t their own or to removal from ships or craft if they find tniselves in the pc rer of a Party to the conflict etherthan their owns they shall be covered by the Fourth such Convention and by 2 this Protocol REFERENCES Report of the US Delegation to the ICRC Meeting of Experts Medical Transports on Signalling and Identification Systems for by Land and Sea February 1973 I Convention Articles 19 21-22 35 II Convention Arts 14-17 34-35 37 38 43 Protocol I Arts 8 f g i 22 43-44 IV Convention Arts 4 19 21 3 RELATION TO U S POSITION Although substantial drafting changes were made with respect to U S provisions of the original U S proposals in CDDH II 80 the substantive This text was based on proposals are incorporated in the text as adopted the work of a working group which met during the 1975 Session CDDH II 305 Subject to minor drafting changes the U S supported CDDH 225 p 36 a the working group text b Variances all of which are considered to be acceptable are 1 NonsubstantiVe reorganization of paragraphs Theprovision that such ships and craft obey every navigational clarified order given them from a visible warship of an adverse Party was and elaborated in par 2 2 shall The U S proposal that meiical ships of over 2000 tons gross was 1y with the notifications procedure of Article 22 Second Convention procedures were formulated in taccepted Instead optional notification 4 par 4 1-23-2 COMMENT a Basically Article 23 implements the proposal of the Meeting of Experts on Signalling and Identification Systems for Medical Transports by Land and Sea 5-9 February 1973 that 1 The Second Convention be reaffirmed except that Cosatal rescue craft under Article 27 Second Convention be 2 relieved of the notification requirement of Article 22 and that Some provision be made for temporary medical ships and craft 3 at sea and on other waters b The textprovides that such temporary ships and craft remain subject to the law of war i e that they be subject to seizure if they fall into the hands of an adverse Party see Art 35 First Convention but they may not be diverted from their mission 5n a manner prejudicial to the wounded and sick aboard The exemption froth capture accorded to hospital ships was not deemed appropriate to vessels wich could be converted into general purpose ships after they had comp1eted a medical voyage Hospital ships on the other hand cannot be used for nonxnedjcal purposes for the duration of the armed conflict c The medical and religious p4rsonnel of such ships and craft are reated like other medical personnel1under Article 37 Second Convention Article 28 First Convention They may be retained for as long as necessary to care for the wounded and sick d Civilians wounded and sick who fall into the hands of an adverse Party shall have the status of civilians under the Fourth Convention See Article 4 Fourth Convention e The concept of temporary medical ships is not novel Fourth Convention provides in relevant part Article 21 specially provided vessels on sea coniieying wounded and sick civilians shall be respected and protected in the same manner as the hospitals provided for in Article 18 and shall be marked with the consent of the State by the display of the distinctive emblem Pictet's Commentary to Article 21 IV states in part The discussion which took place on the subject in the Plenary Assembly of the Diplomatic Conference brought out quite clearly that the word 'providedt does not necessarily mean permanently provided it will suffice if the vessels are provided temporarily In order to enjoy protection under Article 21 it 1-23-3 is not necessary for those concerned to be conveyed to sea in hospital ships proper any merchant vessel used temporarily as a hospital ship is protected under the provisions It follows that the principal change which would be effected by Articel 22 is to permit temporary military medical ships and craft to be used routinely for military wounded sick and shipwrecked as 'well as for Under Article 19 Fourth Convention the presence of military civilians wounded and sick in a civilian hospital does not result in loss of protection f The substance of the comment t par 4 b of the Analysis of Article 22 is equally application to the second sentence of par 6 g 5 MILITARY IMPLICATIONS In view of the present state of the law as indicated in par 4 e and f the impact on U S commanders is mininal Art 23 merely clarifies the present law and provides implementing detailsL b RECOMMENDED U S POSITION No understandings or implementing legislation is necessary 1-23-4 PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION II MEDICAL TRANSPORTATION Article 24 - 1 Protection of Medical Aircraft 26 TEXT OF ADOPTED ARTICLE 2 Protection of medical ircraft Medical aircraft shall be respected and protected subject c' te rovisons of this Part rticle 2 REFERENCES I Convention Art 36 II ConventiOn Art 39 IV Convention Art 22 Protocol I Arts 8 f g j 118 3 25-31 Annex I 3-13 RELATION TO U S POSITION a The article is substantially consistent with the U S proposal in CDDH 11 82 The statement in the U S proposal that protection of medical airb craft is subject to the provisions of the proposed chapter on medical transport The Committee Articles 21-33 was expanded to a reference to the entire Part believed that the provisions of the articles on General Protection including Article 18 as well as those dealing with the wounded sick and shipwrecked and medical personnel were relevant The reference to Party to the conflict was deemed unnecessary c because the definition of medical transport in Art 8 g includes the element of control by a Party to the conflict 4 COMMENT a Its This is the basic article on protection of medical aircraft significance is that it eliminates the provision in Articles 36 I 39 II 22 IV limiting protection for medical aircraft while flying at heights time and route specially agreed upon between the belligerents concerned 1-24—i In lieu of the requirement of agreed flight plan a more rational b regime is provided which takes Into account the relative danger to the aircraft and of abuse of protected status within 1 areas controlled by friendly forces ' 2 in the contact zone and areas where control is not clear and finally 3 while operating over enemy controlled areas It also takes into account feasible methods for improving identification of medical aircraft and thus reducing the danger of misidentification 5 EFFECT ON U S COMMANDERS The regime established byArticles 24-31 does not insure that a medical aircraft will never be lost as- a result of misidentification If implemented through the use of distinctive signals and reasonable systems for their recognition good faith application of the rules will reduce the risk to acceptable limits The system for recognition of medical aircraft provided in the Annex presupposes that Parties will establish and maintain recognition systems commensurate with their capability to engage and destroy aircraft Thus the degree of sophistication required for recognition depends onthe range nd sophistication of surface to air weapons systems b c 6 See Discussion under Article 18 RECOMMENDED U S ACTION No understandings or implementing legislation is necessary 1-24-2 PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION II MEDICAL TRANSPORTATION Article 25 - Medical Aircraft in Areas not Controlled by an Adverse Party 26 bis TEXT OF ADOPTED ARTICLE 1 edical tide 25 aircraft in arJas vrs_arty not controllea y a i In and over land areas physically controlled by fried2' fores in and over sea areas not iph rsica11y controlled by an aerse rty tr reect and rotectuii of edi • 1 ircraft a ar1 t o te eunfilet is ot bde' on ari agreement with adverse Party for greater zafty o ever a Party to the nflldl operatir ±t medical irciat in ee areas may notify adver Party a proridcd 1r1 Artc in particular when ch aircraft are making f1ighs bririiri them within rance of rf1-to-air weapon terns ' ihc adverse Party I 2 REFERENC I Convention Art 36 II Convention Art 39 IV Convention Art 22 Protocol I Arts 8 f g i 24 26-31 3 RELATION TO U S POSITION position as reflected in The adopted text is consistent with the U S the optional notification is appropriate CDDH II 82 The situation in which aircraft flights within range is emphasized by the illustration of medical This clarification was proposed systems of enemy surface-to-air weapons by Norway 4 CONMEi1 for Article 25 explicitly frees medical aircraft from the requirement friendly forces and light plans in land areas under the physical control of a 1-25-1 Medical evacuation flight areas not controlled by adverse forces in rear areas the communication zone and intercontinental evacuation are thus generally protected without any formality Medical evacuation flights in the battle area however particularly b within range of enemy's surface-to-air weapons system are less secure Accordingly notification of the flight plan is a recommended precaution in addition to the display of the distinctive emblem and distinctive signals On Article 25 makes a necessary distinction between land and sea •c land there are usually well defined areas under the physical control of a Party Most of the sea however is free for neutral or humanitarian ships and aircraft but there may be areas of ithe sea which the adversary controls such as the sea around island bases or that adjacent to defended areas of the territorial sea or along straits Thus a reasonable regime at sea is to permit flights without agreement except over areas controlled by the adverse Party The term physical control is used to avoid terms having legal d connotation which might cause confusion with the degree of control deemed necessary for occupied territory under Hague Regulations Art 42 MILITARY IMPLICATIONS Assuming that the distinctive signal provision of Annex I are worked out and implemented air defense commanders in forward areas will have the additional duty to install and maintain appropriate systems for recognizing Radio communications which are contemthe visual and electronic signals as well as the plated for the notification provision of Article 25 agreement provisions of Articles 26 27 28 and 31 will require that either an air defense station or a medical dispatcher guard the frequency or frequencies which will be used for medical communications between the The command and control system must also be capable parties concerned of alerting all units which can engage protected medical aircraft of its It is to be noted that these precédures are critical medical character only with respect to weapons systems which acquire targets by electronic means Where target acquisition or engagement is by visual means it is expected that visual identification i e the distinctive emblem and lights will afford sufficient opportunity to prevent engagement of protected medical aircraft 6 RECOMMENDED U S ACTION No understanding or implementing legislation is necessary 1-25-2 COCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION II MEDICAL TRANSPORTATION Article 26 - 1 Medical Aricraft in Cgntact or Similar Zones 27 TEXT OF ADOPTED ARTICLE Artici 26 - Medical aircraft tnontact or srn1a zones •1 1 the contact zone which are physically controlled by friendly forces and in and over those areas the physical control of which is not clearly established protection for medical aircraft can be fully effective only by prior agreement bct ieen the competent military authorities of the Although Parties to the conflict as provided for ri Article 29 in the absence of such an areement riedical aircraft operate at • In anct over those parts of' their own risk they sll nevertheless e respected after they have heen rc nized a sueh Contact zone' means i any area fl - lard where the forward Lements of opposing forces are in cen1act with each other especially where they ae exposed to direct fire from the ground 2 REFERENCES I Convention Art 36 Convention Art 39 IV Convention Art 22 Protocol I Arts 8 f g i 24 25-27 31 II 3 RELATION TO U S POSITION a The article is consistent with the U S position as set forth in CDDH II 82 For origin of statement that medical aircraft operate at their own risk in the areas affected by Article 26 see Par 4 c b 1-26-1 1 v 377 4 COMMENT a This article reflects realistic recognition that medical battlefield evacuation in the forward part of the battle area and in areas where control Although it is recogis disputed involves high risk of misidentification nized that the Parties have a juridical right to conduct medical air evacuation within the areas under their control and that such medical aircraft are protected if recognized it nevertheless acknowledges the risk and recognizes that effective protection depends on an agreement At the 1972 Conference of Go'ernment Experts Article 25 Removal of b the Wounded from the Battle Area wa the most hotly debated provision within The U S urged that as in Commission I 1972 Report para 1 80 - 1 84 It argued that the rear areas no requirement for an agreement be stated use of light medical aircraft well marked and emitting distirctive light andelectronic signals should be sueficient for recognition in the battle Others however insisted thai protection in the forward part of area the battle area must be contingent on a specific agreement The text adopted after exhaustive debate was a compromise worked out by the 13K Sweden and It provided that in the forward par t of the battle area under the GDR control of friendly forces the protection of medical aircraft can be effective only by agreement between the local military authorities Never'eless even if prior agreement has not been achieved a medical aircraft all not be the object of attack by any person who has positively recogit as a medical aircraft At the 1975 Conference it became evident that the consensus achieved c The GDR hbwever Introduced an amendment in 1972 was relatively stable deleting the last sentence of the ICRC draft article dealing with protection of recognized medical aircraft operating in the absence of an agreement After extensive debate the drafting committee worked out the language of This was adopted by the Committee the last sentence of Article 27 Par 1 by consensus CDDHIII SR52 Although Egypt had participated in the consensus adoption of the d Article in Committee II and by the plenary CDDH SR 39 p 3 Egypt submitted a written statement pointing out that Article 26 is a change to rather than a development of I Convention Article 36 The Egyptian delegation believes that for the protection of medical aircraft prior agreement is absolutely necessary for aircraft to fly over contact or similar zones In connection with the Egyptian statement it should be observed that under Article 36 of the First Convention prior agreement is required for the pro— tection of medical aircraft in any area not just the combat zone or the Article 6 of the First Convention contemplates special agreeantact zone ts as to Article 36 and other provisions For those States who become ties to Protocol I Articles 24-31 may be construed to be special agreements in the sense of Article 6 First Convention 1-26-2 The definition of tcontact zonett was influenced by an article by LTC Frederic de Mulinen Swiss Army in which he aptly described the forward part of the battle area e in the tfoard partt are to be found units in direct contact with enemy vision and hence to direct firing In the trear partt of the battle areas are the units belonging to the second echelon and the reserve levels of troops in hostile contact They are less exposed to enemy vision and firing and there is therefore greater freedom of movement Signaling and Identification of Medical Personnel and Materiel International Review of the Red Cross Sept 1972 MILITARY IMPLICATIONS 5 Agreement will continue to bedifficult to achieve See Art Present doctrine pertaining to battlefielc evacuation by air does not contemplate pickups from points under enemy ground observation and direct fire Accordingly Art 25will be more relevant to air evacuation from medical collecting stations a 29 below b - To the extent that air evacuations take place from the contact zone problems of recognition and communications noted-with respect to Art 25 ill be acute 6 RECO1ENDED U S ACTION No understanding or implementing Legislation is necessary 1-26-3 OTOCOL I PART I WOUNDED SICK AND SHIPWRECKED SECTION II MEDICAL TRANSPORTATION Article 1 27 - Medical Aircraft in Are4s Controlled by an Adverse Party 28 TEXT OF ADOPTED ARTICLE Article 27 - Medical aircraft ir areas controlled by an adverse Party The medical aircraft of a Party to the conflict shafl continue to be protected while flying Over land or sea areasphysicaliy controlled by an adverse Party 'provId that prior agreement to such flights has been obtained lrom the competent authority of that adverse Party 1 A medical aircralt which flies over an area physically controlled by an adverse arty without or in deviation from the terms of an agreement provided for ri paragraph 1 either through 1igational exror or because of anemerg'rcy affecting the safety I The flight shall make every effort ide-itify itself and to rm the adverse Party of the circumtnes A3 soon as such medical aircraft has been reconLze i b the arverse Party that Parti shall make all reasonabJ € efforts to givc• the order to land or to alight on water referrcd t' i- Artc1e O 'aragraph 1 or to take other measures to safeguard its o n nterests and in either case to allow the aircrift tre Vc compiince before re3orting to an attack agains' tte i1craft 2 2 REFERENCES I Convention Art 36 II Convention Art 39 IV Convention Art 22 Protocol I Arts 8 f g i 24-26 28—31 1-27-1 1 NOV 1977 3 RELATION TO U S POSITION a Par 1 is consistent with the first sentence of the U S proposal for Art 28 CDDH II 82 b Except for clarifying changes par 2 is consistent with the balance of the U S proposal The other measures to safeguard the interests of the said Party mentioned in the last sentences are intended to be orders to leave the area change course etc 4• COMMENT Articles 36 1 39 11 22 Iy prohibit flights over enemy or enemy— occupied territory Accordingly under the Convention such overflight is a breach of the Convention Under Article 28 such overflight gives rise to loss of protection Nevertheless before taking the extreme measures of attacking a medical aircraft the Parties are urged to order it to land or take other less drastic measures The disposition of offending medical aircraft their crew and patients is elaborated in detail in Article 30 a b Efforts by some delegations to specify the military or political el at which agreements are to be effected were rejected by the Committee was believed that each Party should have the authority to specify what thorities are competent to authorize such flight 5 MILITARY IMPLICATIONS a The surface-to-air and air-to-surface communications problem mentioned with reference to Articles 25 and 26 is relevant to Article 27 b The principal utility of the Article involves encircled areas beachheads and established airheads Agreement of a humanitarian nature in such situations are traditional and may be easier to achieve on the basis of scheduled medical flight and prescribed corridors than those contemplated in Article 26 6 RECONMENDED U S ACTION No understanding or implementing legislation is necessary 1-27-2 PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION II MEDICAL TRANSPORTATION Article 28 - Restriction on Operations of Medical Aircraft 29 TEXT OF ADOPTED ARTICLE 1 Article 28 - Restrictiors nert icofrned ca1ajrcraft 1 The Parties to the conflict are proribitd from using their medical aircraft to attempt to cquire any military advantage ever an adverse Party The presence of iedica1 aircraft shall not be zttept to render iiIita'y jectiv immune from attack1 Medical aircraft shall not be used to clloct or transmit used n an 2 intelligence data and shall not carry ary equipment intended for such purposes They are prohibie d from carrying any persons not included within th definitior in ArtIcle 8 sub1car9 Lgraph 1 The carrying on board of the personal effects •''the occupants Or of equipment intended olely to facilitate navigatior communication or identification shall not be considered as prohibited Nedical aircraft shall not carry any airment except small 3 arms arid arrniunition taken from the unded sick and shipwrecked board and not yet handed to th proper service and such individual 'apcn3 a Tny be r ecsary to enable the ci'-' personnci on oar e2e'id the1neIvtb and the wounded sick an shipwrecked in their charge While carryg cut the flights referred to in Articles 26 and 27 niedical aircraft sha 1 not except by prior agreement with the adverse Party be used tc search for the wounded sick on ight and 2 shipwrecked REFERENCES I Convention Art 36 II Convention Arts 34 39 IV Convention Art 22 Protocol I Arts 8 f g j 12—13 24—27 29-31 1-28-1 RELATION TO U S POSITION a Article 29 is fully consistent with the U S position proposed in CDDH II 82 b Drafting changes have been made for consistency with other Articles adopted by Committee II See Art 12 par 4 and Art 13 4 COMMENT Apart from the fear that the safety of medical aircraft could a not be assured against attack from distances which exceed the capability to recognize the distinctive emblem an important factor for the limitations on protection of medical aircraft under presezt la was concern over the security threat posed by abuses of protected status This same concern was evidenced during the debate on medical aircraft in the 1972 Conference Report VOL I Para l 67 1 79 1 80 The pattern of measures in the Convention intended to ensure against b abuse ofmedical protected status are Loss of protection when the threat to security is moderate 1 Articles 21 22 and 35 of the First Convention and Articles 34 and 5 of the Second Convention simply provide for loss of protection if medical units are used to commit outside their humanitarian duties acts harmful to the enemy With respect to extremely dangerous threats to security 2 however the conventions impose explicit prohibition Because of the threat to security of warships Article 34 prdhibits the possession o secret codes by hospital ships Articles 36 of the First Convention and 39 of the Second Convention prohibit overflight of enemy occupied territory These explicit prohibitions imply that their dolation is a breach of the conventions not merely a condition entailing Loss of protection • Agreements on the basic protection of medical aircraft without c the inflexible necessity of an agreed flight plan was achieved only by strengthening the conditions intended to insure that edical aircraft will not be used for acts harmful to the enemy and to minimize its capability to perform such acts These conditions as they appeared in the l972 Commission I text are listed below Prohibiting parties to use their medical aircraft in order to 1 acquire any military advantage Art 24 3 1-28-2 A statement that medical aircraft may not be used to shield 2 military objectives based on Article 23 1 Third Convention and Article 28 Fourth Convention Art 24 3 3 Prohibition against carrying intelligence gathering equipment Art 24 4 4 merit Prohibition against carrying persons supplies or equip- not necessary to the performance of the medical mission Art 24 4 Thus their passengers were limited to medical personnel and the sick and wounded Their supplies and equipment are limited to those necessary for collection transport and care of the wounded and sick 5 Prohibition against carrying arms other than those belonging to the wounded and sick or necessary for the defense of the medical personnel and the wounded and sick Art 24 5 6 Exclusion of search as a part of the medical air mission on land unless agreed to by the adverse Party Art 23 d was intended to preclude the flying of a search pattern in the battle area which would undoubtedly be considered by the enemy to be reconnaissance flight EFFECT ON U S COMMANDERS a The restrictions of this article are prohibitory in nature It follows that effective command action nd frequent inspection are required in order to prevent violations b The foregoing is particularly important with respect to temporary medical aircraft General purpose aircraft used for medical evacuation frequently carry mixed loads of both patients and other personnel Some equipment not associated with medical mission is not removable Such aircraft may continue to be used to carry the wounded and sick medical personnel and equipment but it may not be designated'or marked as a medical aircraft To the extent that long haul medical evacuation cannot comply with the requirement of this article they cannot be protected as medical aircraft 6 RECOMMENDED U S ACTION No understanding or implementing legislation is required 1-28-3 ROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION II MEDICAL TRANSPORTATION Notifications Article 29 - 1 and Agreements Concerning Medical Aircraft 30 TEXT OF ADOPTED ARTICLE Article 2 Notifications_aria'eements concerning medical aircraft Notifications under Article 25 or reouests for prior 1 agreernnt wider Artic es 26 27' 28 pararaph14 or 31 shall state the proposed rurnber of' rned '1 aircraft their flight plans and means of dntificationc shall be understood to carried out in compliance with mean that every flight will be Article 28 A Party which 2 receives a not ii catiori given under Article 25 1l at once ac3 now1ede recct o' sucn notification A Party which receives a req for prior agreement ndex icles 26 27 2b paragraph 14 w' 31 shall as rapidly as possible notify th reQueT tary that the request is agreed to b that the request is denied or• c of reasoncble alternative proposais to the request It nay also propose a prohibition or restriction of other flights n the area during the time involved If the Party wnicn sutmitted the request accepts the alterna' ive proposals it shall notify the other Party a • - of suchacceptance The Parties shall take the necessarr measures to ensure that notifications and agreements can be made rapidly 5 ' The Parties shall also take the neceszary measures to disseminate rapd1y the substance of any such notifications and agreements to the military units concerned and shall inslruct units regarding the means of identification that ' iil be y the medical aircraft in question LI t 1-29-1 REFERENCES I Convention Art 36 II Convention Art 39 IV Convention Art 22 Protocol I Arts 8 f g i 18 24—28 30—31 Annex I Arts 7 9 3 RELATION TO U S POSITION Pars 1 2 in CDDH II 82 a 3 and 5 are consitent with the U S position reflected Par 4 is a needed recognition that in relation to notification and b agreement concerning medical air missions particularly in battle situations speed is essential 4 COMMENT This article emphasizes the importance of communications between a rsaries to the effectiveness of the regime developed for medical air isport in battle situations Thus the development of a feasible system r such communications by radio as contemplated inArticles 7 and 9 of Annex I is very significant They Established distress frequencies have limited application b can be used only under the emergency circumstances provided in ITU regulaIt does not appear feasible in the foreseeable future to provide tions a family of internationally designated frequencies for this type of communication The only feasible presently available system is for states to designate and publish the frequencies which they have provided for'this The Parties can then communicate on the frequencies each has purpose designated unless they agree to a common frequency - c The rudimentary communication system now available may be improved in the future as experience and coordination with the International TeleAccordingly it i's important that amendcommunications Community improve ments of the Annex be relatively easy to effect Article 98 is thus an extremely important one 5 EFFECT ON U S COMMANDERS This article will require development See Par 5 Review of Article 25 1octrine for maintaining connunication with an adverse Party pertaining 1-29-2 to medical aircraft and alerting units which can engage aircraft in the area covered by notification or an agreement 6 RECONMENDED U S POSITION a No understanding or implementing leislat-ion is necessary b See action to be taken at the 1979 World Administrative Radio Conference of the ITU to facilitate raio couiniunicati•ons discussed under Articles 7 and 9 of Annex I F 1-29-3 i PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION II MEDICAL TRANSPORTATION Article 30 - Landing arid Inspectionof medical aircraft TEXT OF ADOPTED ARTICLE 1 Article 30 — Landing and inspection of medica aircraft 1 Medical aircraft flying over areas which are physically controlled by an adverse Party or over areas the physical control of which is not clearly established may be orderd to land or to alight on water as appropriate to permit insp tion in accordance with the following paragraphs Medical aiitraft shall obey any such order 2 If such an aircraft lands or alights on yater whether ordered to do so or for other reasons it may id subjected to inspection solely to determine the matters referre to in paragraphs 3 and 4 Any such inspection shall be comncenced without delay and shalibe conducted expeditiously The inspecting Party shall not require the wounded and sick to be removed from the aircraft unless their removal is essential for the inspection That Party shall in any event ensure that the condition of the wounded and sick is not adversely affected by the inspection or by the removal • 3 If the inspection discloses that the aircraft a is a medical aircraft within the meaning of Article 8 subparagraph j b is not in violation of the conditions prescribed in Article 28 and c has not flown without or in breach of a prior agreement where such agreement is required the aircraft and those of its occupants who belong to the adverse Party or to a neutral or other State not a Party to the conflict shall be authorized to continue the flight without delay 1-30-1 31 t flv J7 i 1 V 7 4 If the inspection discloses that the aircraft a is not a medical aircraft within the meaning of Article 8 sub-paragraph f b is in violation of the conditions prescribed in Article 28 or c has flown without or in breach of a prior agreement where such agreement is required the aircraft may be seized Its occdpants shall be treated in conformity with the relevant provisions of the Conventions and of this Protocol Any aircraft seized which had been assigned as a permanent medical aircraft may be used thereafter only as a medical aircraft 2 REFERENCES I Convention Art 36 II Convention Art 39 IV Convention Art 22 •Protocol I Arts 8 f g i 24—29 31 3 RELATION TO U S POSITION Pars 1 and 2 conform substantially with the U S position as proa posed in CDDH II 82 Rev 1 Belgium Canada France Netherlands Norway UK and USA Par 3 was modified to make it clear that the adverse Party may take b off wounded prisoners of war belonging to its own forces or those of an ally Par 4 incorporates the scope of Par 5 of CDDH II 82 Rev 1 with c respect to medical aircraft which had flown without or in breach of a prior agreement where such agreement is required The proposal of the U S and its co-sponsors stated explicitly that such aircraft may be seized but only if the Party seizing the aircraft can provide adequate facilities for This provision necessary medical treatment of the wounded and sick aboard s deleted because several delegations felt that the distinction drawn tween the situation in 4 c and 4 a - b implied a lesser degree of care 1-30-2 1 NOv i977 'r the patients in the latter situations As the same high degree of is mandated by Article 10 Protocol I for all wounded and sick it was deemed unwise to draw the distinction The U S delegation joined in the consensus adoption of par 4 CDDH II SR 58 59 In explanation of its participation in the consensus the U S representative made the following statement The U S delegation had joined in the adption by consensus of the new paragraph 4 of Article LQ because of the general obligation laid down in Article 10 adopted at the second session for the sick and wounded to be treated humanely and in all circumstances and that they should reeive to the fullest extent practicable and with the least possible delay the medical care required by their condition It had felt that to lay down that under certain circumstances aircraft carrying wounded might be seized only if good medical treatment could be provided for its occupants would constitute a diminution of the provisions applicable in other situations The relevant provisions of the third Geneva Convention of 1949 oblige the capturing Power in those rare instances on land where adequate facilities for the provision of medical treatment were not available to make the necessary arrangements even if that involved transfer to a neutral Power or repatriation CDDH II SR 59 Par 11 4 COMMENT This Article makes explicit what is implicit in the 4th paragraph of Article 36 First Convention a Because this article will have to be implemented by inspection b parties in remote airfields it was considered necessary to provide detailed guidance almost in check sheet form as to the circumstances in which medical aircraft must be permitted to continue their journey and when they may be seized on account of a violation of the rules c It should be noted that under Par 1 an order to land for inspection is limited to situations when a medical aircraft flies over land or water under the physical control of an adverse Party or over areas the control of which is not clearly established This article does not authorize ordering the landing of a medical aircraft flying in the relevant part of the contact zone d It Is noted that in the latest text prepared by the Secretariat the cross reference to the definition of medical aircraft in Article 30 3 a is to Article 8 j 9Medical aircraft but the couiparable reference in dde 30 4 a is to Article 8 f Medical transportation As adopted 1—30—3 1 OV 971 by Committee II the Drafting Committee and the Plenary the correct cross reference is to the definition of tnedical aircrafttt not to that of The ttmedical transportationtt short definition of ttmedical aircraft any m2dical transport by air the definitions of both ttmedical transport't Art S g and 'tmedical transportation Art 8 f By referring only to ttmedical transportationtt the Secretariat's text eliminates two essential elements found in Art 8 g namely that the medical aircraft must be ttassigned exclusively to medical transportation't and that it must be ttunder the control of a competent authority of a Party to the conflict 't Art 8 g For this reason and because Paragraphs 3 and 4 must complement each other exactly the erroneous cross reference in Art 30 4 should be corrected in the final text A message to that effect has been dis— patched to the Secretariat via the U S Mission inèorporates 5 MILITARY IMPLICATIONS The clarification of procedures should facilitate landing and inspection practice when medical aircraft of an adverse Party are ordered to land 6 RECOMMENDED U S ACTION a No additional statement of understanding and no implementing legislation is necessary b Take necessary action to correct error in par 4 a 1—30—4 ROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION II MEDICAL TRANSPORTATION Article 31 - 1 Neutral or Other States not Parties to the Conflict 32 TEXT OF ADOPTED ARTICLE Article 31 Neutral or other States not Parties to the conflict Except by prior agreement medical aircraft shall not fly over or lar1 in the territory of a neutral or c ther State not a However with such an agreement they Party to the conflict shall be respected throughout their flight and also for the Nevertheless they shall duration of any éalls in the territory obey any summons to land or to alight on water as appropriate 1 Should a medical aircraft in the absence of an agreement or in deviation from the terms of an agreement fly over the te'ritory of a neutral or other State not a Party to the conflict ç-r through navigational error or because of an emergency ctin the safety of the flight it shall make every effort to g'i notice of the flight and to identify it3elf As soon as ich medical aircraft is recognized that State shall make all reasonable efforts to give the order to land or to alight on water referred to in Article 30 paragraph 1 or to take other measures to safeguard its own interests and in either case to allow the airëraft time for compliance before resorting to an attack against the aircraft 2 XC a medical aircraft either by agreement or •in the circumstances mentioned in paragraph 2 lands or alights on water in the territory of a neutral or other State not Party to the conflict whether ordered to do 30 or for other reasons the aircraft shall be subject to inpection for the purposes of determining whether it is in fact a medica aircraft The inspectLon shall be commenced without delay and shall be conducted exDeditiously The inspecting Party shall not require the wounded and sick of the Party operating the aircraft to be removed from it unless their removal is essential for the inspection The inspecting Party shall in any event ensure that the condition of the wounded and sick is not adversely affected by the inspection or the removal 3 1—31-1 Ifthe irspection discloses that •tbe aircraft is in fact a medical aircraft the aircraft with its occupants other than those who must be detained in accordance with the rules of international law applicable in armed conflict shall be allowed to resume its flight and reasonable facilities shall be given for the continuation of the flight If the inspection discloses that the aircraft is not a medical aircraft it shall be seized and the occupants treated in accordance with paragraph I 4 T 'tmded si and sh±pwrcked isembarked otherde than temporarily from a medical aircraft with the consent of the lQcal authorities in the territory of a neutral or other State not a Party to the conflict shall unless agreed ot erwise between that State and the Parties to the conflict be detained by that State where so required by the rules of international law applicable in armed conul±ct in such a rnanner that they cannot again take part in the hostilities The cost of hospital treatment and internment shall be borne by the State to which those persons belong Neutral 5 or other States not Parties to the conflict shall any conditions and restrictions on the passage of medical ft over or on the landing of medical aircraft in their erritory equally to all Parties to the conflict ar 2 REFERENCES I Convention Art 37 II Convention Art 40 Protocol I Arts 8 f g i 24—30 Hague Convention No V Arts 2 14 3 RELATION TO U S POSITION a Par 1 is imsubstantial conformity to the U S position b Par 2 was rewritten to conform closely to par 2 Art 28 Par 3 war rewritten to be consistent in substance with procedures c prescribed in Art 31 pars 3 and 4 It clarifies the Par 4 is consistent with the U S position igious use of'Uisembarked as used in the third par First Convention d e Par 5 is consistent with the U S position 1-31-2 il COMMENT a This article reaffirms Art 37 1 40 II but conforms it to the procedures prescribed in Articles 27 29 and 30 In substance it stems from CDDH II 82 Rev 1 proposed by th U S and others and CDDH II 290 proposed by Austria Finland Sweden Switzerland and Yugoslavia b The requirement for seizure of aircraft shown not to be medical aircraft is consistent with neutral obligation under Hague Convention No V of 1907 not to permit material or war topass through its territory An aricraft which carries persons or caro not encompassed within the defini tion of medical transporation in Art 8 f is not a medical aircraft c It is made clear in par 4 that the provision requiring internment of wounded and sick persons under the provisions of Article 14 Hague Convention No V does not apply to those temporarily removed from a medical aircraft in connection with the inspection The requirement applies only to those who are hospitalized in the neutral state and are not able to depart with the medical aircraft It should be noted however that wounded and sick prisoners of war carried aboard the transport passing through neutral territory must be interned FM 27-10 par 543 d 5 MILITARY IMPLICATIONS This article may impose a special training requirement for U S personnel involved in air defense clearance air traffic control and inspections in armed conflict situations in which the U S is not a Party to a conflict 6 RECOMMENDED U S ACTION No statement of understanding or implementing legislation is necessary 1-31-3 PROTOCOL I PART II WOUNDED SICK AND SHIPWRECKED SECTION TIX MISSING AND DEAD PERSONS TEXT OFARTICLE AS ADOPTED Article 32 General principle In th3 implementation of this Section •the activities of the High Contracting Parties of the Parties to the conflict and of the interntional huinanitarian organizations mentioned in the Conventions andjn this Protocol shall be prompted mainly by the right of families to know the fate of their relatives 2 REFERENCES I II III IV 3 Convention Article 15 Convention Article 19 Convention Article 122 Convention Article 140 UNGA Reo1ution 3220 X2aX RELATION TO U S POSITION This article was developedlat the 1976 session Prior to that time the U S had no po ition on it but the US it wnot inconsistent wthU S policy and objectives COENT 1 This article merely serves as an introduction to the two articles If doe state a principle that heretofore hd not been recognized in international law e the right of filies to know the fate of their relatives following i 5 EFFECT ON U S