1 · • · 2S 80ftPID N I IRL US Sid IL COP l NO JCS 2497 24-6 oecLAssi 1120 IN uLL 13 September 1982 Authority EO 13826 Chief Reco s Oeclass Div WHS Pages l - 8 incl Oate n1sT1trnuT10V SEP 3 0 2013 REPORT BY TIIB J-S t o the JOINT CHIEFS O F STAFF on JCS REVIBW OF THE 1977 PRO'IOCOLS ADDI 1ONAt TO THE 1949 GENEVA COl'IVENTIOIIS IUI Referenc11 JCS 2491 24-4 DBCISI0N l On 28 Bepte lber l IIJ2 r y telephone vote tne Joint cniefs o Staff after making amendments approva4 the reconenoattons in p ragraph 9 of this report 2 The snc1oaun was aent oa JCSM 219-82 l octooer 1982 to the Secretary of Defense 3 Thla dee la ion replaces the paper Holders are requested to destroy tbe superseded paper in accordance with securit y regulations DISTRIBUTION I Gen Gen Adm Gen Gen Gen Veasey ICJCS Meyer CSA Watkins CNO Gabriel CSAF Barrow ICHC Gorman Asst to CJCSI INTERNAL STM'f PAPER 122 U SSftSD bi J JH an ll l 61 Gen Dalton DJSI Gen Pr i ll11111an J-JI 6 Ad 6 Co SJCSI 5 41 Co DSJCSJ 1 ea I st ll 2 till Ill Ill a ass cu r 22 Ok SAUR 3S THlS COV R PA B IS UNCLASSIJIED Jlli iP JCS 2497 24-6 l Poper ev aed by ouoision • l8t EtPENI t 1 DECLASSIFIED IN FULL ·Authority EO 13526 Chief Records Declass Div WHS DatesEP 30 2013 I COICFiGC l JCS REVI W 01 ' fflB U77 PROTOCOLS ADDITIONAC TO THE 1949 GENEVA CONVENTIONS U 2 3 'I'll PROBLIN 1 U 'l'o respond to a requeat bJ the Under Secretary of i Defense for Policy OSD CPI J fot a preliminary analysi of the 5 major areas of likely JCS concen with the 19'17 Protocols Ii Ac c11tt or d to the 1949 Geneva Conventions the Additional 7 Protocol • 9 FACTS BBARIIIG ON 'l'RB PROBLBM 2 On 20 April 1982 OJCS initiated a formal 11iUtacy review of the protocols 11 TO Met the firat 111leston1 in the 12 plan for the review tbree Services hav proli'lded • their initial •llitary assessment of the protocoli Those a- • eas• 13 1111nta a4dre• a ir aue• that may require a declafation HH aeveral 14 reservations t 111nd numerous statelllanta of undeutandi_n9 H 15 Many of the proposed atatementa c-epeat or revise statements provided by the Joint Chiefs of staff JCSM-448-77 tlt conce1 ning us 17 aignatute 18 3 JII' on 30 July 1982 the USD P req11ested an lnforul 19 pr li11inary but aubstantlve analysts of the 11ajor ar••• of 20 likely JCS concern with the protocol•• ll rn addition to his 22 • JCS 2497 24-4 JCS 20112oz Apr 82 as revised by JCS 031924Z Aug 82 Army ne• orandum DAM0-9SM 9 August 1982 Army Views on Ratification of the Additional1 Protocols to the Geneva Conventions of 1949 U Sii file in Joint secu1tar hi 2 Air Force memorandum 13 August 1982 illtary Review of 1977 M1Utlonal 'ProtOCOls on file in Joint 1 Secretariat 3 Narine Corps N110randu111 JCS 2497 24-5 Annex D to Appendix A I Anne• A to Appendix A If Annexes 8 and c to ppen4lx A Ill Bnclo• ure to JCS 2497 18-2 CEXH Piib Jr 8idCitlt5 n s JIH 15 2£ JCS 2497 24•6 2 I S 73 u 24 1 ll 1- iI OECLASSlf'll D IN PULL Authority EO 13526 Chief Records Declaas Div WHS Date SEP 30 2013 CONl b 1111 t request for prelirlinary analysis be requested final CS recom111end•tions on the protocols on or before 1 December 1982 2 Thia requested completion date is the second OSD P inltiative1r 1 to accelerate tile JCS review While acknowledging that every • effort would be made to accelerate the ailltary review •• the services and the Joint St aff have indicated that the Joint 6 Chiefs of Staff would provide their views on ratification in 7 December 1982 u DISCUSSION 4 10 Providing the Secretary of Defense with the draft proposed reaenatlons Annex A to Appendiz A would liml t the broader range of issues raiaea during the cuuent military review and possibly mislead the 080 staff about tbe range and ll depth of allitary concerns 14 Aeoordingly the Director for Multilateral Negotiations Policy OSO aqreed to thl informal Joint Staff suggestion that the draft proposed statements and suppoctin9 analysis include as 11any issues as tile Services and 17 Joint Staff had undec st11dy at this tine 11ncl to the exteneion of the requested response date to 24 Septnber 1982 Purther the supporting analysts would ac1dresa principally those new and 20 revi-d fcOII those provided in JCSM-448-77 proposed 11tate111ent1 under consideration rather th11n provide a comprehensive statement encompaesing 11atedal previously 23 provided to the oso 11taff U s 25 Providin9 such statements even on an informal prali111nary basis may i11ply that the Joint Chief of Staff ••Y not object to ratl f lcation of one or both of the protocols the Joint Chiefs of Staff do object to ratif lcation the statements will oot be required • u AtEachment to JCS 2497 24-2 Attachment to JCS 2497 24-3 Attachment to JCS 2497 24-1 See Append i IC B •• ZSLllil id JCS 2497 24-6 J Providing a lengthy If 27 29 ll iI· I DECLASSIFIED IN FULL Authority EO 13526 Chief Records Declass Div WHS Date 3'ill l'lidilh lb _ SEP 30 2013 collection of stateR1ents also may imply that issues acidressed ref Leet 1 co111plete auc11cy of th 1a uu un 1t• - tu Jy Lor trw 1 2 111ilitary review that the i ssues a 1oresset1 may oe i esolved onli by such statements and not by cilcU 9es to 111ili tacy doctr i ne and 4 procedute oc to State's practices with tile passage of ttme and 5 that a complete survey has been c0111pleted to aetecmine wnicn protQcol ' provisions are new treaty laws ve sus restatements 7 of treaty or customary law accepted by the United States 8 A separate action is being prepared on the issue of the nonapplicabili ty of the protocols to nuclear weapo 1s that 9 10 action includes analysis of 11arious options for statements on ll this issue 12 6 In 1971 the Joint Chiefs of Staff noted AppendiK D to JCSH--448-77 the nHd to develop colRIIOn statements for reserva- tions and under standings wi til other States should the United States decide to accept the protocols CONC USIONS 7 UJ The draft proposed statements and accompanying analysis in Appendix A and its anneices should be submitted to the Secretacy of Defense with the express understanding that the resJ Onse does not prejudice the JCS reco11111endat ions regarding the decision to ratify the protocols and that the statements do E not refl ect a comprehensive survey of all issues under study in ll the military cevie 24 8 Jl'f'The Secretary of Defense should be reminded of the pos- 25 Sible need fot consultations with otilet States es cially US alli s1 he should be informed however that the need for such ll consultations wtll not 1ffect completion of tile JCS review --raee Appendi x B subparagraph e see Annex D to AppendlK A II IFT JtlW JCS 2497 24 4 i1·' I· r DECLASSIFIED IN l'ULL Authority EO 13e26 Chief Records Declau Div WHS Date SEP 30 2013 112 1 Jlfflftwtf' RP' COMMBNDAT 0NS 1 Annnea A 8 c and D and Appendlx B £eflectlng the abo•• c oncluaions 5 9 Ul It ia reo011111ended that a ' be 111emoranawa in tba Enclosure with Appendix A and be sent to the· SeC'ntaty of Defense b Coples of the 11e11orandu11 in tbe Bncloaure IIOT be furnished to other a9enci es except as authorized under JCS 1 MOP 39 8 c Copies of thia papec be aent to commanders of unlflec1 and specified commanda u nthortaed under JCS HOP 39 d Copiea of this paper be sent to t he USNNR to SBAPB 11 ll AoUon Offloeu SAi' £Md Conflict Branch J-5 15 18 20 21 ll ll 28 ll ll ililll Z hliikd JCS 2497 24-6 5 I i • • I 2 • • 1 E CLOSURE JHE 1011111 CHIEtS OF STAFF WMHtNGTON O C zoY ll J SK-219-82 l 0- tobcc 1931 DECLASSIFIED IN FULL Authority EO 13526 Chief Records Declass Div WHS Date SEP 30 2013 MEMORAND M FOR THB SBCRETARY OF DEFENSE Subject JCS Review of the 1977 Protocols Addltional to the 1949 Geneva Conventions D 1 fll aeference a 111emorandum• that tequested 11 'I analysis of the major aceas of likaly JCS concern with the 1977 t rotocols i dtlitional to the 1949 Geneva Conventions The requeat was limited to thOS' issues that may re-quice US reservations if the resiilP nt should deoide to subnlit the protocols to the senate fot Lts advice anG cons nt to ratification 2 The request for o oposell resecvatlons pre11u ie-s that the Joi t Chic fr of Staff 111ay not• bjuet to r 1ti f ica t io'l G the Joint i nl Ci 1 of Staff r-tated 0 in 1977 their final pc $ition with regard t o rJl ificaUon was subject to more detailccl military slucly 'rhat itut'ly is currently un lerway with a view tow u d provitlln' JCS r or nr ntlation3 to the Secretary of Defense in December •• The qtat' ments provided in Appendilc A are offered without pujudlce to th JCS reco endatlons on the decision to ratify 3 _ A 'l'he military teview of the protocols ho pcO- Jres Jed to tbi pt 1nt w ere provldin J you with reserva' ions and icco apany1a 1 anal ya is would refl ect inadequately tbe c inge and depth n the concnrns under study Accordingly Appendi c A inclucl G draft pxoposat s fo statements of understanding as well as reservations for i'roto ols I and u tt 111ust be not c1 that this compllatlon of statements doe3 not address all the issues undc r study at this time One of th unda ental issues involves a survey to determine ·hich pto· -l ' iot- of the protocols contain new treaty law versus re itatc nenta ot treaty law or codifications of customary law that the united Stat has accepted pceviouGly Appendix J contains e11ero l stat o 'l mts concerning the article on metllo 1 and m Hlnt of warl 1te1uu t' 10 ' - eticlca are the aubjoct 0£ continued rcviow and 1 or c t f fo lnt 1 tn Y he needed to acltlces i H ues clM Sli ibb bl BiiEl flJ E 5 J llil I I l ili lffl K JCS 2497 4-6 6 f nclos re -- - • W li • DECLASSIFIED IN FULL Authority EO 13526 Chief R l Deciass Div WHS Date S U £ EP J Thia 4 2013 paper does not contain a atatet1ent addtessing th' l1k r ai119ly i11PC rta11t issue af the nonapplica'bll ity of the i rotooo r '11 to n wlear weapons While a vaEi ty of legal options exist to reafflra ' ha us position that the p1 atoools do not apply to the lcg11lity ana use of auch weapons an aaaes1111ent is needtd es to lfbetber tbOse options wi ll effec tively protect us political and allltary interests Tlli s issue wlll be addressed in a separate ne110rand1111 in the near future 5 U Appendix A does not include an assessment of the mill tar 'y interests suppo ted by the protocols nor an ana1ysis of the ls11un that statements apparently cannot r esolve As the military re11iew continue11 many issues addressed by proposed state111ents 1 1lght bo resolved by changes in military doc t 1ne and procedure and by changes in States• pn ticea with the passage of tlme As implied by Appendix B your staff will continue to be kept infor111ed about prog ese of the milltacy review Every effort continues to be mode to complete the review in Deceraber 1982 · Por the Joint Chiefs of Stafh · 1 - J 1 • S F O L' 'c Lic itcnant C iot· l r w Ditec or Joint St t Attachments bfecenc es1 • Ma110cand1111 by the Under Secretary of Defense for POU y 30 July 1982 •Jes Review of the 1977 Additional Protocols to the 1'49 Geneva Onventlons UJ • JCSM•HB-77 7 Deceabar 1977 •protocols I ·and II•Huunitarian Law oudng Ar11ecJ Conflictq o• MJC5 19-82 12 fe 1ruary 1982 Progr css Jteport on the JCS u Review of the 1977 Protocol Additional to th 194 1 Cen v Convention Ul • uu Articles 18-S8 of Protocol I E EIN# iD II P TCS 2497 24-6 7 Enclosur l • • DECLASSIFIED IN FULL Aulhorily EO 13528 Chief Record I Declass Div WHS Date U SEP 2013 APPENDICES A AND B 137 san 1111 a JCS 2497 24- pages • Appendices A and D l • • DECLASSIFIEO IN PULL Authority EO 13826 Chief Records Declass Div WHS 0 ate sEP 3o 2013 1 UMP 1Mff hit 1 I 1 l 1 APPENDIX I PRELIMINARY ANALYSIS OF THE 1977 PROTOCOLS UJ 1 IU In 1977 the Joint Chiefs of Staff provided general OOlllllents a proposed re• ervatlon for use at utlficatian and • proposed statements of undecatandlng for uae at signature and 5 at ratification 6 'l'hose proposed statements were based largely on DOD Law of War Working Group review and analysis • 7 2 UJ This ap ndix represents many of the 1977 proposed I statements still under conaider•tlon as well as draft 9 1I I ace preeented I I l I New draft statements also of which have been ahared in the inforaal altecnatLve tex ts to ao11e of them SOM 1nteragency working group during lHl Annex D provides prellainary ana inforaal nalysis supplementing that of the DOD Law of war working Group•• and principally provided to •uppoct the new texts in Annexes A B and C None of the analysis in ll ll ll the law affecting the methods of warfare remain un4ar study 1 Annex D comprf'henaively adtreaaea the iasues lHUH S011e of the auch s applicability to nuclear weapons and changes tn and are introd11ced ln the 11111BOrand1111 to 1 ssist the OSD ataff ln subatantlve analy• is cf those areu i 3 A• note4 ln an ea Uer 11eaorandua tu the 1977 21 l AdditloMl Protocols are the II08t CClllplex agreeaent• ever 22 negoHat ed affecting the law ot ar1111d conflict on and over Lana ll i i I 'JCSM-448-77 7 Oece11ber 1977 •Protocols I and Il-Hu111nitarian aw Durln9 Armed Conflict• •• Bee me11orandum by the Deputy A• aistant secretary of Defense I-12817 71 7 November 1977 P otocola I an I II••Hlllllnltarlan Law During Armed Conflict• N JCS 19•82 12 February 1982 •PrOIJrlSs Report on tlll JCS Review of the 1977 rotoaols Additional to the 1949 Geneva Convention cu1• C I II IF 1111 l ass 1 ua ow • Cll OkOR llippendh A l r • DECLASSIFIEO IN FULL Authority EO 13826 Chief Records Declass Div WHS SEP 30 2013 Date •1111 Ril j ·1 i I ' I The assessaents by the c01111111nclera of unified and apeci f ied COlllll nda wl 11 addreaa 6 that i • pact bllt a cOlllplete asaeaarnent 11ay not be possible without consultations with allied military counterparts at the l national level and for •0111• other aea and ah operations 'l'htl foo11s of the military review to date has been on the impact of the protocols upon unilateral cs military ope ations The Services and the Joint Staff ace also concerned about the i • pact of the protocols upon cambined force operations 4 Ul Some nations France and rsrael have indicated that t bey will not accept tile protocols others have indicated that tbar may aaoept then wt th reservation• and state111e its of 11nder- stanthn9 tbat vary fi 011 those of their allies lncludln9 those under conalderatlon by the Joint Staff and the services at tbil • ents C lftsultations with repreaentatives of these allies l ll ·1 indicate that a variecy of responses to the protocols probably 1 wUl oc our should each qoverllllellt decide tn accept the11 l ll l I time as well as those presented by the Joint Chiefs of Staff in 19771 Por example Norway baa 4ccepted the111 without any reservations and statements of understanding Alllong moat as alliea the protocols remain undec review within their govern I s I the phenaaenon of different nat lona accepting an international agreemer t with var lous reservations and statements of understanding is not unique t o the process of iaultlnational acceptance of t le 1977 Additional Protocols The 1949 Geneva conventions for example have been 1 ccepted b ' 151 ll l ll ll protocols however are more than merely •addition il to• the ll ll protection for the vlc ti1H of war under the provlslona of the 29 The protocols also revise the rules natlona an4 wltb varying reaervatlona and understandings four Geneva Conventions of combat fo the first tl11e in 75 years The Thus they regulate NATO 111emorandu11 to th• Political CommittH POI ADS 180 36 27 taovember 1980 •oraft Texts of Posaible l ecluations Reservations to be made by Allied Countries on Ratification of tha Additional Protocol to the 1949 Geneva Conventions• mrsz C 2 Appendix A ll l I DECLASSIFIED IN FULL Authority EO 13526 Chief Records Declass Div WHS Date • • SEP 30 2013 esu auctff Ar the means and methods for the exercise of force As a result of differing operational procedures to satisfy varying legal I standards adopted by component national governments combined i force mill tary planners and co111111andars would face potentially i I unresolvable constraints upon the exercise of foroe This 5 danger also threatens to dissolve the international legal i consensus aMong those nations that now adnere to and train by 7 the comiaonly understood standards expressed in that body of law known as the law of armed conflict or the law of war 9 Thus the Joint Chiefs of Staff may not ob1ect to ratification of the 10 protocols subject to the adoption of certain declarations and 11 statements of understanding based on a unilateral US Rlilitary 12 review but they may object based on the illlpact upon combined 13 foi ce operations 6 Jllfl'consultations with allied military counterparts are net i ' a prer equisite to the c0111pletion of the milit sry review I Consultations may be needed regardless of the JCS recommen- ll dations concerning ratification if 1110 e allies accept the 18 i I protocols Should the Joint Chiefs of Staff not cbject to ratification such consultations appear imper ttlve prior to 20 completion of the us inter agency preparations of final tests 21 for us statement11 to 11inlmize the danger from many protocols • 22 The Joint Chiefs of Staff noted the need foi consultations in Appendix I I i o to JCSM-448-77 ll 24 7 U This appendix and its annexes constitute an infon1al preliminary analysis without prejudice to the final assessment of the current military review and the recommendations by the 27 Joint Chiefs of Staff to the Secretary of Defense 28 29 Attachments Annex A - oraft Proposed Reservations at Ratification Annex B - Draft Propos d Statements of Understanding for Protocol I Annex C - Draft Proposed Statements of Understanding for Protocol Il Annex t - Infor11al Preliminary Military Analysis of the 1977 Protocols 1 8l4J IBEtct IAU- 3 Appendix II 30 31 1 r • I l DECLASSIFIED IN FULL • Authority Dales EP 30 2013 I 'l j -i I l EO 13526 Chief Records Oeclass Div WHS az iRlh iliLm ANNEX A TO APPENDIX A DRAFT PROPOSED RESERVATIONS AT RATIFICATION U l'f Article 39 - Emblems of nationality The United States of America reserves Article 39 zi and S 'insignia or uniforms of advecse parties when i ts combatants 6 ace not engaged actively in an att ck 7 41 - Safeguaid of an e'lemy hors de combat The United States of America reserves that portion of 8 9 Article 41 3 of Protocol I calling for the release of 2_ prisoners of war when unusual conditions prevent their 11 evacuation with the und rstanding thlt prisoners of war g detained will not be exposed to hazardous conditions in xcess of that experienced by the detaining personnel nor ll will those released if any deliberately be exposed to a hazardous conditions 16 Alt rnatively this lriay be expressed as an understanding It is the 1J11derstandin9 of the United States of A11erica l retbins the right to make use of flags lllilitary emblems Article l 17 that the portion of Article 41 3 of Protocol I calling for l I i the releas of prisoners of war when unusual conditions 1 prevent their