DEPARTMENT OF STATE ACTION MEMORANDUM S S # '7' 3 0 fr December 9 1977 TO The Acting · Secretary FROM L - Herbert J Hansel _ S AR - George H AldrtfJ· G-H-lt- SUBJECT Circular 175 Procedure Request for Authorization to Sign Two Protocols to the Geneva Conventions of 1949 for the Protection of Victims of War W · Issue for Decision In accordance with the Circular 175 Procedure 11 FAM 700 authorization is requested to sign t he two recently negotiated Protocols to the Geneva Conventions of 1949 for the protection of victims of war It is also requested that you sign the Full Power at Tab A to permit Ambassadors Warner and Aldrich to si g n the Protocols on behalf of the United· States History of Negotiations The Swiss Government as depositary of the 1949 Geneva Conventions convened in 1974 a diplomatic conference to consider two draft protocols which had been prepared by the International Committee of the Red Cross The Conference held four annual sessions and concluded 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 Description of the Protocols The Protocols make significant advances in the protections accorded by international law to the victims of armed conflicts Protocol I dealing with international DECLASSIFIED Authority Nl'l'bbbllY - 2 - 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 and by requiring accounting for persons missing in action and the return of the remains of the dead Protocol II dealing with non-international armed conflicts 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 Protocol II is concerned almost exclusively with the protection of basic human rights both of combatants and non-combatants Thus the Protocols make important positive contributions to the development of the law Furthermore they do not contain any provisions that should be unacceptable to the United States Considering the relatively recent experience of the Vietnam War and the opportunity for propaganda dffered by the negotiation of the Protocols it is a cause for considerable satisfaction that the international conference system was able to produce such a responsible result Significantly the only article that seems politically charged Article 1 of the first Protocol which defines international armed conflicts to include wars of national liberation was one of the very few articles 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 tempted by the prospect of propaganda Moreover the extreme language of Article 1 which defines wars of national liberation in terms of alien occupation colonial domination 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 Furthermore Article 96 of the Protocol makes clear that this provision is non-discriminatory in its application and- that the laws of armed conflict would have to be fully observed by such movements Reservations and Understandings Although the United States does not need to make a final decision concerning any reservations or understandings until the time for ratification it would be DECLASSIFIED Authority NrJb Lb3 3 4 - 3 - a p propriate and p robably desirable to state formally at the time o f s i gnature any r e s e r vations or understandings which we are r e ason ably c e rtain will be required We have ide ntified only two unde rstandings tha t we should s tate at the time of signature with respect to Protocol I and only one with respe ct to Protocol II The se statements are at Tab C It may be d e s i r a ble to add o t h e r statements to the Unite d Sta t es instrument of rati f ication but this does not n eed to be d e cide d now The most important stateme nt of understanding that excepting nucle ar weapons from the new rules established by the Protocol is arguably unne cessary as it states a position taken throughout the Conference by the represe ntative s of the United States the Unite d Kingdom and France and was contradicted only by the representative of India In view of the importance of clarity on this q ue stion however and particularly in the light of Articles 35 and 55 which prohibit me ans of warfare like l y to cause widespread long-term and severe damage to the natural environment this understanding should be made for the record at the time of signature The understanding concerning the term deployment in Article 44 is n e cessitated by the facts that the term is of critical importance for the protection o f the civilian population and its meaning was dis puted at the time the article was adopted We must insi s t that a guerilla who takes advantage of his e n emy by pretending to be an unarmed civilian while moving toward the position from which he is to attack forfeits his status as a legitimate combatant a n d p risoner of war and may be tried and punishe d for any offe nses he has c ommitte d Although most r epr e s e ntative s who spoke to this question agreed with us a few interpreted the term deployment so as to require the guerilla to distinguish himself from the civilian popu·lation 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 technical and results merely from the deletion of an article on definitions when Protocol II was compressed at the end of the Conference DECLASSIFIED Authority NrJb 6b3 3 Y - 4 - The Department of Defense concurs in these understandings but also recommends that consideration be given to one reservation to the first Protocol It does not believe that it is n ecessary to make the reservation at the time of signature This proposed reservation the text of which is at Tab D would preserve the right of reprisal against an enemy ' s civilian population or civilian objects in the event of systematic and massive attacks against our civilian population in violation of Article 51 of the first Protocol That article prohibits all attacks directed against the civilian population expressly including attacks by way of reprisal Article 52 prohibits reprisals against civilian objects The Department of Defense believes that these prohibitions are unrealistic and will not be respected