COMNDRS None 6 RECOMMENDED U S PCTION No statements of understanding or implementing legislation is required 1—32—i • '' 2T II WOUNDED SICK AND SHIPWRECKED SECTION • 1 TEXT O ARTICLE Article ADOPTED 33 ieixipersons • l As soonas circuma€ances permit and at the latest from the end of active hostilities each Party to the conflict shall search for the persons who have been reported missing by an adverse Party Such adverse Party shall transmit all relevant information 'concerning such persons in order to facilitate such searches 2 In order to facilitate the gathering of information pursuant to the preceding paragraph each Party to the conflict shall with respectto persons who would notreceived more favourable cosideratjor under the Conventions and this Protocol a 1 Record the'inormationepàoified in Article 138 of the Fourth Coriv'ntion in respect of such persons who have be detained imprisoned or otherwise held in cptivity for more than two weeks as a result of hostilities or occupation or who have died d9ring any period of detention To the fullest ext4t possible facilitate and jf need be carry out te sh for and the recording of information concerning such persons if they have died in other circumstances as a result of hostilitie or occupation 3• Information concerning personi reported missing pursuant to paragraph 1 and requests for such information shall be' transmitted either 'directly or through the Protecting Power or the Central Tracing Agency of the International Committee of the Red Cross or 'national Red Cross Red Crescent Red Lion and Sun Societies Where the information is not' transmitted 'through the International Committee of the Red Cross and 'its Central Tracing Agency each Party to the Conflict shall ensure that 'such information is also'supplied to the Central Tracing Agency 4 The Parties to the conflict shall 'endeavour to agree on arrangements for teams to search for identify and recover the dead from battlefield areas including arrangements if appropriate for such teams to be accompanied by personnel of the adverse Party while carrying out these missions in areas controlled by the adverse Party Personnel of such teams shall be respected and protected while exclusively' carrying out these duties • • • I33I' ' ' P1 C Uesoution 3220 xxix 2 3 • • • OSITIO RLhTIO11S entirely consistent The substance of this article -is articiG wa not included in with the U S positi0ri This orgin we the text of a US FRG the basic ICRC text ad its the first sessiOn of the U propocal CDDT fl 56 me at as drafted creates an affirmative The Conference requests from another • dtyof the parties to respond to reported missing It party for information abovt persons jnformatiofl on persons who also requires parties to record die in detention The are detained for two weeks or who parties to permit search final parairaph encourages the seek and recover the dead teams who will be protected t from battle fieids article 4 _Q• • is corsiteflt with the initial U S Ths tent as adopt ed to strengthen the proposaland reflects a strong U S air It is a for th mising and dead One of the main in application featureS of the article is that it is notof limited war but rather prisonerS to categOry or person detained reported missing any person applies to any person during detention etc Thus for more than two weeks or died responsibilitY under this article a party can group of persons do by asserting that a certain person or 0f the article • not •jor step forward in humanitarian law not avoid it withiflth applicati0fl EPCT O U S CODZS 5 • but it must effect on battlefi ld commanders encouraged to arrange for noted that the parties are psrsonrel of the adverse teams including if appropriate identify and recover th8 dead The party to search for Ofl certain administrative requiremsnts to record informatiOn direct person does not affect the battlefield conander ECOMEN P I 6 No 13 5 • • • nrstandiflg or reservation is required on • • • • • • • - provision • this • 133 2 - II WOUNDED SICK AND SHIPWRECKEDI SECTION PROTOCOL I PART III MISSING ND DEAD PERSONS H 1 TEXT OF ARTICLE AS Article 34 Remains of deceased The emains of persons who have died for reasons related 1 to' occupation or in detention resulting from occupation or hostilities and those 'of persons not nationals of the country in which they have died as a resultof hostilities shalI be respected and the gravesites of all such persons shall be respected maintained and marked as provided for in Article 130 of the Fourth Convention where their remains or gravesites would not receive more favourable consideration under the Conventions and this Protocol 2 As soon as circumstances nd the relations between the adverse Parties permit the High Contracting Parties in whose territories graves and as the case maybe other locations of the remains of pjarsons who have died as a result of hoitilities or durflg occupation or in detention are situated shall conclude greements in order ' ' ' a to facilItate access to the gravesites by relatives of the deceased àn by 'representatives of official registratioiservices and to regulate the practical arrangemts for such access b ' to c protect and maintain such gravesites permanently to facilitate the return of the remains of the deceased and 'of personal effects to the' home upon its request or unless that country ob ectc upon the request of the next of kin In the absence of the agreements provided form paragraph 2 b or o and if the horne country of such deceasedis not'' willing to arrange at its expense fOr the maintenance of such gravesites the HighContracting Party in whose territory the gravesites are situated may offer to facilitate the 'return of the remains 'of the deceased to the home country 'Where such an offer has not been accepted the High Contracting Party' may after the expiry of five years from the 'date of the offer and upon due notice to the home country adopt the arrangements laid down in its own laws relating to cemeteries ' and graves '3 ' ' ' ' ' '' ' 4 A High Contracting Party in whose territory the gravesites referred to in this article are situated s'hall be permitted to exhume the remains only ' a in accordance with paragraphs 2 c and 3 or 1—34—1 matter of overriding nere exnumation j - cases of medical anc 14 public fleceity incl'udir inve'aigative nece tY in which case the High Contracting Party i1 at all times respect the remaj and shall -ve notice to the home country of ita intention tC xhwne the remains together ritended place of reinterment with details of the 2 ERENCES Iji JV COflveiti Convention Articles 2O—124 130 31 136—141 Articles LATION POSITIOj stantia11y agrees with the 'fle article as adopted ILS Vition Changes from - - e U S position are basically i3tUng and Style changes wh do not change the substance 4 thcj article First there the article provides for four situations of Article l30 of the a reaffirmation and •OUrt h Convention withrespec to the respect maintenance condly the article albeit nd Ilrkipg of gravesites limii d by the term A s sOor aa circumstances and the 1°latj0 between the adverse parties permit provides for allow visits to the grave the Qncluding of agreements i rrn 1nt protection and minteflance of the grave rand trhe Xetui-i of the remains be reached and tLtuation in which agreerrnt cannot to wait at least fiveyears an obligation on a partY gravesites under its own fot proceeding to treat the restrictions on UWtl Finally the article puta severe covered by the article ttXhulnltion of remains of persO5 oadng Thirdly the article provides for IIJ ECT ON U s COANDERS None f COMMENDED U S ACTION No reservation or rtjoI 5rstanding is required on this question has arisen as to whether temporary battlefield ILlV are included within the provisions of paragraph 4 b 'ftll article The remarks of the Acting Rapporteurof h1 'ction's working group are considered pertinent and On page '4 of CDDU II SR 76 dated 1 June 1976 • Atirg Rapportour noted ROme 1•ntuing - • x—34—2 r Paragraph 4 b relates to exhumation for reasons of public necessity necessity in that context being intended to cover the need to protect graves Thus where adequate protection and maintenance was not otherwise possible - for instance in the case of scattered and temporary graves made during a battle - exhumation for the purpose of regrouping graves in one location would be a matter of public necessity 1—34—3 Article t SEP 1977 Basic rules 35' Protocol I Part III Section I Methods and Means of Combat 1 TEXT OF ADOPTED ARTICLE Article 35 Basic rules previously Art 33 1 In any armed conflict the right of Parties to the conflict to choose methods or means of warfare is not unlimited 2 It is forbiddento employ weapons projectiles and material and methodsof warfare of a nature to cause superfluous injury or unnecessary suffering 3 It is forbidden 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 2 RELATED PROVISIONS Para 1 — Similar Para 2 — Similar Para 3 — Similar to Article 22 1907 Hague Regulations to Article 23 e 1899 Hague Regulations and 1907 Hague Regulations provision in Article 55 Protocol 'I Compare Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques 3 RElATION TO US POSITION 4 COMMENT No substantial difference Because of the subject matter weapons this article was one of the most potentially troublesome articles at the It was one of the most hard fought articles at Conference the second session at Conuidttee level Paragraph 1 is derived from the well established Hague Principle The right of belligerents to adopt means of injuring the enemy is not unlimited Paragraph 2 represents an attempt to phrase more accurately the existing Hague Rule represented in the 1899 and 1907 French text propres a causer des maux superflus I—35- SEP77 by reverting to the 1899 English text language except for adding the 1907 phrase unnecessary suffering As such this text strongly supports the view that no substantive change in meaning to existing legal requirements is intended or effected Indeed the Federal Republic f Germany stated explicitly that they joined in the text on the understanding that paragraphs 1 and 2 reaffirmed customary law India noted that it believed these rules applied to all weapons of whatever type The ICRC proposed language adopted from the 1868 Petersburg Declaration and troublesome to some was rejected Paragraph 3 was adopted in an effort to protect the natural environment against certain methods of warfare which caused extreme damage to it The 1975 U S Delegation Report notes as to this paragraph According to the Report of Committee III 'long term' was considered by soite to be measured in decades with reference made to twenty to thirty years as a minimum and it appeared to be a widely shared assuniption that battlefield damage incidental to conventional werfare would not normally be proscribed by the provision The provision covers such damage as would be likely to prejudice the continued survival of the civilian popu1tion over a long term or risk long term major health problems The committee report to the effect that battlefield damage incidental to conventional warfare would not normally be proscribed by the provision' and the reference to 'along term major health problems's suggests that nuclear weapons might be affected by Arts 35 3 and 55 Depending on the intensity of fallout some long term health and genetic effects may be expected from Cesium 137 and Carbon 14 This emphasizes the necessity of an express understanding that the Rules of the Protocol do not affect the use of nuclear weapons The United States did make an express statement on the application of the Protocol to nuclear weapons at the Plenary As I mentioned earlier the Government of the US considers that the Protocol is designed to afford the greatest possible protection to civilians and other victims of war during international armed conflict To that end 1—35—2 2 NOV 'p7 ' it imposes a number of significant restraints on the use of means and methods 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 recognize 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 1w 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 Statement of Ambassador Aldrich 9 June 1977 before Plenary at time of adoption of Protocol I by consensus at Britain and France made similar statements These were L disputed by other contries although India had declared earlier they joined the consensus on this Article ' with the understanding that the basic rules contained in this article will apply to all categories of weapons namely nuclear bacteriological chemical or conventional weapons or any other category of weapons SR 39 Annex pg 2 With respect to paragraph 3 a number of states at the Plenary pointed out that the meaning of these words protecting the environment was entirely different from the meaning of similar words 'widespread longlasting or severe contained in the Convention prohibiting military use of environnental modification techniques In some cases they expressly declared that they did not want their position on that Convention compromised by adoption of this text The FRG explicitly declared that the meaning of those words in paragraph 3 widespead long term and severea had to be consistent with the line of thought in Comiiittee III and in no case interpreted in the light of different instruments of international law SR 39 Annex pg 1 The UK regarded the inclusion of paragraph 3 as an unnecessary repetition of language in Art 55 and would construe it the same as Art 55 39 Annex pg 3 1 1—35—3 NOV 1977 including the Committee Thus the negotiating record gives substantial meaning to Report and Plenary Statements the words of paragraph 3 and avoids confusion with the separate Convention on Hostile Use of Environment Modification In vie1 of this clear negotiating record it Techniques appears unnecessary to express an understanding or reservation Indeed it may be unwise to do so It might on this point record of fér other States an opportunity to contest this clear for a common However if other NATO States express a need understanding on this point the U S should consider doing so 5 MILITARY IMPLICATIONS This article is expected to have a negligible impact on US military operations Paragraphs 1 and 2 simply reaffirm long-standing principles However paragraph 3 repreEents an innovation—relevant particularly to research develøpiTtent and acquisition of new weapons -— rather than to field conunanderS The only weapons• used by the U S in recent conf icts seriously argued to have such effects were particu4r herbicides allegedly r'ausing long term genetic defecl s and long term devastation f land herbicide orange Thè U S stopped use of this In connection with ratification of the 1925 -rbicide unilaterally Geneva Gas protocol the U S has renounced in war the first use of herbicides as a policy measure except certain uses not pertinent here The impact of this limited provision protecting the environment will ultimately depend upon state interpretations of its provisions particularly state practice It is not expected to have any significant military impact and The is consistent with overall U S security interests understanding is contingent on an acceptability of paragraph 3 along the lines suggested below 6 RECONNENDED U S ACTION Express U S Understanding or Reservation on entire Protocol a 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 The use of nuclear weapons continues instead to be governed by the present principles of international law 1—35—4 NOV 1977 b No implementing legislation or other action is necessary 1—35—5 2 SEP 1977 Article 1 36 -- New Weapons TEXT OF ADOPTED ARTICLE Article 36 — New weapons' previously Art 34 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 wpuld in some or all circumstances be prohibited bji this Protocol or by any other rule of international la applicable to the High contracting Party 2 REFERENCES See Arts 35 and 51 thi Protocol As examples of other rules of international law on weapons see a 1925 Geneva Protocol For the Prohibition of the Use in Waz of Asphyxiating Poisonous other Gases and of Bacteriological Methods of Warfare b Article 23 a 1907 Hague Regulations prohibiting poison RELATION TO U S POSITION No substantial difference but see Comments 4 COMMENTS The US long urged a provision along these lines - a0 To emphasize the responsibility of the Party developing or using the weapon means or method in determining its legality b To attempt to defuse the weapons issue The US partly in response to congressional desires has already instituted such a review procedure DOD Instruction 5500 15 16 Oct 74 which applies to acquisition as well as research and development The use of the term means in the text while redundant ensures that all means of warfare are covered by the review requirement which is consistent with the US Directive The US Delegation preferred to omit any reference to the rest of the Protocol other than Article 35 Doubtless some will argue that various articles in the rest of the Protocol do prohibit or restrict certain -pecific weapons Since the reference is a general reference Ito the rest of the Protocol and since both Article 35 and 1—36—1 i2 SEP rticle 51 particularly as to weapons which are incapable being directed at a military objective are relevant the text is acceptable When the Article become effective as a treaty obligation on other States it may be appropriate for the U S to point out to these States their obligation to implement this review procedure during peacetime There is no need for an understanding to this Article The Article was adopted in Committee III and Plenary by consensus The use of the words 'some or all circumstances is extremely beneficial in recognizing that limitations on use such as first use of chemical weapons under the 1925 Geneva Gas Protocol are more significant than total prohiIt supports long-standing U S and Western positions bitions stressing restrictions on certain uses rather than inherent prohibitions 5 MILITARY IMPLICATIONS The Article as such does not have any significant military impact The substance of what is required has already been instituted by DOD Instruction within the Department Defense RECOMMENDED U S ACTION a No understandings are necessary b No legislation is required however minor changes may be required in current DOD Instruction governing weapons reviews 1—36—2 2 5 JUL1977 Article 37 1 Prohibition of Perfidy TEXT OF ARTICLE ADOPTED Article 37 — previously Article 35 It is prohibited to kill0 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 isobiiged to accord protection under the rules of interrationa1 law applicable in armed conflict with intent toetray that confidence shall constitue perfidy The following acts are examples of perfidy 1 a the feigning of an intent to negotiate under a flag of true or of a surrender b the feigning of an incapaôitiaton by wounds or sickness c the feigning of civilian noncombatant status and Cd the feigning of protected status 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 and which arenot perfidious because they do not invite the confidence of an adversary with respect to pro tection under that law The following are examples of such ruses the useof camouflage decoys mock operations and misinformation 2 2 REFERENCES Related Articles include Article 39 — Emblems of Nationality which a prohibits misuse of neutral erablems insignia or uniforms Article 44 — Combatants and Pri5oners Of War which defines circumstances in which combatants must distinguish themselves from civilians b 1—37—1 12 SEP c - 1977 Article 46 — Spies Article 51 Population d Protection of the Civi ian The 1907 Hague Regu1ation Article 23 b states it is forbidden to kill or wound treacherously individuals belonging to the hostile nation or army t' RELATION TO U S POSITION 3 Consistent No substanti1 differences COMMENT 4 Perfidy and treachery are already forbidden by the law This article defines the existing Hague and customary of war law prohibition more precise1yso as to clarify its meaning The line between perfidy and unlawful ruses has and scope been somewhat indistinct The text adopted has several advantages over previous proposals First1 the prohibition is clearly tied to ki11 injure or capture not a specific Second the concept of proprohibition on perfidy 1tection under the international law of armed conflict is used us avoiding concern that a broader term might include such eneral matters as the UN Charter or local bilateral agreeThird the narrowing of a situation of distress'° ments to incapacitatiofl by wounds or sickness ties the concept of protection much more closely to the 1949 Geneva Conventions protecting wounded and sick Fourth the added prohibition against feigning neutral or UN status is also useful The prohibition of the Hague Regulations Article 23b against the treacherous killing of an enemy combatant or civilian is broader than the killings denounced by this For example hiring a member of the armed forces Article of an enemy State to assassinate his commander would be prohibited under H R Article 23 although such an act would not involve any reliance by the victim on confidence that international law protects him against the acts of his Article 37 Protocol I does not supersede H R own troops Article 23b to the extent that the latter is broader The Article adopted by consensus is fully consistent with U S views 5 MILITARY IMPLICATIONS The Article as adopted will not have any Negligible It is a clarification of tverse impact upon the U S 1—37—2 1 2 SEP isting law 19'7 U S interests and effective observance of hurnanitarian law are considerably enhanced by the prohibition against feigning civilian non-combatant status A normal consequence of capture of combatants in civilian clothing is denial of PW status This proposed treaty adds an additional specific treaty consequence that it is perfidy and thus a law of war violation However acts by combatants dressed in civilian clothing who comply with the minimum standards prescribed under Article 44 3 are not perfidious within the meaning of Article 37 paragraph 1 c 6 RECOMMENDED U S ACTION No U S understandings are 1necessary Implementing legislation to make it an offense to feign civilian noncombatant status in order to kill injure or capture may be appropriate 1—37—3 12 SEP Article 38 —— 1977k Recognized emblems TEXT OF ADOPTED ARTICLE 1 Article 38 — Recognized emblems previously Article 36 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 internatioia11y recognized protective emblems signs or signals including the flag of truce and the protective emblem of cultural property 1 • It is prohibited to make use of the distinctive 2 emblem of the United Natins except as authorized by that Organization 2 REFERENCESO The following are related1rticles of this ProtOcol Article 8 12 efines distinctive emblem a and distinctive signal Article 18 — Identification various provisions b on distinctive medical signs and signals Article 56 - Protection of works and instal c lations containing dangerous forces establishes special sign of three bright orange circles for such works and installations Article 59 — Nondef ended d may agree on sign to identify localities Parties Article 60 — Demilitarized zones Parties e may agree on sign to identify Article 66 - Identification the distinctive f sign of civil defense is an equilateral blue triangle on an orange background Article 67 - Members of the armed forces and military units assigned to civil defense organizations as a condition to protection they must prominently display international distinctive sign g 1—38—1 12 SEP 977 h Article 85 - Repression of breaches of this Protocol makes perfidious use a grave breach i Annex I - Regulations Concerning Identification several provisions relate to the distinctive emblem and other protective emblems signs or signals The following are related provisions of the 1949 Geneva Conventions a • Article 36 GWS and Article 39 GWS-'SEA Chapter VII- Tite Distinctive Emblem Articles b 38 to 44 of the 1949 GWS land Chapter VI The Distinctive Emblem Articles 41 to 45 of the 1949 GWS-'SEA Article 18 194 GC provision for marking c civilian hospitals Article 20 1949 GC civilian medical d personnel identification e Article 21 194 GC marking of medidal convoys f Article 22 1949 GC marking of medical aircraft g Article 6 Annex 1 1949 GC provision for marking Hospital or Safety Zones by oblique red bands on a white background h Article 23 1949 GPW marking of PW camps The following are related provisions of other internatIonal agreements Article 23 f - 1907 Hague Regulations for— a bids misuse of distinctive badges of Geneva Convention Article 27 - 1907 Hague Regulations notes it b is duty of besieged to indicate presence of cultural' and charitable buildings and monuntents by distirctive and visible signs and notify adversary of such signs similar provision in Article 5 Hague Convention IX Bombardment by Naval Forces in Time of War which establishes protective sign as rectangular panels divided diagonally into two colored triangular portions the upper portion black the lower white 1—38-- 2 12 SEP 1977 • c Treaty on the Protection of Artistic and Scientific Institutions and Histor c onwnents Roerich Pact 1935 establishes distinctive sign for these as red circle with a triple red sphere in the circle on a white background Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 U S not party establjthes dtinctive sign as certain blue and white shield d 3 RELATION TO U S PO$ITON Consistent 4 U S supporlted text adopted COMMENT ' This provIsion 4 the reaffirms ecisUng prohibition against cross red misuses of the distinctive ebei of crescent ana red 1on an sun the ed prohibits misuse of other signs provided for b by the Conventions prticular1y oblique red bands on a white background prohibits isue o f other emblems signs or signals established by' the Protocol for example see References to Articles 56 Pangerous Forces 66 Civil c Defense an Annex I e xaniple medical aircraft signals prohibits nIsuse of other internationally Cd recognized protective emblems stgns or signals see Reference A U S reservation to the 1949 Geneva Conventions permits continued use of the re croas by pre—1905 users provided the embleni is not used on aircraft vessels vehic1e bU1dings or structures or upon the ground 6 UST 32141 This reservetion was adopted by the Senate to preserve a few limited coinrnercial uses e g Red Crosa shoes It involves no uses indicating a protected statue 5 MIIiTARY IMPLICATIONS Beneficial This Article jrnosés no substantja burdens on military operations Since special protection i accored under existing law and the Protocol to a variety of liiuited 1—38—3 12 SEP1977 iersons and Qbjects it is inpórtent to the military that they recognizbLe as having a special status Hence provisions for identification are made as noted in the References para 9raph 2 It is equally important that there be expressed prohibitions against misusing these methods of identificatiOn for example marking a military storage area as a hospital Such misuse puts combat forces in a difficult position ana needs to be specifically prohibited This Article does that job and thus wIll be beneficial miitri1y 6 RECOMMENDED U S AC1r ION No understandin9or legislation are necessary 1—38—4 25 JUL1971 icle 39 1 -— Emblems of Nationality TEXT OF ADOPTED ARTICLE Article 39 — Emblems of nationality previously Article 37 It is prohibited to make use in an armed conflict 1 of the flags or military enthlems insignia or uniforms of neutral or other States not Parties to the conflict It is prohibited th make use of the flags or 2 military emblems insignia r uniforms of adverse Parties while engaging in attacks or in order to shield favour protect or impede military operations Nothing in this Article or in Article 37 para3 graph 1 d shall affect the existing generally recognized rules of international law applicab1e to espionage or to the use of flags inthe conduct of armed conflict at sea 2 REFERENCES The following Articles of the Protocol are relevant Article 37 - Prohibition of Perfidy which a forbids feigning protected status by use of neutral or United Nations signs emblems or uniforms Article 46 — Spies excludes protection to b those not acting in their own uniform Also relevant is Article 23 f 1907 Hague Regulations which declares it is forbidden to make improper use of the military insignia and uniform of the enemy 3 RELATION TO U S POSITION As an important change the U S desired to change a shie1d favor or impede military operations in paragraph 2 to while engaging in attacks The Conference rejected this change and used both formulations including adding protect This is a substantial difference from the U S position but the Article was adopted at the Plenary by consensus b U S Otherwise the Article is generally consistent with The specific exclusion in paragraph 3 was modified views 1—39—1 1 £ SEP 1977 reflect the U S position that the law of espionage was Thot affected by this Article 4 COMMENT Existing customary law prohibits misuse of neutral flags insignia uniforms etc although no existing general treaty rule so provides This prohibition explicitly does so a Neutral The existing Hague Regulations Article Adversafy b of the national flag 23f HR prohibits improper use or of the military insignia and uniform of the enemy 'Opinions xnong states strongly differ over the scope of the The U S view reflected in existing Hague prohibition paragraph 54 FM 27—10 is that such use is not prohibited In a sense the Committee's as a ruse except during combat action will perpetuate this uncrtainty by substituting for improper the term 'shie1d favor impede or protect military operations It is noted that ro particular humanitarian purpose is served by this prohibition Rather differences exist over what honor require1 in warfare and this Article is thus related generally to Art4cle 37 Perfidy For example some regard it as perf4dious to infiltrate behind emy lines in enemy uniforms p±eparatory to attacks while hers do not — Under existing law Relations with other Articles spying is not a war crime but the spy is not entitled to PW He may be sentenced to death under municipal law protection in order to increase the risk of spying and thereby to deter By prohibiting use of uniforms of adverse parties to it shield favor protect or intpede military operations this article might have been interpreted to make certain types However any such interpretation of espionage a war crime is specifically negated by the inclusion of paragraph 3 i e nothing shall affect the existing generally recognized rules applicable to espionage c 5 MILITARY IMPLICATIONS The Article could have some impact on U S Commanders It would have only slight impact upon the actual participants dressed in enemy uniforms captured behind enemy lines since they already may be rightfully denied PW status as spies or Commanders would be denied the opportunity of saboteurs 1—39—2 12 SEP1977 ing enemy uniforms to infiltrate for sabotage purposes y would gain the benefit of eneirty obligations to comply with the rule Also Commanders who know and permit use However such persons would be in violation of Article 87 would frequently be engaged in espionage as well as sabotage and thus it could reasonably bd argued as a legitimate ruse provided they did not actually engage in conflict in enemy If they did that would be a violation even under uniforms existing rules 6 RECOMMENDED U S ACTION No U S understandingj or reservations are necessary for this Article a b No implementing legislation is required 1—39—3 2 5 JUL1977 c1e 1 • 40 —— Quarter TEXT OF ADOPTED ARTICLE Article 40 — Quarter previ9usly Article 38 It is forbidden to order that there shall be no survivors to threaten an adversary therewith or to conduct hostilities on this basis 2 REFERENCES a Article 41 Protocol 4 -Safeguard of an enemy hors de combat b 3 Article 23 d 1907 Hague Regulations RELATION TO U S POSITION Consistent 4 COMMENT Refusal of quarter has long been prohibited in warfare 1907 Hague Regulations Article '23 d states that it is idden to declare that no quarter will be given Article 40 adopted by consensus reformulates the prohibition in It thus prohibits orders that there more modern language will be no survivors or threats to that effect as well as confirming the prohibition against conducting hostilities on such a basis 5 MILITARY IMPLICATIONS Prohibition is fully consistent with modern U S military tradition None 6 RECOMMENDED U S ACTION None No understandings or follow on action are necessary 1—40—1 2 SEP 1977 Article 4l 1 ——'safeguard of an enemy hors de combat TEXT OF ADOPTED ARTICLE Article 41 — Safeguard of an enemy hors de combat previously Article 38bis A person who is recognized or who in the cir1 cumstances should be recognized to be hors de combat shall not be made the object of attack 2 A person is hors de combat if a he is in the power of an adverse Party b he clearly expresses an intention to surrender or c he has been rendered unconscious or is otherwise incapacitated by wounds or sickness and therefore is incapable of defending himself provided that in any of these cases he abstains from any hostile act and does not attempt to escape When persons entitled to protection as prisoners 3 of war have fallen into the power of an adverse Party under unusual 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 taken to ensure their safety 2 REFERENCES The following Articles of Protocol I are relevant ' a Article 8 1 defines wounded and sick Article 37 — Prohibition of perfidy forbids b feigning incapacitation by wounds or sickness to kill injure or capture an adversary Article 42 — Occupants of aircraft application of rule to air environment c 1—41—1 1 2 SEP 1977 d Article 85 - Repressiô of breaches of this Protocol willfully making a person the object of attack in the knowledge that he is hors de coitbat is grave breach — There are a variety of provisions in the 1949 Geneva Conventions for the Protection of War Victims that are relevant Article 13 GWS-SEA Artic e 5 such as Article 12 GWS 1949 GPW proviaes that the GPW Convention shall apply from the tIme Isuch perspn 1 al1 into the power of the and repatriation enemy and until their fin1 retease Article 23 c 1907 Ka9 ueRe9u ations declares it is especially forb1den to kill or wound an enemy who having laid dowTl his arms or hvin9 no longer means of defense has surrendered at discretion an 3 REIJTION TO U S POSIT rONI Consistent 4 COMMENT Artic e 41 proved fair1' difficu t to agree upon as llustrated by a variety of amendments to the prior ICRC text After cons1cerable discussion at Comniittee level it'was adopted by consensus both at the Coniniittee an at Plenary One issue was whether to include persons who had fallen into the power of the enemy within the hors decoinbat definition proteIon for Although such persons 'e hor de combat the 1949 as such persons was left to other agreements such GPW The object of attack formulation ws used in lieu of kIll injure or capture s the Coiwnittee noted ttThis change was designed to make c ear that 'what was forbiaaen was the deliberate attack a9ain st persons hGrs de cnbat not merei y kil ing or injuring them as the IncInta3 consequence of attacks not iined at them per se Protection was also limited to situations where they were recogn±zed or under the circumstances should be recognized as or de combat 2 improved the As adopted the text in par9rapbs ccuracy nc1 clarity o the rule Ccomparea with the prior ICRC tex t and was u11y consIstent with U S i jews 12 SEP1977 The third paragraph relating to capture and release ich proved quite difficult to draft is intended to deal with the situation where military exigencies do not permit For example a patrol some compliance with the 1949 GPW distance from its lines might capture prisoners which it Clearly under existing law the patrol cannot evacuate must either evacuate them or release and repatriate them Another alternative might be to refrain from capturing them in the first place Paragraph 3 now requires that all feasible precautions shall be taken for their safety a reasonable though flexible requirement Additioially it removes any possible claim that a combatant is in viblation of the GPW if he releases PW5 without evacuating and processing them in accordanOe with the 1949 GPW Convention 5 MILITARY IMPLICATIONS This Article twill not have a substantial Negligible effect on U S military operations The general intent of Article 41 is to define more precisely the well recognized principle that persons hors de combat are protected Existing U S views and treaty coiTunitinents fully support the Here the object of attack formulation as well principle the requirement that such persons abstain from any hostile and not attempt to escape fully recognizes military essities involved The third paragraph is a welcome It clarifies the obligation as to addition to the law evacuation or release and repatriation by relaxing the requirements when it is impossible to evacuate or repatriate It does require feasible precautions for the safety of the PW5 prior to release 6 RECOMMENDED U S ACTION None necessary No U S understandings or follow on action are 1—41—3 ticle 42 -1 Occupants SEP of aicraft TEXT OF ADOPTED ARTICLE Article 42 — Occupants of aircraft previously Article 39 1 No person parachuting from an aircraft in distress shallbe made the object of attack during his descent Upon reaching the ground in territory controlled 2 by an adverse Party a perspn 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 2 REFERENCES U S military publications t$ecognize the specific rule of this Article asa rule of exi sting customary law See for 1e 3 a USAF AFP 110—31 at 4—1 b U S Army FM 27—10 paragraph 30 c U S Navy NWIP 10—2 Article 511 c RELATION TO U S POSITION Consistent 4 • COMMENT The hors de combat principle applies to warfare in all environments but its exact application to air warfare has AFP 110—31 at 4—1 recognizes the customary been imprecise law protection reflected in this Article U S Army FM 27-40 paragraph 30 states The law of war does not prohibit firing upon paratroops or other persons who are or appear to be bound upon hostile missions while such persons are descending by parachute Persons other than those mentioned ii the preceding sentence who are descending by parachute 1—42—1 12 SEP aircraft may not be fired upon Article 511 c It is forlidden to refuse U S Navy NWIP 10—2 states In quarter to an enemy who has surrendered in good faith particular it is forbidden either to continue to attack enemy warships and military aircraftwhich have clearly indicated a readiness to surrender or to fire upon the survivors of such vessels and aircraft who no longer have the means to Emphasis supplied defend themselves disabled The discussions in the Committee resulted in strong differences of opinion and the Article was revised at the last session and adopted in its present form by Coinmittee The vote was 52—4—22 At the Plenary two amendments III A Philippine proposal to weaken was were pressed to a vote defeated by a vote of 29 U S -27—34 An Arab proposal to eliminate protection for airmen descending over their own 'territory was rejected by a vote of 47 US to 22 with 26 abstentions I In explaining their position a number of States particularly Arab States argued that airmen were not and should not be protected Although temporarily disabled they could rejoin the fight later Most States including all Western opean States and Eastern Bloc States disagreed and the ide was finally adopted by a vote of 71 US to 12 with tentions Because this Article was the hardest fought Committee III Article at the Plenary some States may take reservations or Thus it may be necessary for the U S to exceptions to it reaffirm in the face of any reservations or understandings our view of existing protection irrespective of the Protocol 5 MILITARY IMPLICATIONS This Article recognizes an existing rule Beneficial of law already reflected in U S doctrine and practices It is beneficial to have it reflected in the Protocol and accepted by more States 6 RECOMMENDED U S ACTION None at the moment In the face of expected objection from a few States such as Syria Iraq it may be necessary to have a U S understanding reflecting that the requirements of this Article codify existing international law and thus cannot be the subject of reservations 1—42—2 1 2 SEP 1977 Article 43—— Armed Forces Protocol I Part III Section II Combatant and Prisonerof-War Status TEXT OF ADOPTED ARTICLE 1 Article 43 — Armed forces previously Article 41 • 1 The armed forces of a Party to a conflict consist of all organized artjed forces groups and units which are under a comman4 responsible to that Party for the conduct of its subordinates even if that Party is represented by a government or an authority not recognized by an adverse Party Such armed forces shall be subject to an internal disciplinary system which inter alia shall enforce compliance with the rules of international law applicable n armed conflict 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 combatants that is to say they have the right to participate directly in hostilities 2 Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict 3 • REFERENCES 2 •The following Articles of Protocol I are relevant Article 2 - Definitions defines the term rules of International law applicable in armed conflict a • b Article 44 — Combatants and prisoners of war covers obligations of combatants to distinguish them— selves — including irregulars and PW status c Article 45 — Protection of persons who take part in hostilities additional guarantees to all who