evacuation does not prec ude detaining some 21 prisonei s of war under hazardous oooditions not in excess of that experienced by the detaining personnel until such time as th• pr isoneu of war can be evacuated Artlole 47 - Metcenaries The United States of America reserves Article 47 of 26 Protocol I believing that an individual should not be denied combatant or pcisoner of war rights because of status 28 since the subjective criteria a re not an adeq•Jate basis to define that status 30 w untts a smss a a s Qiili C lit 4 l 2210111 a Annex A to Appendix A l I I ·I i ·l· 1 • • i DECLASSIFIED IN FULL Authority EO 13526 Chief Records Declass Div WHS DateSEP 3B1811 t ' Articl•• 48-58 - General protection against effects of hostilitlea 2 •aa BCitz PL The United States of America ceservesi Articles 48 through 1 56 concerning the general protection aqainst the effects of 4 hostilities to the extent that no member of the united 5 i I States armed forces 111ay be punished or subjected to any 6 I diacr minatory treatment by another High Contracting Party or party to the conflict for any act or OJ1ission in alleged l violations of these articles except fox the grave breaches I I 1i · I l i 9_ defined or referred to in Article 85 of Protocol I U Articles 51 and 52 - Ptotection of the civilian population and civilian objects 12 Notwithstanding the provisions of Article Sl para9iaph 6 and Axt1c1e 52 paragraph l the United States ot America reserves t e right in the event of massive and i I i i I I I 1 i J 1 continuing attacks cJirected against the civilian population to take reprisals ag lnst the civilian population or civilian objects of the State pecpettatlng these illegal ' to the extent attacks for the sole pucpose anc1 only necessary to bring the illegal attacks to an end 'l'hese aeasure• shall not lncl 1111• any of the actions that are ' otherwise problbltea by the Geneva conventions of 1949 or this Protocol Source ll ll ll JC CIM•448-77 Ar TERNA'l'IVE Notwi thst nding the provisions of Articles SO thcough S6 li of Protocol I the Uni tec1 State• of Aller lea reserves the 2'1 dght to take measures otherwise prohibited by those ·JI Articles against pei aona and civilian objects of lllY hrty 29 i 1 protected by those Articles if the United Stites decicleai l I CONfibikl it I Mnex to 5 Appendix A l 'HIIPTOStP I Ii - DECLASSIFIED IN FULL Authority EO 13526 Chief Records Declasa Div WHI Date SEP 30 2013 that •assive and continuing attacks by that Party in violation of those Articlea have been directed againat its 2 civilian population or objects or the civilian population or 3 objecta of any of it• allies or that systematic and 4 continuing violation• of the Third Geneva convention of 5 j 12 AIJC ust 1949 are being taken against its personnel in the f hands of that Party for the sole purpose and only to the 7 1 extent necessary to bring to an end those illegal attacks oi I i i l J requli ing cenation of the attacks has been disregarded and then only after a decision taken at the highest level of 11 govern11ent g violations and only after for • al wa 'ning to that Party These 11e4sure1 shall not incl ade any of the actions prohibited by the Geneva Conventions of 12 August 1949 for the protection of war victl ns i i I I 1 I J I I '·I I -i j' i l WllPIB IIXL 6 Annex A to Appendix A • · • Date -1 j l I l 1 DECLASSll'IED IN FULL Authority EO 13526 Chief Records Declass Div WHS SEP 30 2013 lli Z S t IL • - ANN 8 TO APPENDIX A DRA'P'l' PROPOSED STA'l'EMltNTS or 2 UNDERS'l'ANDING POI PROTOCOi l IU 1 U Article 11 - Protection of petaons If at bee States express understa 10ings that Article 11 as a whole doe11 not 4 apply to tbeit own natlonala who are deprived of llbert · as a result of armed confliot the United States should repeat the following understanding that its delegation made dudng the Plenary of the conference g Paragraphs land 2 apply to 1 • li'ersons who are in the power of an adverse 9atty • Tbls includes all ptiaoneu of var and all civilian• pr c - 12 tected by the rourth convention whether in the territory of the detaining power or in occupied tei-ritory It Lncludas those 111ho are relatively free to purue their l normal pursuits as well 1111 thOse who are int • rned or l _ I aa e lnterned detaln• d or othezvi e deprived of llberty as a reault of hostilities o occupation 20 I I l ot herwise deprived of liberty 2 Other It applies also to persons including the Party's own natlonall 11ho 1t is the further underatandling of the anlted states of 1 A11erlca that the evlla a9ainat whim this article is 22 directed are unjustified acts or omissions by ot on behalf 23 I·1 of the occupying or detaining power or by any detaining 'II authorities that endanger the physical or mental health or 25 integrity of the peraona deaccibed ill paragraph l -I source JCSM-t-18-77 27 UI Articles U 65 and 61 - Discontinuanc ' of protection of 28 clvllian medical units ceaaatlon at protectlon1 Jllellbar• of the ll armed orcaa and • Ultary units assigned to civil defense s ggg Whi SU 12113 t 2 fiC q •s Annex B to Appendix A r - DECLASSIFIED IN FULL Authority EO 13526 Chief R J Dec au Div WHS Date Stt' t U 2013 41NI iNNl'fJt organi zationa1 These articles deal with the- aralng of medica1 and c1Y11 defense personnel and the use of force by them It ia the understanding of the United St11tes of America that the ter111 •U9ht ln4lvidual weapona • as Jled 2 3 in l rt l cle 13 paragraph 2 Article 65 paragraph 3 and Art Lele 67 paragraph l excludes fragmentation grenades and similar devicea as well as weapons that cannot b't handled or 1 fired by a single individual and those that are primarily 8 intended for mate rial targets such as annorecl veh1clea or 9 aircraft iI l 10 It is the furthe understanding of the United States of 11 I A111er ica that 111edical personnel and civil defense personnel may be ar111ed only for the purposes specified in Article L3 g U and 65 14 i I The ter111 •c1efense• as used in these provisions refers to defense against marauders and othec criminal ll lnc tivld11al1 or gcoupa 16 They may not engage in combat againat the adverse Party and they may not use force to ll res 1st capt11s e 18 • If however they are unlawfully attaelled by lndlviduaLs of the adverse Party• s forces they may use their weapons in sel f-c1efenae and the defense of the wounded and sick in 21 the Lr charge after having aade a reasonable effort to 22 identify theaaelves 23 Source1 JCSM-448-77 · U Article 16 - General protection of medical duties If other States uke underatanclings or reservations on this i j 'I 25 provision it will be necessary to 11ake an interpretive il 1tate111ent along the following lines 28 I i AlthougJI the law of -most countr1H recognizes a medical I 29 i privilege of nondisclosure national law almost universally 1 requires certain dleclosurea from doctors ll These 'include I IIP l • UE 8 Annex B to ppendlx A I r DECLASSIFIED IN FULL Authority EO 13526 Chief Records Declass Div WHS Dale SEP 30 2013 11111 tUSII Pflid' coapulsory reports of co11111unlcable diseases as specifically l recognized in the last sentence of paragnph 3 as well as other matteu Members of the me Ucal profession recognize that their ethical obligation is not to make disclosures 4 ooncernlng their patients except as required by law 5 This rule which is applicablt in peacetime must remain equally applicable in time of armed contlict in respect to the 1 relation of persons en9aged in medical ac tivitieR and the authorities of their own Party to the conflict 9 Inter- respect ehe medical pr i•1ilege except as specifically limited by national law 12 national law properly may require these authorities to I 3 l orators j party adverse to that of the doctors to C0111pel any Ui disclosure which would be harmful to a patient 17 I ii i J Or the other hand it is reasonable to prohibit the advertte Party from requiring doctors to aot as collabThus paragraph 3 prohibits anyone belonging to a Never- thdess it provides that regulations for the c011pulsory ll ' diaclosure of communicable diseases be respected I effects a sound and reasonable balance between 11eclical 20 I ethics and the prot ection of patients on the one hand and 1 the req11irements of public health on the other ll 1 confronted with the choice between concealing the identity 23 I of a resistance fighter in occupied territory and preventing t ll I I I 11 This When cholera or smallpox epidemic the decision 111u11t be in favor of public health source J SM-448-77 U Article 28 - Restrictions on operations of medical alrcraft 1 It is the understanding c f the United States of America that the provision in Article 28 21 prohibiting medical cu 2 l 1111157 9 Annu B to Appendix A l2 DECLASSIF1eo IN FULL Authority EO 13526 Chief Records Declass Div WHS Date ' _ i 1 SEP 30 2013 111£1tU15U i aircraft from carrying equipment used to collect or transmit 1 intelligence data does not preclude the presence and use of l c llllllunic11tions equipment and encryption materials needed to 3 facilitate navigation identification dnd communlcation in 4 suppoct of medical operations 5 I i I i r i Article 39 - Emblems of nationality1 6 I ls the understand l ng of the United Statns of A 111ec i ca that the obllgatior a of Articles B6 and 87 of Protocol I do l not apply to violations of At'ticle 39 2 of that Protocol g Ul l rticlH 41 56 « 57 58 c 78 1 and 86 - Definition of g feasible• z In relation to Articles 