- - --- - -- - · -·- Delegat i on of the Feder al Republic of Ge r many to the Diplomatic Co fer ence on the Rea f irmation and Devel opment o f Internationa l Humanita ri an Law hp pli cable i n Armed Conflicts Talking poin ts on statements t o be made upon rat if i cation o f protocol I I 1 The Gover unent of t h e Feder a l Republi c of Ger many understands tr e s tatements on t he u se of nuclear weapons made by the United s ates and the United Kingdom at the Geneva Conference on I ntE r 1ational Hu1'1' rd t-arian Law applicable iil Armed Conflict ar d · ipon s igning tne p r otocols thereto on decerr ber 12 1977 to me an that i n tne vi ew of t he t wo power s nuc lear warfare has no - been a subj ac t of the c onfc -ence and that the provisions of pr otocol I nei-cher r egulate nor pronibi t t ie u se of nuclear weapons so t hat t is prot ocol is not a pl icable to any possibl e use of n• tclea r weapons 2 'I h e Fecer al Gcv erm 1ent ha not ye t reached a defir1i ti ve consensu s on thi s point The re is a 8tron body of opinion that though protocol I d ies no t contain a _ 0hibi tion of specific '·N i pons i ts clear and t nequ voc al wording would neve -tbeless prohibit thn use o f cmy weapon j_f unrcr the r pecific conrlitior s of its use ts ef fl cts - o 1 d b r di crimi 'late 't'h s would the -efore also urp y to nucl ar wt- apor s a 1d O' ll i G12f m that u- d er th3 condJ tions prcvai1 i n n CL•ntral Europe even ta tj cal r uclear weapons ou d as a ule no longe be pu to use lt is con siJ red t at mere i te retative state e t upon rsttficaticn and a refe rence to conference h i story would no t nff cc t o p r e c Jude this consequence Accor ding to ar '--icl e 32 of the Vie 3 Convent on on t e Law of Treati s r ecou-se mgy c· l y be had to suc h supplem ntar y means o f interpr etation when the - ordi ng of t he t r eaty i s ambi 6 ious or obscure This h0we V'er would no t be the case here In fact the interpr etatio 1 0 t e wc r ding m kes i t unequivoc lly clear t h at the use of any weapon shall e p rohibited if in a s p eci ic case its effects are ind iscrimi nat e I n or der t o ensure in i nternati onally bi nding f orm that in the event of nuclear weapons bei g used - DECLASSIFIED Authority N tJ U 'ie o71 ' - 2 - the user would not be bound by the provisiomof protocol I on me th ods and means of warfare a clear reservation upon ratification would be indispensable Should this legal consideration become authoritative for the Federal Government perhaps by virtue of a supreme court decision considerable consequences would ensue for it unless it had made a reservation it would be bound by the protocol also with regard to nuclear warfare and obliged under international law to forbid its nuclear allies to stockpile nuclear warheads in its territory or to make any first use of such warheads in its territory nor could it ever with its own units make first use of such nuclear warheads as might have been placed at its disposal within the framework o f NATO planning This woul l be a consequence which might most seriously jeopardize NATO strategy 3 The Federal Government is aware that a reservation by one or more NATO partners regarding nuclear warfare woul d be contradictory to the argumentation of the two nuclear allies For indeed such a reservation would mean that in the view of the state making it protocol I does in fact regulate the use of nucl ar weapons and that only a reservation could eliminate its application to these weapons It should however be possible to formulate a state ent making it sufficiently clear that the Federal Government does no want to be bound beyond a specific interpretation as stated by it but which would perrrit of being legally qualified both as a substantive r eservation or only as an understanding To this end the following wording is proposed for discussion '·It is the understanding of that the rules established by this protocol have been designed with a view to conventional weapons and were not intended to have any effect on and do not regulate or prohibit the use of nuclear weapons An acceptable rule of law designed to be applicable to the use of such weapons would have to follow other criteria than the rules established in this protocol which are designed for conventional warfare and would not fit well in the context of the use of weapons of mass destruc ion In applying the protocol the 1 CLASSIFIED l u-__ NN1 te JJ' t - 3 therefore considers itself bound only in so far as the use of conventional weapons is concerned In order to make this statement appear more acceptable it could be enriched as necessary by additional political arguments such as a reference to the need for agreement on effective measures to end the nuclear arms race and to implement nuclear disarmament under strict and effective