take part in hostilities whether combatants or not d Article 46 — Spies references the arned forces 1—43—i 1 2 SEP 1977 e Article 47 — Mercenaries special provision f Article 50 — Definition of civilians and civilian population excludes members of the Armed forces Article 67 — Members of the armed forces and military units assigned to civil defense organizations under limited conditions they have protection they do not participate directly in hostilities g if Also Article 4 of the 1449 GPW which defines who is entitled to PW status and Articles 1 2 and 3 qualifications of belligerents of thel9O7 Hague Regulations are relevant 3 RELATION TO U S POSITION Consistent The text adOpted substantially expanded from the prior ICRC text defines armed forces and combatants and requires notice if police forces are incorporated into the armed forces The definition of armed forces adopted is similar to that proposed by the United States for inclusion in Article 44 • • COMMENT In explaining the terni armed forces this Article stresses the role of organization and discipline Organiza— tion and effective internal discipline are essential prerequisites to an effective fighting force Effective internal discipline and organization in an armed force are also absolutely indispensable to ensuring observance of the law of war Article 43 specifically imposes treaty requirements of organization and discipline on all armed forces Such internal disciplinary systems must among other things enforce compliance with the rules of international law applicable in armed conflict law of war Article 2 defines that term The existence of a disciplinary system which enforces the law of war would arguably be a condition for PW status However Article 43 does not specify that compliance with the laws of war is a condlUon for PW status The only direct comment on that issue in relation to Article 43 at the Plenary was by Israel They asserted that it is not sufficient that the armed forces be subject to an internal 4isciplinary system which can enforce compliance but there has to be effective compliance in the field SR 39 Annex 3 That issue is discussed in the analysis of Article 44 1—43-2 1 2 SEP 197 The definition of the tenii armed forces of a party to a conflict is useful beca use it includes irregular comguerrilla forces This provision is beneficial batants to overall U S interests in stressing the requirement of organization and discipline for such irregular forces -— as well as underlining the general obligation of armed forces to enforce compliance with the law of war Paragraph 2 of the adopted text reaffirms the right of nexrthers of the armed forces to participate directly in hostilities apart from medical personnel and chaplans who are noncornbatntsI There is zo objection to this provision Noreover to the extent that denies 0y necessary 1mphcation to persons who are not inein1ers of the armed forces the right to participate d±rectly in the hostilities it is beneficial The thLr pargraph Uiris the right of a state to incorporate a parwnilitary o axme lw enforcrtént agency into Its anited forces Rowevei notice of sich action is required to be given to the other parties to the conflict This notice recjuirement wa beneficial tn clarifying the status of paranIlitary police brces which are conmon in some b countries The title to consensus frQm title the rticle ws changed in the P1enry by nd discipline to the present organtzation This Article is closely reLated to Article 44 oe the Protocol This Article w s adopted b the Committee and at the Plenary by consensus 5 MLrr•ARY IMPLICATIONS Beneficial The portazwe of orgnzaton and discipline in the armed forces both tQ ensure an effective armed force ana to ersure compliance with the law oe wan are already well recognized b the U S This Article reinforces these require- ments and may result in addition1 tran1ng and educational efforts in other countries to reemphasize both military discipline and compliance w tth the law Of war The Article benefits US Couiinanders by xeeniphasizing requirements of 9rganization discipline and compliance for aU armed forces including irregular combatants 1—43—3 1 2 SEP 1977 6 RECOMMENDED U S ACTION No U S understandings or follow-on actions are necessary for this Article however U S understandings for Article 44 are necessary and relevant to this Article 1—43—4 1 2 SEP1977 Article 1 44-— Combatants and prisoners of war TEXT OF ADOPTED ARTICLE Article 44 — Combatants and risoners of war previouslyArticle 42 Any combatant as defined in Article 43 who 1 falls into the power of an adverse Party shall be a prisoner of war While all combatants are obliged to comply 2 with the rules' of interntional law applicable in armed conflict 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 of his right to be a prisoner of war I except as provided in paragraphs 3 and 4 In order to promote the protection of the civilian population from the effects of hostilities 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 Recognizing however that there are situations attack in armed co nflicts where owing to the nature of the hostilities an armed combatant cannot so distinguish himself he shall retain his status as a combatant provided that in such situations he carries his arms openly 3 a during each military engagement and b 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 is to participate Acts which comply with the requirements of this para— graph shall not be considered as perfidious within the meaning of Article 37 paragraph 1 c A combatant who falls into the power of an 4 adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3shall forfeit his right to be a prisoner of war but he shall 1—44—1 i2 StP nevertheless be given protections equivalent in all respects to those accorded to prisoners of war by the This protection Third Convention and by thi s Protocol those accorded to includes protections equivalent to Convention in the case prisoners of war by the Third tried and punished for any where such a person is offenses he has committed Any combatant who falls into the power of an adverse Party while riot 'engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a coinbatant and a prisoner of war by virtue of his prioractivities 5 This Article is without prejudice to the right of any person to be a prispner of war pursuant to Article 4 of the Third Convention 6 This Article is nct intended to change the generally accepted practic of States with respect to the wearing of the uniform by combatants assigned to the regular uniformed arm d units of a Party to the conflict 7 - 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 defined in Article 43 of this Protocol shall 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 2 8 REFERENCES See references for Article 43 Armed Forces 3 RELATION TO U S POSITION The March 1977 U S position listed Generally consistent Howno imperative or important changes to the text adopted including a ever three drafting changes were proposed revising paragraph 1 to refer to the Article on spies b adding preserve an before the words promote the in paragraph 3 and c changing the word ttprotectionfl to treatment in paragraph 4 Although DOD believed the last change c to e substantially important DOD agreed it would be unwise to press for the change by returning the Article to the Working Enclosure 1 to Dep Sec Def Letter None of the roup anges proposed were adopted 1—44—2 12 SEP1977 During the Plenary adoption of the Article the U S Representative expressed the following understandings The basic rule contained in the first sentence of paragraph 3 meant that throughout their military operations combatants must distinguish themselves in a clearly recognized manner • 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 occtipied by the adversary or in those armed conflicts described in Article 1 paragraph 4 of draft Protocol I In those situations a combatant who failed to distinguish himself from the civilian populaton 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 from civilians as an element of surprise in the attack 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 wmilitary deployment preceding the launching of an attack in paragraph 3 his delegation understand it to mean any movenent towards 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 launched SR 4l at 13 1-44—3 4 COMMENT 1 2 SEP1977 Background a The circumstances under which frregular combatants i e other than members of the regular armed forces acquire PW status has been the subject of continuing controversy Extensive debates arose at both the 1907 Hague Peace Conference and the 1949 Geneva Conference for the Protection of War Victims Articles 1 and 2 1907 Hague Regulations Annex to Hague Convention IV provide as follows Article 1 The laws rights and duties of war apply not only to armies but also to inilitia and volunteer corps fulfilling the following conditions 1 To be commanded by a person responsible for his subordinates 2 To have a fixed distinctive emblem recognizable at a distance To carry arms openly and 4 To conduct 3 their operations in accordance with the laws and customs of war In countries where militia or volunteer corps constitute the army or form part of it they are included under the denomination army Article 2 The inhabitants of a territory which has not been occupied who on the approach of the enemy spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1 shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war levee en masse The 1949 Geneva PW Convention GPW in Article 4 essentially reiterated the four 1907 Hague tests However it noted the requirement that combatants belong toa party to the conflict and included a reference to organized resistance movements to ensure that it was understood that other volunteer groups0 included organized resistance movements There are somewhat differing views in the international community over the effect of these provisions in the 1907 Hague Regulations and the 1949 Geneva Conventions For example some urge that regular uembers of the armed forces re obligated to comply with requirements for irregular mbatants A few deny this view In the U S view the ecIfic requirements of the Hague and Geneva Conventions are applicable both to regular and irregular forces 1—44—4 12 SEp1971 Failure--to distinguish oneself as a conthatant causes loss of entitlenient to PW status U S Artny FM 27-10 Law of Land warfare paragraph 74 states Members of the armed forces of a party to the conflict and neiubers of militias or volunteer corps forming part of such armed forces lose their right to be treated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military lines Qf the enemy for the purpose of gathering iilitary information or for the purpose df waging war by destruction of life or property Putting on civilian clothes or the uniforu of the enemy are exanples of concealment of the status of a member Of the armed forces Most conunentators believe that coithatants who fail to dIstinguish themselves thereby forfeiting W status are sp y unprivileged belligerents Because of their lack of immunity as combatants their activities can be xnde punishable under iminicipal law However their act of engaging in hostilities is not itself n offense under internaUonal law Article 17 1949 GPW requires a Party to a conflIct to furnish an identity card to persons under its jtirisdiction likely to become Ws osesion of an identity card is not however a condition of PW tatu The equireinents of ArtIcle 17 1949 GPW do not appear to be affected by this Article Broad Issues The broad issues involved in Article b 44 included a what terminology should be used to refer to irregular combatants hi whet requjrenents should be established for irregular combAtantS to qualify for PW status and c should these reqt$xements apply also to regular combatants c Relationship to other articles Article 37 Prohibition o perfidy The feigning by a combatant of civilian noncoiubatarit status is an example of perfily This does not apply to coinbatant who Lstinguish themselves as required by paragraph 3 Article 44 but it çoes remain applicable to those who aiI to so distinguish is forbidden to kill injure or capture an Iversary by resort to perfidy under Article 37 It 1—44-5 1 2 s Article 39 inter alia 1977 Einb1em of nationality Article 39 the use of enemy flags emblems or uni- forbids forms while engig in attacks or in order to shield favor protect or impede military operatIons Article 46 reaffIrms that Spies Article 46 who engage in espionage haveno members of the armed forces treated as spies A member of right to PW status and may be considered as engaging in espionage the armed forces is not Special rules if he wears the uniform of his own forces combatants who are residents of occupied are provided for areas ArtIcle 43 affirms that conflict consist of all the armed forces o a party to a organized armed forces groups a nd units which are under a command responsible to that party for the conduct of its Article 43 requtres that such armed forces stthordinateS be sbect to an internal dtsciplinary system which shall enforce compliance with the law of arTned conflict Article 43 also affirms that members o the armed forces aside froitt medical personnel and chaplins1 are combatants and have 1 he right to participate directly in hostilities Article 43 Ax'tned forces Article 45 Protection of persons taking part in The text of this article reinforces protection hostilities of PWS and others who engage in hostilities and are captured Persons that engage in botil ites and are captured are presumptively entitled to W status based on their claim their Party's claim or appearance of entItlement Creation of the right to have PW ttus reliti9ated at any trjal for Otherwise the article alleged offenses is also provided reaffirms basic human rights and judicial sfeguards for captured persons regrd eas of their PW atatus d Terinolog issues The issue of acceptable terminology to refer to uregtii ar forces plagued the Dtplomatic The iiltiiiate solution which Conference for several rears used politicall y neutral terminology was acceptable to all Requirements ApplicatIon' t all tyes of forces A a1 requirements speciftcally significant eture is to make applicable to regular forces a well as irregular forces It represents This is consistent with the tJ S positton 11 significant departure froit both the 1907 Ra9 ue Regul ations the 1949 Geneva Conventions wtich contain only explicit nd 'requirements for irregular forces ha 1—44—6 12SEP1977 Party to believed that any group should belong to or be adopted of a party to this requirement 2 the conflict The majority o states •asse xting entitlement to PW status of a party to a conflict The language a conflict in Article 43 satisfied Command The 1907 Hague Regulations and the 3 1949 Geneva Conventions both require that irregular forces be conunanded by a person responsible for his subordinates 1tUnder a comuand responsible to that The langugeadoptec1 party for the conduct of its siordinates was included in Article 43 Tiuis in effect frmnphsized institutional responsibility Individual 'repons'ibi1ity is explicitly reaffirmed in Article 87 — Duty o cointnanders Cornply with laws of war The requirennt that 4 irregular forces conduct their operations in accordance with the laws and customs of w r 0 as a condition for W Both the 1907 Ilague status presents some problems Regulitions and the 1949 Geneva Conventions contain such a condition Few dispute the propos±t±on that all armed forces 11ar or irregular re required by international law to ight in accordance with the lw o war Article 43 explicitly _ affirms this requirement The difficulty arises over whether alleged failures to observe the law should be- a reason for denial of PW status Since the conditions are explicit for both regular armed forces and irregular forces the potential for abuse thereby wrongfully denying W status could be substantial During the Southea$t Asia conflict attempts were made to deny PW status to U S forces on the allegation that the U S did not conduct Its operations in accordance with the laws o war that this was a condition for PW status and that accordingly rneithers of the U S armed forces were not entitled to PW statua CopUnce with the law of war is a frequent central propaganda issue in any conflict Inevitably in any conflict diUeing contentions are made about the requirements of the law nd the degree of compliance therewith If PW atatus is tied to such contentions opportunities for subjective ev1uation are present Opposin9 forces will argue or at least be in a position to argue the right to deny PW status because of asserted violations or failure to observe the law This remains true whether denial is based on individual or group violations I— 44 — 7 1 2 SEP 1977 Article 44 now orni•t a precise requirement that the law be obsez ved as a cona tion for grant or denial of PW status Article 43 does contain an explicit requirement that such arnted forces shall be subject to an internal disciplinary system which inter alia shall enforce compliance with the rules of international law applicable in armed conflict Article 44 reaffirms the requirenient to comply with the rules of war Rowver it establishes that assertions of violations cannot be used to deny PW status as±e from failure to distinguIsh oiese frQm civilians in certain situations This approach i s conss tent with the U S position The U S thou1d resist any intep rettion which makes cQxapliance with the rules of inte rnational law a condition for PW status wIth the exception oe the requirement to distinguish combatants from the civilian population 5 ppuIation Combatants distingiishd frorn the civilian The 1907 H ague Regulations as well as the 1949 Geneva Conventions both contain a specific requtrement that irregular combatants wear a fixed ditInctive eithlem and —trry their arms openly This is a condition for PW status is requirement is directly related to effective protection the civilian population The requirement was very controversial at the conference Many states asserted firmly that they could not accept any provision which continues this requirement regardless of the nature of the conflict Many developing countries saw the requirement as unrealistic in the context of wars of liberation against colonIalist powers on the African continent Yet the current not restricted to these concerns For example France declared criticism is • There is another category which 3nterests us greatly nane the underground fighters They are organized into•network but their characteristic t that ecsely nothing distinguishes theii and 1nust not distin9uish them from the civilian population We • • cannot isregard the resistance righter an speak o f jnterstte conflicts -- the civilian who refuses to agree to the occupation of his country by a foreign army -- by approvIng an ArtIcle 42 which would exclude such resistance fighters and place thea outside the law Statement made by French representative Mr Girard 24 Narch 19 75 ound in CDDH III SR 33—36 Annex at93—94 1—44—8 I2SEP1S71 Norway expressed similar views denying that the requirement to distinguish oneself should be a reason for denial of PW status Norway did recognize the importance of the requirement in terms of civilian protections CDDH III SR 33—36 Annex at 37 Other states expressed a wide variety of views which preceded conunittee adoption The net result was an Article which reaffirned in the first sentence of paragraph 3 the basic obligation to distinguish oneself while engaged in an attack or in a military operation preparatory to an attack This phrase would include logistics or adninistrative activity Violators could be tried and punished for breaching this obligation However as Committee III noted uWjth one narrow exception the Article makes the sanction for failure by a guerrilla to distinguish himself when required to do so to be merely trial and punishment for violation of the laws of war not loss of combatant or prisoner of war status 11 CDDH III 408 at 7 The exception is covered by the second sentence of paragraph In that situation the loss of PW or combatant status is 3 an additional sanction to the possibility of trial for failure to distinguish oneself from civilians Paragraph 3 of Article 44 thus explicitly recognizes •the linkage with effective protection of the civilian population Many states euphasized this linkage in discussions of the Article both at Committee and at the Plenary However it recognizes that in some situations conthatants cannot or will not so distinguish themselves PW status is still granted provided the combatants carry their army openly during any military engagement and immediately preceding the launching of an attack Many NATO states expressed their understanding of the term deployment in paragraph 3 second sentence as including any movement towards a place from Some other states such which an attack was to be launched Other states such as Egypt disagreed with as Japan agreed this interpretation believing that the second sentence of paragraph 3 applied only immediately before the outbreak of The Commi ttee III report noted a firefight 1—44—9 1 2 SEP 1977 MTb e tions of one question on which the exp1an— of vote reveled a clear djference opinion was the meaning of the word deployment Some delegations stated that they understood it as meaning any luoveinent towards a place from which an Other delegations attack is to be launched stated that it included only a final movement to firing positions Several delegations stated that they understood it as covering only monents inxtediately prior to attack This conpromise proposl does not meet all of the needs of the various states involved at the dipltic conference Yet it i s clear from the debate that a iiiore stringent requirement on cothatnts to distinguish themselves from civilians was vIewe by many states as impracticable if The U S cn accept tbs Article if a satisfactory Interpretation is established cnstruing broadly the crItIcal phrase engaged in a lttary deployntent preceding launching of an attack proper construction of the hrase deployment't includes such activities as irtovnent to assenthly area an approach march or infiltration to an If construed too narrowly th±s limitation assembly site would not provide sufficient distinctIon between combatants and civilians to make It reasonably possible to protect civilian populations under the Protocol It is also important tMt it be made clear that the special circumstances in which combatants cannot distinguish themselves be limited to either occupIed territories or conflicts coveredby Article 1 paragraph 4 of the Protocol f Other features o Article Equivalent protections Paragraph 4 provides that conthatants who fail to distinguish thenselves fotn 1 the cvilian population anc re captured should nonetheless quivalent protection be granted eciuivalent protections according to the WorkIng Group which proposed the Article means that 'They are not to be prisoners of war and under paragraph 3 they will have forfeited their combatant sttus1 but they shall benefit from procedural and substantive protections equivalent to those accorded to prisoners of war by the Third Convention and Protocol 1—44—10 12 SEP i77 t is acceptable procedural and hiinane €reanent privileges under be entitled to because they would otherwiseprotecting Civilians which paralthe 1949 Geneva Convention protections under the 1949 GPW lel in important respects possibility that the term equivalent However there is a suggest basic coitbatant protection may be rnisinterPretet0 To preclude such immunity under the 1949 GPW Conve±Ition us declared that combatants j5nderstandingi the civilians order to aid in in such circumstances in their status as the attack would forei1t That meanq that thiiht be combatants which would tried and punished for acts acts of otherwise be considered lawful • • using their appearance as • conbat it was their underOther NATO States also declared combatant 4 did not preclude loss of standing that paragraph unprivilegeà belligerent for violation trial as status and The Committee III paragraph 3 sentence of of the second report noted referring to Thus in that extreme case sentence of a violation of the second only the paragraph 3 but in thatcaSe comply with the sanction for failure to that the requirement of distinction is punished for individual may be tried and unprivi— as an any crime he has committed Even then he inust be leged belligerent equivalent given treatment in captivity to which prisoners in all respects to that CDDH III 408 at 8 of war are entitled probably include Equivalent protections would places of confinement and provisions on manner of treatnent The burden would be on the justify prisoners representation different treatment to This prodetaining power to explain equivalent in all respects that it was in fact trial for engaging in hostiliguaranvision does not preclude their law provided the fair trial ties contrary to municipalrespected tees of the 1949 GPW are paragraph S of the rrticle prior activities by 2 tation on denial of PW status ii contains an exTii Although it can be argued that activities of past eason the Committee intended offense is a completed offense 1—44—il 12 SEP V77 to restrict the captor's abilIty to punish PWs for their This provision is past failure to distinguish themselves comparable to similar rules on denial of PW status for See Articles 29-31 1907 Hague Regulations and spying Article 46 Effect on 1949 Geneva Wounded and Sick Conventions Paragraph 8 in effect extends the protection óì those Conventions to all meiithers of the arxned forces as defined in Article 43 This is consistent with the definition of wounded and siclt in Article 8 1 3 Saving clausesi Paragraphs 6 and 7 are self— explanatory savings clauses which are appropriate in view of the language of the article Paragraph 6 was previously Paragraph 7 included in the recoiuended U S language clearly expresses an intention not to affect the existing State practice of regular armed forces wearing uniforms The situation of while engaged in inilitarj operations regular members of the armed forces assigned as advisers to guerrilla forces will doubtless be covered by State practice The likely outcome is they will share the fate of the guerrillas whatever that may be The Article does not penalize regular forces when irregular forces are not penalized 4 5 MILITARY IMPLICATIONS The Article has both advantages and disadvantages in terms of impact on military operations The disadvantages include a Relaxation of the strict requirements of the Hague and Geneva Conventions on irregular combatants for qualification of PW status b Tendency to blur distinction between civilians and military by weakening of requirement to wear uniforms or carry arms openly The advantages include a A clear linkage between civilianprotections and distinguishing oneself first sentence - paragraph 3 1—44—12 12 SEP1977 b A clear affirmation paragraph 2 that neither combatant nor PW status can be denied based on violations of rules of war with exception of failure to distinguish self from civilians in certain situations The effect of the disadvantages listed can be effectively blunted by stating again at time of signature understandings of this Article along the following lines • POSSIBLE urDERSTANDINGS ARTULE44 1 The situations described in the second sentence of paragraph 3 are very exceptional and can exist only in occupied territory or in armad conflicts described in Article 1 paragraph 4 of this Protocol The phrase in paragraph 3 military 2 deployment preceding the launching of an attack means any movement toward a place from which an attack is to be launched and Failure to meet the requirements of 3 the first sentence of paragraph 3 is a breach of Protocol I which tends to endanger the civilian population Any combatant who is guilty of such a breach may be tried and punished for the offense of failing to distinguish himself from the civilian population Combatants who fail to meet the 4 minimum requirements of the second sentence of paragraph 3 forfeit their combatant status and may be tried and punished accordingly The traditional practice of U S forces has been quite liberal in the granting of PW status This has been done for a variety of reasons including a internal U S political pressures b reciprocity failure to grant PW status inevitably leads to reciprocal denials by the opposing force and c humanitarian reasons 6 RECOMMENDED U S ACTION a Express understandings as drafted in paragraph 5 view of the divergent views expressed as to the meaning 1—44—1 3 1 2 SEP 19 of deployment consideration should be given to expressing the US understanding as a reservation Our understanding may be regarded by others as a reservation in any event Legislation in the form of prohibition on carrying out combat activities whiledréssed as civilians b 1—44—14 j ARTICLE 45 —— Protection SEP 197 of persons who have taken part in hostilIties TEXT OF ADOPTED ARTICLE 1 Article 45 — • • Protection of persons who have taken part in hostilities previously Article 42bisT 1 A person who takes part in hostilities and falls into the power of an adverse Party shall 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 he entitled to such status or if the Party on which 1e depends claims such status on his behalf by notific tion 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 war he shall continue to have such status and therefore to be protected by the Third Convention and this Protocol until si ich time as his status has been determined by a comptent tribunal If a person who ias fallen into the power of an adverse Party is not heldas a prisoner of war and is to be tried by that Party for an offense arising out of the hostilities he shall have the right to assert his 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 trial for the offense The representatives of theProtecting Power shall be entitled to attend the proceedings in which that question is adjudicated unless exceptionally the proceedings are held in camera in the interest of State security In such a case the detaining Power shall advise the Protecting Power accordingly 2 Any person who has taken part in hostilities who is not entitled to prisoner of war status and who does not benefit from more favorable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this 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 Convention 3 1—45—1 • 2 2 SEP 1I REFERENCES The following Articles of Protocol I are relevant Article 43 — Armed forces explains basic concepts of armed forces combatants including requirements a - Article 44 — Coidbatants and prisoners of war explains when lack of cmpliance can cause loss of PW status particularly as tO irregular forces b Article 46 — Spies one of category of persons directely benefited by Article 45 c Article 47 — Mercenaries another category of persons who benefit fromArticle 45 d Article 75 — Fundamental guarantees additional protections to Article 45 which benefit all persons particularly those not protected by 1949 GPW e The following Articles of the 1949 Geneva Conventions are relevant a Article 4 1949 GPW who is entitled to PW status b Article 5 1949 GPW cases of doubt Article 7 1949 GPW Prohibits renunciation of PW status c d Article 105 1949 GPW Rights during trial e Article 5 1949 GC internment of persons who •are threats to security 3 RELATION TO U S POSITION Consistent •The ICRC Draft did not contain a similar article However several governments including the U S were vitally concerned over providing a minimum level of protection to every person who takes part in hostilities and is captured The U S along with several other countries onsored this article 1—45—2 1 2 SEP 1977 The final text adopted by consensus varies somewhat from the proposal made by the U S Although consistent with U S views it does not go as' far as the U S wished particu— larly dealing with rights of the protecting power and ICRC 4 COMMENT Paragraph 1 creates a presumption that a person who engages in hostilities and is captured is entitled to PW status if he claims such status appears entitled to it or his Party claims it for him 'ailure of a person to claim PW status cannot however be taken as justification in itself for denial of such status See Article 7 1949 Paragraph 1 as Committee III notes also follows GPW ArticleS 5 of the Third ConventIon 1949 GPW in stating that should any doubt arise ike must be treated as a pw unless and until a competent t'ibunal determines otherwise As in the case of Article 5 sch a tribunal may be adininistrative in nature This provision is fully consistent with U S views Paragraph 2 creates a new rocedural right for persons t considered to be PWs who are to be tried for a criminal offense arising out of the hostilities Such a person will have a right to assert entitlement to PW status de Ixovo and have the issue decided by a judicial tribunal Because of differing national judicial procedures this does not' necessarily 'nave to occur prior to the trial for the offense Whenever possible however determination of status should occur first since jurisdiction of the tribunal may hinge on this issue As the Committee notes the provisions of the right of the representatives of the protecting power to attend the proceedings is copied from Article 105 of'the Third Convention 1949 GPWL Paragraph 3 is a straightforward reference to Article 75 which contains minimal safeguards and judicial guarantees for persons regardless of their status The second sentence of paragraph 3 expands rights of communication otherwise restricted under Article 5 of the 1949 Geneva Convention Protecting Civilians 1949 GC 0 One further matter warrants comment Under paragraph 4 rticle 44 certain combatants not otherwise entitled to PW status are entitled to protections equivalent in all respects those accorded to prisoners of war by the Third Convention by this Protocol This may initially appear to be fnconsistent with Article 45 3 Article 45 3 provides 1—45—3 12 SEP lesser trial standardsfor persons who have taker part in hostilities but are not entitled to PW status There is in fact no inconsistency Article 44 is simply a particularized guarantee of higher standards for a limited class of persons If absolutely necessary a U S understanding to this effect may be expressed along the following lines • • 5 ' It is the understanding of the US that Article 45 paragraph 3 cannot be con— strued to restrict fair trial guarantees under the Third Con ntion and this Protocol which are secured to certain persons under Article 44 paragraph 4 1ILITARY IMPLICATIONS This article should benefit U S Conmianders It affirms that persons who engage in hoshlities and are captured are presumptively entitled to PW status based on their claim Also see Article Party claim or appearance of etitlement Creation of theright to have that status 5 1949 GPW relitigated at any trial for aIleged offenses paragraph 2 of text is also beneficial Affirmance of basic human rights and judicial safeguards paragraph 3 is also consistent with U S views • • This Article is not expected to have any adverse impact Requirements particularly stress on the upon U S forces importance of judicial guarantees are generally consistent with past U S practices and principles 6 RECOMMENDED U S ACTION No U S understandings or follow—on actions are necessary •Uowever consideration can be given to an understanding along the lines discussed in paragraph 3 relating to fair trial guarantees 12 SEP 977 Article 46 —— Spies 1 TEXT OF ADOPTED ARTICLE Article 46 — Spies previously Article 40 Notwithstanding any other provision of the 1 Conventions 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 2 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 his armed forces 0 3 A member of the armed forces of a Party to the conflict who is a resident of territory occupied by 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 he does so through an act of false pretenses or deliberately in Moreover such a resident shall a clandestine manner not lose his right to the status of prisoner of war and may not be treated as a spy unless'he is captured while engaging in espionage A member of the armed forces of a Party to the 4 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 2 REFERENCES The following Articles of Protocol I are relevant Article 39 - Emblems of nationality forbids a misuse of enemy insignia — provides that existing rules on espionage are not affected Article 43 — Armed forces explains and b establishes general requirements 1—46—1 1 2 SEP 19' Article 44 - Combatants and prisoners of war general requirements applicable to uniforms c Protection of persons who have taken part in hostilities procedural guarantees d Article 45 - Article 75 — Fundamental guarantees appli'es e to all who do not have more favorable protection Other treaties are relevant as follows Article 5 1949 GC internment of persons who a are threat to state security including spies and saboteurs Articles 29—31 1907 Hague Regulations reflects b customary law rules applicable to spies and espionage REL1TION TO U S POSITION 3 The text adopted by consensus Generally consistent varies substantially in form and content from the previous Paragraph 1 and 2 are changed but conTCRC draft text istent with U S views Paragraphs 3 and 4 are new 4 COMMENT Although the ICRC text dealt with both espionage and sabotage Committee III determined it was unnecessary to deal with sabotage Since Articles 43 and 44 are now so structured that a captured member of armed forces is or is not entitled to be a prisoner of war depending upon his compliance with the standards of these articles it was unnecessary to deal separately with sabotage As to spies Articles 29-31 of the 1907 Hague Regulations currently express the law on this subject The Committee expressed no intention to change that existing law regarding The term espionage refers to spying as that term espionage is used in Article 29 1907 Hague Regulations This may be defined as obtaining or trying to obtain by clandestine neans or by false pretense information in territory con—trolled by oneParty with the intention of communicating it the hostile Party - 1—46—2 1 2 SEP ¶7 Essentially the text affirms a state's rightto treat a armed forces who is captured while engaging n espionage as a spy but denies any right to treat him as a spy if while so acting he is in the uniform of his own rnembérof the enemy armed forces Paragraphs 3 and 4 of the text represent an effort to protect members of the armed forces who are resident in enemy occupied territory U S allies in Europe who supported this concept felt it important to protect members of their armed forces e g resistance movements by formnu— lating specific rules of espioqage in occupation situations First it was felt that such persons members of the armed forces ordinarily resident in enemy occupied territory will almost ncessarily in their everyday life come aross information of value to the armed fcrces to which they belong and this shotld not make them spies or serve as a pretext for denying them protection as pisoners of war Ly protection however is los4 if this is done through an t of false pretenses or delilSerately in a clandestine manner ____ forged pass concealment of cameras clandestine radio transmitter disguised courier etc This primarily involves members of organized resistance movements who otherwise qualify as combatants under the 1949 GPW or Article 44 But such protection would be subject to other limitations As the Committee III report indicated For example the resident who observes military movements while walking along the street or who takes photographs from his residence would not be engaged in espionage whereas the resident who uses a forged pass to enter a military base or who if lawfully on the base illegally brings a camera with him would be engaging in espionage A member of the regular armed forces who happens to be a domicillary of occu pied territory might theoretically qualify for protection under this Article in some situations Bis need for deception would depend upon the laxness of the iing force However if he were infiltrated into 1—46—3 12 SEP 1977 occupied territory for the purpose of engaging in espionage and then engages in espionage the use of deception such as a disguise disqualifies him from protection The Article does not protect persons other than members of the Thus it does not armed forces as defined in Article 43 protect or concern civilian residents of occupied territory Under Articles 29-31 1907 Hague Regulations a member of the armed forces who engages in espionage without a uniform then rejoins his unit and is thereafter captured cannot be punished as a spy The text recognizes the necessity for a similar rule in the occupation situation for those members of the armed forces e g members of resistance movements who are ordinarily resident in the occupied The result is that they lose their right to territory be a PW and can be treated as a spy only if capured while Paragraph 4 then specifies the normal engaging in espionage rule return to unit as the test for those mertthers of the enemy armed forces not resident in occupied territory This is consistent with the Hague Regulations on the subject 5 MILITARY IMPLICATIONS This Article should not have any substantial adyerse impact on military operations Paragraphs 1 and 2 as indicated are merely a reformulation in more modern langauge of existing rules and principles and are fully consistent Paragraphs 3 and 4 are specific with U S military practices applications of these principles to the military