41 56 57 58 78 and 86 of Protocol I it is the understanding of the United states of ll America that the word feasible • means that w lich is ·1 1 practtca lle or practically possible taking into account all 15 circuastances at the time including those relevant to the succtss of military operations S0111e countries may make either ceservations or understandings to this uticle If 19 1 I UJ Article- 42 - Occupants of aircr aft I -1 this ls done it may be neceseacy to have a us undentandin9 I reflecting the view that the require11ents of Article 42 codify 21 I existing international law and thus cannot be the subject of E reservations 1 source JCSM- 48- 11 ll UJ l I It 1s the understanding of the United States oE Araerica that1 27 I The situations described in the second sentence of 28 paragraph 3 are very exceptional and can eiclst only in 29 occupied territory or in al' 'med conflicts described in Article l paragraph 4 of thi s Protocol ll 1 Annex 9'1 Article 44 - C0111batants and prisoners of war I L 10 B to Appendix A 1 DECLASSIFIEO IN FULL Authority EO 13526 Chief Records Declass Div WHS Da te SEP 30 2013 21 The phrase in paragraph 3 b mill tat'y deployment l preceding the launching of an attack means any movement 2 toward a place from which an attack is to be launched and Ill Failure to meet the requirements of the first 5 sentence of paragraph 3 is a breach of Pt'otocol I which 6 tends to endanger the civililm population 7 Any combatant who is guilty of auch a breach may be tried and punished l j for the offense of failing to dutinguish hiHelf from the civilian population 10 4 Combatants who fail to meet the minimum require111ents 11 I i or ll COllbatant status and may be tried and punished 13 ac «1rdingly l4 the second sentence of paragraph 3 forfeit their Source J SM-448-77 a 17 18 19 20 E 23 24 2S ll JO 31 ·ll AUi fast I 2 16 11 Annex B to Appendix A l OECLASSIFIEO IN FULL Authority EO 13526 Chief Records Declass Div WHS Date SEP 30 2013 Iii tbk tw a l 2 ALTERNATIVE It is the undeutanding of the United States ci America l that a Failure to meet the requirements of the first sentence of paragraph 3 oF Article 4 4 ot Protocol I 5 is a breach of the Protocol which tends to endanger the 'L civilian population and combatants who are guilty of a breach of that sentence may be tried and punished for the 9 offense of failing to distinguish themselves from the civllian population but do not lose therefore combatant ' or prisoner ' f war status unlese they also violate the second sentence or paragraph 3 of Article 44 of 13 Protocol I b Combatants 111ho fail to meet the minimum requ cements i ll t of the second sentence of para grapl 3 of Article 44 of I Protocol I forfeit their combatant status and may be 1 tried and punished for acts which would otherwise be J · 6 or war ll c 'l'he situations described in the second sentence of 22 paragraph 3 of Article 44 of Protocol I are very 23 exceptional and can exist only in occupied tercitory or i in armed conflicts descr bed in paragraph 4 of Article l -I of Protocol I d The hrase during such ti111e as he is visible to the ll adversary• as used in s11bparagraph 3 b of Article 44 of 28 Protocol I establishes an objective st ndard which includes viaibility through the use of s11ch aids as ll ll 1 j ' i 1 I I considered lawful acts of combat but will otherwise eceive equivalent protections as if they were prisoners binoculars and infrared device$ AHL lbLil W l 12 Annex 8 to Appendix A l DECLAesi 11 0 IN l'ULL Authonty EO 13826 Chief R r$ J Declass Div WHS Date Str ju 2013 tQONUOSillS tb 1 e The phrase military deployment preceding the launching of an atteclc• la subparagraph 3 b of Article 44 of Protocol I •an• any ac Yftlent toward a plaoe fr011 which an at tack ls t o be launched f With regard to paragraph 1 of Article 44 where -I members of the regular armed forces are assigned as j 1 advisors to irregular resistance groups they will not be required to wear a uni fon but 11111st instead di • t inguiah J tbe•• elves from the civilian population in the aame i unner •• tbe irregular• under tbe second sentence of 11 paragu ta 3 of Article 44 of Protocol I A rtlole paraaraph •• ll source 20 t i I j 1 J 0 Article 45 - Protection of persors who have taken part in hoatUltlel It Is the understanding of the Untted States of America that Article t5 paragnph J cannot be conatruecJ to 1 restrict fair trial guarantees undei the Third Convention 1 and this Protocol which are secured to certain persona under -1 I' ij I J i JCtlNH-448-77 21 ALTIRHATIVB It is tbt understanding of the United States of Allerica that paragraph 3 Article 45 of Protocol I cannot be construed to restrict fair trial guarantees under the Third convention and Protocol I which are secured to certain petaons under paragraph Article 44 of p ·otocol I ltJ rt lole 46 - Spies It i • the underst' ndlng of I he United States of A•erlca that the ale• ents of espioaage as that term is used in 29 Article 46 are the aame as those listed in Article 29 of the Hague Regulations Annexed to Hague Convention Number IV 31 of 1907 Source ll li ll JCSM-448-77 • i J-- 13 Annex B to Appendix A 1 i DECLASSIFIED IN FULL Authority EO 13526 Chief Records DecJass Div WHS I -1- l I Dat EP 3a 2013 git• IIIIIP U UI Articles 48•67 - COIIIIUnders• Assessnaents It ls the unde standing of the United States of Alaerica tbat comnian4en and others responsible for phnning deciding upon or e1eout ing at tacks neceasac Uy have to reach deciaiona on the basis of t beii aaaess11e-nt of the inforution h-011 all sources wblcb is available to thelD at i the relevant tine This is applicable to Part IV It is the understandln1 of the United States of America that the proviaions of 'Part IV Section I of Protocol I Jnolud n Articles 51 52 anc 'I 57 l 1I 9 • ust be applied to tba 13 decidl119 upon or executing attacks on the bash of their aaaess• ent of the infor mation reasonably available to thea 17 at the time they take their actions and not on the basis of hlndsight U Articles 51 1 52 and 57 - Protection of civilian population 20 ll and precaations ln attack the understanding of the United state of Alletica 22 that the references in Article 51 52 and 57 to military 23 advantage anticipated 24 It h fi 111 an attack are intencled to cefer to the advanta9e anticipated fro111 the attack considered ae a ll whole and not only from isolated or particular parts of that 26 'l'he ter11 conalderation • N • Uitary advantage• involves • variety of ll including the secur lty of attacking forces It 1a further the understanding of the Unlted States of ll A111erica that the term •concrete and direct mill tary advantage anticipated used in Articles 51 And 57 means an ll j ·I I 7 actions of co111111anders and others responsible for planning attacll 1 ' 10 JCSM-448-77 ALTBRIIATIVE I 1 1 section I of Protoc ol I including Articles 50 52 and Sl Source 3 IIIU 14 Annex B to l ppendilc A DECLASSIFIED IN FULL Authority EO 13526 Chief Records Declass Div WHS I l SEP 30 2013 Date ·-t l IE iWIIPlliilluz l 110neat expectation that the attack wi 11 make a relevant and 2 proportionate contd bution to t he purpose of the attack 3 Source JCSll-4148-17 ii 1 rtl cles 51·5 bl 52-2 and S7-2 a i it - Pro ection of 5 the civilian population and civilian objects precautions 111 6 attaak It is the understanding of_ the Uni t ed States of America that collneral civilian losees are meaaured against the military advat1tage anticipated from an overall campaign or war considered as a whole and not from its isolated or for the safety of the civlllan population With uapeot to Article 51 8 1 it is tbe unaer•tandlng of the United States of Alierica that civilian cHualties resulting from actions in violation of Article 51 71 are the reaponslbility of the party violating that provision ancl 1 that violation of Artiale 51171 may not render an otherwi•• 20 legltilnate tar9et i une fro• attack Article 52 - Genual protection of civilian objects1 Ul Article 52 is a si9nif icant and lmpor tant development in the huaunitarian law applicable in armed conflict The 22 23 diatlnction between c Lvilian objects and military objectives will be llllde easier to identify and recognhe 26 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 ceasons specified Ln Article 52 its total or partial destruct I on capture or neutraliaation in the cir cumstancea ruling at the ti11e offers a definite Military advantage 01112 l 2 ll attack of tbe civilian population or to the total disretard uoesaive only wben they are tantamount to the intentional 1 l ll puticular puts and that collateral civilian losses are 8 II 15 Annex a to Appendix A 1 r i I i j j 1 DECLASSIFIED IN FULL Authority EO 13526 Chief Records Declass Div WHS 0818SEP 30 2013 HIit 1DZRIIAC The first sentence of Article Sl paragraph 2 prohibit only such attacks as ll• y be directed against non111llitary objectlvea It does not deal with the question of l col1ateral c auqe cauaec1 by attacks directed against s •111 tat y objeetivea 6 Sour e 7 JCSM-448-77 ALTERNA'l'IVE It is the understanding of the United States of Amecica that 10 •• In relatior to Article 52 of Protocol I a apecific it• loc a' ion or other reasons specified in the Artic1e ll ita total or partial tstructton capture or H neutralization in the circumstances ruling at the time 15 offers a definite • llltai y advantage b It is the further understanding of the United States ll of