f FDrf-©Pfit ttMf bJ Sf I© kY C F 1C'E OF THE JU OCC ADVOCATE GENERAL WASHINGTON O C 20310 ·- f EPI Y TO ATTENTION OF1 r 29 Septer lber 1978 MEMORANDUM FOR THE LAW OF WAR WORKING GROUP SUBJECT FRG Talking Paper for October Meeting 1 Refere nc e DhJA Me morandum dated 22 September 1978 subject as above Copies of t h e FRG Talking Paper for the October 2- 3 meeting we re distributed for corr ments 2 -Attached for your information are copies of the comments prepa ed by Army JAG Incl 1 and Air Force JAG Incl 2 w s Inc£ 41 Chief Inte rnational L3w Branch Internatio al Affa i rs Division as DI STRIBU'l'ION Ambassador Aldric Dept of State MG Reed USAF TJ AG Mrs Hazeau ACDA Mr Matheson Dept of St ate Ms Buckley DOD I SA Ms Flood DOD ISA Mr Almond DOD GC t l r Moss OSD AE Col Smith OJCS J-5 Capt Harlow NAVY JAGC Col Norris USAF JAGC LTC Robers on DAAO-SSM Maj Parks NAVY JAGC Maj Carnahan USAF JAGC Capt Cw mings DAJA- IA FOR OFFICIAL USE ONLY DECLASSIFIED Authority hJf'J 6b t t4 DAJA Com ents Comments on FRG Talk ing Pape r on Statements To Be r- ade uoon Ratification of Pr otocol I I Nuclear Declaration A The paper suggests that there is a strong body of opinion that the substance of several provisions of Protocol I cle arly and unequivocally prohibit certain uses of weapons wh ich would have indiscriminate effects and that under conditions pre vailing in c e ntral Europe these provisions would limit the use of nucl e ar we apons includi ng tactical nuclear weapons T ne pape _also suggests that a mere interpretive stateme nt would not suffice to preclude that consequence The Vienna Convention on the Law of Treaties is cited as authority for this view Accordingly the FRG proposes an unambiguously worded declaration which has t he effect o a r eservation Comments 1 It should be noted at the outset that the FRG appears to be inte r preting the Vienna Convention ' s rules o n treaty interpretation in an improper manner The FRG appears t o be acting on the assumption that the Vie nna Convention only permits parties to interpret treaties according to the plain me aning of the terms and that recourse to the negotiating record is permitted only if there is ambiguity This is not an accurate interp r e tation The g e n e ral rule of interpretation Article 31 states tha t treaties shall be interpreted in accordance with t h e plain me aning of t e rms a in their context and b in the l igh t of th e t rea t y ' s object and purpose materials is per ni tte d e ithe r Recourse to supple me ntary 1 to confirm an interpretation of the treaty or 2 to d e t e rmine the me aning of the treaty if there is ambigui t y or if a l i t eral a pplication of Article 31 to the provision in question leads to an absurd r esult Th e FRG also ignores the possibility of having recourse to the s uppleme nta ry eans of i nterpre tatio n LO c onfi rm a inte r p r e tatio n r1 ity In DECLASSJFIED C FOR OFFICIAL USE ONLY NtJ_ _bb3 3 4 FOR OFF C A'- USE O · Ly the case of the Protocol the obJ ect and p urpose Articl e 31 Vienna Con vention of the treaty was in part to devise rules that would be applicable in situations when conventional weapons are used The object and purpose of the treaty was not to deal with the use of nuclear weapons Consequently th e U S is entitled to insist that its views on nuclear weapons are indeed within the purview of the plain meaning rule of Article 31 of the Vienna Convention Article 32 would permit a recourse to the negotiating record to confirm this interpretation regardless of whether there is any ambiguity 2 As the U S lJK declaration will be a part of their instrume nts of ratification it will not be a mere supplementary source In view of Article 2 1 d of the Vienna Convention it will have the same effect as a reservation without running the risk of being construed as an admission that the conference intended the Protocol to regulate the use of nuclear weapons Article 2 1 d of the Vienna Convention defines a reservation as being a unilateral statement however phrased or named made by a state hen signing ratifying accepting approving or acceding to a treaty whereby it purports t o exclude or modify the l egal effect of certain provisions of the treaty in their I application to that state Nevertheless the U S has no objections to making i t clear that states expressing s imilar understandings will not be bound by any inconsistent interpretation 4 There is however some concern whether the language· proposed in the FRG talking paper is broader than the limitation expressed b y the understanding 'i'he FRG reposed declaration is In applying the Protocol the _ __ _ _ _therefore considers itself bound only in so far a s the use of conventional weapons is concerned This is susceptible to the interpretation suggested in Part II of the FRG talkinq paper that the declarinq State considers the Protocol to be • FOR 0FF1c1AL usEa IL C c ity DECLASSIFIE 7 N l _b b FOR OFFICIAL USE Oi' LY applicable onl y in armed conflicts in wh ich conve ntiona l weapons are used The U S declaration on the other hand does not imply that Protocol I is inapplicable in the event of a nuclear armed conflict It merely declares that the rules e tablished by the Protocol were not