occupation The text adopted does restrict the ability of situation an occupier to treat members of enemy armed forces as spies in such situations The greatest impact will be on wars of national liberation as provided in paragraph 4 Article 1 However in view of past U S practice to be fairly liberal in granting PW status and in view of U S personnel being improperly denied PW status the general approach of limiting denial of PW status in paragraphs 3 and 4 is consistent with overall U S interests 6 RECOMNENDED U S ACTION The U S should consider an understanding along the a following lines 1—46—4 1 2 SEP It the is the understanding of the U S that elements of espionage as that term is used in Article 46 are the same as those listed in Article 29 of the Hague Regulations Annexed to Hague Convention No IV of 1907 b No follow-on action is necessary 1—46—5 1977 1 2 SEP1977 Article 1 47 —— Mercenaries TEXT OF ADOPTED ARTICL Article 47 — Mercenaries previously Article 42 Quater A mercenary shall not have the right to be a 1 combatant or a prisoner of war 2 2 A mercenary is any person who a is specially recruited locally or abroad in order to fight in an armed conflict b does in fact take a direct part in the hostilities c 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 d is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict e is not a member of the armed forces of a Party to the conflict and f has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces REFERENCES The following Articles of Protocol I are relevant Article 43 — Armed Forces basic requirements a on armed forces Article 44 — Combatants and prisoners of war b entitlement to PW and combatant status 1—47— c Article 45 — Protection of persons who have taken part in hostilities fair trial guarantees presumptive right to PW status 1 2 SEP1977 Article 75 — Fundamental Guarantees rights guaranteed to those not otherwise protected d Also Article 4 of the 1949 GPW entitled to PW status and Articles which defines who is of belligerents of the 1907 Hague 1 2 and 3 qualifications Regulations are relevant 3 RELATION TO tJ S POSITION Consistent with general US views 4 COMMENT Many third world states str4ngly urged that an Article in Protocol I deal specifically pith mercenaries Their perception is that trained arme groups hired privately or without formal state sponsorship have caused significant problems on the African for several decades Although a draft Articlecontineni was extnsively debated in Committee no consensus emerged at the third session For dis— sion see CDDH III 361 Add 1 Recent events in Africa _ tensified their concern with this problem An examp e is a raid on Benin in January 1977 by an unidentified armed band This incident prompted a UN Security gation Additionally Zaire was invaded by Council Investia group of Katangan gendarines described by Zaire as mercenaires i e not belonging to the Armed Forces of a particular state The problem of unlawful combatants in warfare is longstanding Irregular forces which do not identify themselves as combatants or do not belong to a party to a conflict been denied PW status under the law of war have traditionally method of distinguishing unlawful combatants One traditional entitled to PW status is that they frequently i e those not fight for private ends and purposes Past terms used to describe such irregular armed groups include bandits brigands buccaneers bushwackers franc-tireurs guerrillas marauders partisans robbers and pirates The adopted Article was carefully drafted and negotiated to insure that it did not permit classification of regular combatants as mercenaries The first paragraph declares consistent with Article 44 that mercenaries are not legal 1—47—2 1 st' The definition has three positive tests for combatants mercenaries involving recruitment conduct and motivation It then excludes three categories who cannot be mercenaries including nationals or residenids of a Party to the conflict a member of their armed forces or persons sent by a State not a Party on official duty as a member of its armed This includes advisers of all types Although forces criticized by some African and other states for being too rigid it generally met the corcerns of all states at the Conference and was adopted by 1orisensus The United States fully rcognizes the need for standards U S policy discourages for PW status see Article 44 U S citizens from becoming privately involved in foreign Under U S law itis a criminal offense for any conflicts person to recruit an Airterican citizen in the U S for service as a soldier in foreign Armed Forces or for any American citizen to enlist in the U S for suchservices The article is consistent with U S interests and policy The lack of a specific reference to Article 75 — Funda— ntal guarantees - as being applicable to mercenaries Jrompted several statements by Western delegates at the The U S at Committee level expressed its underConference The application of Article 75 to standing to this effect mercenaries was readily agreed at the Conference and no further expression on this point is necessary 5 MILITARY IMPLICATIONS The recognition that mercenaries as Negligible defined in this Article are not entitled to PW status is not inconsistent with other provisions of the Protocol The definition should prove useful in disproving claims made from time to time by various states that members of regular armed forces can be classified as mercenaries and improperly denied PW status 6 RECOMMENDED U S ACTION None necessary No U S understandings or follow on action is 1—47—3 PART IV l2SEP177 CIVILIAN POPULATION SECTION I - GENERAL PROTECTION AGAINST EFFECTS OF HOSTILITIES BASIC RULE AND FIELD OF APPLICATION CHAPTER I Article 48 —— 1 Basic rule TEXT OF ADOPTED ARTICLE Article 48 — BaicRixie previously Article 43 In order to ensure repect for and protection of the civilian population an'd civilian objects the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects apd military objectives and accordingly shall direct tieir operations only against military objectives 2 REFERENCES a Protocol I - 1 2 3 3 Article 43 — Armed Forces explains that term Article 50 — Definition of civilians ana civilian population explains the term civilians Article 52 — General protection of civilian objects explains the term civilian objects and military objectives b Articles 25—27 1907 Hague Regulations c 1907 Hague Convention IX Concerning Bombardment by Naval Forces d UN Resolutions 2444 and 2675 concerning protection of civilians RELATION TO U S POSITION Consistent 1—48—1 4 4 SEP 79' COMMENT The alterations made by Corarnittee III in 1974 from the 1973 ICRC text were largely of drafting character as The Article reported in the 1974 U S Delegation Report namely that incorporates a basic principle of warfare directed toward military military operations must be objectives rather than simply the entire enemy country It was adopted by consensus both in Committee and in the Plenary The terms used in the Article arc explained in various Articles References of the Protocol as indicated by 1he 5 MILITARY IMPLICATIONS This Article will not have ny significant impact upon U S military operations Curret U S military tactics and technology as well as U S political objectives in any conflict have long recognized the principle of distinction between military objectives and combatants and civilians The citedireferences all recognize and civilian objects principle RECOMMENDED U S ACTION • No specific understandings or follow-on legislation are necessary on this Article None 1—48—2 1 2 SEP 1977 Article 1 49 —— Definition of attacks and scope of application TEXT OF ADOPTED ARTICLE Article 49 — Definition of attacks and scope of application previously Article 44 Attacks means acts of violence against the 1 adversary whether in offence or in defence 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 an adverse Party 2 3 •The provisions of this Section apply to any land air or sea warfare which may affect the civilian population individual civilians or civilian objects They further apply to all attacks from the on land sea or frointhe air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air The provisions of this Section are additional 4 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 • 2 3 REFERENCES a Article 48 to 67 Section I Part IV of Protocol b Article 54 Protocol I—Objects indispensable to the survival of the civilian population c Part II 1949 GC General protection of populations against certain consequences of war RELATION TO U S POSITION Existing law applicable to conflict at Consistent or in the air aside from bombardment of land targets This fully met is not affected by this Section Para 3 1 S objectives 1—49—1 2 rov 4 ' COMMENT Paragraph 1 is a straight forward definition of attacks Paragraph 2 was originally adopted which will be useful in connection with a separate Article on oojects indispensable to the survival of the civilian population A few States notably the USSR did not believe that a State had obligations toward civilians in its own territory but under control The U S disagreed and proposed language of an adversary similar to that adopted in paragraph 2 Both paragraphs 1 and 2 are relevant to the entire Protocol Although paragraph 3 proved very difficult it was eventually decided that it would be both difficult and undesirable in the time available to try to review and revise the law applicable to armed It was also conflict at sea and in the air widely recognized that care should be taken not to change that body of law inadvertently 1975 Committee III through this paragraph Report CDDI-I 215 Rev 1 The paragraph was ultimately adopted in Comnittee III by a The Article wasadopted vote of 60 to 0 with 7 abstentions by consensus in Plenary Paragraph 4emphasizes the relation of Section I of Part IV to Part II of the Fourth Convention 1949 GC Part II of the Fourth Convention is applicable to the whole of the Otherwise paragraph population of the countries in conflict 4 is a safeguards clause designed to prevent inadvertent changes in existing law 5 MILITARY IMPLICATIONS The Article does not de fine any substantive Neglible Instead it defines the conduct required of armed forces scope of application of the section of the Protocol providing general protection to áivilians from the effect of hostilities Paragraph 3 expressly limits Protocol protection to civilians on land It thus excludes application of this Section of the Protocol to air to air air to sea sea to air land to sea It does recognize that civilians or sea to sea situations in sea or air environments are protected by rules of- international law without specifying what the rules are or modifying This is entirely consistent with expressed U S views them on the subject 1—49—2 1 2 SEP 197 6 RECOMMENDED U S ACTION No specific understandings or follow on legislation are necessary 1—49—3 3 2 SEP 77 CHAPTER II Article 50 —- CIVILIANS AND CIVILIAN POPULATION Definition of civilians and civilian population TEXT OF ADOPTED ARTICLE 1 Article 50 - Definition of civilians and civilian population previously Article 45 A civilian is any personwho does not belong 1 to one of the categories of persons referred to in Article 4 a 1 2 3 and 6 of the Third Convention and in Article F43 of this Protocol In case of doubt whether a person is a civilian that person shall be considered to be a civilian 2 The civilian poplat±on comprises all persons who are civilians The presence wit1±n the civilian population 3 of individuals who do not jcome within the definition of civilians does not depirive the population of its civilian character REFERENCES a Article 43 — Armed forces b Article 44 - Combatants and prisoners of war c Article 48 — Basic d Article 51 — Protection e Article 4A 1949 Geneva Convention protecting prisoners of war herein 1949 GPW - also referred to as Third Convention f Article 5 1949 GPW • 3 rule of the civilian population RELATION TO U S POSITION In the plenary the United States did Consistent express an understanding to Article 57 which also applies to Article 50 Commanders and others responsible for planning deciding upon or executing attacks necessarily have to reach decisions 1—50—1 2 NOV 1977 on the basis of their assessment of the information from all sources which is available to them at the relevant time This of course is appropriate for the entire section including Articles 150 and 52 CCDH SR 42 2 June 1977 at Annex pg 6 4 - COMMENT Generally the changes made in this text from the prior ICRC text were minor drafting changes An exception relates to the word presumed which ws deleted and replaced with the present language referrin to cases of doubt in the last sentence of paragraph 1 The original wording might have been construed to conflict with Article 5 1949 GPW The 1974 U S Delegation report noted The language of presumption was removed from the text and itwasconcluded that in connection with attadks the person of doubtful status is tO be considered a civilian while afte he has fallen into the hands of the enemy t•he presumption •is to be one of prisoner owar status This Article is related to Article 43 which defines armed forces and Article 44 which explains the basic obligations of combatants to distinguish themselves from civilians If persons become combatants either under Article 4 1949 GPW or Article 43 this Protocol they no longer have any protected status as civilians Ifcivilians take a direct part in hostilities but still deny they are combatants under Article 43 nonetheless they lose any protection under this Section of the Protocol while they are taking a direct part in hostilities See paragraph 3 Article 51 Article 50 does not contain any express standard to be applied to resolve doubts if a person appears to be a civilian Under these circumstances only a reasonableness test can be applied Decisions necessarily have to be made on the basis of a personal assessment of information available at the relevant time This U S understanding referenced earlier supports a view that doubts are resolved based on honest belief 7 5 MILITARY IMPLICATIONS Neglible This is a fairly noncontroversial definition _ticle which will not impact significantly upon military 1—50—2 12 SEP 1S77 operations It is consistent with U S views and some of the text language was proposed by U S experts 6 RECOMMENDED U S ACTION a Express understanding to entire Section along lines of that in paragraph 3 b No legislation or other follow up action is necessary 1—50—3 1 2 SEP 1917 rticle 51 —— Protection of th civilian population TEXT OF ADOPTED ARTICLE 1 Article 51 — Protection of the civilian population previously rtic1e 46 The civilian population and individual civilians 1 shall enjoy general protection against 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 circumstahces • • • The civilian population as such as well as 2 individual civilians shall not be the object of Acts or threats f violence the primary purpose attack of which is to spread terror among the civilian population are prohibited Civilians shall enjoy the protection afforded 3 by this Section unless and for such time as they take a direct part in hostilities Indiscriminate attacks are prohibited 4 criminate attacks are Indis- a those which are not directed at a• specific military objective b those which employ a method or means of combat which cannot be directed at a specific military objective or c 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 Among others the following types of attacks 5 are to be considered as indiscriminate a 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 12 b p 1971 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 tothe concrete and direct military advantage anticipated Attacks against the civilian population or 6 civilians by way of reprisals are prohibited The presence or mqvements of the civilian 7 population or individual c±vilians shall not be used to render certain points or areas immune from military operations in particular in attempts to shield military objectives from attac1s or to shield favour or impede military operations The Parties to the conof the civilian flict shall not direct population or individual civilians in order to attempt to shield military objecti res from attacks or to shield military oerations Any violation of hese prohibitions shall not 8 release the Parties to theconflict from their legal obligations with respect to the civilian population and civilians including the obligation to take the precautionary measures provided for in Article 57 • 2 REFERENCES a Protocol I Article 37 - Prohibition of perfidy forbids feigning of civilian noncombatant status 1 Article 48 — Basic rule basic requirement to distinguish between civilians and combatants military objectives 2 • Article 50 — Definition of civilians and civilian population 3 4 • • Article 52 - General protection of civilian objects 5 Article 57 — Precautions in attacks 6 Article 58 — of attacks Precautions against the effects 1—51—2 2 SEP 1977 7 b 3 Article 85 — Repression of breaches of this Protocol certain willful violations of Article are listed as grave breaches Other references 1 Articles 25—27 1907 Hague Regulations 2 1907 Hague Convention IX Concerning Bombardment by Naval Forces 3 UN Resolutions 2444 and 2675 concerning protection of civilians RELATION TO U S POSITION The prior ICRC text was signifiGenerally consistent This generally satisfied U S objections to cantly revised Paragraph 1 was newly added but is the prior ICRC text consistent with U S views Paragraph 2 as adopted replaced methods with attack and refers to the primary purpose In paragraph 3 Section of which in lieu of intended replaced Article which satisfied an imperative U S change In Committee III paragraph 4 was substantially revised It now defines the term indiscriminate attacks in depth Paragraph 5a was redrafted and generally satisfied U S views The term populated area was refined to city town village or other area containing a similar concentration of civilians The more precise term clearly separated and distinct was Various improvements were made in the text of para— added grah 5b In paragraph 6 the U S had sought to avoid the proHowever the Conference strongly hibition on reprisals Other favored this protection for the civilian population changes consistent with U S views were made in the remainder of the Article In connection with the adoption of the entire Protocol the U S expressed its understanding that the Rules established by the Protocol were not intended to have any effect on and do not regulate or prohibit the use of For context nuclear weapons •see Analysis for Article 35 he U S also expressed an understanding with respect to rtic1es 51 and 57 concerning the term military advantage see Comment para 5 for discussion 1—51—3 2 OV 977 4 _______ proLonged discussion at the This Article prompted and second sessions in Committee III Conference at the first Committee III it was reconsidered by fourth session before At the to add the word similar by consensus in paraand amended or civilian objects satisfied Ilconcentration of civilianssponsored by the UK This change graph 5 a Thereafter the UK nd U S some concerns by the FRG plenarf by a vote of 77 U S to Article was adopted in Comments hereafter are 16 abstentionS France with 1 by paragraPh Originally this was an jtroductory proby Committee III While the not principle they are vision added to the text the remaining paragraphs illustrate Hence a specific reference intended to limit its effect of international law was included applicable rules to other Coimnittee iii Report paragraph 2 ccording to the sentence involves the prohibition in the second specifically directed intentional conduct spreading of terror and excludes toward the inten4 by a belterror which was not merely an is ligerent and terror tiii warfare which of incidental effect of acts object and are in all Emphasis supplied other respects lawful CDDH 2l5 Re' 1 the altered from the ICRC text in Article text somewhat U S views The final fully consistent with second sentence is prohibits all measures of intimidation 33 1949 GC already civilians in occupied territOries or or of terrorism against territory enemy aliensin one's own codified for The concept of this paragraph paragraph 3 critically useful in limiting protections it does not the first time is customarily afforded by law but not lawful coin— to civilians They are civilians for a change their status be punished batants who lose protection and may violation of the laws of war iEer primary 5bstantially met all The final text paragraph 4 with the ICRC text However subprior U S concern adopted defining the concept of stantially new language was As to this attacks which are prohibited Iindiscriminate noted definition the Committee Report i—51—4 1 2 SEP 77 There was general agreement that a proper definition would include the act of not directing an attack at a military obtive the use of means or methods of combat which cannot be directed at a specific military objective and the use of means or methods of combat the effectsof which cannot be limited as required by the Protocol Many but not all of those who commented were of the view that this definition was not intended to mean that there are means or methods of combat the use of which would involve an indiscrimiflate attack in all Rather it was intended to circumstances take account of the fact that means or methods of combat which can be used perfectly legitimately in some situations could in other circumstances have effects that would be contrar' to some limitations contained in the Protpcol in which event their use in those circumstances would Emphasis involve an indiscriminate attack supplied I The prohibition against indisciminate attacks can be said The requirement that weapons be reflect existing law apable of being directed at a military objective simply prohibits blind weapons An example of past use of such a weapon is Japanese incendiary ballons during World War II regarded as unlawful as well as militarily ineffective Since the U S for sound military reasons at the time has always stressed accuracy in weaponry including the capacity of being specifically directed at military objectives this requirement is consistent with current and projected U S weaponry concepts In explaining their votes several NATO States expressed understandings with respect to paragraph 4 For example the UK delegate stated the definition of indiscriminate attacks in paragraph 4 was not intended to mean that there were means of conbat the use of which would constitute an indiscriminate The paragraph attack in all circumstances did not in itself prohibit the use of any specific weapon but it took account of the fact that the lawful use of any means of conthat depended upon the circumstances CDDH SR 41 at 29 I—5l-5 £ iO y 1 977 Almost identical understandings were expressed by Italy the Federal Republic of Germany and Canada Other States while not disputing this understanding noted the importance of the definition of indiscriminate attacks These included Poland the German Democratic Republic Byelorussian S S R Ukranian SSR and Sweden The second requirement effects of which cannot be limited as required by this Protocol is more significant In paragraph 5b Article 51 and Article 57 the Protocol recognizes that incidental civilian casualties are not prohibited provided it is not apparent that such calties will be excessive in relation to the concrete and direct military advantage anticipated Thus a weapon whose use would necessarily cause disproportionate casualties would be prohibited as an indiscriminate weapon Many regard widespread use of biological weapons as such a weapon Certainly in the U S view this is not true of nuclear weapons although in a situation of general nuclear warfare it would be impracticable to apply the rules of the Protocol relating to protections of civilians The U S should continue to adhere to its understanding on the relationship f the -Protocol to nuclear weapons For text of this ' rstanding and discussion see Analysis for Article 35 Notwithstanding this clear interpretive history some might urge that the text of this definition canbe read as requiring that the effects of attacks must be strictly confined to the military objectives attacked In addition to being impracticable such an interpretation would render most of Article 57 meaningless and is contrary to the clear language of Article 51 This unreasonable interpretation For discussion relies on imprecise language in Article 52 of how to handle this see Analysis for Article 52 The Committee report quoted previously as well as the actual text of the language adopted could be extremely useful in resisting attempts to read very much into the prohibition This subparagraph prohibits the treatment Paragraph 5a of an entire area as a single military objective for bombardment purposes under certain situations namely when there is a concentration of civilians or civilian objects and the area contains a number of clearly separated and stinct military objectives The language is less precise han the U S wished to obtain Target area bombing in bncentrated civilian areas as practiced by the Germans 1—51—6 1 SEP 1977 jritish and on some occasions by the U S during World War II would be prohibited under this In general the U S preferred bombing of specific targets and emphasized the technology of precision bombing Usually the necessity for such area bombing is a response to complex concealment techniques If there are no clearly separated and distinct objectives the restriction does not apply Likewise states are responsible themselves if they misuse their own civilian population by attempting to shield military objectives from attack This restriction appears acceptable in view of changed military tactics since World War II which rely less upon In the vote on this Article in Committee area bombardment the U S did insure that the negotiating history reflected a view that the restriction is principally concerned with area bombardments now rendered obsolescent by technological developments • The following U S statement was made We voted in favor of the Article and support it In Article 46 3 a now 51 5 a the term 'clearly separated and distinct military objectives' is used It is the position of the United States delegation that the words 'clearly separated' refers not only to a separation of two or more military objectives which can be observed or which are visually separated but also includes the element of a significant distance Further that distance must be at least of such a distance that will permit the individual military objectives to be attacked separately Paragraph 5b This represents the first concrete codif i— cation of the principle of proportionality as it applies to collateral civilian casualties It is repeated in Article 57 paragraph 2 iii In connection with the term military advantage a number of NATO states expressed an understanding For example the U S stated The reference in Articles 51 and 57 to military advantages 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 CCDH SR 42 Annex at pg 6 1—51—7 2 NOV 197 Almost identical understandings on this point were also given by the UK Netherlands FRG and Italy This codification of the proportionality principle is very useful It explicitly recognizes the U S and others view that civilian casualties are inevitable inarmed conflict It also implicitly recognizes that collateral damage to objects specifically protected e g hospitals may be unavoidable In addition the understanding on the term military advantage should include an interpretation of the phrase concrete and direct in order to avoid a narrow interpretation of that phrase Military advantage also includes consideration of the security of attacking troops and this can be covered as well 1 Pararaph 6 This prohibition against reprisals was included in the original ICRC text Prohibitions in later Articles were added by Corninitte III Many states viewed this prohibition to be of fundamental importance They include Poland GDR Byleorussian SSR and tikranian SSR and Sweden •Efforts by the French to militate against the effect of the prohibition by a1separate Article regulating reprisals was abandoned in the pourse of the Conference Egypt in the course of eplaining its vote on a later rticle stated The Articles adopted by the Conference left very few major objects against which reprisals could be taken apart from military forces Particular consideration should be given to the lot of victims of illegal reprisals taken by an adversary who disregarded his obligations His delegation recognized the interdependence of the clauses on reprisals and in the event of violation by an adversary would reconsider its position on them CCDH SR 42 at8 j • Qatar agreed noting that the provisions of Articles 51 to 56 which prohibit certain reprisals are interdependent CCDH SR 42 Annex at 15 Australia specifically objected to the prohibition of reprisals in various Articles other than Article 51 CDDH SR 42 Annex pg l j The threat of reprisals has been said to be an essential means for deterring violations of the law of war hen carried out reprisals have frequently led to counter— I 1—51—8 2 NOV 1977 isals and the escalation of conflicts through reprisals and counter reprisals and consequent massive violations of the law is a substantial reason for decline in the use of reprisals Also they are not particularly efficient militarily to the extent that vital resources are diverted away from attacks against military objectives Another problem with reprisals is the substantial existing requirements of law which regulate their execution • It would appear unlikely that the U S would have to resort to reprisals against civilian populations as such except in situations involving' nuclear weapons Since there is a specific U S understanding excluding nuclear weapons from the Protocols no further U S statement on reprisals appears absolutely necessary Moreover a specific attempt to reserve the right to take reprisals might undercut the strength of th e U S nuclear understanding The result could be a weakening of the U S nuclear deterrent if it was tied to the legal doctrine of reprisals On the other hand it is possible that the U S might want to preserve the rght of reprisal in some types of widespread conventional warfare If a reservation of rights on this point can be made -the U S understanding which excludes the _tocol's applicatiQn to nuclear weapons -— then it might be desirable to do so A reservation along the following lines could be considered for this purpose thoutundercutting Notwithstanding the provisions of Article 51 paragraph 6 the United States of America reserves the right in the event of massive and continuing attacks against the civilian population to take reprisals against the civilian population of the State perpetrating these illegal attacks for the sole purpose and only to the extent necessary to bring the illegal attacks to an end These measures shall not include ary of the actions which are otherwise prohibited by the Geneva Conventions of 1949 or this Protocol Paragraph 7 The paragraph explicitly recognizes a long—standing problem in warfare U S experts originally proposed similar language If properly interpreted it is 9xtremely beneficial that the Conference adopted the' concept and included it specifically in Article 51 The Federal -ub1ic of Germany noted that this paragraph applies insofar 1—51—9 2 NOV 1977 as the civilian population and individual civilians enjoy protection against military operations Italy stated that the provisicin could in no case be interpreted as preventing or hindering a state that wished to do so from organizing an effective system of defense Thus the negotiating record is fully consistent with the view that the first clause of the first sentence reflects the evil against which the paragraph is directed and that evacuation of civilians or restrictions on movements which are imperatively demanded by the necessity of military operations are not prohibited Paragraph 8 This paragraph recognizes the interrelationships of the paragraphs of Article 51 and the relationship of Article 51 and Article 57 If para 7 Article 51 is violated an attacking force is still obligated to take precautionary measures set forth in Article 57 5 MILITARY IMPLICATIONS Any impact on actual military operations will come in the area of para 5a assuming a correct interpretation of t introductory language in paragraph 4 The other provisions n be regarded as a simple codification of existing qal requirements In fact both Canada and the UK noted in the Plenary that many of its provisions were simply codifications of existing applicable law The meaning and scope to be given to these paragraphs 5 depends upon the future practice of states in actual conflicts as well as possible varying interpretations of the text In general any bombardment involves a pattern What is prohibited in para 5a is treatment as a single military objective an area of concentrated civilian activity containing separate and distinct military objectives The language adopted and the negotiating history supports the U S view that it must be reasonably possible to attack them individually 4 Paragraph 6 which prohibits reprisals against the civilian population is less significant than might initially appear Although the threat of reprisals may be important the U05 generally has avoided the execution of reprisals in past conflicts Although troublesome in some respects the Article as who1e has the following favorable features 1—51—10 Itrecogflizes explicitly the principle of pro a portionality para Sb The condition in para 3 and the prohibition in para 7 are contained in exact1y the context of the other prohibitions Article 51 b It defines indiscriminate warfare in para 4 in c such a way as to be useful to counteract unfounded allegations concerning certain U S weapons e g CBU's which are clearly capable of being cftrected at military objectives and whose effects are within he proportionality limitations otherwise established by the rotocol Notwithstanding these beneficial features Article 51 is very troublesome if it is misread to suggest a requirement that the effects of an attack must be strictly confined to the military objecties attacked A specific understanding as to Article 52 will avoid such an interpretation 6 RECOMNENDED U S ACTION Express U S understanding on entire Protocol that he Rules established by the Protocol were not intended to iave any effect on and do not regulate or prohibit the use For discussion see Analysis Article of nuclear weapons a 35 A U S understanding as to Article 51 and Article 57 concerning the ternt military advantage should be reaffirmed along the following lines b It is the understanding of the U S that the reference in Articles 51 and 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 The ternt 'military advantage' that attack involves a variety of öonsiderations including the security of attacking forces It -is further the understanding of the U S that the term 'concrete and direct military advantage anticipated' used in Articles S1 and S7 means an honest expectation that the attack will make a relevant and proportionate contribution to the purposes of the attack 1—51—11 2 10V1977 c Consider a reservation preserving the right to take reprisals against civilians provided this can be done without undercutting the U S understanding excluding the application of the Protocol to nuclear weapons 1—51—12 12SEM971 CHAPTER III CIVILIN'1 OBJECTS Article 52 —— General protection of civilian objects 1 TEXT OF ADOPTED ARTICLE Article 52 — General protection of civilian objects previously Article 47 Civilian objects shall not be the object of Civilian objects are all attack or of reprisals military objectives as defined objects which are not in paragraph 2 1 Attacks shall be limited strictly to miliInsofar as objects are concerned tary objectives 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 neutralization in the circumstances ruling at the time offers a definite military advantage 2 In case of doubt whether an object which is 3 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 - 2 REFERENCES a protocol I 1 2 3 4 Article 48 — Basic rule basic obligation to distinguish between military objectives and civilian objects Article 53 — Protection of cultural objects and of places of worship Article 54 — Protection of objects indispensable to the survival of the civilian population Article 55 ment Protection of the natural environ- 1—52—1 1 2 SEP b 3 5 Article 56 — Protections of works and installations containing dangerous forces 6 Article 57 — Precautions in attack Other Treaties 1 Articles 22—27 1907 Hague Regulations e g Article 23 g forbids parties to destroy or seize the enemy's property unless such destruction or sizure be imperatively demanded by the xecessities of war 2 1907 Hague Convention IX Concerning Bombardment by Naval Forces in Time of War RELATION TO U S POSITION Generally consistent Thi s Article was substantially redrafted in Committee and the revised version was much improved Objectionable referinces to installations and means of transport were removd However the prohibition reprisals in paragraph 1 w s added by Committee III The U S made the following statements of understanding regarding this Article at Plenary Article 52 is a significant and important development in the humanitarian law applicable in armed conflict The distinction between civilian objects and military objectives will be made easier to identify and recognize 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 52 its total or partial destruction capture or neutralization in the circumstances ruling at the time offers a definite military advantage The first sentence of Article 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 against military objectives CDDH SR 41 Annex pg 6 1 1—52—2 2 DV In connection with Article 57 the U S also stated ltCojanders and others responsible for plannng deciding upon or executing attacks necessarily have to reach decisions on the basis of their assess— nient of the information from all sources which is available to them at the relevant time This of course is appropriate for the entire section including Articles 50 and 52 ICCDH SR 42 Annex pg 6 4 CONNENT This Article was adopted originally at the second session by Committee III It was amended by consensus at the 'last session to add the words a place of worship to paragraph 3 It was adopted in the Plenary by a vote of 79 US to 0 with 7 abstentions Although the term military objective is referred to constantly including use in treaties to which the U S is a party it has never been satisfactorily defined The text adopted is much improved over the ICRC text and substantially —ts all prior U S objections It will be valuable in tering efforts to unreasonably limit attacks to pure Llitary targets such as combatants military encampments and fortifications As the Committee III Report notes Account is taken of the fact that mili— tary objectives include objectives other than military objects - such as troops their equipment and ground - and of the fact that objects may be neutralized or captured as well as destroyed CDDH 214 Rev 1 15 Dec 75 at pg 19 A specific understanding that land may be a military objective is also useful in the context of this definition One difficulty relates to the requirement in para 2 that attacks be limited strictly to military objectives Article 48 requires Parties to direct their operations only against military objectives Article 51 protects ycivilians from being objects of attack as such Under the circumstances the sentence in Article 52 2 s either redundant or a more particularized application 1—52—3 197 2 40V 1977 f the Article 48 principle or suggests that the effects of 'attacks must be confined to military objectives The last construction is incompatible with tL' U S view that collateral damage is to be expected despite efforts made to minimize it It is also inconsistent with Article 57 and can only be considered as entirely unreasonable Nonetheless in order to avoid any misunderstanding a specific U S understanding that Article 52 para 2 does not deal with the question of collater4l damage is appropriate The prohibition on reprials was adopted in Committee III by a vote of 58 to 3 with9 abstentions The overwhelming consensus at the Conference was to retain the prohibitions on reprisals in Articles 51 through 56 For discussion of US nuclear understanding and the possibility of a reservation on reprisals see analysis of Article 51 5 MILITARY IMPLICATIONS The text adopted should not have any significant impact on military operations The definition adopted stresses military necessity Objects which by their nature location purpose or use make an effective contribution to military action are military objectives and those which do Lot are civilian objects In virtually all cases th lestruction capture or neutralization will provide a definite military advantage or it is a waste of limited military resources However it is necessary to insure that the Article is interpreted not to require that the effects of attacks have to be limited to the specific objectives attacked 6 RECOMMENDED U S ACTION a Reaffirm understandings of this Article as indicated in paragraph 3 this Analysis b No follow on legislation is necessary 1 2 SEP 19 Article 53 -- Protection of cultural objects and of places of worship TEXT OF ADOPTED ARTICLE 1 Article 53 - of cultural objects and of places of worship prevously Article 47 bis Protection Without prejudice to the provisions