A• arica that the fint sentence of Atticle 52 of 18 Protocol I paragraph 2 p1 ohtbits only such attack s area of land • ay be a • ilitary objective if beca111e of may be cllrected agalnat non• Ultary objective• and it 'i does not deal with the question of collateral -•9• 21 aa11secl by attacks cllractecl against military objective• • 22 J UJ Article 53 - l'totection of c ultural objects and of places j of worship 24 1 l It is the understanding of the United State of A11er lea 25 that t not replace existing custoaary law 27 prohlbitiona expressed in A ttlcle 27 of the 1907 Ha9ue ll l Article 53 doe• I l I Regulations Rather the Article establlshes a special protection foe a llmited class of obJec ts which because of their rec09nlzed importance constitute a part of the speclill heritage of mankind Ill 2Y L nuu 16 Annex B to Appendix A I r _ _ l l DECLASSIFIED IN FULL Authority EO 13526 Chief Records Oeclass Div WHS Date SEP 30 2013 - Hra 111c 1 2 Uie of objects listed in support of the military effort is a violation of the Article 3 31 Such a violation causes the objects to lose the i special protection of this Article 5 Source JCSM-4 48-77 6 7 ALTERNATIVE It is the under standing of the United States of 111edca that of their recogniaed important'e constitute a part of the Mt l cultural or spi1itual heritage of peoples and that such ll objects will lose their protection if they are used in support of the mUltary effort b The prohibitions contained in subpaugraphs a and 16 bl of Arti'cle 53 of Protocol I w 11 not apply in cases 17 i•peratively required by military necessity a Article 53 of Protocol I establishes a special protection for a limited clan of object• which becau•e Article 54 - Protection of objects indispensable to the l9 civilian population It is the unde1 standin9 of the United states of America that the Phrase within such territory under its ovn 21 control• in paragraph 5 of Article 54 1 applies only to the 23 national territory of the defendet and not to areas which he may then occupy 25 U Article 63 - Civil defense in occupied teer 1 tor ies It is the understanding of the United States of A111erica n that Article 62 applles to both occupied and nonoccupled territory 29 Article 63 is thus supplementary to Article 62 as far as occupied territory is concerned Article 63 of the Fourth Convention is also applicable source JCSM-448-77 ssm tBEN i ilw L 26 17 Annex B to Appendix A j DEOLA ISll'll C IN l ULL I I Authority EO 13526 Chief RecordJ 6 Declass Div WHS Date SEP ii U Z013 PQ A I I ALTERNATIVE It 1s the understanding of the United States of A•er lea 3 tbal the actlvltles of civil defense organizations referred i to in Article GJ of Protocol I are subject to the 5 U • itations of the second sentence of paragraph l of fi A th le 62 of Protocol l • cs well as A rt Lr le 63 of the Fourth Convention U Article 66 • Identiflcat i on l 9 use for civil defense identification purposes aa li contemplated in paragraph s of Article 66 shall differ fr011 ll distinctive aignale speclfiec for the identificetior 14 e11cl1 11ively of medical uni ts or transpor ts in Chapter U of ll It ls the understanding of the Onited States of America that any signals which Parties to a conflict shall agree to Annex I to Protocol I source JCSM-448-77 11 Article 75 - Fundamental guarantees 18 It 1s the understanding of t he United States I i ·1 I ' I 1 Aaecica 20 specifically protected under the Conventions and Protocol I 21 by more specific and elaborate guarantees The United States of Amuica further understands that all Parties must 22 ll meet these standarcla of huaane treatment at all times and In all circumstances The Un I ted st ates of Amer ioa rejects any 25 reHn•ation or understanding which atte• pts to ll11it the claaa of persona to Vllich this Article applies othei than '7 those who are expreesly excluded by the language of the 28 Article source1 JCSM-448-77 ALTSRNATI 1£ It is the undentanding of the United States of t metlca that Article 75 of Protocol I applies to all persons in the IIIIIPZWTH L that this Article protects all persons not otherwise I -1 of 18 Annea 8 to Appendix A I DECLASSIF 0 IN FULL Aulhority EO 13526 Chief Records Declass o· WHS Date iv SEP 30 2013 power of a Party to a conflict including accused suspected and convicted war cri11lnals and unprivileged eoabatant The United States of Aller ica rejects all interpreta' iona vhir b would l inalt the scope of Article 75 of 5 Ptotac ol I • U Artie - International li'act-Pinding Commission The United States of Ainerlca recognizes the competency of 7 Article 90 of the Protocol ipso facto and without apecial agreenent with respect to any other High Contracting Party 11 aooeptlng the same obl111a tion • S1 11rce l the tnternatlonal Pact-Plndl n9 Commlss ion providea for in t JCSM-448-71 Article 96 - Treaty relations upon entry nto force It is the understanding of the united States of America 15 in relation to Article 96 3 that only a declaration made by _ a bOdy which is genuinely an authority representing a people engaged against II High contracting Party in an armed conflict of the type ceferred to ln para9r11ph 41 of Article l l can ban the effects 1tated ln paragraph J of Article H and 20 tllat it 11 also a neCf BBary con41 tlon that the body concenecl be 1eeo13nhed by the High Contracting Party as 22 reprcaenting the people ln question 23 ll 27 28 ll dllii E L I l 19 Annex 8 to Appendix A 1 r DECLASSIFIED IN FULL Authority EO 13526 Chief Records Oeclass Div WHS Date SEP 30 2013 1 CORP I A IiMP I ANNEX C TO APPl NOIX A OR P'l' PBOPOSSD STATEMENTS 0 ' U O TlNDING FOR PROTOCOL II UJ I 4 CU Protocol II - Definitions It is the understanding f the United States of America s the aame as the terms defined in Article 8 of Protocol I '1 shall be construed in the aa 111e sense as l 11ose definitions 8 that the terms used in Part III of this 11rot• col which are Source I JCSM-448-77 10 AL'l'EaNATIVE It is the undecetanding of t he Unltecil States of l merica 11 that the teri s 11sed in Protocol lI which are the same as the terms uaed in Protocol I shall so far as relevant be l construed in the same sense as those definitions l4 U A ticle 11 • Protection of medical unit and tcansports In accepting Article ll Ptotocol II the United States 2 16 of America wlshee to make it cleu that humanitarian functions of medical units and tunaport• cannot under any 18 cir umstances include lo1tile acts With regard to Ar tic le ll of Protoeo 1 11 it i s the understanding of the United States of America that the acts described in Article 13 of Protocol I as well as those facts and conditions Ustad in Article 22 First Convention Article 35 Second convention and Article 19 Fourth Convention do not justify cessation of protection of medical units or transports Source 20 ll ll ll ll ll tCSM-448-n U Article 16 • Protection of cultura 1 objects and of places 28 of worchipt JO GLASSHl28 81 BIKLLIBZ 911 8 cum a L re 20 Sh I SH Zit Annex C to Appendix A 31 l DECLASSIFIED IN FULL Authority EO 13526 Chief Records Declass Div WHS Date SEP 30 2013 ae fflti IDLE It is the understanding of the United States of AAlerica that this Art ich establishes protection foe a Li mi ted class 2 of objects which because of their recognized i•partnnce 1 constitute a part of the beritage of mankind We note that use of these objects in support of the mi Li tuy effort is a violation of this Article Should they be so used it is our clear undei standing that these objecu will lose tha ' spechl protection of the rticle JCSM-448-77 S011rce1 9 9 ALTERNATIVE It is the understanding of the United States of An ecica 11 that Article 16 of ProtOC lL II establishes a special ll protection for a llllited class of objects which because or 13 thelr recognized i111porta11ce constitute a part of the cultural or spiritual heritage ' f peoples and that such i i objects will lose their protection if they are used in l I support of the military effort It ls the further understandinCJ of the United States of 18 America that the prohibitlon1 contained in Artiolo 16 of Protocol 1I will not apply ln cases imperatively required by military necessity ll Ul Article 18 - Relief societies anti relief actions With respect to paragraph 1 of Article 18 it is the 23 understanding of the United States oE America that civilians 1- who have spontaneously oc in n11ponae to an appeal ftom t he authorl tles collected and cared for the wounded sick and 26 shipwrecked and members of relief societiell who have ll performed their traditional functions ln elation to thi vioHms of the ar11111d conflict shall not be harmed prosecuted convicted or punished for such humanitarian acts 31 source JCSM-448-77 CWP lbtltiilLU L 1 21 AnneK C to Appendh A l r - • DECLASSIFIED IN FULL Authority EO 13526 Chief Records Oeclan Otv WHS Data SEP 30 2013 SN STP Ill I ML t ANNBX D TO APPBRDXX A INFORM t L PRELIMINARY MILITARY ANALYSIS OF THB 1977 P'« TOCOLS 0 2 l U 'l'he following prel111inary and informal 111lU tary analysis 3 supplements the 1977 JCS 111emorandum• and the analysis provided 4 at that t 11ae by the 00D Lav of War Worldnq Group review and s analysis 6 RESERVATIONS l Re• ervatlon 7 on Article 39 - Emblems of nationality a The present law permits tr e use of Ua9s mil1t-ary emblems insignia or uniforms cs a ruse as long as the r uae 10 ls cU scarded prior to 11ctu 9l coabat 11 US Army publications have recognized this prlnciple