international control 4 Another problem discussed by the Pede al Government is the question whether such a reservati on would be compati ble with the object and purpose of the trea ty article 19 c of t he Vienna Convention on the Law of Tr eaties This question need not however be considered and discussed in depth in this context In any case in the event of incompatibility the fact that the readiness to be bound has expressly been limited •• considers itself bound only in so far • • would be a legal guarantee that no obligation arises under the treaty II The statement made by the United States and in similar form by the United Kingdom upon signing protocol I on December 12 1977 i e 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 has the disadvantage that in the event of nuclear weapons being used it would preclude the application of the protocol a ltogether and hence also of the provisionscovering the protection of medical transport and the treatment of prisoners of war It would therefore seem useful to search for formulas which though precluding the application of all provisions that are positively i ncompatibl e with the use of nuclear weapons would nevertheless in binding form and for all parties to the conflict maintain the protection of the other rules One way of achieving this would be to make the nuclear statement with direct reference to article 49 of protocol I so as to make it clear that it is meant to relate only to t hat sphere of application of p rotocol I which is defined in that article DECLASSIFIED Authority bl tJ 1 lo oJ J ' i - 4 - In this case the draft statement put f or ·•ard for discussion under I above would have to be modified as follows It is the understanding of that the rules contained in the section mentioned in article 49 3 of this protocol have been designed with a view to conventional weapons and ere not intended to have any effect on and do not regulate or prohibit the use of nuclear weapons An acceptable rule of law designed to be applicable to the use of such weapons would have to follow other criteria than th2 rules contained in this section which are designed for conventional warfare and would not fit well in the context of the use of weapons of mass destruction In applying the relevant provisions of this section the therefore considers itself bound only in so far as the use of conventional weapons is concerned III Apart from the nuclear sta ement the Federal Goverru ent considers it necessary to make further statements which could also be briefly discussed during the forthcoming bilateral consultations Statement on Art 44 It is the understanding of the Federal Republic of Germany that the criteria contained in the second sentence of art 44 3 for distinction between combatants and the civilian population can only apply in occupied territories and in the other armed conflicts described in art 1 4 The Federal Republic of Germany interprets the word deployment t o mean any movement towards a place from which an attack is to be launched Statement on Art 50 1J and Art 52 3 In the opinion of the Federal Republic of Germany the presumptions contained in the last sentence of art 50 1 and in art 52 3 do not apply if in consideration of the specific circun stances of the respenctive military situation there are reasonable grounds for presuming that the attack is directed against combatants or objects used for military purposes DECLASSIFIED ' - 5 - Stateoent on Art 51 4 The Federal Republic of Germany understands art 51 4 to mean that attacks are not prohibited which are launched with the intention of striking a military objective which employ a method or means of combat which with regard to the respective mil itary objective ensure an adequate degree of accuracy and the effects of which on civilians and non-military objects can be limited in accordance with the prohibition of excessiveness Stat£ment on Art 51 5 and Ar t 57 In applying the rule of proportionality the term military advantage is understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack Tne judgement whether an attack will bring concrete and direct military advantage lies with the military leader who plans or decides upon t he overall attack Such judgement should be made with due discretion and with regard to the military situation and the intentions of highe r command Statement on Art 58 In endeavouring to take all practicable and practically possible precautions agains t the effects of attacks Those circumstances which are r elevant to the successof military operations must also be taken into account Thus the aim should be to choose f rom the practically possible alte rnatives the one which makes it possible to distinguish more clearly between civilian and military objects 11 Bonn September 18 1978 DECLASSIFI ED Authority N N j Cw D7 1 'i