of the Hague in Convention for the Protection of Cultural Property the Event of Armed Conflit of 14 May 1954 and of instruments it is proother relevant internatio1al hibited a • b c 2 To commit any acts of hostility directed against the historic monuments works of artor 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 REFERENCES a rotocol I prohibition of perfidy 1 Article 37 — 2 Article 38 — Recognized emblems 3 4 5 Article 52 — General protection of civilian objects Article 57 — Precautions in attack Article 85 — Repression of breaches of this Protocol Article 27 1907 Hague Regulations protects and monuments cultural religious and charitable buildings b Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 c 1531 I2SEP 197 Roerich Pact - Treaty on the Protection of Artistic 15 April nd Scientific Institutions and Historic Monuments d 1935 3 RELATIONSHIP TO U S POSITION Generally consistent The U S supported this Article but preferred a more specific formulation on loss of proLoss of protection results when the objects are tection used in support of the military effort The Article also contains a specific prohibition on reprisals In connection with the U S joining a consensus on this Article the following understanding was expressed We are placed to see that the nations represented at this Conference so overwhelmingly endorse and support a special recognition for objects of cultural or It is the spiritual heritage of mankind 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 Rathe the article establishes a special protection for a limited class of objects which because of their recognized importance constitute a part of the special heritage of mankind Other monuments works of art or places of worship which are not so recognized nonetheless represent objects normally dedicated for civilian purposes and are therefore presumptively protected as civilian objects in accordance with the provisions of Article 47 We note that the use of these objects in support of the militaryeffort 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 CDDH SR 42 Annex at pg 6 1—53—2 COMMENT This Article was adopted by consensus both by Committee 111 and at the Plenary after a proposal by' Greece the Holy See Jordan Uruguay and Venezuela A difference of opinion existed in the Committee overwhether all places of worship were protected or simply those which constituted part of the 'cultural heritage of peoples It was the intent of Committee III at the time of adoption that the article applied only to places of worship which were part of the cultural heritage of peoples At the last sesion this intention was more clearly expressed by adding the word the before historic monuments Additionally thephrase or spiritual was added The text of this article is not drafted precisely to indicate that protection is lost when the objebts are used in support of the war effort although this is clearly implied For these reasons a specific understanding on loss of protection was expressed by the U S Similar understandings were expressed by other NATO allies e g Netherlands Canada FRG and the UK No delegation disagreed with the clear statement that use of the objects in support of the military effort caused loss of protection under the Article In this situation loss of protection attacks are per— nissible because of the misuse of the objects in support of the military effort and need not be justified as reprisals A few delegations notably from the Arab world stressed the importance of protecting all places of worship Other delegations 9j Canada and Belgium stressed the importance of the Hague Convention on cultural property reference Cc For example the Belgium Delegate declared Throughout the discussions his delegation had made no secret of its fears that the Article might derogate from the Hague Convention on Cultural Property But in the end the text as it now stood did not justify those fears It was nevertheless true that the Convention must remain the basic instrunient on the subject and ought to be put into practice everywhere CCDH SR 42 at 4 1—53—3 2 NOV 1977 lgium Greece Italy Netherlands and Poland thereafter ponsored a resolution of the Conference which a welcomed Article 53 b acknowledged the paramount importance of the Hague Cultural Convention and c noted that the Convention was not prejudiced by the Article and urged The Resolution states to become Parties to the Convention was adopted by a vote of 53—0 with 33 U S abstentions The U S isnbt a party to this Hague Convention Violation of Article 53 may under very limited conditions constitute a grave breach of the Protocol when special protection has been given by special arrangement to the objects listed in Artic e 53 Also to be a grave breach there must be no evidence of a violation of subparagraph b use in support of military effort and such objects must not be located in the imntediate proximity of military objectives 5 MILITARY IMPLICATIONS This Article will not have any substantial impact on The objets listed are now protected military operations generally as civilian objects see Article 52 and are specially protected under Artile 27 190 7 Hague Regulations This special protection is lost under both the Article and he Hague Regulations when the objects listed are used in It is militarily important upport of the military ef fort that the U S express a clear understanding to this effect 6 RECOMMENDED US ACTION Express understanding along the following lines It is the understanding of the U S that a This Article does not replace existing custo 1 mary law prohibitions expressed in Article 27 of the 1907 Hague Regulations — rather the Article establishes a special protection for a limited class of objects which because of their recognized importance constitute a part of the special heritage of mankind Use of the objects listed in support of the 2 military effort is a violation of the Article Such a violation causes the objects to lose 7the special protection of this Article 3 b No legislation or other 1—53—4 follow on action is necessary 1 2 SEP 1977 tide 54 1 Protection of objects indispensable to the survival of the civilian population TEXT OF ADOPTED ARTICLE Article 54 — Protection of objects indispensable to the survival of the civilian population previously Article 48 Starvation of civilians as a method of warfare 1 is prohibited It is prohibited to attack destroy remove or render useless objects indispensable to the survival of the civilian population such as foodstuffs agriOultural areas for the production of foodstuffs crops livestock drinking water installations and supplies and irrigation works for the specific purpose 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 to cause them to move away or for any other motive 2 3 The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used by an adverse Party - a as sustenance solely for the members of its armed forces or b if not as sustenance then in direct support of military action provided however that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement - These objects shall not be made the object of 4 reprisals In recognition of the vital requirements of 5 any Party to the conflict in the defense of its national territory against invasion 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 necessity 1—54—1 including__the qenerel_rurLose o rentinc the enemy from advancine Thus 'bombarding an area to prcvenr the advance through it risible whet er or no the rca Drod'ccs ood h'$t th dliherto of an enemy is destruction ot noa procuc n4 areas in orcter to prevcrxt t e enemy from growi nc iood is forbidden Similarly cutting down a field of crops in order to clear a field of fire or to prevent the enemy from using it for cover is nermissible but cutting it down to • prevent the enemy from consumin the crops is forbidden niphasis upplied CDDH 215 Rev at 21 J Committee IiIs intention was more clearly expressed as a result of the Drafting Committee work Numerous minor changes were made then The most imcrtant were adding 'sjecific before purpose and using the term a the last session hsustenance va1ue in lieu of as such in paragraph 1 As to paragraph 3 Committee III noted Subparagraph a was intended to apply only to those obiects which clearly are 'assigned solely for the sustenance of the armed forces The term 'civilian Populationt referred t o in subparaqrah b was not intended to mean the civilian population of a country as' a whole hut rather of an immediate area although the size of the area was not defined The general intent of the proviso clause in para 3b provided however that in no event etc was to safeguard the essential rights ofthe civilian pouiation against starvation This proviso must be read in conjunction 'ith the other provisions of Article 54 as welles the entire Protocol Although the proviso purports to prohibit áttadks on certain object s even though such objects are used in direct supoort of military action the limitation IS that civilian starvation or forced movement will result As indicated in a workinq group report concerns about the scope of Article 54 will be defined by other relevant articles in the Protocol 'particularly those_dealing with relief actions 1—54—3 Revised -- 9 January 1978 CDDH III 1264 Rev 1 18 iviach l975 at 2—3 and 70 on relief impose extensive obligations Articles 69 of relief on both Parties in order •to avoid civilian starvation The obligations of the proviso of Article 54 can be satisfied if the Party attacking can arid will implcnnt the separate relief obligations under Articles 69 and 70 It is also clear that the phrase or force its movement at the end of para 3b is limited to forced movement to avoid starvation and not forced moiement for any other purpose Paragraph 4 contains a Lpecific prohibition on reprisals which was desired by an overwhelming majority of states This prohibition is acceptable to the U S in view of the limited nature of the objects protected and other considerations For further discussion see analysi for Article 51 The right to resort to scorched earth practices by retreating forces within their own territory is important As a result of a U S amendment paragraph 5 was added to this Article at the last session As to this the Comsnittee III Report noted it would be impossible to prohibit completely the conduct of a scorched earth policy where the armed forces of a state were being forced to retreat within the national territory f that state and the best protection on which agreement was possible was to permit derogation from the rules of Article 48 2 only where required by imperative military necessity CDDHIII 408 at pg 17 This change generally satisfied objections by U S Allies to the prior ICRC text 5 MILITARY IMPLICATIONS Hopefully any codification of law that is written should be simple straightforward and capable of easy interpretation Unfortunately the law in this area is of necessity complicated by its nature If written in too general terms such as the existing Hague prohibition against 1—54—4 Revised - 9January 1978 nn ecessary suffering T it is so vague iat all sorts of oper mi itary concuct is argued to be ilawiul For these Geneva Conventions were drafd jr i49 in o re reasons co icrete iborate terms Lo adequately ooun for demc ds of rai1ita necessity as woil s minimum ttnaris of civiIithciL ac3fced rh ztion Article oos not impac significntly urc U S Commanders since attacks to starve civ1iifis are incnsistent with U S political military objectives in any reaonab ' foreseeable conflict rioreover the techno1cy to dc so is vastly inhibited by the limitation on the use o1 tierbic ides expressed in Executive Order iJJ53 8 Al 19Th s iLle CO_ 6 t' ECOME DED_U S ACTION No understandings or leqilation are required for this Article 1—54—5 Added - 9 January 1978 2 uov includi g the general purpose of preventin9 the enemy from advancing Thus bombarding area to prevent the advance through it o' an enemy is permissible whether or not th area proces food but the deliberate desruction of food producing areas in order to pevent the enemy from growing food is forbien Similarly cutting down a field of cro in order to clear a field of fire or to p±vent the enemy from using it for cover isermissible but cutting it down to prevent tI enemy frcm consuming the crops Emphasis supplied is forbiddth at 21 CDDH 215 Re Committee III's int ntion was more clearly expxessed as a result of the Drafting 'çonixnittee work at the last session Numerous minor changes wer' macae then The most important were adding specific befo e purpose and using the term as such in paragraph 1 sustenance value in lieu f As to paragraph 3 Commite III noted S Subparagraph a was 'tended to apply only to those objects wh ch clearly are assigned solely for the shstenance of the The term 'ciilian population' armed forces referred to in subparagraph b was not intended to mean the civilian opulation of a country as a whole but ràsher of an immediate area although the siz' of the area was not defined The general intent of the proviso clause in p'a 3b providéd however that in no event etc was to nsure that paragraph 3 was not misread so as to authorize ations expected to starve the civilian population or for its movement It is also clear that the phrase or force its m'ement at the end of para 3b is limited to forced movement to 'avoid starvation and not forced movement for any other purpo Paragraph 4 contains a specific prohibition on repris which was desired by an overwhelming majority of states 'this prohibition is acceptable to the U S in view of the 'imited nature of the objects protected and other con- For further discussion see analysis for -iderations ticle 51 1—54—3 2 OV 77 practices by earth is important resort to scorched The right to withifl their oWfl 5 was added to paragraphthis tteating forces the Coittee s to of a U S aresult at the last sessiofl •this rtic1enoted' III Repor t impossible to prohibit be earth it would • of a scorched conduct of a state completely the armed forces within the the policy where forced to retreat and the were beingrritory of that state agreement was national on which the ogat3 on from best protecti on perti4t required possible was to 48 2 only where rules of Article military cessity by imperative at pg l7 ICDDHI 4 llieS objections by U S generallY atisfi This ange ICRC text to the prior rritory s • RYI LITIONS opefull any codif1cati written of law that is easy and capable of area is of in this uld be simple Unfortate the lawIf written in too nature Hague prohibitiOfl against interPretation complicated by its ist1ng cessity that all sorts of such as the vagu For these it is so general terms 5fferng be unlawfu argued tO 1949 in more iIecessary in conduct is jlitary were drafted demands accpunt for proper adequately the Geneva Conventions of civil terms to reasons stadard5 the minim elaborate well as concrete trend '5 drafted ceS5ity as that of military upon U S CoThanders rticle continues with U S This 5jgnificantl atiOn does not impact are inconsistent foreseeable asonably vastly rticleattacks to starve civilians in any objectives since jlitary expressed chnOl0gy to do 50 is political the herbicides use of Moreover the conflict by the limitation on pril 1975 inhibited order 11850 8 in Executive 5 6 No under5tandis or legislation are article 54—4 required for thi NOV 1977 Article 55 1 —— Protection of the natural environment TEXT OF ADOPTED ARTICLE Article 55 — Protection of the natura environment previously Article 48 bis Care shall be t ken in warfare to protect the 1 natural environment against widespread long-term and This protection includes a prohibition severe damage 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 Attacks against the natural environment by 2 way of reprisals are prohibited 2 REFERENCES a b 3 Article 35 Protocol I — Basic Rules similar provision Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques RELATION TO U S POSITION No substantial difference 4 COMMENT This Article was adopted both in Committee III and at It was added to the ICRC text as the Plenary by consensus a result of proposals by Australia and three Soviet bloc The first sentence para 1 establishes the principle states The second sentence that care must be taken adopts the same standards as Article 35 Protocol I to which Thus this Article is designed to this Article relates protect the natural environment against widespread long— term and severe damage as it relates to the survival of For additional discussion of the cWflian population standards and relation of this Article to the Convention on Environmental Modification Techniques reference §2b see nalaysis for Article 35 The second paragraph prohibiting reprisals is related a similar prohibition in Article 51 for analysis see Article 51 1—55—1 1 2 SEP 1977 MILITARY IMPLICATIONS 5 • 6 For discussion see Analysis Article 35 RECOMMENDED U S ACTION Acceptable subject to understanding as to nuclear weapons see Analysis Article 35 1—55—2 1 2 SEP 1977 Article 1 56 Protection of works and installations containing dangerous forces TEXT OF ADOPTED ARTICLE Article 56 — Protection o works and installations containing dangerous forces previously Article 49 1 Works or installations containing dangerous forces namely dams dyke and nuclear electrical generating stations shall not be made the object of attack even where these bjects 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 of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forcesfrom the works or installations and consequent severe losses among the civilian population 2 The special protection against attack provided by paragraph 1 shall cease a for a darn or a dyke only if it is used for other than its normal function and in regular significant and direct support of military operations and if such attack is the only feasible way to terminate such support b 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 c for other military objectives located or in the vicinity of these works or installations only if they are used in regular significant and direct support at 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 1—56—1 1 2 SEP 1977 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 installatiors 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 of reprisals 5 The Parties to th 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 defendng the protected works or installations from attack re permissible and shall not themselves be made the object of attack provided that they are not used in hosti1ities except for defensive actions necessary to respond to attacks against the protected works or installations and that their armament is limited to weaponscapable only of repelling hostile action against the protected works of instal- lations The High Contracting Parties and the Pa±ties to the conflict are urged to conclude further agreements among themselves to provide additional protection for objects containing dangerous forces 6 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 obligations under this Article 7 2 REFERENCES a Article 38 — Recognized emblems prohibits misuse of distinctive signs including the special sign for objects containing dangerous forces b Article 51 Protection of the civilian population 1—56—2 1 2 SEP 1977 3 c Article 57 — Precautions in attack variety of measures to protect civilians d Article 85 — Repression of breaches of this Protocol willful launching attack against objects protected with knowledge that excessive loss of civilian life will result is listed as grave breach e Article 16 Annex — International special sign details on special sign used to designate objects protected by this Article RELATION TO U S POSITION Generally consistent The U S viewed the ICRC draft Article as unacceptable After extensive revision in Committee and consideration of many separate amendments the current text was adopted by consensus both in Committee III and at the Plenary This text substantially satisfied U S concerns with the exception of the prohibition on reprisals It was amended at the final session to provide a special sign three bright orange circles - see Article 16 nnex to designate the objects protected by the Article COMNENT The language adopted although complicated proved necessary in view of the requirements to adequately account for military necessity First the Article applies only to a narrow class of objects —— works or installations containing dangerous forces namely dams dykes and nuclear electrical generating stations Efforts to expand this to include oil storage areas were defeated Second the objects if they qualify as military objectives under Article 52 may be still attacked when such attack does not cause the release of dangerous for es and consequent severe losses among the civilian population Independent study has demonstrated that the objects listed particuarly nuclear electrical generating plants can be attacked in many circumstances and rendered useless to produce power without releasing dangerous forces Thus attacks in that mode are not prohibited Third any limited protection ceases if the object is used for other than its normal function and in regular significant and direct support of military operations Then they may be attacked even though 2evere losses may result if this is the only feasible way to terminate such support In that case all practical pre— itions must be taken in an effort to avoid release of 1—56—3 2 NOV 377 forces The defending party may erect installations for the sole purpose of defending the protected works Such installations must not participate in hostilities aside from defending the works from attac and are limited in their armament to weapons capable only of repelling hostile action against the protected works or installations Committee III noted that Article 56 proved quite difficult and required considerable work and effort before general agreement was reached One teltrn used in the Article which requires interpretation is nofmal function The Committee notes Thus if a dam or dykd is used for no purpose other than holding back water or being ready to hold back water e g it is not made part of a fortified line or used as a road the iunity provided in paragraph 1 cannot be lost CCDH 215 Rev at 25 As to what is regular significant and direct support Committee III noted it seems clear that production of arms ammunition and military equipment would qualify as direct support of military operations but the production of civilian goods which may also be used by the armed forces obably would not qualify in the absenceof most unusual rcurnstances Attacks against such objects where release forces would cause severe losses antong civilians are restricted to special situations where the objects are significant military objectives The Article authorizes a special sign to identify the objects protected Details on the use of this sign are specified in paragraph 7 of the Article and in Article 16 Misuse of the sign is forbidden specifically of the Annex by Article 38 Recognized emblems of the Protocol In addition the perfidious use of this special sign in violation of Article 37 - Prohibition of perfidy could be a grave breach of the Protocol Article 85 The Article also contains a prohibition on reprisals which is related to similar prohibitions in Articles 51-55 The U S opposed this Prohibition along with the other restrictions on reprisals The Conference decided otherwise For discussion see Analysis for Article 51 MILITARY IMPLICATIONS 5 ' This Article would have a substantial impact as to a limited class of objects These objects which present 1—56—4 2 NOV 1977 _ch great risks to the civilian population can be easily identified at theoutset of hostilities and treated as a special group of targets Protection only extends to those dams dykes and nuclear electrical generating plants that present the risk of severe civilian losses if the forces are released All other dams dykes and nuclear electrical generating plants can be attacked on the same basis as any other object i e meets the military objective test and rules against excessive incidental civilian losses Care would have to be taken in preplanned attacks against such objects to insure the strict requirements were met also care would be necessary in attacks against targets of opportunity in their vicinity in order not to violate the protections specified Doubtless some abuses might occur Contrasted with this is the fact that friendly allied government including the FRG as well as many others in the Western Ei ropean area have large numbers of dams and dykes Genera1ly projections of future power demonstrate that the West including the U S will be much more heavily dependent upon nuclear power in decades to come than the Communist world Thus to the degree limited protection is given it favors the Western world and highly technology This is 4 strong plus yeloped This Article is very complex in its wording This should pose no obstacle since attacks against such objects are invariably and thoroughly preplanned This complexity was necessary to adequately preserve essential military requirements while still preserving a degree of protection 6 RECOMMENDED U S ACTION No understandings or reservations as to this specific a Article are needed aside from general Nuclear understanding b No follow on legislation is necessary 1—56—5 1 2 SEP1977 CHAPTER IV Article 57 —— 1 PRECAUTIONARY MEASURES Precautions in attack TEXT OF ADOPTED ARTICLE Article 57 — Precautions in attack previously Article 50 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 a 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 within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this 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 minimizing incidental loss of civilian life injury to civilians and damage to civilian objects iii refrain from deciding to launch any 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 military advantage anticipated 1—57—1 12 SEP b c 1977 An attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian 1ife 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 Effective avance warning shall be given of attacks hich may affect the civilian popu1ation unless circumstances do not permit When a choice is possible between several military 3 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 in the conduct of military operations at sea or 4 in the air each Party to the conflict shall in con— formity 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 No provision of this article may be construed as authorizing any attacks against the civilian population civilians or civilian objects 5 2 REFERENCES a Protocol i 1 Article 50 — Definition of civilians and civilian population 2 Article 51 — Protection of the civilian population cross reference to Article 57 3 4 Article 52 — General protection of civilian objects explains military objectives and civilian objects Article 56 — Protection of works and installations containing dangerous forces cross reference to Article 57 i—57—2 SEP 5 6 3 1977 Article 58 — Precautions against the effects of attacks related Article in Section Article 85 — Repression of breaches of this Protocol makes wilfully launching an indiscriminate attack knowing that excessive loss of civilian life will result as defined in Article 57 a grave breach of Protocol b Articles 22 to 27 1907 Hague Regulations contains variety of requirements on land warfare which are reaffirmed by this Article c Hague Convention IX Ccncerning Bombardment by Naval Forces in Time of War of 1907 contains variety of requirements reaffirmed by this Article RELATION TO U S POSITION The text adoted contains a variety of improvements and changes urgea by the U S from the prior ICRC text For example the tem do everything feasible to verify was used in para 2 a 4 in lieu of ensure Direct substantial was changed t concrete and direct in para a iii All necessary precautions in the choice of weapons changed in paragraph 2a ii to all feasible precautions in the choice of means and methods of attack Parag'raph 4 was added to the original text It reinforces U S views that this section of the Protocol does not apply to sea conflict or air conflict not involving attacks against land targets Paragraph 5 was also added by Committee III In connection with its vote on this Article the U S made the following statement It is the view of the United States that Article 573 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 recognized guidance on this responsibility to civilians and the civilian population in carrying out attacks against military objectives 1—57—3 rjv 177 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 This of course is appropriate for the entire section including Articles 49 and 52 The reference in Articles 51 and 57 to military advantage anticfpated from an attack are intended to refer tothe 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 57 and 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 ICDDH SR 42 Annex 6 COMMENT This Article was adopted by III and in the Plenary The vote 0 with 4 abstentions Para 2 a effort to work out but the rest quickly adopted a vote both in Committee in Plenary was 90 U S to required much time and of the Article was fairly Committee 11 1 noted that 2feasib1e was preferred to reasonable U S view and it was intended to mean that ih1chis jracticable or practically possible CDDH 215 pg 27 The term vèrif was used in its ordina ry dictionary meaning establish the truth of rather than in a technical arms control context In the Plenary Italy and the FRG both expressed understandings of this Article very similar to the U S statement see paragraph 3 of analysis France declared that they endorsed the aim of the Article but thought it open to restrictive interpretations hence they abstained CDDH SR 42 pg 9 Turkey declared that the word feasible should be interpreted in light of -Lil factors present and specifically those relating to the 'iccess of military operations Austria considered at the precautions envisaged could only be taken at a igher level of military command and not by junior military personnel CDDH SR 42 pg 11 India noted 1—57—4 3 £ SEP 1977 that this Article does not require a Party to undertake to do something which is not within its means or methods In its practical application a Party or its capability would be required to dowhatever is practical and possible CDDH SR 42 Annex pg 8 These statements indicate a very pragmatic negotiating record of this Article However a few states notably Ma6agascar CDDH SR 42 Annex pg 13 and Romania CDDH SR 43 Annex pg 13 believed that the victim of aggression is entitled to preference in the application of the Article both as to its means of deferse and protection of its civilian population This Article contains the first codified recognition of the principle of proportionality i e that civilian casualties which result from attacks on lawful military objectives are not prohibited if not excessive in relation to the military advantage sought to be secured a long— standingU S view to which there is much objection in some Para 2 also contains implicit recogni— Third World circles tion that incidental damage to objects specially protected hospitals under the 1949 under international law example Geneva Conventions may lawfully occur 5 MILITARY IMPLICATIONS This Article should not have any substantial impact The first requirement upon U S military operations identification of military objectives is strongly supported by military effectiveness considerations including traditional target intelligence requirements Constant care precautions in means and methods and proportionality are supported by traditional military doctrines including economy of force maximization of military advantages concentration of effort •as well as political considerations arising from excessive collateral injury or damage to civilians or civilian objects The requirement in 2 c as to warnings can be viewed as a relaxation of the strict Hague requirement on warning which in actual state practice has not been followed Paragraph 3 which has limited practical value is not particularly diffiThe statement in paragraph 4 supports the U S view cult Paragraph 5 of Article 57 while adopted in Article 49 unnecessary is self—evident 1—57-5 6 RECONIVIENDED U S ACTION Reaffirm understandingsexpressedin Plenary by U S Delegation for text see paragraph 3 of Analysis a In addition the further understandings on military advantage discussed in Article 51 should be made applicable to this Article as well b No follow on legislation is necessary 1—57—6 -7 Article 58 —— 1 Precautions against the effects àf attacks TEXT OF ADOPTED ARTICLE Article 58 — Precautions against the effects of attacks previously Article 51 The Parties to the conflict shall to the maximum extent feasible 2 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 b Avoid locating military objectives within or near densely populated areas c 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 REFERENCES a Protocol I 1 2 Article 50 — Definition of civilians and civilian population Article 51 — Protection of the civilian population para 7 prohibits using civilians to shield military objectives from attacks 3 Article 52 - General protection of civilian objects explains military objectives and civilian objects 4 Article 57 — Precautions in attack related Article in section 5 Article 59 — Nondefended localities 6 Article 60 — 7 Articles 67 to 69 — Demilitarized 1—58—1 Civil zones Defense I b 1949 Geneva Conventions Protecting Victims of War 1 2 3 3 SEP 1977 Articles 19 1949 GWS and 18 1949 GC locate hospitals away from military objectives Article 28 1949 GC the presence of protected person may not be used to render areas immune from military operations Article 49 l949GC restricts forcible transfers in occipied territory RELATIoN TO U S POSITION' Some suggested U S drafting changes were In connection with Article 57 and this Article accepted the U S declared its understaiding that the word feasible refers to that which is practicable or practically possible taking intoaccount all circumstances at the time including those relevant to the success of military operations Consistent 4 COMMENT This Article was adopted by consensus in Committee III by a vote of 83 US to 0 with 8 abstentions in Plenary The Committee III Report notes that agreement was reached fairly quickly on the text after it was revised to have the phrase to the maximum extent feasible't modify all paragraphs It was clearly understood that The Conunittee also stated this Article applies to all territory under the effective defacto control of a party that is including both its own national territory which is under its control and any foreign territory which it occupies CDDH 215 Rev 1 pg 27 The genesis of this Article can be traced back to proposals originally submitted by U S experts This requirement codifies very important principles which the U S has long advocated A party to a conflict which has civilians and civilian objects under its control has certain fundamental obligations in relation to their protection These relate to avoiding to the maximum extent practical geographical and functional intermingling of combatants with civilians and military objectives with civilian objects This Article is closely related to the principle of disinction in Article 48 as well as the requirements of 4rticles 51 54 and 56 The consequencesof a state's 'iilure to take effective measures on behalf of its own ulation for their protection is a matter for concern of 1—58—2 2 twv statE s population — but that concern exists independently of any legal obligationimposed by the Article The obligations of this Article are all qualified by the lanuage to the maximum extent feasible This revision reflected the concern of a numb r of states that t hát small and crowded countries would find it difficult to separate civilians and civilian objects from military objectives Other representatives pointed out that even large countries would I md such separation difficult or impossib1 to arrange in many CDDH 215 Rev 1 pg 27 1 cases This qualification of — to thç extent feasible — certainly encompasses more than military reasons such as economic In connection with this Article a number of other states made statements interpreting the word feasible along the lines of the U S statement referred to in paragraph 3 of this Analysis These include Italy Turkey UK Cameroon Canada and the FRG A few of these states e g Italy roon also stressed that Article 58 could not be interpreted ç mpossing absolute obligations restricting a state's lity to defend itself These interpretations were unchallenged 5 MILITARY IMPLICATIONS The requirements of this Article are entirely consistent with existing U S views as to legal requirements as well as It should not have any significant U S military tactics impact upon U S military operations except to support longIt will reinforce existing standing U S concerns and views practical requirements to carefully consider impact on civilian protections when placing military installations 6 RECOMNENDED U S ACTION a Reaffirm U S understanding of the term feasible b No follow on legislation is necessary 1—58-- 3 2 SEp CHAPTER V LOCALITIES AND ZONES tiNDER SPECIAL PROTECTION Article 59 —— Non-defended localities 1 TEXT OF ADOPTED ARTICLE Article 59 — Non—defended localities previously Article 52 1 It is prohibited for the Parties to the conflict• to attack by any means whatsoever non-defended localities 2 The1 appropriate authorities of a Party to the conflict may declare as 4 non-defended locality any inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party Such a locality shall fulfil the following conditions a all combatants as well as mobile weapons and mobile military equipment must have been evacuated b no hostile use shall be made of fixed military installations or establishments c no acts of hostility shall be committed by the authorities or by the population and d no activities in support of military operations shall be undertaken 3 The presence in this locality 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 2 The declaration made under paragraph 2 shall be addressed to the adverse Party and shall define and describe as precisely as possible the limits of the nondefended locality The Party to the conflict to which the declaration is addressed shall acknowledge its receipt and shall treat the locality 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 are not fulfilled the locality shall continue to enjoy the protection 4 1—59—1 12 SEP19l7 provided by the other provisions of this Protocol and the other rules of international law applicable in armed conflict The Parties to the conflict may agree on the establishment of non—defended localities even if such localities do not fulfil the conditions laid down in paraThe agreement should define and describe as graph 2 precisely as possible the limits of the non—defended locality if necessary it may lay down the methods of supervision 5 The Party which is incontol of a locality governed by such an agreement shall mar1 it so far as possible by such signs as may be agreed upon with the other Party which shall be displayed where they are clearly visible especially on its perimeter and limits and on highways 6 A locality loses its tatus as a non—defended locality when it ceases to fulfill the onditions laid down in paraIn graph 2 or in the agreement referred to in paragraph 5 locality shall continue to enjoy the such an eventuality the protection provided by the other provisions of this Protocol and the other rules of internaional law applicable in armed 7 onflict 2 REFERENCES a b • c d 3 Article 51 Protocol I — population Protection of the civilian Article 85 - Repression of breaches of this Protocol willful attacks against undefended localities are grave breaches of Protocol Article 25 1907 Hague Regulations prohibits attacks against undefended cities towns villages Articles 1 to 4 1907 Hague Convention IX Concerning Bombardment by Naval Forces in Time of War protects undefended cities towns villages RELATION TO U S POSITION The test adopted varies from the prior Consistent ICRC text in various particulars some of which were recomGenerally it is quite improved 7mended by the U S position and supports U S views as to the need for clarification of cisting law 1—59—2 1 2 SEP 1977 COMMENT Existing law Article 25 Hague Regulations specifies The attack or bortthardment by whatever means of towns villages dwellings or buildings which are undefended is prohibited The text of this Article adopted in Committee III and Plenary by consensus clarifies in fairly precise terms the existing Hague prohibition The strict conditions in paragraph 2 if met and maintained would normally mean the absence of significant military objectives Such an inhabited area could be unilaterally declared undefended if the conditions in para 2 were met and if the inhabited place was in a zone where armed forces are in contact which is open for occupation by an adverse Party Failure to maintain the conditions would result in loss of protection under paragraph 7 Parties could also agree that other areas not meeting the requirements of para 2 example absence of mobile military equipment or geographical limits could be treated as undefended Since this Article serves to clarify and refine existing regal prohibitions protecting undefended localities Hague V Hague IX it is very useful Particularly noteworthy are the conditions specified in paragraph 2 5 MILITARY IMPLICATIONS The Article should not have any significant impact upon military operations since it is an acceptable delineation of existing legal