of international law up to 12 and including the 110at recent version of l'M 27-10 •Lav of Land Warfare • which states In practice it has been authorhet'l to ma Ice use of national flags insignia and unifoc• a as a ruse• but notes nit is certainly forbidden to employ them durlnq combat b Iri 1947 llali General Skorzeny vas tried for and 18 acquitted of using thia ruse US uniforma vehicle• weapons during the Battle of the Bulge 20 Oudng the trial the defense eatabllshed that both aides bad e11ployed such tactics on numerous occasions c 'fh• soviet• made wide use of ene• y uniro1 • e during World at II Open-source docu•ents clearly indicate the soviet• continue to follow this practice in their operations d Acceptance of Article 39 2 baa no hu• anitarian benefit e Acceptance of Article 39 21 would vastly C0111plicate hostage release and counterterrorlat operations as well as certain unconventional warfare operations • JcSM-448•77 1 7 December 1977 Protocols I and II-- HUIICnltarlan Law D1arln9 Ar111Bcll Conflict• •• See mei110randu by the Principal Deputy Assistant Secretary of Defense Internatlona I security Affairs I-12817 77 7 November 1977 Protocols I and II• llumanit arian Law during Armed Conflict 111 L SSL4ilkb '- l 2 11n I MMQF11 1-s 22 l nnex D l o Appendix A 1 J DECLASSIFIED IN FULL Authority EO 13526 Chief Records Oeclass Div WHS Date SEP 30 2013 Peru Resecvation on l rticle 41 - Safeguard of an enemy de combat a Article 19 of the Third Convention requires tbat J pr isonen of war PWs be evacuated as soon as possible and that they not be unnecessarily 5 awaitin J evacuation eKpOt 0d to danger while Article 41 requires tnai vhen these conditi011s cannot be met they shal l be released and all 1 feasible precautions taken to insure their safety b Under current Army doctrine evacuation of PWs will be 9 difficult 'l'he air-land battle doctrine and other tact ical innovations ncreasingly call for independent smill l-uni t operations ' urrent law is based on previous conflicts ll 12 t1hich ba4 well-established linea of comaunication that l permitted evacuation of PW as a matt er of cnutine 14 c A small unit operating Independently is faced with a dilenama While clrcumst mcl IS will arise when PWB will be 16 released because of the apturin9 ur it's inability either to 17 4 conti ol or to evacuate them it should not be made law tnat release is mandatory n holated unit capturing a high- canklng individual or an individual with special knowledcJe may choo e to detain this individu al until such time as evacuation is possible 22 The practical limitation ls the abilit y of the detaining unit to secure the individuals ll captured 24 Reservation 25 on Article 47 - Mercenaries a Article 47 denies combatant and PW status to certain 26 persons 27 An innovation ln lnternational law the Acticle would e1pose mercenaries to punishment undet local law for their c011b11t11nt acts article is heavily subjective and capable of political- 2 lzatlon The S0viet11 have LncHcated that only those 32 b The definl t lon of a meccenu-y i tcor pouted in this Sf bi li L l 23 nne11 D to ppendix A 1 -- DECLASSIFIED IN FULL Authority EO 13526 Chief Records Declass Div WMS Date SEP 30 2013 4N t IBEMIAW opposing struggles of the people for national liberation l fr011 imperialiot racist or colonial regimes can be 2 conside ed mercenaries 1 Under this subjective politicized usage US advisers Military Assistance Training Teams 4 etc could be tried as mercenaries for lawful acts e The US Ar lily has a long history of mercenary use beginning 6 with Indian Scouts and contlnuing through the Vietnam era These people would be denied PW status if captured and 8 their use for clandestine or intelligence gathering 9 operations is often necessary 'l'o overC0111e language dialect deficiencies 21 To eitploit geographic knowledge of indigenous g 1 1 peraonn11l 31 To colllply with US d0111estic law and policies restricting lhe presence of us personnel in certain areas § d Adoption of this acticle would be a step backward in 17 huunitarian law By denying a mercenary PW 1 tatus regardless of hia conduct the article in effect enco1uages 19 the 111ercenary to act without regard to the norms of warfare 20 and the law of var 21 For him the penalty is the same no matter what bis conduct 22 5 Reservation on Articles 48-S8 23 a International agreements usually create rights and duties only for the nations party to them Aa an exception to this 2S r1•le however th• United States Government has taken the 26 poaition that •every violation of the lc1w of war is a war 27 ccl111e • for which individuals can be punished DA FM 27-10 July 19Sfi pau 499 This 11tandud appears appropriate for wlllfl ll deli bP Uto acts in violation of the law of war 30 such as the 11urder of interned ciYilians oc the torture of ll Wi l lidl fflillE L 15 24 Annex Cl to Appendix A r DECLASSIFl 0 IN ffULL Authority EO 131526 Chief Records Oeclass Div WHS Date SEP 30 Z013 oa1111111•1 • PWs It is not however appropriate to attach tile label •war or iae• to deviations fro11 the law that may occur through an error in juc 9aent or • inor carelessness ln the This 1s e1peci11ly true of air operations heat of combat where collateral da11age to clvillana is neveictheless often s charact•rized as a war erlme for propaganda purposes 1 b Article 48 to 58 of Protocol I contain general rules and principles for the conduct of co abat operations against l ar9ets on land These rules are phrased in broad flexibl e terms as is proper in a treaty 99tabllshing principles of behavior fot sovecelgn govern• ents Many of theta are however too general to be fully ace•ptable as standards for indivicSual criminal reaponliblltty e g Article 57 1H1ragcapb 2 al ii which require• those who decide upon an attack to do everything feasible wl th a view to avoiding • and in any event 111inl111i zing Incidental loes of ei 1111 ian life and property on the baa of experience in recent ll ll ll conflicts it ie quit Ukely that an unsorupulous adveraar y colSld take the general language of Articles 48-58 ooablne it with tbe position that •every violatlon of the law of war la a war crt11e • and urn botb against us forces The effoct 11ight thus be ude to categorize captured airorew members as war criminals because they had not taken some ll supposedly feasibl e pucaution during an attack c The effer t of the proposed rreervation would be that other nations could enter into treaty relations with the United Stat e3 on theH Articles only by agreeing that they would not form the bash for crl• inal liability for US 1 personnel 29 If any pacty to the protocols rejected the US reservation• the effect would si• ply be that Articles 48 to 58 would not be ln force as between the Uni te J States and that party --•tBA CMAL 4 l l 25 Annex D to o ppendlx A l DECLASSIFIED IN FULL Authority EO 13526 Chief Records Oeclass Div WHS Date SEP 30 2013 seGNi lbktcttAL 6 raeservation on Artlcles 51-56 - Reprisals deterrent against attacko on friendly populations and provide an inducement to all nations to carry out their 4 combat operations in accor dan e with the law Qf war 2 a The purpose of this reservation is to maintain a credible This reservation is also aken to guard against enemy abuse of us PWa This reservation would presecve the right of reprisal against an enemy's civilian population in the event of systematic and massive attacks against the civilian population or those of allies in violation of Articles 51 6 1 10 and 52 of the first Protocol or in the event of the torture 11 or uecutio1' of us pc isoners of war in violetion of the ll Third Geneva Convention of 1949 ll Articles 51 and 52 of Protocol I now prohibit all attacks directed against the civilian population and civilian objects expressly including attacks by way of repr isal b Attempts to prohibit r eprisals are unrealistic since their use or thceatened use represents the only real sanction or deterrent to violations of the law of war by the other side 11 against cectain reprisals will be disregarded under the 21 pressures of serious attacks against a Party's population g the United States should shield future decisionmakers against sanctions for esponding ln a foreseeable manner to t is contingency ll ll c The essence of reprisal attacks against the civilian ·26 population and civilian objects ls a suspension Qf the 27 pr hibl Hons against such attacks containe 1 ln Articles 51 through 56 of Protocol I Articla 60 paragraph 5 of the Vienna Convention on the t aw of Treatles prohibits such suspenslona in humanitarian law treaties such as ll WM L As it is likely that the prohibition ll I B2Nii IX r 26 11 nnex D to Appendix A l DECLASSIFIED IN FULL Authority EO 13526 Chief R J s Div WHS Date tr 1 U ZUlJ teal lbi iikt Protocol I in the absence of a reservation avoiding the effects of the prohibition against reprisals The pro- hibltlona on teprisals cont•1ned Ln Articles l thrOllgh 56 1r• new and do not reflect cust011ary international law 4 G The negotiating record of the Vienna convention indicate 5 that paragraph 5 of Articlo 60 waa proposed by the Swisa termination or suspension of the provisions of the 1949 Geneva Conventions prohibiting reprisals in connection with Delegation for the specific purpoae of precluding any Material breaches of other significant human rights treaties 10 Official Record Second Saasion UN Conference on the Law of Treaties pp 112 ff 12 