intended to have any effect on and db not regulate or prohibit the use of nuclear weapons The U S d e claration cannot r e aso nably be construed as denying the applicability of the p rovi sions of the Pro tocol d e aling with the wounded and sick prisoners of war and civilians e xcept to the exte nt that particular provisions could be construed as affecfng the use of nuclear weapons II Efftt To Limit Declaration to Section I Part IV The FRG 1faper construes the U S declaration as precluding in the event of nuclear war the app lication of the Protocol altogether and hence the protection of medical transport and the trea-cment of priso 1ers of war To overcome this possibility the FRG paper proposes to restrict the e ffects on the declaration to the section mentioned in Article 49 3 i e Section I Part IV Articles 48 to 67 Comments 1 As pointed out in t he preceding sectio 1 the U S d ec laration was carefully phras ed to avoid the interpretation attribute d t o it in the FRG paper 2 Limitation of th e e f fects of the declaration to Articles 48- 60 would leave unc overed Article 35 Paragr aph 3 whic would otherwise severely limit the us e of nucl e ar we a f ns t o e same extent as Article 35 3 ' on the other h and it wo uld cast doubt as to the applicability in nuclear war of Articles 59 Non- d e f e nde d localities Demilitarize d zones and 6 1-67 Civil defense These are c o nse quences not e nvisioned under the U S de clarati on FOR OfFICiAL USE 3 o Y DICLASSIFIED Authority NNDbb 3 3 4 FOR OFF C AL USE 0 'L' 4 Although not clearly stated the FRG paper may express a c o ncern that in the event the U S d eclaration is construed as a re servation and rejected by a State t here may be no treaty relationship under the Protocol between the reserving State and the rejecting State Ipsen ' s paper This is s uggested in Professor The current law on t he effect of reservations and objections to reservation relevant to t his matter is reflected and summarized in Articles 20 and 21 of the Vienna Convention on t he Law of Treaties The relevant provisions state that a An objection by another contracting State to a reservation does not preclude t he entry into fore of the treaty as between the objecting and reserving States unl ess a contrary intention is definitely expressed b y the objecting State Article 20 4 b b When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the r eserving State the provision s to which the reservation is ade do not apply as between the two States to the extent of the r eservation Article 21 3 Emphasis added In view of these rules an objecting State has the option to reject any treaty relations with the reserving State or to accept the treaty r e lations except to the extent of the r eservation Applying these principles an objection to the U S declaration which does not e x press ly reject treaty relations with the U S would have the following effect r a Establish tre aty relations with the U S as to the entire Protocol except as to those provisions wh ich affect the use of nuclear weapons to the extent of reservation In other words the Protocol creates no treaty relation respecting the use of nuclear we apons ' 'he parties woulc be go verned by pre- e xisting law with 4 FOR OFFICIAL USE Oi JL Y DECLASSIFIED Authority NNb tb3 r4 F0 R OFF CIAL USE 0 i Y 1 respect to the use of nuclear weapons Thus a rejection of the U S declaration would have the same l egal effect as an acceptance b Provide an opportunity for stigmatizing the U S thru propaganda Professor Ipsen construes the principle reflected in Article 2 3 as mechanically effecting a rejection o f Par ts Section s or Art icles of the Protocol mentioned in the declaration or to the entire Protocol if not so particularized It is not b e lieved that this is a valid construction The proper construction is that in the absence of a contrary expression a general objec tio n to a reservation is to the severable portion of the substance onl y Nevertheless the end result would be that in t' he process of sorting out the treaty relationship between the reserving and objecting States it would be necessary to identify the specific provisions affected In order to remove whatever ambiguity remains in the U S declaration consideration should be given to revising the U S declara ion to read as follows It is the understanding of the United States of America that the provisions of rul es established by this Protocol pertaining to methods and means of warfare were not intended to have any effect on and do not regulate or prohibit the use of 9uclear weapons The United States of America will not be bound by any inconsistent interp retation 5 DECLASSJFIED • _FOR OFFICIAL USE ONLy Authority NtJ LbJ 3 4 Fr J nc-FIC' r 1 - n · I •• - L V -V '1 1 I Other Proposed FRG Declarations Article 44 3 2 This appears to be consistent with the U S d eclarations Articles 50 1 and 52 3 Presumptions of civilian character The understanding prepared by the FRG in its talking paper page 4 on Articles 'j 50 1 and 52 3 appears to be based on a misunderstanding The treaty provisions in question state in essence that if there is doubt as to whether a person or object is civilian it shall be presumed to be