requirements In fact the Article is extremely beneficial It adopts a long held U S view that existing international law does not preclude air attacks against military objectives in the heartland even though such cities are not defended from air attack 6 RECOMMENDED U S ACTION None necessary No understandings or implementing legislation are - 1—59—3 Article 60 —— 1 Demilitarized 1 2 SEP 1977 zones TEXT OF ADOPTED ARTICLE Article 60 - Demilitarized zones previously Article 53 It is prohibited for the Parties to the conflict 1 to extend their military operations to zones on which they have conferred by agreement the status of demilitarized zone if such extension is contrary to the terms of this agreement The ageexnent shll be an express agreement 2 may be concluded verbally1 or in writing either directly or through a Protecting Power or any impartial humanitarian organization and may consist of reciprocal and concordant declarations The agreement may be concluded in peacetime as well as fter the outbreak of hostilities1 and should define apd describe as precisely as possible the limits of tie demilitarized zone and if necessary lay down the mEthods of supervision The subject of such an agreement shall normally 3 be any zone which fulfilsthe following conditions a all combatants as well as mobile weapons and mobile military equipment mut have been evacuated b no hostile use shall be made of fixed military installations or establishments c no acts of hostility shall be committed by the authorities or by the population and d any activity linked to the military effort must have ceased The Parties to the conflict shall agree upon the pretation to be given to the condition laid down subparagraph d and upon persons to be admitted demilitarized zone other than those mentioned in interin to the 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 4 1—60—1 SEP1977 5 The party which i in control of such a zone shall mark it so far as pc5sible by such signs as may be agreed upon with the other Party which shall be displayed where they are clearly visible especially on its perimeter and limits and dn highways • 6 If the fighting draws near to a demilitarized 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 status j • 7 If one of the Parties to the conflict commits material breach of the provisions of paragraphs 3 or 6 the other Party shall be released from its obligations a under the agreement conferring upon the zone the status of demilitarized zone Ir' 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 -n 3 REFERENCES Protection a Article 51 Protocol I population b Article 85 - Repression of breaches willful attacks against demilitarized zones are grave breaches c Article 14 1949 Geneva Convention protecting civilians GC hospital and safety zones d Article 15 1949 GC neutralized zones e Article 25 1907 Hague Regulations prohibits attacks against undefended cities towns villages f Articles 1—4 1907 Hague Convention IX concerning Bombardment by Naval Forces in Time of War prohibits attacks against undefended cities towns villages of the civilian RELATION TO U S POSITION Consistent Minor changes made in text as adopted fiom original ICRC text 1—60—2 2 NOV 1977 COMMENT The most controversial issue posed by this Article was The title chosen has the advantage of clearly differentiating tne concept fron neutralization and neutrality Both zones from which military fOrces have b'n withcrawn the title and those which had no military forces initily are utential areas for possible mutual agreement The Committee III report notes The Article is intended to permit the establishment both of zones which must remain demilitarized no matter which party controls the area in which they are located and also zones that may lose their demilitarized status if occupied by the adyerse Party ICDDH 215 Rev 1 at p 29 The concept behind this Article is recognized explicitly in Articles 14 and 15 1949 Geneva Convention for Protection of Civilians as well as general international law It was implemented successfully duringpart of the Sino-Japanese - lict prior to World War Protection depends upon tual agreement to confer demi Litarized status Such areas tnnot be unilaterally established 5 MILITARY IMPLICATIONS Any impact of this Article directly depends upon the extent to which if at all political and military leaders enter into specific agreements delineating such zones Similar articles in the 1949 Geneva Convention have had no impact The Article since it specifies conditions normally required If such zones were widely adopted may encourage such agreements it might simplify combat by narrowing the area where it occurred thereby reducing to some degree existing functional and geographic intermingling of combatants and military objectives with civilians and civilian objects characteristic of some Speed and mobility precision in striking recent conflicts power concentrated force in small numbers as well as enhanced reconnaissance capacity would all be more important Whether offense or defense would benefit is problematical since the tasks of both would to some degree be simplified and perhaps complicated elsewhere 1—60—3 12 SEP1977 6 RECOMMENDED U S ACTION None necessary No understandings or implementing legislation are 1—60—4 ugUSt 17 1977 iTOCOL 1 ET IV pE I CTION PT Vi 61 — trti1e 1 TeZt _ of -— the 54 -----— — Vt C V ererce' ean E 2 the tb$S to rO eC cV 2J popt1atT CE-fl eeCt c recCve' 'rC the SC •fee the to 00j0 reCe$Y cr he the to be2 the c-f' sas r o ' ss E V — e v Cu ion ci cr d C L r reSCUe djC 1 0 deteCi 1 ri ti 9 DViC sistre i ci bO' 'b c rc sii2 E ' p or ce 11 I JU e ot ccti'e stOft sEiS e nr the eCV eE j eS ptli c aeCe'ep i c i isptTa ceeC emnC c the de iv it CrJa te preserv ti0 ct o3eoE o to Sr'Y Out a n' of cop1ee ac ivtie5 necessary jnc1u- but not 1i ited etOfle above the tasks ar c- a- orgaia° ear1S those ab1iSb eflt$ nd 'CiVii efeee her tt5 thoitieE sics mertione urer to sUc by the eopet ert of the org2Z e or whiC are of e Part tO the tasks e co 1 tc per ary ar L e e5Oe of cjvi fenCe thc 0j0 earB c uive1Y to the arty to the crif1iCt Je 1 erfcrance of the tasks ritOfle of that arY copet eflt uthCrtY by the ersofl1e ss e ersor S assi- b a xe'Ve1Y to ogar° the aritra° o these at OhS ee 5 tftie of civi' eferC or p1ieS ard tra PO tS useby these erfO Ce of the task ntic e er 1 1—61—2 for the October 25 1977 References Protocol I Part IV Section 1 generally A Art 51 Art 52 and Art 58 50 Art IV Convention Art 63 B See specifically Art 49 Also Article 3 a liuited existing protection for civil defense organization in occupied territory To specific tasks lettering corresponds to tasks C Protocol I Art a Warning b Evacuation 57 para 2 c H R 26 Protocol I Art 51 para 7 Art 58 a Protocol II Article 17 IV Convention Arts 28 49 IV Convention Art 88 c Management of shelters e Rescue f Medicalservices including first aid and religious services IV Convention Arts 16 20 63 Protocol I Part II Arts 8 3 4 5 11 10 12 15 18 and 26—31 ProtocolIl Art 8 IV Convention Arts 16 '18 and 20 j Provision of emergency accommodation and supplies Protocol I Arts 68—71 IV Convention Arts 23 55 59 63 108—111 Protocol II Article 18 k Emergency assistance in the restoration and maintenance of order l Repair of utilities Protocol I Art LR 43 fO IV Convention Art in J5 16 III Convention Art 63 Emergency disposal of dead Protocol I Art 34 IV Convention 130 n D 56 Objects essential for survival Protocol I Art 54 Other definition See Article 8 for analagous definitions 3 Relation tO U S Posi Par 1 a 1 in the is identical to that contained The introduction supported by the U S Nordic Text CDDH I1 402 2 The d i 2 List excluded tasks• of Tasks in the Nordic Text Management of blackout measures protective measures Decontanation1 and similar restoration and maintenance emergency assistance in the of order in distressed areas j of objects essential assistance in the preservation for survival 3 See discussion under Par 4 to the complementary The U S G position with respect task o to those activities mentioned was to limit necessary to perform the limited tasks The text mentioned in the adopted refers also to the tasks introductory sentence significant substantive - b This does not effect a departure from the U S - Position Organiations their Pars 2—4 The definitions of Civil Defense 'personnel and materiel are consistent with the U S 1derstanding of these terms c Sick and Ship— A statement to the effect that Part II Wounded wrecked governs medical services and assistance — jncludiig first aid — rendered by civil defense personnel was deleted at the insistence the French delegation The U S delegation did not object to the deletion as its value was only as a cross—reference - The text of of October 25 1977 Part II particularly Art 8 3 a as well as the negotiating record iake it clear that Part II applies to the search for transportation collection treatment — including first aid — of the wounded and sick by civil defense personnel and units both medical and non—medical •See 4 CDDH II 467 p 25 and CDDH 406 p 6 Comments a General The principal U S goal with respect to Article 61 was to limit the scope of protected civil defense activities to the performance of humanitarian tasks intended to help the civilian population not the war economy or military operations from the inunediate not long range effects of hostilities Sd disasters This was accomplished both in the text and the negotiating •record Although the list in Par 1 largely contains tasks traditionally associated with civil defense Cotnxnittee II realized that national policies might require civil defense organizations to perform additional tasks of a civilian even humanitarian nature or to perform the tasks involved but in support of the war effort Many tasks like firefighting are neutral Accordingly Committee II adopted and published in its report the following agreed note proposed by the U S Civil defense organizations may on the order of their authorities performother tasks not included in Article t61 provided that the tasks do not constitute acts harmful to the enemy under Article 65 During the performance of such tasks however the protection granted by the chapter does not apply to them CDDH II 467 para 47 as amended by CDDH 406 1—61—5 October 25 1977 It is to be noted that the performance of tasks in support of military operations while claiming protection under this Chapter is either prohibited while wearing the distinctive sign Arts 37 and 38 or results in loss of protection —— either as civil defense personnel or in some cases as civilians if the act amounts to taking a direct part in the hostilities Art 65 Arts 51 para 3 and 52 par 2 b Par 1 1 1 Introduction This Article defines civil defense organizations their personnel and their materiel and it iescribes the tasks or functions which are performed by these organizations and personnel • The Article applies both to civilian organizations and personnel covered by Article 62 and to nilitary units and personnel covered by Article 67 The tasks must be performed entirely for the civilian population They must be intended 1 to protect the civilian population from the dangers of military operationsand disasters 2 to help the civilian population recover from the immediate effects of military operations and disasters and 3 to provide conditions necessary for survival of the civilian population 11 467 par 42 as amended Tasks 1—61—6 CDDH a — d are examples of measures designed to protect from the dangers of military operations and disasters Tasks e — i are examples of measures which help to recover from the inunediate effects of military operations and disasters and j — n relate to basic survival Civil defense is concerned with emergency operations to save lives It does not cover long range r covery or rehabilitation nor does it cover day—to—day tasks of a civilgover nment nor economic stabilization etc The term disasters is designed to include calamities natural or otherwise not caused by the hotilities It thus includes natural disasters and also chemical spills etc ' Of course the disaster must occur during the period the Protocol is in to the general close of See Article 3 effet i e from the beginning of armed conflict ilitay operations or termination of occupation CDDH II 467 Par 41 The task listing aids in the implementation of some other provisions of the Protocol and of the Conventions Article58 c of the Protocol for example states that Parties to the conflict shall to the maximum extent feasible take the other necessary precautions to protect the civilian population under their control against the dangers resulting from military operations precautions include some of the civil defense tasks mentioned in Art 61 including the task of evacuation Specific Tasks 1—61—7 These October 25 1977 1 Warning refers to warning the civilian population of the possibility of an attack or a natural disaster The emphasis is on local warning CDDH II 467 as alDended 2 Evacuation refers to the removal of the civilian population from areas which might be or have beenattacked or stricken by disaster An Occupying Power may undertake this action under the second paragraph of IV Convention Art 49 Other tasks such as maintenance of order which includes direction of movement of refugees are allied with evacuation Care must be used so that evacuation is not used to render certain areas immune from military operations 3 A principal civil defense protective tieasure is shelter Convention Art 88 rjquires adequate shelters for internees reference in task c is to management of shelters IV The While this term is broad and includes various facets of shelter occupancy it would not seem to include construction of permanent shelters although it could include construction of immediate temporary expedient shelters 4 Management of blackout measures is limited to those who direct or enforce the blackout like air raid wardens and does not include everybody who turns off a light Although the task was not included in the U S position its inclusion in the list is not significantly burdensome 5 Rescue This task is covered in occupied territorST by IV Convention Art 63 It includes search for and removal from danger of both wounded and well persons firefighting 1—61—8 It is closely allied to • 6 The term medical services should be construed to cover medical purposes specified in Art 8 Par 5 that is the search for collection transportation diagnosis or treatment — including first aid treatment — wrecked or for the prevention of the wounded sick and ship— of disease However as a matter of emphasis it is probable that the principal services will be first aid the discussion of Art 66 See in this conn ction Par 9 7 Firefighting 8 Detection and marking o danger areas No commet This could include radiological monitoring actirities as well as the identification It includesIuneXploded bomb reconnaissance but of mine fields not bomb removal 9 Decontamination etc The term similar protective measures is not intended to include mine removal or bomb disposal This task was not included within the Nordic proposal because Canada and some of the co—sponsors believed that radiological decontamination is a task beyond the capability of C D The U S had no objection however to the inclusion of the task as it may be relevant to chemical decontamination of emergency accommodations and supplies This 10 Provisions task is not intended to include the longer range relief type activities provided for in Arts 68—71 of this Protocol and Arts 23 55 and 59—63 of IV Convention 1—61—9 11 Emergency assistance in the restoration of order is addressed also The Committee II report makes it clear that this task does not alter the position of the civil police who Ordinary police functions are are protected as civilians not civil defense functions but in areas stricken by hostilities or disasters or areas in which the normal functioning of public administration has broken down civil defense organizations may as an exceptional measure assist also in the maintenance of order Emphasis however is on the fact that this assistance is emergency assistance 12 CDDH II 467 Par 43 The term public utilities means services and commodities supplied to the general public such as water electricity and co unications This task relates to emergency repair of installations and equipment used for supplying or transmitting the services and commodities It thus includes among other things water control works such as dams dykes drainage and discharge canals outlets sluices locks floodgates and pumping installations It should be noted also that this task is one of •those currently covered by IV Convention Art 63 CDDH II 467 Par 44 13 ttEmergency disposal of the dead No conmient 14 The term essential was chosen in order to avoid confusion with the term objects indispensable to the survival used in Art 54 and because it has a broader scope than the tei'm 1—61—10 October 25 1977 indispensable The assistance referred to however does not involve guard duties or require the use of weapons An illustration of the kind of assistance intended is the temporary repair of an agricultural silo which might have been damaged CDDH II 467 Par 45 as amended e term civil defense organizations includes those which are only temporarily or for a liiiited period of tune assigned to civil defense duties provided however that they are assigned and devoted exclusively to civil defense tasks during their period however short of assignment As with temporary medical units the protection for temporary civil defense organizations continues only so long as they remain exclusively devoted to civil defense work The definitions in this paragraph are comparable to the definitions in Article 8 5 Military Implications See Par 5 under Arts 62—67 6 Recommended U S Action Implementing legislation is not required The definition of civil defense under U S law both at the Federal level see 50 U S C App 2252 b and at the State level are quite close to this definition 1—6 1—11 POSITION PPU I TIV CIVILL N PcP1nATIa CTIOIi I XRAL FOTECTI LCAIST FECTS OP vi xvu -hticje 62 — ner1 Protection 35 WTOcOL 'SE 1 Text of opted Lerticle - 2 Cviiar dv 1 vce r izatoris Lnc their esrne2 Ea b eecte ad p tece tutjeot to th cr this OwDO1 be the er te to eti the civil erercé tsk eccep ir C S o izpe-a ve -iiitay 2 e p C this icessiy vsicnz o paagph I stall also pply t wo althou ot rs o' cvija por to a Eppeal l eence tasks cñvi the eoetet ide' hei ' cort'ol te t ties 3 ein used o'cjvi cerce heltes povióe ro the civiliafl pops io e coveese Article 52 Objects e' eivLl äeace poses y riot be 3 or to thich they be their 1—62-1 •e exoept the Party 2 3 References Articles 17 49 L 51 52 73 Protocol II Art 17 A Protocol I B IV Convention Arts 13 and 63 Relation tO U S Position a General 1 The U S position was to support modification lines of the Nordic Amendment a CDDH I 4O3 along the To the extent that Article 55 applies only to civilian civil defense organizations and personnel is applicable in a4 territories of the countries in b conflict and c •litary provides for reasorble derogations in case of imperative necessity It conforms to the U S negotiating position 2 The Nordic proposal included a paragraph to the effect that civilians and civilian objects shallnot suffer any diminution in the protection to which theyare entitled under the Fourth Convention and Protocol I owing to their having performed civil defense tasks This paragraph was not adopted by the Working Group because It was believed not to be necessary in view of the first sentence of the adopted Par 1 which provides that the protection accorded is subject to the provisions of this Protoc9l particularly the provisions of this Section In this connection Cotmuittee II approved an understanding that Ipersonnel are protected as civilians under the Protocol ciyil defense The most ortant provisions concerning the protection of civilians and the civilian population are to be found In Section I of Part IV—— which 1—62—2 includes also a reference to certain conditions and limitations on protection b Title — General Protection The ICRC draft text contemplated that this Article be applicable in zones of military operations by which the ICRC meant all situations involving military operations air or ground including the combat zone with the exception of occupied territory The ultimate U S position was that basic protection need not be limited geographically and that applicable in the entire territory of the parties to the conflict including occupied territory TheTitle and Par 1 are consistent with this position c Par 1 1 Excep t for the extent to which civilian civil defense personnel may be armed Par 1 is consistent with the U S position The issue of arms is discussed under Art 65 2 The term respected and protected was not in the Nordic Text In explanation of this terr as also used in Arts 65 arid 67 Coimiittee II adopted an understanding proposed by the U S delegation that the term means that the personnel must not knowingly be attacked or unnecessarily prevented from discharging their proper function CDDH II 467 Par 79 FM 27—10 The Law of Land Warfare Par 225 d Par 2 is consistent with the U S position e Par 3 1—62—3 The first sentence is consistent with the U S position With respect to the second Sentence the U S supported CDDH II 403 which provided Objects used for civil defense parposes tnay not be destroyed or diverted froni their proper use except in case of imperative military necessity The deletion of the military necessity clause by the Plenary complicates the application of the provision and is inconsistent with the U S position 4 See discussion under Par 4 Conent a Par 1 1 As to the scope of the general protection provided by Art 62 see pars 3 a and b above 2 During the plenary the Egyptian delegation expressed the view that the obligation stated in paragraph 1 concerned the adverse Party and not the Government which the personnel in question come under CDDH SR 42 p 16 The Egyptian understanding is not supported by the context in which the Article appears as a part of Section I Part IV 3 Article 49 in defining the scope of Section I Part IV provides The provisions of this Section are additional to the rules concerning hutnanitarian protection contained in the Fourth Convention particularly Part II thereof ArtIcle 13 of the Fourth Convention provides 1—62—4 • The provisions of Part II cover the whole of the populations of the countries in conflict without any adverse distinction based in particular on suffering nationality ar4 are intended to alleviate the caused by war It follows from the scope of Section I Part IV of the the conProtocol that Art 62 imposes equal obligations on Parties to applicable only to flict unless a particular obligatiQn is expressly the adverse Party or to the Party 1controlling the population To the extent that respected and protected provides the immunity from being the object of attack Par 1 is applicable to Party conducting an act of violencd against the adverse party Art 49 perform The obligation to permit civil defense organizations to civil defense tasks however is applicable to both sides their To the extent obligation is primarily that the obligation does not involve attacks the defense organization and personnel on the Party which controls the civil which the civil whether that Party be an Occupying Power or the Party to defense personnel belong 4 See U S Statement CDDH II SR 91 par 45 The Canadian delegation expressed concern that Par 1 re- to stricted the right of governments to use the personnel belonging fit and expressed an civilian civil defense organizations as they saw understanding that the second sentence does not have that effect CDDH SR 42 p 16 Under Art 61 2 PersOnnel'Of civil defense organizations exclusively to means those persons assigned by a Party to the conflict that so log as the perfortnance of civil defense tasks It follows 1—62—5 October 27 1977 rsons are so assigned their Government is obligated to permit them to their 1rform civil defense tasks There is nothing explicit in the Protocol their however that restricts a government from relieving such personnel from assignment The organizations mentioned in Para 1 must be organized or 5 authorized by the competent authority of a Party to the conflict to perform any or all of the tasks mentioned in Art 61 and be assigned exclusively to the performance of these tasks while Jthe assignment is operative 61 Para 2 See Art Such assignment may be for a brief period but during such period the organization must be exclusively devoted to the performance of some or all of the tasks mentioned in Art 61 1 which are for the benefit of the civilian population Thus a firefighting organization is protected while per— forming a fire with the intent of stopping the fire in a needed defense plant rt If the basic purpose is to save civilian lives then the task is 65 protected Further as civilians subject to Article 51 para 3 they are immune from being the object of attack even while fighting fires in the defense However their presence would not necessarily ininiunize the plant from plant attack If the unit and its personnel go farther and take a direct part in hostilities they lose not only the protection under this Article but also their protection as civilians and they nay be the object of attack Art 51 3 6 The entitlement to perform civil defense tasks but not iunnunity from attack is subject to derogation by the competent authorities of the Party to the conflict in control of the area in which they operate including occupied territory only in case of imperative military necessity In construing the conditions which justify this derogation due weight must be the word imperative See the 1907 Hague Regulations Art 23g _ tocol I Arts 54 Para 5 and 71 para 3 and Protocol II Art 17 para 1 See Coirmilttee III Report CDDH III 408 Para 51 1—62—6 b Par 2 The protection afforded by the paragraph is similar to that afforded under Art 17 to civilians who respond to an appeal from the authorities to render care to the wounded and sick Under this Article however civil defense tasks must be performed under the control of the competent authorities of a Party c Par 3 1 The first sentence assiinilates buildings and materiel used for civil defense purposes and shelters provided for the civilian population to civilian objects covered by Article 52 The status of shelters is broader than that accorded to civil defense buildings and materiel The latter must be part of the civil defense organization Shelters reed only be provided for the civilian population and need not be associated with the civil defense organization Shelters must however be available to the public-at-large 2 Article 52 par 1 provides that civilian objects shall not be the object of an attack or reprisal by the adverse party If civil defense buildings and materiel are used for the tasks described in Art 61 for the benefit of the civilian population and if the shelters are used by the civilian population then they are civilian objects and are immune from attack The Committee II report notes that this immunity is applicable only 'tinsofar as the objects are civilian objects Par 54 tSee CDDH ll 467 Par 53 as amended by CDDHI4O6 CDDH II SR Thus if the object becomes a ttmilitary objective as that 1—62—7 100 terni is defined in Art 52 Par 2 it loses its immunity fron being the1 object of attack 3 transports The term materiel includes the equiptnent supplies and of civil defense organizations zations have aircraft including helicopters Some civil defense organi— These would have the status of any other civilian aircraft and are subject to rules in con— nection therewith Thus if identifed as a civil aircraft it should not be the object of an attack unless at the time It represents a valid military objective such as when its presence might be deemed a military threat The chapter unlike the secion on medical aircraft confers no — special status on civil defense aircaft 4 CDDRIIII4O3 The second sentence of - ar 3 in the Nordic proposal provided Objects used for civil defense purposes may not be de— stroyed or diverted from their proper use except In case of imperative military necessity Several delegations objected to the provision against derogation in the mistaken belief that it authorized attacks in case of imperative military necessity The Rapporteur explained that attacks are acts of violence against the adverse Party Insofar as civil defense buildings and materiel remained civilian objects they could not be the object of attack or reprisal by the enemy Accordingly the terms destroyed or diverted pertained to acts by the Party to which the objects belong such as demolition destruction or diversion in a defensive iode In order to make the construction clear the 1—62—8 ords 'by the Party to which they belong' were added at the end of Par III CDDH II 467 as amended Under the Couimittee's version only imperative military necessity would permit a state to destroy or divert Its own civil defense objects thus creating a parallel to the scorched earth policy contemplated in Article 54 5 5 Believing that a Party to the conflict should not be re- stricted in its option to destroy or divert its om civil defense oblects including shelters Canada moved the deletion of that phrase in the Conference Plenary CDDH 417 The Plenary adopted the Canadians' pro- posal by consenus The Netherlands delegation which like the U S participated In the consensus expressed its view that this amendment weakens the bligation of States on behalf of the civilian population with regard to the availability of shelters and civil defense equipment 6 A restraint against arbitrary and unfettered destruction or diversion of civil defense objects needed for the protection of the civilian population is implicit in the provisions of Par 1 5 Military Implications a To the extent that Article 62 provides for inununity from being the object of attack its impact on military operations is minimal It merely reaffirms the innnunity which civilian civil defense personnel and civilian objects have under Arts 51 and 52 Although it may be difficult in practice to differentiate between the protected humanitarian tasks and unprotected activities which support the war economyor military 1—62—9 October 25 1977 operations the presence of civil defense personnel like that of other civilians does not inmunize military objectives as such from being the object of attack The duty of care to take precautions in attace Art 57 however must be taken into account b The major effect of Article 62 on military operations ilow• from the freedom to perform civil defense tas1s subject to derogation in the case Tis of imperative military necessity obligation rests primarily on the Party in control of the territory in which civil defense personnel perfori their tasks To the extent that civil defense tasks are per- formed in non occupied territory Article 62 facIlitates the performance of the civil affairs refugee control and relief idutles nornally assigned to military commanders in the combat zone In relation to the evacuation nction and the control of refugees care must be taken to avoid the actions prohibited by Art 51 Par 7 See discussion under Art 63 as to military implications in occupied territory 6 Recommended US a Action To the extent feasible attempt to persuade Canada and Egypt not to pursue their understandings expressed in the Plenary CDDH 42 P 16 b No implementing legislation is required 1—62—10 August 17 1977 OCOL I PART IV CIVILIAN POPULATION SECTION I GENERAL PROTECTION AGAINST EFFECTS OF HOSTILITIES Article 63 — Civil Defense in Occupied Territories 56 Text of Adopted Article 1 oce c a civ1 eerce cg ati—s hafl eceve ' c- 'he ac—tc the cite neceaz -v c' the pe-a e ha thei peso—e be co—e e tO percr a V t e _ t ritefee 1r4 ta - the 'ope pe cjce sha crare the ir y way WC their' is or 1Tnese pc ity the iar any easor ct- o pesone c The Dcpyjr owe- aiatos the eff ert peoe of jeoa ze such zatos sham ot be e'e t ve cope coeoe O ice s to pefo he tasks ir Shai2 eerce orgaz to the itees s of the rJie The these tasks io as o irtees of ta owe The Dccy n o 2 to c ation Dv ow av sa' civi fence psonr fo of sec y The czg oe sha l the- ver use ro eijc- bin belongi to o o' civil defence oganiza os ifsch vesio be bau1 o the civil thei rope' pcpiatio c eic wot ovie that the erera l rue in paa aph t C 5 be cbse-ve the CC CU'Yin owe ay re eso-ces sect to the fi a That the b ns of - b used by ines to s t on c ve con these ons a 'e necess-y focther the c'i a - pcu a c and 0- -ie - the reo tcr c' Such ne c•esity exists That 1-63—1 ve-s cn continues Cy he c ver z sa 6 e ccir '—'- u C' n ej r c eee b' E2 2 References Chapter VI Part IV Section I and Protocol I generally Protocol I Articles 14 44 49 68—71 IV Convention Article 63 which this article specifically supp1enents Articles 51 54 55 56 57 5962 Eague Regulations Articles 52 53 3 Relation to U S 'Position a Article 63 conforms to the iiperative U S requirement that special protection to and status of civil defense organizations are liiited to civilian civil defense organizations only b para Par 1 follows the ICRC draft text and is generally consistent with of the Nordic proposal CDDH 404 which was supported by the U S The following variances are noted 1 Par 1 of the Nordic proposal was expressly made subject to the provisions of Article 62 This provision was intended to show that Article 62 including its provision for derogation in case of imperative iilitary necessity apply also in occupied territory In lieu of the express reference-to Article 62 Committee II adopted an understanding Article 62japplies to both occupied and non—occupied territory Article 63 is thus supplementary to Article 62 as far as occupied territories are concerned Article 63 of the Fourth 1—63—2 Convention is also applicable It was emphasized in the debate that this Article is not intended to strengthen the position of an Occupying Power CDDH II 467 par 63 as amended by CDDH 406 The reference to Article 63 further supports the U S view that the special autonomous status and freedom to operate in occupied territory is subject to reasonable derogation in the event occupied territory becomes acombat zone 2 The obligation to provide to civil defense organi- zations the facilities necessary for the performance of their tasks was limited to the extent feasible in the Nordic proposal This qualifi- cation was deleted in the adopted text of Par 1 c Par 2 is not inconsistent with the U S is a corollary of the last sentence of Par 1 position It This paragraph is the oduct of a compromise with respect to a Yugoslav proposal that The Occupying Power shall not compel civil defense bodies to perforni their activities CDDH II 340 d Par 3 was considered to be indispensable when Committee II adopted Art 65 3 which authorizes civilian civil defense personnel to bear light individual weapons for the purpose of maintaining order or for self—defense Pars 4—6 are the result of intense negotiations con- cerning the authority of the Occupying Power to direct or requisition civil defense -buildings materiel and civilian shelter Although somewhat more restrictive than the Nordic proposal the end result is a reasonable 1—63—3 compromise which balances the needs of the civilian population for civil defense assistance with the requirements of the Occupying Power in the fulfillment of its obligation to satisfy other needs of the civilian population of occupied territory Comments 4 a General The relevant provisions of the Fourth Convention are 1 Art 63 hich provides that subject to temporary and exceptional measures imposed for urgent reasons of security by the Occupying Power tithe activities and personnel of special organizations of a non— military character which already exist or which may be established for rh purpose of ensuring the living conditions of the civilian population I the maintenance of essential public services by the distribution of relief and by the organization of rescuest' shall be permitted to pursue their humanitarian activities changes in The Occupying Power uiay not require any structure of these organizations which would prejudice their humanitarian activities 2 Art 51 authorizes the Occupying Power to requisition labor for work necessary either for the needs of the army of occupation or for public utility services or for the feeding sheltering clothing transportation or health of the population of the occupied country 3 Article 54 says the Occupying Power may not alter the status of public officials or take measures of coercion or discrimination against 1—63—4 should they abstain from fulfilling their functions for reasons of conscience This prohibition does not prejudice the authority to requisition labor as prescribed in Art 51 nor affect the right of the Occupying Power to remove public officials from their posts b Attitudes represented in the negotiations The central objective of our NATO European allies was to preserve the integrity and strengthen the autonomy of their civil defense organizations in the event their country is occupied In the view of the leaders of their civil defense organizations who formulated their national positions relatiite to the civil defense articles Art 63 was the most important article in the chapter on Civil Defense They were prepared however to make concessions taking into account the reasonable require— ts of Occupying Powers recognizing that the only hope to achieve Jspect for this article is to recognize the legitimate minimum require- ments of an Occupying Power The U S Delegation encouraged the attitude of compromise particularly as recent U S experience had been in the role of an Occupying Power Some delegations expressed a passionate distrust of Occupying Powers and objected to any reference which might be construed as recognition of the right of an Occupying Power to saf e— guard its security or to perform its obligations under the Fourth Convention See CDDH II 340 CDDH II SR 86 pars 5 and 15 CDDH SR 42 Axinex pp 19 23 The Soviet delegation on the other hand introduced a blunt proposal vesting control of civil defense activities in the Occupying 1—63—5 '—z r CDDH II 352 Realizing that such a proposal was doomed to failure the Soviet delegation did not press its proposal but did not withdraw it In this environmt the Nordic proposal together with Committee understanding preserving the right of the Occupying Power to niake reasonable derogations in cases of imperative military necessity and for urgent reasons of security pçoved to be the best basis for achieving consensus c Par 1 See Par 3 b above d Par 2 This paragraph evo1vd from a proposal by Yugoslavia to the effect that the Occupying Power shall not compel civil defense bodies to perform their activities dDH II 34O Despite the sympathy awn by this proposal most delegatiLs recognized that this could frustrate a good faith effort by the Occupying Power to fulfill its obligations to provide for the security of the civilian population More- over the Occupying Power could exercise its powers under Art 51 of the Fourth Convention to requisition civilian labor to perform certain civil defense tasks Moreover Article 54 of the Fourth Convention affords a safeguard to those officials who abstain from the performance of their function by reason of conscience The compromise text adopted was based on a U S proposal made in the Working Group See Par 3 c above e Par 3 f Pars 4—6 1 Under Hague Regulation Art 53 an army of occupatiofl can ike possession of all movable property belonging to the State which 1—63—6 be used for operations of the war The Geneva Conventions reaffirm the principle but impose certain limitations on the use to which medical equipment and supplies may be put I Convention Art 33 With respect to private property and to property of Inunicipalities Hague Regulations Art 52 permit the requisition of the property of municipalities and individuals but only for the need of army of occupation the IV Convention Arts 56 and 57 impose limitations on the right to requisition food medical supplies and medical facilities These limitations are further extended by Art 2 14 Protocol I Par 4 extends the princiles of Art 14 Par 2 Protocol I to buildings and materiel belonginj to orused by civil defense organizations by adding a new limitation on the owes 3 Par 5 is patterned upon he and H R 52 provisions of Art 14 Par 3 rrrotocol I and imposes additional limitations on conditions under which civil defense property may be requisitioned or diverted and imposes limitations on the uses to which requisitioned property may be put These purposes must be to satisfy some other need of the civilian population 4 Par 6 deals with requisition or diversion of shelters If provided for the use of the civilian population shelters may not be diverted or requisitioned by the Occupying Power — even if they are excess to the needs of the civilian population Shelters not provided for the civilian population but needed by them are also immune from requisition or div rsion This paragraph may complicate the practice of Occupying Powers to requisition buildings for office space or quarters needed by 1—63—7 cupation forces to the extent that shelters are frequently constructed in the basement of such buildings In theory those portions of the building not used for public shelter remain subject to requisition as does the building while not being used 1as a shelter but the basement if intended for the use of the public as a civilian shelter may not be requisitioned 5 The foregoing do not however limit the authority of the Occupying Power to requisition buildngs or