Thus only a reservation that avoids the obligation of the provision can legally preserve ll a nation's right to uae the sanction when tbe ille«J•l i attacks can no longer be absorbed without esponKe in ll kind 16 STATEMENTS OP UNDERSTANDING 7 'j1 Article airct • ft l 28 - Restrlctlons on operations of medic11l Artlcle 28 2 ia uaacceptable if its practical effec t is to require us medical aircraft o transmit in the 20 cle•r Coa•unication in the clear by medical aircraft would ll identify units their location and extent of engageMnt flle 22 requirement to transmit in the clear becomes even less accept- 23 able when applied to operations by u its in enemy-cont tolled 24 terrltorl 25 B rtlcle 39 - Emblems of nationality Articles 86 and 87 obligate a Party to Protocol l to actively seek out and di • cipline its personnel who have violated Article 39 While the United States should reserve a portion of Art Lele 39 this 29 requirement wlll hav an undesirable impact on the legality within US Lnternal law o special operationB •quiring the use ll wth IDEAi lkb a 27 Ann x o to Appendix A l r DECLASSll'l D IN FULL Authority EO 13526 Chief Records Dedass Div WHS Date 3D SEP fiHFPS 2013 HES- of deceptlone prohibited by those portions of Article 39 not 1 This could be especially important in hostage-rescue 2 situations where it Ny not be po1sible for the attacking force 3 rea - rved states should not accept the require• ent to discipline its •s foraea for all violations 6 to identify itself prior to the start of fighting 'l'be Unitecl Reversal of the Skorzeny rule serves no huunitarian purpose 9 U Articles 41 56 57 5 78 and 86 Defin1tion of feastble• 1 This understanding is necessary to clarify the I Article 44 - 9 11 Colllbatants and prisoners of war a Breadles of the Basic Obligation To Distinguish fint sentence of paragraph 3 10 meaning of the word feasible in the above articles 10 By stating that •combatant• are ll 13 obliged to distlngulah the11aelves fros the civilian population while they are en9a9ed in a11 attack or in a 15 military operation preparatory to 11n attack the fiut Hi 1111ntence of pacagcaph J of Article 44 establishes a norm l the breach of which ia an offense un 'lec Protocol I 18 'l'he aecond sentence providH an eaception which is intended to relleve lhe individ11al fro• the loss of entitlement to be • 20 c011batant and to have PIC _status but iot from his cr1 • 1nal 2l responsibility for breach of the basic norm The second 22 sentencA however is capable of the interpretation that 23 thoee who qualify under the eicception are also excused from 24 liab l li ty for a breach of the basic norm 25 Clar l fl cation can be found ln the necJotlatfng record where the Report of 26 co• 111lttee Ill notes ll •with one narrow exception the artic le 1111kes the 28 sanctlan for failure by a guerrilla to distinqulsh 1 himself when i equired to do so to be merely t r ial and punishment for violation of the ll PA ± li t 28 1 1111 l of war not loss of Annex D to Appendix A J DECLASSIFll D IN FULL Authority EO 13526 Chief qrdl $ Declass Div WHS Date tr iJ U 2013 '8tlll 111 Ii fTJte combatant or prisoner of war status • CDDH IU 407 Rev 1 - l para 19 ElT phasis added I b Forfeiture of Combatant Status Pangraph 3 states explicitly that tetenUon of combatant status is contingent 4 upon co111pliance with the mini11um standard for distin- s guishing combatants frot1 civilians § Several allied countdes contellljllate expr sing this Llndeutanding in 1 their instrument of ratification However paragraph 4 provides that while a combatant loses his right to l W status he still is entitled to protection equivalent to 10 Therel ore puagcaph 3 could be read to ll that given J Ws preserve the iffllllunity from trial and punishment for other- ll wise lawful acts of a c0111bata 1t l 'l'hus a state11ent of understanding is important to insure no Loss of combatant 14 or PW status for those quecrillas who failed to carry their 15 arms openly vhen regulred to do so 16 c Bxceptional Clrcumstances The exception to the ll requirement that c0111batants distinguish themselves during 18 military operations preparatory to an attack is limited to ll sit11at i ons in armed conflict where owing to the nature of the hostilities an armed corabatant cannot so distinguish 21 himself This li11ltation does not exclude situations in 22 which fJ fth colu11na iccegulars infiltrate a target country 23 in peacetime with a view to conducting guerrilla attacks at 24 some future time 2 In order to show unambiguously that they do not intend to be bOund by so ll teral an interpretation 26 manJ Western delegates expressed ur derstandings The UK 27 tn view of 28 understandings incorporate the same concept the ambiguity in the second se11tence of paragraph l rea f- fi r111ation of this understanding is considered important JO rm l I Uk 29 Annex D to Appendix A 1 DECLASSIFIED IN FULL Authority EO 13526 Chief Records Declass Div WHS DateSEP 30 2013 EtiAI IBLNI ikh4 d VlsihilitY Sg1•pt and the Palestine C lberation Organ- ization have indicated their understanding that vialbllity 2 as usecl in para9raph 3 pertains only to vlsibllit • to the 1 naked aye The United Stateu dlaa9caes with this narrow con11truction and believes along wl th tt e UK Canada and s Australia that c0twbat ants aust raalize that the 11lniaum standard for diatingui ahin c011b6tants CtOlt civilians also appliea under conditions of darkness and fog when vlsl- l bilit y is po• sible by means of aids such as infrared equip- 9 ment H is also applicable wlthln dlsta11ces capable ot' detailed obs11rvation by means of binoculars 11 e Deployment t considering the ambiguity inherent in the phcase military deployment pncedlng the launching• of an 13 attack and tbe conflicting understandings axpressea both in 14 co1111ittee III and in the Plenacy re9ardin' I tho phnse li formel re11ffir111atlon of the US understanding in the instru- l ment of ratification is considered to be indispensable 17 f Mvlaets to Guerrillas needed to preaetve the legal eights of special forces spa- cial opecations pe sonnel and ot er mubara of the 20 regular acae4 forces serving in th• capacity of ad iaers 21 11 Artlcle 45 - Protection of In hostilities A at t alMlnt of 1ulllerstandi'lg is per Ol 11 wtio have taken part The proposed understanding pracludes an ll 23 apparent lnconsiatency with paraguph 4 of Article 44 theceby 24 lns11ci 11g that aettain c0111bata nts unptivlleged c0111bat•nt11 not 25 othenrise entitled to 2E Plf statu 11 are e11titled to •protections• equivalent in all respects to those accorded to PWs by the Third Convention and by Protocol I includin1 1 Article 44 4 12 Articles 48-67 - Colllll an lers' Assess•ents 29 C0111unders must make their Jecislona on the basis of the inform11tlon 30 avaih1ble to them at the time end cannot be held responsibl l for what was unkn011n to then or for unforaaeen consequem e 32 EZXAfflL L l Annex n to 30 Appendix A l DECLASSIFIEO IN FULL Authority EO 13526 Chief Records Declass Div WHS Date SEP 30 2013 flANS D5rltI a ArticJ e 48 for example requires that the cofflllland r at all ti111ea distinguish between the civilian population and combatants • • • • Combatants are frequently indistin- guishable from civilians as proven in Vietnam Si111Llarly to distinguiah between military objectives and civilian objects is often impossible as military objectives often appear to be civilian obje s and civilian objects often are used for military purposes Even so if these principles represented mere goals 1o1hich Pa ties • um1 9 obligated to strive toward they oulc'I not be objec- tionable When they are prohibitory however and their violation constitutes a war er i nP the • should be more ll explicit ln stating that good faith effort ls all that is 1 called for b Paragraph 1 of Article 50 for example provides among ll other things that when one is in doubt as to whether a 16 peraon in a civilian that person shall be considered to be 17 a civilian This ls not unreasonable when there h t 111e A difi erent standard must be applied in the heat of c011bat when an indiYldual combatant has reason to believe but no absolute convic- ll ll for interrogation and deliberation tion that a Ncivillan• ls ln fact a cOllbatant In that event he must act upon hi a bel lef just as a cl vilian 23 pollceman must aot in h is own self-protection when he 24 reasonably believes tha his life i im1inently threatened 'l'o the extant that the Prolocols do not recognize this 13 26 fact they would place an unrealistic burden upon rr combcltants ll jf Articles 51 5 b 52 2 and 57 2 a iii - Protec- tion of the civll ian population and civllian objects pre- cautions in attack 3l ee141 2£ 1 L 25 1 The proposed statement of understandlnq is 31 Annex O to ppendix II l ' DECLASSIFIED IN FULL Authority EO 13526 Chief Records Oeclass Div WHS · Date SEP 30 2013 •111F SRI Ill intended to eli11in11te the possibility of 11n interpretation that the effects f an attack must be ntrict1y confined to the military objectives attacked thereby undermining the estab- 3 lished and accepted rule of proportionality pertaining to 4 collateral damage and properly permits consideration of the 5 anticipated tactical or strategic ends of the military 6 operation 7 14 'If Paragraphs 4 and 5 of Article Sl for ex11111ple prohibit indisctiainate attacks and are vague and ambiguous They can 9 be interpreted as eicluding use of tactical