in practice They eliminate the ability of the United States to threaten to take these reprisals The State Department and the Arms Control and Disarmament Agency agree that this prohibition may prove unworkable in the event of massive and continuing violations of the Conventions and the Protocol and that such violations could not be absorbed without a response in kind However they believe that a reservation by the United States on the point is neither necessary nor desirable State and ACDA b e lieve that such a reservation would be misconstrued and misunderstood as a statement of intention to attack 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 too 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 nuc l ear weapons it would be particularly difficult to explain why we of all nations found this reservation necessary as such a reservation would not be needed to preserve our right to use these weapons It would only preserve our right to use conventional weapons or other proportionate means to respond to the enemy's violations 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 consider this question at any time prior to ratification Congressional Consultations Interested members of Congress have participated as advisors to the United States Delegation to the DECLASSIFIED Authority NrJ bb3 3 4 - 5 - Geneva Confe r e nce and have been k e pt informed of the progress of n egotiations but the re have b e en no formal hearings or consultations with the Congre ss At the appropriate time we intend to offer briefings to interested Congressional members and staff We anticipate no significant Congressional objection to the two Protocols Allied Consultations Consultation with our NATO allies has of course occurred throughout the negotiations A NATO Military Committee Study has recently been completed which finds the Protocol acceptable from the military standpoint but stresses the needs a for all of the allies to be bound by the same rules b for the rules not to affect the use of nucle ar weapons and c for certain ambiguous articles to be interpreted uniformly by all allies in · ways we stated for the record during the closing sessions of the Conference Further allied consultations will be held as appropriate to ensure a cohe rent app roach to both the timing of ratification and to the substance and texts of any reservations understandings and interpretations Recommendations 1 That you approve signature of these two Protocols on behalf of the United State s with the understandings proposed at Tab C Approve 2 - - - -- - - - Disapp rove --------- That you sign the Full Powers at Tab A Attachme nts Tab A Tab B Tab C Tab D Tab E Full Powers Final Act and Protocols Statements of Understanding Proposed Reservation Memorandum of Law Drafted S AR GHAldrich js 12 8 77 x28460 Concurrences L T - Mr Ravine PM - Mr Breckon H - Mr Atwood DOD - Mr Anderson w J ACDA - Mr Graham '1 L - Mr Michel'- DECLASSIFIED Authority NrJb bb3 3 4 TAB C PROPOSED UNDERSTANDINGS A Protocol I 1 It is the understanding of the United States of America 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 attack 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 8 of Protocol I shall so far as relevant be construed in the same sense as thos e definitions DECLASSIFIED Authority Nl'll bbll4 TAB D PROPOSED RESERVATION TO PROTOCOL I Notwithstanding the provisions of Article 51 paragraph 6 and Article 52 paragraph 1 the United States of America reserves the right in the event of massive and continuing attacks directed against the civilian population to take reprisals against the civilian population or civilian objects of the State perpetrating these illegal attacks for the sole purpose and only to the extent necessary to bring the illeg al •' attacks ·to an end These measures shall not include any of the actions that are otherwise prohibited by the Geneva Conventions of 1949 or this Protocol E DECLASSIFIED rity Nrl bb33 4 I DEPARTMENT OF STATE W ashlnet on D C 20520 MEMORANDUM OF LAW Circular 175 Procedure Request for Authority to Sign Two Protocols to the Geneva Conventions of 1949 for the Protection of Victims of War The accompanying Circular 175 memorandum requests authority to sign two Protocols to the Geneva Conventions of 1949 for the Protection of Victims of War These Protocols will be submitted to the Senate for advice and consent to ratification Therefore the treaty power of the Constitution Article II section 2 clause 2 provides legal authority for U S adherence The Protocols obligate parties to accord certain protections to persons engaged in or affected by armed conflicts particularly civilians prisoners of war and the sick and wounded Observance of these obligations by the United States would be fully compatible with the Constitution and no implementing legislation will be required Neither signature nor ratification of the Protocols by the United States would constitute a major federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Protection Act NEPA No identifiable effects on the environment from the adoption of the Protocols can be foreseen any hypothetical effects would be incidental and highly speculative and since the Protocols moderate and restrict the use of armed force would be beneficial and not destructive Further the proposed statement of understanding concerning nuclear weapons is not a major federal action since it merely restates the fact that Protocol I was not intended to create new rules prohibiting or restricting the use of nuclear weapons Accordingly no environmental impact statement is required under the NEPA DECLASSIFIED Authority NNb bb33 4 - 2 - 0 the basis of the foregoing there i s no legal obJection to United States signature of the Protocols Michael John Matheson Assistant Legal Adviser for Politico- Military Affairs Cleared L T - Mr Ro vine b w- L OES - RJBettauer draft L - Mr Miche l ' ' ' Drafted L PM - MJMathe s on j d 1 2 8 77 27838 DECLASSIFIED Authority NfJf bb3 t4