materiel not dedicated to civil defense or public shelter purpósesor to requisition labor and materials for the construction of 'such Structures as may be needed by the Occupying Power 5 Military Implications a With the understandings adopted by Committee II the freedom autonomy to operate by local civil defense organizations and personnel —s subject to reasonable but not arbitrary derogations in case of urgent or imperative military necessity b Requisition practices of the past vithrespect to civil defense property and shelter is curtailed but no new limitation is prescribed as to the requisition or diversion of equivalent property not dedicated to civil defense purposes 6 Recommended U S Action a There is no need for implementing legislation b As a precaution it is advisable that the U S reaffirm the understding made by Conirnittee II as to the relationship between Article • 63 and 62 as well as Art 63 of the Fourth Convention 1—63—8 It is the understanding of the United States that Article 62 applies Article 63 is thus to both occupied and non—occupied territory supplementary to Article 62 as far as occupied territory is concerned This underArticle 63 of the Fourth Convention is also applicable standing reflects the agreed value of Coimnittees as reported in CDDH II 467 as amended 1—63—9 August 17 1977 rLJI'OCOL I PART IV CIVILIAN POPULATION SECTION I GENERAL PROTECTION AGAINST EFYECTS OF HOSTILITIES APTER VI CIVIL DEFENSE rtjcle 1 1 ønd 64 — Civilian civil defense oanizatjo of neutral or other States not parties to the conflict and international coordinating oranizations 57 Tet of Adopted Article rtic1es62 63 65 and 6Csha12 also apply atrie1 of to the Personnel ciiiian civil defence organizao of neutral or other States not Parties to the conflict which perfo civil defence tasks mentioned in tile 6i in the territory of a Party to the conflict with the consert and under the control of that Party Notification of such assistance salI be given as soon as T SSible to any adverse Party concerned In no circumstances this activit' be deemed to be' an interference ifl the This should however be performed with due regard to the security interests of the Parties to the conflict Concerned activity 'The Parties to the conflict receiving the assistanc referred t o in paragraph i and the 2 High Contracting Parties granting it should facilitate international co—ordination of such civil defence actions whey appropriate in such cases the reevant interà jl are covered by the prov sions of this C1a er In Occupied territories the Occuoying Power may only exclude or restrict the activities of civilian evil defence organi ati5' of neutral or other States not Parties to the confljct'ard of international co—ordinating organizatio5 adeqIate if it perforzay ce can ensur' the of civil defence tasks from its Se of the occupied territory S 1-64-1 own resources z References a Chapter VI Part IV Section I of Protocol I generally b Protocol I Articles 9 12 para 2 c b c 1 Convention Arts 27 and 32 81 This Article according to the ICRC is based on the provisions of Art 27 3 Relation to U S Position The article applies only to civilian civil defense organizations It grants to those groups acting outside their own country only that status which is accorded to civil defense organizations of the assisted country Occupying powers have an adequate deree of control Paragraphs 1 and 3 are consistent with the Nordic Amendment supported by the U S CDDH II 405 Par 2 is new but unobjectionable Comments a Paragraph 1 provides that civilian civil defense organizations of neutrals or other States not parties to the conflict may perforui civil defense tasks in the territory of a Party to the conflict if they have the consent of that Party and act under its control They are accorded the same protection as the assisted Party's civil defense organization and the entitlement to display the international protective sign of civil defense Foreign civil defense personnel have already been assigned to assist a national Red Cross society and used in combat zones The Danish Civil Defense Progress Report 1976 lists five such assignments to Lebanon in 1976 This provision is comparable to those provided for the availability 1—64—2 Lnder Art 9 of Protocol I and Arts 27 and 32 of the First Convention See also Article 12 par 2 c Some of the activities which could be conducted under this article are similar to the relief activities covered by Arts 68—71 Foreign civil defense organizations are not however included in thehunianitarian organizations referred to in paragraph 4 of Art 81 b There is no requirement for the consent of the adverse parties but they should be notified as soonas possible for the protection of the foreign civil defense organizations Only those parties concerned in actual combat with the assisted party or who might interfere with the movement need be notified There is no need to notify Parties to the conflict that are not immediately affected by the Tnovement of the —ganization or its activity c Denmark Paragraph 2 was the product of a compromise between Zaire and The ICRC draft text has provided for protection similar to that provided by paragraph 1 to the personnel and materiel of international civil defense bodies even though it was conceded that at this time there is no international civil defense organization or emergency civilian organization with civil defense forces in being d Thirty—five States are members of the International Civil Defense Organization ICDO which claims a coordinating capability It was accredited to the Conference as an Intergovernmental body and has received recognition by the Swiss Government However except for Spain no Western nations and none of the Socialist Group are members 1—64—3 The Nordic countries objected to any hint of recognition of a specific c ivil defense organization in the Protocol Zaire and the Philippines were active in £dvocating positions favored by the ICDO Paragraph 2 calls foracilitationof international coordination of civil defense tasks in the event foreign assistance is provided in accordance with par 2 If an international organization'engages in such coordination it is covered by th relevant provisions of Chapter VI to the same extent as neutral civil defense organizations The Organization of inerican States the United Nations or the ICDO could conceivably be good coordinating organizations At the suggestion of the USSR the requirement to facilitate ccaination was made non-mandatory ing and granting assistance at is applicable only to those re— Ther is no obligation on the adverse party to facilitate the coordination CDDH II 467 pars 66—67 e Par 3 Consistent with the U S view an Occupying Power can exclude or restrict the activities of those outside organizations but only if it can ensure adequate performance either from it own resources or those of occupied'territory In adopting its Report the Committee also adopted the following understanding It is understood that the activities of civil defense bodies of neutral or other States not Parties to the conflict or of any international coordinating organizations in occupied territories are subject to the consent and control of Qccupying Power CDDH II 467 pars 68—69 5 Military Implications This article adds to the classes of persons who might be involved in 1—64—4 The prformance of civil defense tasks under Arts 62 and 63 It does not change any of the problems which iight arise as the result of such activities which are discussed in connection with these articles This sort of activity is no iore an interference in the conflict than is relief under Article 70 6 Recommended U S Action There is no objection to this Article 1—64—5 No further action is required PROTOCOL I PART IV SECTION I PROTECTION AGAflJS EFFECTS OF Article 65 — BOSTILITIES 58 1 Text of Adopted Article 1 The protection to which cviLjan CiVI defence organjzaj0 Their personnel bu Udng she1ter and are Entitled •stiajl not cease unless they or a re used to cozwit OutsIde their proper tasks acts haf to the enexy Protectjo 1ay however cease only after a waling ha been given setting Whenevej Pproprjate a reasonable tine-ljjt and after such warning has atrI renlainea unheeded 2 The fOl lowing shall not be considered as acts harrnful to the • b that civil defence tasks are carried out under the directjo or control of iLtary ithorjtes that cjvjjan iVS defence personnel cooperatewtt military persone1 in the performance of civij defence tasks or tna 8Oe Ii1itarp persoe1 are attached to Cvi1an civ defence organzatjs tc that the performance of civjj defeyje incjdentaly those t shafl victims who are tasks ay Particularly also not be Considered as n act haryfu em that- civiian cvjl defence perso to the bear we pons for the pur7ose 'f Icaintaining order o for Iowever in areas where land elf-efene figtjn s taicing place or s ikeiy place the Parties to the conf1et shaü undertake tre riate easure- to limit these weapons to handguns 3ucr as I-65 ito1s o revolver's ii order to c5iSt in ditinuihing between nd cobatnts A1thDuh civil defence bear other 1igt individual weapons in liuch treas tney civil 1fence yer nne1 personnel proteted • soon as they rive bal1 everthe1eSS be rrspec ted Deen recognized s uch The formation of civilian civil defce organizations aiong d wpuryeryice 4eprive 2 ith iafl ato the or the proectior1 ccferre ris Cra er References A Chapter VI Part IV Section I Protocol I generally B Protocol I Articles 13 38 41 43 44 45 5l 52 C I Convention Articles 21 22 II Convention Articles 34 35 Convention Article 19 Relation to U S Position a Pars 1 2 and 4 are substantially consistent with the U S position b The U S position with respect to anus carried by civilian civil defense personnel was that the Protocol should not permit the carrying of light individual weapons in the battle area conform to that position The adopted text does not Instead it requires Parties to take measkires to restrict the weapons carried by civil defense personnel in such areas to handguns This provision is the result of a compromise which settled a difficult and prolonged negotiation c See discussion under par 4 The deletion of par 4 of the Nordic proposal CDDH II 405 not inconsistent with the previously formulated U S position 1—65—2 See October 26 1977 cussion under Par 4 4 Comments a Par 1 1 This paragraph is similar to Art 13 1 of Protocol I and to I Convention Art 21 II Convention Art 34 and IV Convention Art 19 2 Each of the foregoing describes the condition under which the protection accorded niedical units Or transports ceases if used to I commit outside their humanitarian functions acts harmful to the enemy The ICRC was of the view thatthis should be construed as acts the purpose or effect of which is to hrm the adverse party by facilitating or impeding military operations LI 3 An act harmful to the eremy includes taking a direct part in ilities but all acts harmful to the enemy do not necessarily involve participation in hostilities Civilian participation in hostilities results in an immediate loss of itnmunity from attack under Art 51 3 term direct participation in hostilities is not defined The It demands more direct involveient than direct support of military operations Thus a civil defense organization which uses its transports and materiel to fight a fire in a military objective which the enemy is seeking to destroy and thus directly supports military operations loses its special protected status under the chapter while it is engaged in the performance of that activity but they remain civilians who may not be the object of attack but who can of course be collateral victims Their entitlement to display the distinctive sign also ceases while they are engaged in that activity Such use of the sign is an per use under Art 38 of the Protocol and thus a breach CDDH II 467 Para 82 It is of note that with respect to vedica1 units and transports 1—65—3 Art 13 of the Protocol and the Conventions refer to acLs outside the humanitarian functions proper tasks The equivalent phrase in Art 65 is outside their This refers to the tasks mentioned in Art 61 The tasks listed in Art 61 are not a complete list of humanitarian tasks a civil defense organization could perform but they are a complete list of tasks specially protected under the Chapter The perfortance of other tasks which are not harmful to the enemy does not result in loss of civil protection but only that of the special protection afforded by Chapter VI including the right to display the emblem b Par 2 1 This paragraph serves tb same function as Art 13 2 and hConvention Art 22 II Convention iArt 35 and IV Convention Art 19 2 provides an illustrative list of acts which ay Dot be regarded as harmful to the enemy In Art 65 the illustrative list serves also to clarify the permissible relationship between civilian civil defense organizations and the military authorities • 2 Par - 2 a recognizes the paraiount control of the Military Commander 1ñ the cmbat zone As he is responsible for evacuation and other measures to safeguard the civilian population as well as the conduct of military operations It Is reasonable that he have direction control or at least coordinating authority with respect to the activities of civil defense organizations 1—65—4 October 26 1977 3 Par 2 b — Military personnel and units may perfortn civil defense tasks without however having any special protection - - Their cooperation with civilian civil defense organizations in the performance of tasks mentioned in Art 61 is necessary and cannot be construed as an act harniful to the enemy c For technical administrative or management purposes military personnel who need not qualify for protected status under Art 67 may be attached to civil defense organizations even command these organizations In some cases they may The second clause of Art 65 recognizes the condition as an act not harmful to the enemy Counittee II adopted an understanding that the term some iilitary personnel as used in Art 65 2b refers to a relatively small number CDDH II 467 Par 81 Military personnel such as reserves may be assigned to a civil defense organization Unless they are permanently assigned •to such duty for the duration of the conflict under Art 67 they are not given any special or protected 'stratus Art Par 2 They remain inetubers of the armed forces as described in According to Art 43 they are combatants If they fall into the hands of the adverse party1 they would be prisoners of war The attachment provision does not apply to units That is a military unit cannot be attached to a civilian organization CDDU II 467 Par 74 1—65—5 Although there is no special protection for these military personnel attached to a civilian unit they derive a degree of practical safety while working in a civilian environment scarcely be lucrative targets They themselves would The restrictions on attack in Arts 51 and 57 afford for all practical purposes an adequate protection See discussion of Art 67 d Par 2 c — It also is not considered an act harmful to the enemy if as an incidental consequence pf the performance of a task for the civilian population a military victin is aided Thus it is not an act harmful to the enemy to rescue froTa a burning hotel a soldier on leave This would also have application to a soldier who is hors de combat See Art 41 which explains who are hors decpmbat Par 2 c does not however extend to extricating military personnel from a bunker which is under attack as would have been permitted under the original ICRC draft e Par 4 Some civil defense organizations including those of Denmark are made up of conscripts who are drafted for civil defense service in lieu of military service In many countries including Switzerland and Denmark they are organized along military lines and wear special uniforms distinguishable from those of the armed forces Par 4 recognizes that these factors are not to be considered as harmful to the enemy f Par 3 ill General 1—65—6 a The most controversial provision cf Art 65 is Par 3 which deals with carrying of arms With respect to this issue three points of view emerged Some delegations believed that protection should not extend to armed civil defense personnel Others contended that protection should be extended to such personnel if they are armed onl with light individual weapons A third group reflected in the Nordic proposals advocated a middle course suggesting that juridical protection is not effective if civil defense personnel carry weapons in areas where land fighting is taking place or is likelf to take place To resolve this isue a sub—working group consisting of dvocates of each point of view was ppointed After two weeks of intense but informal negotiation the sub—working group agreed on Par 3 which is essentially an elaboration of the middle course The group also con- curred in a series of understandings which became the basis of under— standings adopted by Committee II The solution is similar to the formula adopted for medical aircraft in Art 26 Any desired prohibition on arms was compromised by adoption of Art 13 which allows civilian medical personnel to carry light individual weapons for their own defense and that of the patients in their care Many felt it would be discriminatory to prohibit arms to civil defense personnel who probably could in view of the task of assisting in maintenance of order make a better case for possession of than civilian medical personnel 1eapons 1—65—7 Moreover under current international __w there is no prohibition against the carrying of weapons by civilians for self—protection law enforcement or hunting In view of these circunistances Par 3 was the best provision which could be obtained by those delegations which wished to limit protection to unarmed civil defense personnel Under the provisiops of Par 3 civil defense personnel may carry light individual weapons vLthout limitation except in areas where land fighting is taking place or is likely to take place Recognizing that there is a risk that they may be confused for combatants if they carry weapons in such areas the Parties are obliged to undertake appropriate measures to litnit such weapons in these areas to handguns such as pistols and revolvers As there may be circumstances when such limitation cannot feasibly be effected in a fast moving situation for example civil defense personnel armed with other light individual weapons will nevertheless be protected if they are recognized as civil defense personnel g The following understandings were expressed in the course of the negotiations 1 Committee II adopted an understanding that light individual weapons should be interpreted in the same way as Par 2 a of Art 13 dealing with arms carried by civilian medical personnel CDDH II 463 Par 77 As there is little if any guidance in the negotiating history of Art 13 defining the term the U K delegation expressed the understanding that The term 'light individual weapons' excludes 1—65—8 ntation gretiades and similar 'devices as well as weapons which cannot be fully handled or fired by a single individual and those basically intended for non hunian targets This understanding was expressly accepted by Egypt Ghana Mexico The Netherlands and the U S CDD I II SR 95 p 11 CDDH II 467 par 73 It was not rejected by any delegation This understanding obviously includes rifles and handguns but effectively excludes grenades other than those dsigned to use as riot control agents all crew served weapons antiaircraft or antitank weapons including rocket launchers and other weapons which may be held by a single person but require for their normal use mor ammunition than can be carried by one person 2 The U S Delegation belIeved that the types of weapons which ould be encoxapassed by the term can best be inferred from the allowable purposes which are limited to the maintenance of order as further limited by Art 61 l k or for self defense On the question of self defense Committee II adopted an understanding that civil defense personnel may be armed for self defense against marauders or other criminal individuals or groups They may not engage in combat against the adverse party and may not use force to resist capture If however they are unlawfully attacked by individual members of the adverse party's forces they may use their weapons in self defense after having made a reasonable effort to identify themselves as civil defense personnel 3 CDDH II 467 Par 78 Coxmnittee II also adopted an understanding that the ression respected and protected means that the personnel must not 1—65—9 knowingly be attacked or unnecessarily prevented from discharging their proper functions CDDH II 467 Par 79 4 Finally Committee II adopted an understanding that Art 65 Par 3 also has application to Art 67 This application will be discussed in connection with that Article CDDH II 467 Par 76 h Elimination of Par 4 Nordic Proposal CDDH II 406 Par 4 of the Nordic propsal recognized that the tasks enumerated in Art 61 1 might be performed in support of military operations or in support of military bjectives The proposal provided that whenever civil defense organizatons or personnel performed the enumerated tasks in support of milita±y operations or objectives the otection to which they were otherwie entitled under this Chapter shall kase for the duration of such performance Similarly their entitlement to display the distinctive sign of civil defense would also ceae The working group decided not to adopt this paragraph because it was already covered elsewhere At the Copenhagen conference the U S and the FRG had expressed a similar view but acquiesced in the desires of the Nordic delegation to support the paragraph The other provisions deemed to render the Nordic proposal unnecessary are The Introduction to Art 61 and the relevant understanding expressed in CDDH II 467 Par 47 as amended The first paragraph of Art 65 Art 38 règárdingthe misuse of internationaLty recognized protective signs The report of Committee II indicates that the splay of the sign while civil defense organizations and personnel 1—65—10 are supporting military operations or objectives is such a misuse Art 37 which would make national protective sign the offense the misuse of the inter- of perfidy under certain circumstances Art 85 Par 3 f which denounces violations of Art 37 as a grave breach Art 51 3 which provides for loss of immunity from being the object of attack for civilians who take a direct part in hostilities Art 52 2 which defines military objectives In view of the foregoing as well as the explanatory 'iegotiating record the deletion of the paragraph is not objectionable S Military a Implications Par 1 is consistent with the provisions for loss of protection of medical units and transports under the Conventions and under Art 13 The military implications in relation to civil defense are complicated by the ambivalent character of civil defense which has the capability both of performing its tasks for the human1tar±ai purpose of helping the civilian populatior orfor the purpose of supporting the war economy as well as military operations The circumstances in which an Art 63 task is performed rather than the task itself determine how it should be categorized if indeed any categorization is fully valid For example emergency re- pair of indispensable public utilities includes the emergency Irepair of communications systems Communications systems are used by the military 1—65—11 civilians b civil usually with the same goveren physica' ULilitary and civil defense October 26 1977 and of equipment circuitry course b It is not An electric both civili5 and the military civil defense Possible to segregate generating Plant serves The electricity cannot be segrega may be used by both and the military and by the c1vjli population may well be military These then objectives Repairing them may well cause the organj zation to lose its protected status ad in extreme cases such ght even be considered taking a direct part in civilian status hostilities with ccnsequet loss of Civil defense as a function is in part national progr on JuStified as a the grounds that it contributes Significaflty to a goverenI5 defense effort that is a nation wbose civilians prepared to are absorb the effects of an attack is better able to resist on As a consequen civil defense is consjded in with other military connection elements in developing a nation's defense program and in many nations is considered to be an integral part thereof All things considered Paragraph i of this Article of Art the beg1nnjn 61 Arts 51 and 52 and the negotiating record limit the other civil defense a well as can be done Putting civil defense Without workers in an impossible Position Art 38 concerning misuse o he civil defense sign which could in the proper amount to perfidy circumstances under Art 37 see also Art 85 para 3 f povides reasonable legal sanction agajns abuse Art 51 3 and rt 67 provide reasonable military than huviantarian aspects of sanctins a practical • - ntly matter civilian civil defense persel more iune from attack than the civili8 1—65—12 are not labor force which ay October 26 1977 4rectly further the war economy iiifiant military The presence of either in aslg—' objective as defined in Art 52 2 orin the vicinity of such an objective would not prevent an attack against the objective b Par 2 is useful in that it clarifies the permissible relationship between civilian civil defense and the military authorities c The authority of civilian civil defense personnel to be armed with light individual weapons has sgnificant military Implications only in the combat zone In the light of the consensus achieved with respect to clarifying understandings it does not appear to be as troublesome as was once feared There is nothing in the Conventions the Protocol or other international humanitarian law which prohibits civilians from carrying apons On the other hand Art 44 dealing with irregular combatants provides that in certain limited circumstances'the principal method of distinguishing an irregular combatant from a civilian is that the former carries his arms openly The U S and its allies have expressed the understanding that this special case concerning irregular combatants pertains only in self determination situations or in occupied territory In the latter case personnel may be disarmed Art 63 parà 3 Thus there should not be any significant military implications in bearing of arms by civil defense personnel not -already present because of possession of rm by other civilians 6 Recommended U S Action - a In order to reaffirm the significant coittee understandings the should express understandings along the following lines at the time ratification 1—65—13 Ocor 1 2 Itis the understanding of the United States that the term light individual weapons as used in Article 65 excludes fragmentation grenades and similar devices weapons which cannot be effectively handled or fired by a single individual and weapons which are basically designed for targets which are not human such as armored vehicles or aircraft It is the understanding of the United States that civil defense personnel may be armed only for emergency assistance in the restoration and naintenance of order in distressed areas and for self deferfre against marauders and other criminal individuals or1groups They may not engage in combat against the adverse party and they may not use force to resist capture If however they are unlawfully attacked by individuals of the adverse party's forces they may use their weapons in self defense after having made a reasonable effort to Identify themselves 1—65—14 August P'OTQCOL I P1 flT IV ERAIp crio i 2 1 CTIO Arnsr 7PECTS LSE hPTKR V1 8rtjcje 66 17 1977 Idantifjcj0 OF HOSTILITIES 59 ezt of Mopt Article each Party to the ivfl defence confujctha1l endeavou to hejr •trie e pcrsozm ensu building5 iThile they r are ecju vely evo the performance to of civii defencd tks Shelters the civ iai1 Population Provided br 5houJ b ' Each Party to 2 sirnjlarl7 identifiable the cO fljct ha11 also endeavour ipleent methods and procedureswhich njze — f civj 3 1lzake it Possible to civilian shelters as wél1 as civ' defence atrie1 on which £heint ationai distjnctjve £igr defence is csplayed d zoa n Occupied territories and in rea ihere Place or is likely to take place 1c ivfljan bould be cjfl to adopt and recogniz civil by the ir ternatjonal d righti is taking defence personnel tnctjve sign of defence and by an identity' card certifying their tatus The international dstirctjve sign of civil defence 'eQuilateral blue triangle is an on an rotectjo of cthen tsed for the defence organjzaj05 their and -atérjej and foi Personnel CIV11ian cbelters In addition to the distjctive sign Partje to the cDnfljt agree upon the u se of distinctive sgn for eivii defence Identification purpc es civfl ay k4pter Of e provisions of Pararphs 1 to i is nnox I o thjg rotool nset of the defen 1 COripetent identification purpo he Kigh Contracting Parties LU take the easu res necessary ernational distinctive Sign of reprea any RIsuse be identifjt10 eref •of ci-v12 of the efenee and to prevent defeice t dic transp is e1igio5 also Coverxed References A Protocol I Arts 5 Protocol I Annex Articles 14 and C Protocol I Articles 61—F5 67 15 8 18 37 38 f D CC I Article 38-44 534_ 3 Rlation to U S Position These provIsio8 deal with the the Red Cross Subject to minor drafting changes Pioposa CDDH II 408 which was 4 Cj civil jticje 18 _ be used for the Parj to the to sup-vj the display and onne13 edica1 units and ediaj 2 thorftje national this article conforms to the supported Nordic by o—U s Conmients aCeneral This article is patterned on Art 18 of Protocoi I which deals with the identification O'fmedicai and religious personnel units and transports Civil defense identification means identification of civil defense buildings persotmel and materiel Personnel and materiel 166—2 se defined in Art 61 pars and 4 Jbelters for the Civilian population or Controlled by the Civil defense Insofar as Civilian of the however dealing international Covers identjfjcatjo of whether or not these are °ed by organizat0 Civil defnse personnel are identifiCation is not a legal Art 67 It also concerned prerequisite for protected status In with il1tary personnel and units the display distinCtive sign is mandatory If there is a Claim status the military of personnel and units must distingu5 themselves by displaying protected the b Par 1 is similar effect organizati05 substantially5 The identjfiCatio their personnel and vely devoted to the ted In distinctiv sign is o Par 1 of Art 18 and has 4fltended to apply to civil defense materjel only while they are ex— perfonce of Civil defense tasks As in di— Connection with Art 61 COittee II expressed that for an understanding Civil defense organjzat0 the protection Chap ter granted by Arts 61—67 VI ceases while they perfo tasks Other than those Article 61 Covered by Thus while Perfoing other tasks their ersonnel may not and materiel display the sign Moreover the display of the sign under such surroundings is prohibited by Art 38 as well as by Art S for Provisions Identification of civil defense personnel apply both to teniporary Permanent and civilian Civil defense organizat05 and personnel istjnction Without -It is probable that the persons referred to Ln Art 62 Par 2 are included within the te of civjj defense personnel u 1—66—3 c Par 2 Article 18 Par 2 was intended primarily to urge Parties to the conflict to install and maintain equipment capable of recognizing distinctive signals established unde Annex I Arts 5—8 As no system of signals is established except by agreement between the Parties to the conflict the U S considered that the paragraph is not essential The sponsors of CDDH II 408 as well Jas most delegations in Coimnittee II believed that training in the recognition of the international distinctive sign would be encouraged through this provision d Par 3 The term internationaldistinctive sign is used to avoid con- fusion with the term distinctive emblem defined in Art 8 g latter term refers to the Red Cross Red e The Crescent Red Lion and Sun Par 4 1 After an extretnely close vote in Conxnittee II an equilateral blue triangle on an orange ground was' chosen as the international distinctive sign of Civil Defense when used for protection of civil defense organizations their personnel buildings and materiel and for civilian shelters Delegations of States which were members of ICDO sought to substitute the emblem of that organization two diagonal red stripes on a yellow ground as the sign - This article and the annex deal only with the protective of the distinctive sign not with the indicative use of the sign use Amendments by Australia requiring parties to enact domestic legis1atio to prohibit the use of the sign even for indicative purposes were withdrawn 1—66-4 The distinctive sign differs from the patented U S official 2 civil defense insigne authorized under the Federal Civil Dafense Act That insigne consists of the CD symbol in bright red centered within a white equilateral triangle superimposed 32 CFR upon a dark blue circle l8O6 3 a There are criminal penalties in connection with misuse of this insigne DCPA regulations permit variants in the color combination 32 CFR 1806 3 b insigne and the In order to evoid any confusion between this U S international distinctive sign it ay be desirable to end the DCPA regulations to prohibit the use of blue on orange as a possible color combination There is no possibility of confusion with the registered certification mark for United States shelters Je and three inverted triangles — 3 yellow This mark consists of a on black The international distinctive sign of civil defense can be used by non—civil defense organizations for coimnercial purposes but not for protective purposes the Red Cross In this respect it is different from See I Convention Art 53 However nothing in the protocol would prohibit or uthorize a civil defense organizations if it could do so as a matter of national law from using the civil defense sign as an indicative emblem in its own country own law prohibit use by others in time of peace Presumably it cou1d as a matter of its I'665 even for indicative purposes' Par 5 authorizes Parties to the conflict to agree upon the use f of distinctive signals for civil defense identification purposes use of the term distinctive signals The may create confusion with the distinctive signals defined in Art 8 13 This provision defines Distinctive Signal as meaning any signal or message specified for the identification exclusively of medical units or transports in Chapter III of Annex I to the Protocol Under th provision of Annex I Art 5 the radio signal specified in Art 7 Annex I and the electronic signal specified in Art 8 of that annex are pecified for the exclusive use of medical transports and may not be used for any other purpose The light signal specified in Art 6 of Annex I iay not be used by any aircraft other than medical aircraft There is however no prohibition to the use ashing blue lights by ground vehicles or ships unless the Parties to tn conflict agree to use the flashing blue light as a distinctive signal for surface medical transports No reference to distinctive signals is made in Chapter V of Annex I dealing with civil defense identi— fication In order to make it clear that Art 65 Par 5 does not contemplate the use of any of the signals reserved for medical units or transports even by agreement an understanding to be made at the time of ratification would be appropriate g Par 6 The sign is one of the emblems or signs provided by the Protocol the improper use of which is prohibited and thus a breach Art 38 1—66—6 The October 26 1977 ach niight even in sorae circumstances constitute perfidy Art 37 The paragraph obligates the Parties to supervise the display and to prevent or repress the misuse thereof h Par 9 Medical and religious personnel as well as edica1 units and transports of civil defense are covered by Part II of organlz1tions the protocol and hence are entitled to wear the Red Cross Article 8 3 defines iedicál personnel s those persons Lssigned by conflict exclusively to adical purposes'4 includes party to the The term personnel civilians including those assigned to civil defense izations There religious organ— is a similar reference in Article 8 4 çñiich defines I personnel Medical purposes are the search for collection traxsportation diagnosis or treatment including first aid treat1tent of the wounded sick etc The above civil defense medical personnel are subject to the restrictions on those who are entitled to wear the Red Cross Including the restrictions that these be assigned or dvoted eclusively to medical purposes i e they have no other function The above is fine for civil defense ambulance corps but there may be civil defense personnel or units such as firefighters or rescue squads who perform these medical functions as well as non—medical functions Such personnel are not entitled to wear the Red Cross but may wearthe civil defense sign See Article 61 Under the definition of civil defense Art 61 Para 1 f medical services including first aid and religious 1—66—7 assistance are civil defense Thus any civil defense personnel whether such as part of their regularly assigned duties or not can perform medical services an enumerated civil defense task without necessarily having entitlement to wear the Red Cross 5 Military Implications This article places on Parties a best efforts requirement to ensure identification This should be useftl to military conunanders in deter— mining those who should be allowed to perform their civil defense tasks It is a very useful addition in view of the requirements of Arts 62—64 6 RecoinmendedU S Action a The U S should assure that the U S patented civil defense sign is not confused with the internation sign b Legislation is not necessary Paragraph 8 requires the taking of measures necessary to supervise display of the international distinctive sign and to prevent and repress misuse New Legislation is not necessary Section 204 of the Federal Civil Defense Act of 1950 50 U S C App 2284 as amended authorizes the President to prescribe insignia etc which may be possessed or worn by personnel engaged in civil defense activities Pursuant to rules and regulations established by the President possession or wearing otherwise than in accordance with these rules and regulations is unlawful and subject to fine and imprisonment This appears to be sufficient authority to implement par 8 and to prescribe appropriate regulations covering protective use It may well be at this time that no use will be allowed pending a determination 1—66—8 October 26 l77 on whether or not U S civil defense will seek to claim any special status Certainly there is no indication the U S ever will change its shelter sign However control over the sign will be a useful device in assuring that State or local civil defense bodies act under Federal guidance c As nothing in the reports negotiating record or the like in any way indicate such with respect to para 5 the U S should at the time of ratification express an understaning along the following lines It is the understanding that any signals which Parties to a conflict shall agree to use for civil defense identification purposes as contemplated in para 5 of Article 66 shall differ from distinctive signals speified for the identification exclusively of medical units oz transports in Chapter III of Annex I to Protocol I 1—66—9 August 17 1977 PROTOCOL I PART IV CIVILIAN POPULATION SECTION I G CHAPTER VI PROTECTION AGAINST EFFECTS OF HOSTILITIES EFEN Article 67 — Members of the Armed Forces and Mjljtar Civil Defense Oranjzatjons Units Assj ned to 59 bis 1 Text of Adopted Article 1 Meitbers of the armed forces and military unIts assigned to Civil defence organizatj0 shall be respected and protected F'ovided that a Suh personnel a- suh units ar Peaflent1y assigned and eciusively devoted to perforia the of any of the tasks ArtiLle61 b If so assigned such personn do not a4iy other c mented n ' itary Such personi 1 are duties during c1eary perfo the Conflict tro the cth ebers o the ane forces by Prominently dsp1aying the in ernatjonal ditinctjve sign of d civil defence thich shall be as large as appropriate and such personnel are provided with the identity card referred to in Chapter V of Annex I to thProtocoi certifyjg their status Such persore an Skch units are equipped only with light indivja1 weaponz for th purpose of raintainjng orderor for - self—defene The provi05 of Article 65 also apply in this case 1—67—1 Paragph 3 Such personrei do not participate directly in hostilities and do not corit or a'e not used to corr rit outside their civii defence -- tasks3 ac ts harfu1 te the avrse Party Such pesne1 an such urdts prfcri their f deferce tass cray w th r the r t ona1 terr of te1 art he non—observance of the stated in e boye by conditio1s n member of the armed f3rces who i bound by the conditions rescribecl in 1 a and 1 b above is prohibited i1itary pcrsonnei serving within civil defence they fail into the power of an adverse arty be prisoners f war Inocupie1 territory they may rganizatioris shall if ut only in the interest of the c 'iliari population of'that 1 be employed on civi l defence tasks ix so fai as arises proviued howe'er that if such work is gerous they volunteer for suc tasks The buildirAg and major Iems of equipment and transports military uni ts assigned to civil defence organizations a11 be clearly marked with he nternationa1 distinctive sign civil defence This distinctivesigr shall e as large as propriate The atrie an - buildings of military units