nuclear weapons They •ake no allowance fot time constcaints weapon avail- l ability and oos t and projected loss of weapons or means of attack us troops using various FJrther bow far apart must 13 sepatated military targets be in order for the res tr ictlons in u paragraph 5 to apply How large a concentration of civilians constitutes •a similar concentration referred to in paragraph s ta Does •aicect • llitary advantage• lnclu le surpdse gained through feints and deception Must the direct military 1' ll 18 advantage accrue to the military unit inflicting the damage 19 or is it sufficient that a direct P11 U ary aclvantage accrue to 20 the force as a whole It la recognized that these matters ll cannot be calibrated and defined with great specificity in 22 these Protocols but the language used ehould at least point 23 thP way for the C Ollllllllnder 24 15 Article 52 - Gener ii protection ot civilian objects 25 The proposed statement is necessary to clarify the term 26 military objective• ln view of the fact that the traditional 27 defini tlon of the word 'objective• excludes tbe concept of land It also precludes the poaaLbility that Article 52 could be 1nterp ete4 as prohibiting collateral dama9e of any kind l ll ff I iPD 5 32 Annex D to Appendix A j r DECLASSIFIED IN l'ULL Authority EO 13526 Chief Records Oeclass Div WHS Date • QIIHI 16 SEP 30 2013 lliiG lPEr jif' Attackll must b11 limlted to •11ll l t iry objectives • military objective 4 I iust make an effective contribution to eneny military a-1 on and b its deatruation captuu or l neutralisation •ust offer a definite allitary advantage Strategy aiaed at destrnction of the enemy's political inl raal ructure or economic or induatdal establishment might 6 iesult in targeting Objects c l't 111ake only a re1110te con- ' tribution to 11 litacy action but si11nlficantly curtail the enemy's will to continue hostilitles To the extent that this article prohibits strategic bollbing it could lle¥erely impede us war efforts P'ur ther it ta unclear whether this article will perait harassing and interclictlQn fire An additional Art'icle 53 - Protection of cultural objects and of places of worship Article 53 doe• not specif icaUy state tba t protection ia lost when the objects ar a used in support of the war effott Without the understanding the article 111ay • ilituy encourage the use of 11uch objects for 12 11 13 statenienc 11ay be offeced on till point 17 purposes ll 16 1 '1'he 18 exception in paragraph b is atailable to parties to the l9S4 Hague Convention for the Protection of Cultural Propecty to 20 whkb the United States is not a party by virtue of the 2 reference to that convention ln Article SJ of Protocol l 22 However there h ll no provision for waiver of the protections contained in Article 53 of Protocol I Therefore prudence 24 Pact vho Night be opponents ll ll 18 Article 54 - Protection of objects indispensable to the civilian pop latlonr An aggressor forced to withdraw ahould no have the legal right to institute a •scorched earth policy on g would dictate insuring that the United States as a non-party to the 195-' Hague Convention not plac d in a le1111 favorable position tharl parties to that con•ention such as the 1far aw w L 33 7 Anne11 D to Appendh A _j DECLASSIFIED IN FULL Authority EO 13526 Chief Records D9cla88 Div WHS Date SEP 30 2013 071155 S ii territory that he has occupied l 'L'he phrase •within such tenitoa y uruter its control• ne9ate the uaning of the re• ainder of the article and defeats lts hu•anitarian purpose 3 If the defender can lllly waste legally to areas under hie control the article is meaningless 5 it is not expected that an advancing force would einploy a scorched ear tb policy in its own area 7 An understanding 1a needed to addcees these problems Article 54 celates to the starvation of civilians g This change in the law of araed conflict will dia inish tbe i • pact of siege warfare and may ptolong ataed conflicts 11 Additionally it is un lear wbether para9raph b prohibits the i 1 19 destruction of eneay fnod and water supplies when adequate suppliee uiat for civilians but it can be anticipated that enemy combatants once deprived ot tbeir own food and water will take those supplies f com the clvllian population and thereby cauae civilian starvation 9lnce this article is not ••rely a et at-•nt of principle but would establisll new war cri11ee it is important that IIICh que1t 1011s be answered A atat91ent 11ay be offered on this issue 20 O Artlcle 63 - Civil defel Ce in occupied tenltodes be de i ed subject to the requlreiaents of imperativa militaty ll E ll nece11ity and the urgent security requirements of the occupyinc i 24 power ll This underatonding is necessary to aaaert that protection may Zl lU Article 75 - rundamentill guanntaes An understanding is necessary to preclude Lnterpret • tion that smae cate- orles of ll peraonpel may be excluded frOIII baa le protections ln ratifyin9 · the 190 Geneva Convention on Pdsonen of Illar th• Soviet bloc rejected its application to those persons who have been convicted under the law of the detalnin9 power for war er Imes and PS I l 4 19 ll Annex D to Appendix A J j I DECLASSIFIED IN FULL Authority EO 13526 Chief Records Declasa Div WHS Daie SEP 30 2013 • lllllflllSHHD I I crl111es a9dnst hu11anlty Moreover durlna the war in southeast Asia he North Vietna111ese used the same ar911mer t to deny legal riqhts to US prisoners of war During the plenary vote on Article 75 to Protoool I the soviet Dnlon stated it understood that Article 75 anes not extend to war cri11inala and spies and i that national l99islation ahoulcl apply to this category of l pee • 01111 Blnce the Soviet stet •ment is contrary to the expreaa language of Article 75 7 It must be rejected 22 r11 ctiol• 96 - Treaty re le ti one upon entry into fotce Th I s statement h of prime ooncar n to the UK because of i ti Q desire not to legitimize the coabatant status of the 9roup1 ln Northern Iceland While there la no current pi Ullel problem for the United States this article could at soae future date l proYlde aL11ilar difficulties for the United States The united States would not care to give recoqnitlon as legal bel lig- LS orents and qrant Plf status to do11estic tecrorlst gcoups 23 UJ Protocol n in its entirety Draft Acticlee 11 and 25 of Pl'otocol II which deElned the terms used were deleted The US understanding • ates It clear that during negottations tho tet•• used have the same 1110aning •• those of Protocol I 24 U Articl• 11 - Protection of aadical unite anll tcan• Ports 'l'his undecstandin9 clar Ues that the protected ll l8 ll status of medical t ansports lncludln9 aircraft is t ha Hme as that ot Protocol I S Article 16 - Protection of cultural objects and of that protection is lost when the ob lects are used ln support of ll li the war effort 28 places of worship This article does not specltically state Without the underatandlnq t he artkle may 'this Hception is available to pas-ties to the 195t H119•Je Convention encourage the use of such objects for military purpoaes lt • Si2 titt Anne D to Appendiir A _J - «1Pll IDB hiftl r -- DECLASSIFIED IN FULL Authority EO 13626 Chief R • Div WHS Date SEP Dec rss U 10l i for the Protection of Cultural Property to which the united Statos is not a party by Yirtue of the reference to that convention in Art icle 16 of Protocol II 3 However there is no provision for waiver of the protections contained in this article of the Protocol Prudence therefore would dictate lneurinCJ that the United Stites as a non-party to the 1954 Hague ConYention not be placed in a leas favorable position 1 than parties to that Convention who 11191 t be opponents e g 8 the Warsaw Pact 9 26 UI Article 18 - Relief societ lea and relief actions I An underatandin is needed to clarify that personnel providing cellef aetvlcea aie iMu11e fl 011 prosecution and are entitled to l 9 protection consistent with paragraph 1 Article 10 of Protocol n g ll 21 23 ll l 26 ll 29 30 31 Alli iblNAKC Annex D to 36 Appendix A J Page determined to be Unclassified Reviewed Chief ROD WHS IAW EO 13528 e Section 3 5 Date SEP 3u 2013 r APPENDIX B 1 LIST OF PAPERS Pl OVIDBD TO THE OSD STAFF 2 The following papers concerning the military uview of the 1977 3 Protoeols have been provided on an informal buis to the 4 Offices of the General Counsel and for Multilateral Negotiations Polley _ a Paper undated Draft Proposed Legal COJ 11 entaries on 7 1977 Additional Protocoh 8 b Pap r undated Reprisals under Additional Protocol I g c Me111ocandl lll by the Judge Advocate General Department of 10 to Medical Aircraft Including Helicopters • ll g d Memorandum by the Judge l dvocate General oeparuant of 14 the Army DAJA-IA 1981 0042 1 9 July 1981 1977 Prvtocols to the 1949 Geneva Conventions Application to Unconven- tional Warfare 1 e Memorandum by the Chief Maritime UN Negotiations Divi- 18 the Ar my OAJA-IA 1981 9104 19 January 19 8 2 Review of 1977 Protocols to the 1949 Geneva conventions Application sion Joint Staff 9 August 1982 Bast German Legal Article 19 on 1977 Protocols with translation of •The Scope of the 20 Sup9lementary Protocols to the Geneva Conventions of 21 August 12 1949 by Bernhard Graefrath 22 f Memorandum by the Offl e of the Judge Pldvocate General 23 Oepartment of the Navy Serial 10 - 62 l3 Auguet 1982 Military Review of the Additional Protocols Hospital Ships 26 rr ll 29 37 l Append i l B l