civilian The understanding expressed by the FRG in essence deals with a situation in which there is no longer arl r e asonable doubt The FRG understanding deals with a situation in which i t can b e inferred that the objects or persons are of a combatant y character Consequently the presumption stated in Articles 51 1 and 52 3 is overcome Thus the declaration adds nothing to the statement of the two p rovisior s The thrust of the U S statement covering this situation as well as other situations in which decisions are made by c o r tbatants is to shield honest decisions against condemnation in the light of hindsight The provisions of Part N S e ction I of Protocol I must be applied to commanders and others r esponsible for planning deciding upon or executiving attacks on the basis o f information reasonably available to them at the time they take such action and not on the basis of hindsight If i t is desired to particularize this general statement with r eference to the presumptions stated in Articles 50 1 and 52 3 the following may be considered 6 city r - • FOR OFFICIAL USE o 4 DECLASSIFIED N 1 tbU4 FOR OFFICIAL u It is the further understanding of the - - - -that the presumptions stated in Articles 50 and 52 3 are rebutted overcome when a commander or other person responsible for planning deciding upon or executin g an attack honestly concludes on the bas i s of information r easonably available to him that the persons or objects under consideration are legitimately the obje t of attack legitimate military objectives 3 Article 51 4 Indiscriminate Attacks The FRG proposed u derstanding does not do much t o clarify Article 51 4 I f i t tends to clarify their thinking i t i s not objectionable except as to the implication that the r ule of p r oportionalit y excessiveness is the only l imitation on the effects of a ttacks under Article 51 4 e Analysis indicates that the Pr o t o col requires three limitations on the effects of attacks a Pr oportionalit y Exc essiveness Article 51 5 b and 57 2 a iii b Rules r elating to the protection of the natural environment Articles 35 3 and 55 c Limitations on attacks against military objectives located at or near dams dikes and nuclear electric stations if such attacks may cause the release of dangerous forces and consequent severe losses among the civilian population Article 56 In regar to the natural environment and the installations containing dangerous fo r ces if the severe consequences are forseen t he attack may not be launched regardless of the relative importance of the target Witil res pect to t e rule of proportionality the commanders concerned must make a determination whether the forseeable civilian losses are excessive in relation to t e concrete and direct military advan t a ge anticipated 7 DECLASSIFIED C FqR OFFICIAL USE Oi L y Authority NrJf tti 3 3-4 0R O CI '' 1 - - f ' ' This d e c is ion will have to be based on a balancing of 1 The forseeable extent of incidental civilian casualties and damage weighed against 2 The relative importance o f the mil itary objective as a target 4 Articles 51 5 and 57 Proportiona lity Military Advantage Anticipated ll The U S has informed the alliance of i t s int ent t o express an understanding substantially similar to the first paragraph of the declaration proposed by FRG The substance of the second FRG paragraph is covered by the principles that a decision maker ' s action should be judged on the basis of information reasonably available to him at the time he makes his decision and not on the basis of hindsight If the FRG intends to make this declaration it would probably sound better 1 0 omit the re f erence to the intentions of higher command This concept is certainly included within the more general term military situation National manuals should and probably will contain a discussion as to the level of comrr and authorized to ca cel or suspend an attack for reasons of proportionality Article 57 2 b 5 Article 58 Precautions Against the Effects of Attacks The first t wo sentences of the proposed FRG declarations are encompassed in the Li Declaration de i nitio n o f feasible The f third sentence is a self evident t ism as to the thrust of Article 58 8 DECLASSIFIED FOR OFFIC L c v Authority Nr JI Lb3 3 4 DEPART · T c - THC A R FORC E HEADQU ARTER - 1- -EO STATE S AIR FOR CE 20324 11£ P'LY TO ATTN OF· SUIIJECT TO 2 8 SEP 1978 JAC I FRG Talking Paper Your Letter of 22 Sep 7 8 DAJA- IA 1 Part I of the RG paper assumes that Protocol I applies to nuclear weapons and that such weapons are forbidden as indiscr iminate under AYticle 51 It then argues that this would have severe repercussions u nder German internal law and that these would not be avoided by a mere statement of un9e rstanding upon ratification because such a statement would be without effect under the rules of interpretation laid ut in Article 32 of the Vienna Convention on the Law of Tr aties The conclusion dravm is that the FRG must file f ormal reservation to the Protocol something that the uhited States has consistently opposed Leaving aside the rather que stionable assertion that 2 tactical nuclear weapons are necessarily indiscriminate it should be pointed out that the