peranent1y sgned to cv1 defence organzator and excve1y devoted the performance of civil efence tasks shall if they tall to the hands of an adverse Party rein subject to the laws 1—67—2 They may not be diverted fror their civil defence urpose so long as they are required fcr the perfcrance of civil efence tasks except ir case of irperaive military necessity 1' war n1es prevcus arran eertL have been rae for adequate provis or or te needs of the civilian pcpu1atior e 2 References Protocol I — Civil Defense — Articles 61—66 Annex Articles 14—15 - Articles 37 38 41 43 51 52 57 58 85 • I Convention Arts 33—34 III Convention Arts 4 17 21 49—52 56 117 Hague Regulations 52—53 3 Relation to U S Position a The U S negotiating position of 7 March 1977 listed as Important Changes 1 Rejection of 8—Nation Subgroup Art 58 bls Alternative I which would have provided for a Immunity from attack to military units and their personnel while exclusively devoted to the performance of civjl defense tasks b Neither permanence of assignment to civil defense tasks nor notification of change of assignment 1—67—3 A retained personnel status similar to that provided for medical personnel who fall into the power of an adverse Party CDDH 11 384 Rev 1 CDDH II 396 Add 1 c Support for the Nordjc 2 which provided proposal for Art 58 bis CDDH II 407 all members of the armed forces who are carrying out civil defense tasks at the time they come into contact with and fall into the hands of the enemy shall be Prisoners of war They may however be Permitted to he employed on civil defense tasks in occupied territory provided that if such work is dangerous they volunteer therefor 3 As an alternative the U S delegation was authorized to support the Eight—Nation Subgroup alternative ii CDDH II 384 Rev 1 CDDH II 396 Add 2 This proposal would make the status and protection 'be accorded such personnel subject to agreement bet een the Parties to he conflict As no support emerged for the Proposal it was not pressed b 1 General Paragraph is generally consistent with Classified fallback Position which accompanied the 7 March 1877 Position paper In sununary this fallback Position paper was developed at the Bonn intersessional conference held in February 1977 DAJA—lA 1977 24 24 February 1977 The salient Points of that Position were Units and personnel must be permanently assigned and exclusively devoted to the Performance of civil defense tasks for the duration of the armed conflict This was based in part on The Netherlands a sal CDDH II 34l 1—67—4 b Personneland equipment of such units must be clearly distinguishable from personnel and equipment of thearmed forces c Personnel and units must be unarmed or at least unarmed in areas where land fighting is taking place d There must be an unambiguous prohibition against their committing acts harmful to the enemy or participating directly in hostilities e They must display the international distinctive sign of civil defense f If captured they are to be prisoners of war but may be employed on civil defense tasks in occupied territory as outlined in the Nordic proposal 2 Par 3 a when read in conjunction with Para 1 b is con- sistent with the U S position The negotiating record shows clearly that Par 1 b means that military civil defense units and personnel if protected under this article may not perform any combat or combat support duties for the duration of the armed conflict after once claiming protected status 3 Par - c is fully consistent with the U S psition that protected military 'civil defense personnel are clearly distinguishable from other members of the armed forces 4 - Par 3 d relating to bearing arms is not consistent with the U S position but was nevertheless adopted by consensus' discussion under Art 65 1—67—5 Se Par l e and the last sentence of para 1 were consistent 5 with the U S position It not only provides that direct participation in hostilities or the performance of acts harniful to the adverse Party result in loss of protection but also that such acts are a breach of the Protocol 6 position Par I f was not a requirement of the U S supported fallback It was however a condition by Arab States as the price for their participation in the consensus and was acquiesced in by those states which wanted protection for military personnel assigned to civil defense tasks c The U S supported the proposal Par 2 is consistent with the U S Position and the Nordic proposal CDDH II 407 d Par 3 is consistent with the U S position e Par 4 is consistent with the U S position Variances are clarifying drafting changes 4 Comment a General This article provides immunity from being the object of attack and freedom to perform civil defense tasks only to those military units and personnel who are permanently and exclusively assigned to the performance of civil defense tasks for the duration of the arned conflict and who meet the restrictions and qualifications of the article There is of course no restriction on the performance of any or all civil defense tasks by other members and units of the arnied forces I—67--6 These October 26 1977 ver remain- combatants Art 43 Para 2 and are thus legitimate military objectives materiel may derive Nevertheless such military personnel units and some practical safety while performing civil defense tasks in a civilian environment See Protocol I Arts 50 52 para 5 b Para 3 57 2 a iii and 57 2 b Such military personnel but not units may be attached to civilian civil organizations without affecting derense the status or protection of the civilian organization Art 65 There is no limitation on reassignment of these temporary civil defense workers to other military duties To the contrary the military personnel contemplated by this article however are permarently precluded from performing other military duties during the armed conflict b One possible approach which did not come to fruition was to tablish in the negotiating record that military units and personnel derive relative safety from the provisions of Art 57 mentioned above as well as the other provisions of Section I Part IV 52 and 58 particularly Arts 51 Art 57 Para 2 a iii restricts attacks on military ob- jectives to the extent that anticipated incidental civilian casualties and damage to civilian objects outweigh the anticipated military advantages Various statements of this thought were developed but did not obtain sufficient support to form the basis for a consensus c It became apparent early during the Fourth Session that the supporters of a special status for military personnel and units not only could not defeat a blocking third they could not even muster a ma jority However it also was recognized that if there were to be civil defense 1—67—7 October 26 1977 rticles there must be some specific ' accood ation fortheir aspirations the Protocol beyond that which appeared in Art 65 Para 2 b con- cerning military personnel attached to civilian units d Some attempts were made to provide a formula for defining civilian civil defense units in such a way that military civil defense units and personnel might be excluded from the definition of members of the armed forces within the meaning of Art 43 but remain meuibers of the armed forces within the meaning of d'mestic law The key ingredient to such a solution would be an unambiguous prohibition against taking a direct part in hostilities Although conceding that it would be theo- retically possible to draw a distinctjon between membership in the armed forces for purposes of domestic law a'nd international law most delegations considered that such a solution woulcbe too complicated e It Art 43 Par 2 was recognizd early to be the key to this article states Members of the armed forces of a party to a conflict other than medical personnel and chaplains covered by Art 33 of the Third Convention are combatants that is to say they have the right to participate directly in hostilities Civilians donot have this right lose their protection as civilians If they are participants they Art 51 Par 3 The delegations whose countries use military personnel for civil defense were informed in the working group that the majority which did not wish to provide special protection to any combatants would insist on stringenj guarantees that military civil defense personnel would pot exercise their right to participate in hostilities as the price for according them inununity from attack 1—67—8 In most countries but not in The Netherlands and Switzerland military civil defense personnel are for the most part drawn from general purpose forces Even if they are specially trained they also have at least the training for combat which nonspecialist forces have They are large'y interchangeable with normal combat forces is real potential for abuse Thus there The right't to participate in hostilities is not academic It became crucial to the recognition of a special status for military part units that they be prohibited from exercising the right to take in hostilities There is some precedent for this war may not 'onvention Nonrepatriated prisoners of be employed on active military service Art 117 III A person who is hors de combat must abstain from any tile act Protocol I Arts 8 1 41 Par 2 See also Art 21 III Conventior f Paragraph 1 of Art 67 sets out a number of conditions for according members of the armed forces and military units assigned to civil defense organizations respect and protection 1 The term tmembers of the armed forces is used in the sense of Art 43 Par 1 See also Art 4A l — 3 6 of the III Convention The term civil defense organization't is used as defined in Art 61 par 2 2 The term 'trespected and protected in the introduction to Par 1 means 'that the personnel must not knowingly be attacked or uunecesarily prevented froni discharging their proper functions Committee II Report Par 99 CDDH II 467 1—67—9 This formula was ued See in er to realign the text with Art 62 and 65 3 3 Subparagraph a requires that the personnel be permanently assigned and exclusively devoted to one or more of the tasks mentioned in Art 61 Unlike civilians there are no temporary civil defense persc'nnel However as the words permanently assigned may mean no more than that the assignment is for an indeterminate period Art 8 11 Protocol I a more rigid requirement was necessay 4 This is set out in Par 1 b Paragraph 1 b states tiat if the personnel receive such an assignment then they cannot thereafter until the end of the conflict perform any other military duties See in this regard the interpretation of the supporting Canadian delegation in CDDH II SR 96 Par 49 and that of opposing Mexico in CDDH II SR 96 Par 50 and his statement in plenary sion of the Conference CDDH II SR 43 pp 2—3 The term any other military duties means any duties other than civil defense tasks The subparagraph is designed to prevent switching of military civil defense personnel to combat or combat support duties and even to the performance of purely administrative duties no t related to the administration of civil defense duties or overall housekeeping duties shared by military personnel generally However a military member could be discharged and returned to a civilian occupation See CDtH II 467 Par 100 as amended at CDDH 406 5 Par l c l Unlike civilian personnel Art 66 Par 3 it is tandatory that military personnel display the international distinctive sign of civil defense in order to claim the protection 1—67—10 This is the method which they distinguish themselves from all the other members of the armed forces The improper use of the sign is prohibited by Art 38 Under some circuxnstances the participation in hostilities by personnel displaying the sign could be an act of perfidy prohibited by Art 37 and be a grave breach under Art 85 The identity card is in ddition to the military identity card provided for in the III Convention CDDH II 467 Par 101 Subparagraph 1 d Par 3 of Art 65 dealing with the 6 carrying of light individual weapons Ls equally applicable to protected military civil defense personnel subect to •the same limitations and to the Cotninittee II agreed understandingJ 7 See discussion under Art 65 Subparagraph i e neutraIizes the effect of Art 43 Para 2 ty providing as a condition of protection that the right to participate in hostilities will not be exercised by protected military civil defense personnel Moreover loss of protection is also a consequence of their committing other acts harmful to the adverse party As continued pro- tection would hardly be expected in case a military civil defense unit is connitted to direct participation in hostilities the U S delegation insisted that a Their direct participation in hostilities be prohibited by the Protocol making such acts a breach b They be prohibited by their Government from participating directly in hostilities 1—67—11 The first of these proposals was adopted and is reflected in the last sentence of Par 1 which prohibits the non observance of the conditions stated in subparagraph e by members of the armed forces bound by the conditions prescribed in l a and 1 b The second proposal was not accepted by Committee II in the belief that it is implicit in the last sentence of Par 1 Several dele- gations objected to the U S proposal on the ground that it would require implementing domestic legislation which would needlessly delay ratification of the Protocol In the end the U S delegation accepted the view that the last sentence was a self execution provision 8 Subparagraph 1 f Under the provision military civil defense units and personnel lose their protected status and the right to display international protective sign but not their obligation to refrain from direct participation In hostilities if they leave the national territory of their own country Thus they may not be used in occupied territory nor may civil defense units of a neutral or other State not a Party to the conflict be used as civilian units can be under Art 64 g Par 2 The status of military personnel if they fall into the hands of the enemy was a hotly debated issue during the Third Session Some delegations including Switzerland and The Netherlands suggested Creation of a special status akin to the status of retained personnel under Art 28 of the First Convention Such a corvept was incorporated into Alternative I drafted by the 8—Nation Subgroup and set out in the Interim Report of the Drafting Con2nhittee Working Group CDDH II 384 eason for this special status was to permit the units and their - to renlain where they are located with their civilian population Du ring intersessional consultations it was concluded from a 1—67—12 gal standpoint that providing exemption from PW status and an exception from the right to be evacuated from the combat zone was an lmpermjssjble derogation from the Third Convention Thus the only permissible status for military personnel is that of prisoner of war The text adopted is based on the Nordic Text CDDH II 45l The second sentence is designed to provide for the performance of civil defense tasks in occupied areas Such work may be dangerous work within the meaning of Art 52 III Convention and thus require that only volunteers may be so employed The labor provision of Arts 49—52 permit compulsory employment for only a few civil defene tasks Some delegations thought the second sentence to be subjet to kbuse by the Occupying Power and that the Third Convention provisions ieeded no development Nevertheless large majority of the Conimittee vo4d to retain the second sentence h Par 3 makes it mandatory that the buildings major items of equipment and transports of military units assigned to civil defense organizations be clearly marked with the internationa distinctive sign of civil defense i Par 4 deals with the disposition of buildings and materiel of protected military civil defense units if they fall into the hands of the adverse party The provisions are based on Art 33 of the First Convention and should be construed in the saxe way Like the equipment and supplies of military medical units such property remains subject to the laws of war ire- it becomes booty of war HR Art 53 Buildings may be ad— ministered by the capturing Power who shall have the use of it HR Art 55 1—67—13 The second sentence hoei which such property may be used ii tt_-- Thus except in case of imperative military necessity they must continue to be used for civil defense purposes in the interest of the civilian population for so long as they are needed for such purposes Moreover they may not be diverted even in case of imperative military ecessity unless prior arrangements are made for adequate provisions fort the needs of the civilian population 5 Military Implications a Military civil defense organizations under the control of an adverse party 1 — In view of the conTstraints and limitations imposed as a condition to according immunity from being the object of attack Art 67 not likely to have any significant impact on U S forces while inits and personnel remain under the control of their own party such Unlike other military units of the enemy and other niembers of the arned forces they may not be intentionally attacked but of course the incidental killing or wounding of such personnel due to their proximity to a military objective actually engaged by fire directed against the objective gives no just cause for complaint 2 The actual number of protected civil defense troops is likely to be minimal Most military units have a capability to perform most of the tasks listed in Art 61 The tasks mentioned are similar to those mentioned in DoD Directive 3025 10 V C 2 d which contains a list of tasks which U S military units can perform in support of civil 1—67—14 ense units However the units which prforin these tasks are general purpose It is not likely that many countries would accept the condition that large number of their military personnel be exclusively devoted to the performance of these tasks for te duration of the conflict It is probable that most countries will claim protected status only for a few key professional civil defense specialists who would be assigned to civilian civil defense organizations The personnel involved are likely to be military officers assigned to civilian civil defense units including even the direction of such units In aggregate this c uld be a large number of persons but they would be so dispersed as to pose as military no significant threat For example in the USSR not only each city organization but plant organizations have military assignees In the U S there are a itively insignificant number of Mobilization Designees to civil defense An exception to this estimate might be The Netherlands which obtains its civil defense conscripts through the military draft There is a possibility of abuse but such abuse to produce any effective result would require commission of a grave breach military personnel must wear the sign The perfidious use of the sign In violation of Art 37 is a grave breach b The See Art 85 par 3 f Military civil defense personnel who fall into the power of an eney Par 2 of Art 67 will require the development of doctrine for the processing and handling of military civil defense personnel who become 1—67—15 soners of war One issue raised by the Swiss is a wish that Volunteers be permitted to continue their civil defense activities in place without the interruptions incidental to initial transfer to a prisoner of war camp and subsequent return to the place where they perform their civil defense tasks CDDH SR 43 Annex pp 18—19 6 Recommended u s Action There is no need for any further of understanding or statement explanatjon There is no reason to object to the Protocol on the basis of this article It is Improbable that the U S this article wil1 avail itself of the benefits of Accordingly no need fo implementing necessary at this time 1—67—16 legislation is PROTOCOL I PART IV CIVILW POPULATION SECTION II RELIEF IN FAVOR OF THE CIVILIAN POPULATION Article 68 -Field of Application 60 1 TEXT OF ADOPTED ARTICLE Article 68 - Field of Application The provisions of this Section apply to the civilianpopulation as defined in this Protocol and are supplementary to Articles 23 55 59 60 61 and 62 and other relevant provisions of the Fourth Convention 2 REFERENCES II Convention Art 38 III Convention Arts 72-74 IV Convention Arts 23 55 57 59-63 108-111 Annex II Protocol I Arts 8 6 - l0 14 21-31 49 54 69-71 Protocol II Art 18 3 RELATION TO U S POSITION Except for minor drafting changes Article 68 is consistent with the proposal for Article 60 Field of Application co—sponsored by the U S Austria Canada Denmark Finland France Greece Indonesia Morrocco Netherlands Norway Sweden UK CDDH II 398 4 COMMENT Article 68 was adopted by consensus by Working Group B Committee II and the Plenary with little discussion 5 MILITARY IMPLICATIONS Under the provisions of Article 43 Section I of Part IV does no a therwise affect the rules of international law applicable in armed nf1ict at sea Relief however is covered by Section II of hicle68 - Field of Application Page 2 Part IV Accordingly it modifies the law relevant to blockade and contraband by expanding the supplies which cannot be considered to be contraband clothing bedding and means of shelter intended for the civilian population as well as the class of persons for whom relief is intended the entire civilian population There is no material diminution however in the safeguards which may be imposed to insure that relief supplies are not divertec as a condition for permitting passage through a blockade See discussion qnder Article 70 The modification of the present law of contraband and blockade is a necessary implication from the principle adopted in Article 54 1 that Starvation of civiliansas a method of warfare is prohibited b 6 RECOMMENDED U S ACTION a If Protocol I is otherwise acceptable to the U S this Article provides no basis for objection 'b The Article require s no implementinglegjsjation 1-68-2 'TOCOL I CIVILIAN POPULATION SECTION II RELIEF IN FAVOR OF THE CIVILIAN POPULATION Article 69 Basic Needs in Occupied Territories 61 - - • i TEXT OF ADOPTED ARTICLE Article 69 — Basic Needs in Occupied Territories 1 In addition to the duties specifiçd in Article 55 of the Fourth Convention concerning food and medica supplies the Occupying Power shall to the fullest extent of the means available to it and without any adverse distinction also ensure the provision of clothing bedding means of shelters other supplies essential to the survival of the civilian population of the occupied territory and bjects necessary for religious worship Relief actions for the benefit of'the civilian population of occupied territories are governed by Articles 9 60 61 62 108 109 110 and 111 of the Fourth Convention and by 4rticle 71 of this Protocol and shall be implemented without delay 2 2 REFERENCES II Convention Art 38 IV Convention Arts 23 55 57 59-63 108-111 Annex II Protocol I Art 14 21-31 49 54 68 70—71 3 RELATION TO U S POSITION Par 1 substantially conforms to the proposed Article 60 proposed by the U S and its co-sponsors CDDFI 111398 a b Par 2 is not inconsistent with the U S proposal It merely reaffirms the provisions of the Fourth Convention relating to relief for the civilian population of occupied territory The reference to Article 71 of the Protocol merely ensures that personnel participating in relief actions in cccupied trritory are to have the rights and obligations of such personnel as prescribed in Art 71 c For U S statement of understanding see Par 4 b 1-69-1 Article 69 Page 2 4 Basic Needs in Occupied Territories COMMENT a The ICRC proposal for Draft Art 61 sought to impose on the Parties to the conflict the obligation of ensuring without any adverse distinction the provision of food stuffs clothing medical and hospital stores and means of shelter for the civilianpopulation not only in occupied territory The U S but also in any territory over whch the Parties exercise power this proposal to be unrealistic in that it and its cosponsors considered assigning priorities for would preclude a state affected b shortages from Accordingly proposal in CDDH the distribution of the items in question 11 398 simply reaffirmed the existing law with respect to occupied territory but exterled the obligation of IVArt 55 to cover also clothing bedding and means of shelter The ICRC observers supported by Switzerland continued to object to this limitation on the grounds that frequently there is uncertainty as to whether a territory is occupied A large majority of Committee II conThe result curred in the proposal made by the U S and its co-sponsors obligation of occupying is that Article 69 comprehensively covers the powers with respect to articles needed by the civilian population either to ensure their equitable distribution from the resources of the occtpied territory the occupying power or to arrange for appropriate relief actions Recognizing that in domestic territory a Party affected by serious shortages in desperate circumstances will allocate its óiñTresources to its armed Art 70 is designed to meet the forces and to its essential labor force basic needs of other civilians but under sufficient safeguards Lo give Parties permitting the passage of relief through their territory or their blockade reasonable assurance that they will not be diverted from their intended beneficiaries A number of Arab delegations proposed the deletion of the words to the fullest extent of the means available to it on the theory that these words weakened the obligation of occupying powers and might encourage evaIn Committee II the U S opposed sions of that obligation CDDH II 70 the proposed deletion and expressed its views that b if the deletion did in fact imply a stronger obligation the effect of the deletion would be a lesser obligation under Article 55 of the Fourth Convention to supply the basic needs of food and medical supplies than with respect to the secondary items of clothing and means of shelter covered by Article 60 of the Protocol a 1-69-2 - rticle 69 - Basic Needs in Occupied Territories Page 3 That to the fullest € tent of the means available to it b Implies the highest possible degree of obligation On the basis of the U S intervention th etrab delegations agreed to withdraw their proposal provided the 'ommittee report reflected consensus that the phrase imp Led the highest possible degree of obligation See Committee II Report CDDH 406 Par 114 ________ 5 MILITARY IMPLICATIONS This Article affects the ob1igation of occupation authorities oniy to the extent that - 1 Clothing bedding and means of shelter are added to the supplies which must be provided to the civilian population of occupied territory and There is a new requirement under Article 71 to admit when 2 cessary relief personnel and to respect and protect such personnel 6 RECOMMENDED U S AC'ION a No implementing legislation is necessary If Protocol b basis for objection is otherwise acceptable this Article provides no 1-69-3 PROTOCOL I PART IV CIVILIAN POPULATION SECTION II RELIEF IN FAVOR OF THE CIVILIAN POPULATION Article 1 70 — Relief Actions 62 TEXT OF ADOPTED ARTICLE Article 70 - Relief Actions 1 If the civilian populatión of any territory under the control of a Party to the conflict other than occupied territory is not adequately provided with the supplies mentioned in Article 69 relief actions which are humanitarian and impartial in character and conducted without any adverse dlstinct on shall be undertaken subject to the agreement of the Parties concerned in such relief actions Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts In the distribution of relief consignments priority shall be given to those persons such as children expectant mothers maternity cases and nursing mothers who under the Fourth Convention _c'r under this Protocol are to be accorded privileged treatment or ecial protection 2 The Parties to the conflict and each High Contracting Party shall allow and facilitate rapid and unimpeded passage of all relief consign- ments equipment and personnel provided in accordance with this Section even if such assistance is destined for the civiITãn population of the adverse Party The Parties to the conflict and each High Contracting Party which allows the passage of relief consignments equipment and personnel in accordance with paragraph 2 3 a Shall have the right to prescribe the technical arrangements including search under which such passage is permitted b May make such permission conditional on the distribution of this assistance being made under the local supervision of a Protecting Power c Shall in no way whatsoever divert relief consigniients from the purpose for which they are intended nor delay their forwarding except in cases of urgent necessity in the interest of the civilian population concerned The Parties to the conflict shall protect relief consignments and 1itate their rapid distribution The Parties to the conflict and each High Contracting Power concerned shall encourage and facilitate efrective international co-ordination of the relief actions referred to in paragraph 1 5 T—70-1 Kev1se rtic1 e 70 — Relief ug ii Actions Page 2 2 REFERENCES II Convention Art38 111 Convention Arts 72-74 IV Convention Arts23 59 Protocol I Art J 1 6 — 1O 21—31 49 54 69-69 71 Protocol II Art 18 3 RELATION TO U S POSITION a Pan - Under the proposal co—s1onsored by the U S CDDH II 398 each Party to the conflict would hav been obliged to agree and facilitate Under he adopted text however there is the relevant relief actions -ply a provision that relief actios shall be imdertaken subject to the This modification Lreernent of the Parties concerned if the relief action the obligation of Parties to the conflict was necessary to obtain conIn view of the conditions which may be prescribed by ny Party sensus under par 3 there does not appear to be any practical distinction between In this connection it is to be noted that agreement is the provisions This does required only of the Parties concerned in the relief action he adverse Party unless coisignments pass through not necessarily include territory or waters controllec or blockaded by that Party 1 Because of their special need for nutr tion nursing mothers 2 were added to the illustradve list of persons who are to be given priority in the distribution of relief Although not expressly mentioned the wounded and sick are encornpass6d within the category of persons entitled to privileged treatment or special protection under Protocol I ar 1 is expressly limited to nonoccupied territory inasmuch 3 as the Fourth Convention supplemented by Art 69 61 adequately covers the obligation of Occupying Po' rs as well as other Parties concerned in relief action for occupied territory There is no substantive difference between this paragraph Par 2 b It should be noted that •and the comparable text co-sponsored by theU S reference to this Section instead of Paragraph 1 CDDH II 398 makes 'is paragraph applicable to relief consignment equipment and personnel for occupied territory To this extet it reaffirms Art 59 3 tended the Fourth Convention 1-70-2 Article 70 - c Relief Par 3 CDDH II 398 Actions This paragraph is generally' consistent with par 3 of The following difference are noted included under The right to search consignments is expressly This addition technical arranginerits' in subpar a the geheral-taifl based on Art 59 4 Fourth whiàh was strongly urged by the U S S R is 1 Convention reference Because of Indonesian objection supported by the U S This deletion deleted from subpar b to impartial humanitarian bodies was Protecting power or a substitute encourages the receiving State to permit a It would also preclude of relief Art 5 7 to supervise thedistribttion from requiring supervision by a a Party authorized to impose the condition totally unacceptable to the humanitarian organization which it knows to be receiving State 2 proposed The exception to the oliigation stated in subpar c was necessity applied only in case of urgent by Australia This derogation may be and in the interest of the civilian population 3 CDDH II 398 Several delegations cbjected to the provision in protection shall guarantee the which provided that the Parties to the conflict the area subject to f relief consignments as being unrklistic in an actiieved in a simple obligation to protect azards of war Consensus was such consignment d Par 4 personnel and equipment to The U S supported an FRG proposal to add This was accomplished in Art 71 The the objects entitled to protection equipment is included within the U S delegation expressed the view that term consignment e 4 Par 5 is identical to the proposal in CDDH II 398 1MEN the Fourth Convention insofar a Article 70 supplements Article 23 of destined for the civilian provides for relief consignments as that article the conflict other than population of any territory controlled by a Party to between two classes of occupied territory Article 23 draws a distinction relieE consignments ' religious Medical and hospital stores and objects necessary for These objects do whole worship intended for the civilian population as a of a Party to the conflict and not significantly reenforce the war economy be contraband of war thus the adverse Party cannot declare them to 1 1-70-3 rtic1e7O Re1i Jctions Fage4 2 those Essentialodstuffs clothing and tonics bt only bt capable of exclusively for the use of persons presui I iut to drect and significant cor ribution to the war rnakii r economic potential an enemy namely chi1drn under 15 expectant rnoL ecs and rnatrnity ctses Additionally Article 38 af the Second Convention provides fo exclusively intended tie transport by specially cF artered ships of equipet r the ounded and sick members o f the aimed forces or for the prevention Ltended cEdisease I the supplies for which relief actions may be Article 70 expands the civilian populati4n to food medical supplies clothing urnished Dedding means of shelterand oier supplies essential for survival iowever priority in the distri ution of relief consignments is to be iven to persons such as children expectant mothers maternity cases c and iursing mothers who are entitled to privileged treatment under the Fourth Convention and the Protocols Within the working group the Soviet delegation expressed its doubts as to the feasibility of the proposed expansion They contended that unimpeded passage of such supplies even if not diverted to the armed forces of the receiving State would relieve the pressuros on that State aid its war effort -nd•prolng the war Moreover the civiUan population±nc1udesthees5entiai countryt s labor force who may be expecte1t to have a high priority share of that own resourcep If they also siaré in the distribution of relief supplies the pressure of shortages wou Jf hardly be felt by the armed forces This concern is expressly recognized in Article 23 2 c of the Fourth Convention d In recognition of the policy adopted by Committee III in Article 54 prohibiting stariation of civilians as a method of war the Soviet delegation reluctantly accented the principles of Article 70 They readily agreed to the provision fo priority in the distribution of relief to those classes which are specially protected and which do not ordinarily make a direct contribution to the war effort It is anticipated that to the extent that the adverse Party allows the passage of relief consignments equipment and personnel through territory or waters under his control it will take full advantage of the provisions of par 3 to prescribe technical arrangements to assure that the supplies are used only for the classes of persons for whom e they are intended arrangements within the meaning of Par 3 include inspection and searches en route the designation of routes and itinerary of the shipment marking of consignments arid transports documentation of personnel and consignments The Safeguards prescribed inArticle 38 of the Second Convention are appropriate technical arrangements for shipments by sea Technical 1-70-4 Revised 18 Aug 1977 cle 70 - Relief Actions Page 5 g For comments on par 4 see 3 d above Par 5 was proposed in intersessional meetings of delegates representing Red Cross Organizations who have found that it is essential that there be effective international coordination of relief offered and supplied by nongovernmental humanitarian organizations and by UN agencies Par 5 urges Parties to the conflict concerned in relief actions to encourage h such coordination 5 MILITARY IMPLICATIONS0 a See Par 5 under Art 68 and Ars 4d to f above Implementation of Art 70 will exempt substantial flow of civilian supplies from classification as contaband and thus have some effect on blockades in traditional sense Howver the authority to prescribe technical arragements and to requir supervision of distribution by a rotecting Power as a prerequisite for allowing passage provides ufficient leverage to minimize the risk of misuse or diversion of the b supplies 6 RECOMMENDED U S ACTION If Article 54 is acceptable to the U S Article 70 provides no In some 'cases the provision of relief supplies basis for objection envisioned by this Article may come within the purview of the Trading with the Enemy Act but implementing legislation is not considered necessary because that Act provides that the President can license acts which would otherwise be prohibited 50 App USCA § 3 Thus the President or someone delegated by him could authorize the transfer of relief supplies 1-70-5 PtOTOCOL I PART IV CiVILIAN POPULATION s cTIoN II RELIEF IN' AVOR OF THE CIVILIAN POPULATION kticle 71 - Pr omie1''articiptiflg in Relief Action 62bis 13 TEXT OF ADDPT ED ART 1 CLE S cticle 71 Persomiii participating in relief actions Where necessary relief pet sonnel may form part of the assistance irovided in any relief action n particular for the transportation and of i1icf consigniu€rtts the participation of such personnel Thall be subject to the approvai of the Party in whose territory they will carry out their dutL€s Such p etsozuiel shall b respucted and protected 2 I Each Party in receipt of relief consignnents shall tothe fullest extent practicable assist the reiief personnel referred to in paragraph 1 Only in case of imperative military th carrying Out their re1i f mission necessity may the activities of the relief personnel be liinited or their moveme ts tempor irily restricted 3 Under no circumstan ces mayIrelief personnel exceed the terms of their mission under this Protocol n particular they shall take account of the security requirements of the Party in whose territory they are carrying The mission of any of the personnel who do not respect out their duties these conditions may be tertu±nted 4 2 REFERENCES II Conventicn Art 38 IV Convention Arts 23 63 Protocol I Arts 69 and 70 3 RELATION TO U S POSITION CDDH II 398 cosponsored by the US provided in Par 2 that the Parties to the Conflict and each High Contracting Party shallallow and facilitate rapid and unimpeded passage of all relief consignments Par 4 provided that the Parties shall • personnel and equipment guarantee the protection of relief consignment s a • 1—71-1 Article 71 - Personne1 pai-ticipating In relief action 62 his I'ae 2 positioaS to support an amendment offered by FRG have included reiief personnel and equipment within the whch would gu rantee of protection in Par 4 b The U S c Article 71 is the product of a compromise resulting in Substitution of anob1igation to protect consignments in lieu of Art 71 th guarantee of protection in 1 P r 4 of A separate article ea1ing comprehensively with relief p1rsonnel including an obligatio that they be respected and protected 2 3 Re cognitLoo of the r igtkt of the receiving State to approve the 6artiipation of re1ie personnel an to tertni nate their mission of those ho do not respect the security requirement of that State An obligation on the p rt of the Receiving State to assist such personnel in carrying out t ieirmission 4 An cb1igation on the part of relief personnel to respect the receiving Statets security requiremeits 5 4 COMMENT The express reference to relief personnel in Art 70 2 was encouraged utilization of by the U S as ameásure which would facilitate effective For some form of relief as well s a measure tending to prevent abuse relief actions Luch as medical relif and projects requiring ccnstruction personnel are or engineering skiils professional or technically qualified protection necessary If t1 ey are present they need a Several delegations from developing countries including Nigeria and Indonesia did not wish to make any provision for personnel to accompany consignments Others argued that the receiving Party cannot rantee prob tection This contentious issue was referred to a subworking group chaired by COL Krasnopeev USSR which worked out the compromise solution of a separate article which took account of the occasional necessity of relief personnel their requirement for respect and protection and the security article sideration of the receiving State The result is a well balanced pnsiderably more aèceptable to all points of view than an abbreviated requirement for protection in Art 70 c 1-71-2 71-ersonrelparticiPatiflt iriLtion 62 bis MELITAXIM1'LICATION 5 To the fo extent that thi' article 'il e co urte more effective relief benetit of those for' whom the dtrrsion 'y itlii'oxi rU ' is intended and discourage it has beneficial militrry x it U areas of military operation relief actiots and relief personnel will ted to lighten the civil affa rs burden of U S forces wiLhout seriously ecurity burdei it crasing t 6 RECONDED U S ACTION ThiS article is acceptable No special statemmt of understanding is 'equfr ierntg I egi tiorF is orseen I'71-3