Vienna Convention is not yet in force and that the United States has always asserted that the negotiating history of a treaty should be freely consulted during the process of inte rpreting it Even within the framework of the Vienna Convention however a good argument can be made that it is still permissable to consider the U S statement of understanding Article 31 of the Convention lays down the general rule'' that a treaty should be interpreted in accordance with the ordinary meaning of its t erms and in the light of its object and purpose No limitations are stated on the means to be used to determine object and purpose Our unde rstanding on nuclear weapons relates to the obj ect and purpose of the Protocol as a whole rather than to the meaning of specific language therein It should therefore properly be considered even if the Vienna Convention rules of interpretation are strictly follo ed It s hould also be noted that some commentators have argued t h at Article 32 of the Vienna Convention does not prohibit the consideration of preparatory work unl ess a treaty is ambiguous but only authorizes it in those circumstances The crux of the German argument howeve r relates to the 3 effect of the Protocol in RG internal law This concern is apparently based on Article 25 of the FRG Cons titution which C u r irl • •11 C t1 ·s f 11 - i • r_ B • • city DECLASSIFIED ML ll4 reads as fo lows The general rules of public international law are an integral part of federal law They shall take precede ce over the laws and shall directly create rights and duties for the inhabitants of the territory For many years however both the Federal Constitutional Court and the majority of com entators have construed the phrase general rules of public international law to refer only t o rules ot c ustomary international law Treaties a r e regarded as non- self executing and reoui r e separate legis l ation in each case to take effe c t within the FRG It would therefore appear that tbe Federal parliament could incorporate a NATO- approved statement of understanding into FRG internal law when it passes the statute executing the Protocol in that law The previously accepted interpretation of Article 25 of the FRG Constitution may or may not have changed in recent years but this is certainl y' an area which ought to be explored with the German representatives In any event many of the fears and interpretations 4 expressed in the FRG paper seem to be rather fanciful Even if nuclear weapons are assumed to be indiscriminate there is no explicit prohi bition on stockpiling such weapons on the soil of a state part y to the Protocol Similarly while the Protocol might per mit the use of an indiscriminate weapon in reprisal in some circu stances there is nothing in Protocol I to suggest that such weapons are merely subject to a no first use rule The concern for the sick and wounded and PWs expressed in Part II of the FRG pape r seems equally fantastic since the 1949 Geneva Conventions are not subject to any understandings or reservations dealing with nuclear weapons hnile the Protocol does expand the protection of guerillas national liberation movements and medical aircraft none of these is a likely target for nuclear weapons 5 Turning finally to the miscellaneous sugges ions in Part III of the paper the understandings on Articles 44 and 58 and the first understanding on Articles 51 5 and 57 are consistent with past U S and DOD positions There may be problems with the other statements however a The suggested understanding on Articles 50 1 and 52 3 would allow persons and objects of doubtful status to be attacked if there are reasonable grounds for presuming that they are lawfully subject to attack This statement is capable of being in erpretea as permitting attacks whenever there is come reasonable ground for believing the attack 2 L C crity DECLASSIFIED NrJl l bll4 l awful even i t he commander in fact k nows i t is not l awf ul It would b e preferable to refer t o whether t he pe rson deciding on he attack honestly believes that the attack is directed against lawful objectives b The statement of understanding on Ar ticle 51 4 w uld require weapons to have a n adequate degree of accura c y w1 thout stating what they s hould be ad P guate to do 'l'h is whole state ment does not seem t o clari fy the Protocol ve ry much as it is not at all a ppare nt what the German s i n tend t he statenent to acc ompl i sh c The second understanding on Arti cle s 51 5 a nd 57 rri ght be read to mean that t he decision o f a fi e ld commande r could ne vgr b e subject t o l ater que sti on i ng e ven in the c a se of bad fai t h or manifestl y i rra tional action s e g the C lley case he r efer e nce to i nte n ti ons of highe r command might also sugges t a r e vival of the s upe rior order1 issue It would be preferable to use languag e s i mi ltr t o that used by the U S delegation to the Di plomatic Conf e enc e conunanders and others responsible for planning dec id i ng upon or execut ing attacks necessarily have to reac h de c isions on the bas is of their assessment of the i nforma ti on from al l s ources which is availab l e to them at the rele v ant time DECLASSIFIED E rity NrJD6b3 3 4