• BNCLOSORB THE JOINT CHIEFS OF STAFF WASHINGTON • O C 20301•5000 JCSM-152•85 oecLA§s1F 69 es - BY fS 01-·1 - - 7 J-· DATE -2 1' 1d o_ J ·4- _ _ ___ ' - _ - _ _ ' ·•-•·•··-····'•-- MEMOltANDtJM FOR E SECRETARY 01' DEFENSE Subj·ect Review of the 1977 Pirat Additional Protocol to the Geneva Convention• of 1949 ' '· l The Joint Chiefs of Staff have as requested reviewed the Pirst Additional Protocol to the Geneva Conventions and recommend against ratification by the Onited States ' he military problems created by the Protocol cannot be remedied ezcep by taking an unusually large number of reservations and understandings as reflected in tbe Annex These problems outweigh any probable military benefit from ratification 2 Among the more serious problems created by the Protocol are the following a some· nat ±cnr·probably would reject the·crtttca nuclear understanding · us ' C· In man • situations it would grant guerrill as a superior legal status to members of regular armed forces b c It would virtually eliminate reprisals as a d terrent against violations of the law of armed conflict ' d Its presumption that in case of doubt objec s and persons be considered civilian would be unworkable in practice e It would unreasonably restrict attacks against certain dams dikes and nuclear power stations f lt would inject political criteria into the administration and application cf humanitarian law by Ai 4 icls 1 paragraph 4 Article 47 and Article as subpar3graph 4 c - 7 LS JCS 2497 29 5 Enclo3ure Revised by Decision _J · g It contains ambiguous restraints against the use of cities and towns fer military activities such as logisti s and C2 sites and against attacks on enemy forces conducting military operations from cities and towns ·h Soviet bloc countrie1 probably will reject the Western understanding of the fundamental guarantees in Article 75 Aaid f om the many reservations reguirec including those applicable to the above provisions the large number of clarifying understandings required also indicate that the Protocol· 1s· too complex to be a relisble codification of the - law of arzr ed conflict The reasoning in support of these concli laiona appears in the Appendix 3 Tbe Joint Chiefs of Staff also recoaui end that their objections to the Protocol be co unicated through the US Deleg tion to the NA'l'O Militar Jmittee and other appropriate channels to US allies This action wculd help develop a cooperative approacb in framing mutually acceptable understandings and rese·rvations for those allies who decide to ratify In an effort to prevent misinterpretation of the US position on the Protocol the Joint Chiefs cf Staff further r ecommend development of a pubHc affairs pro ram for use upon announcement of the Government's decision t The position of the Joint Chiefs of Staft on the Second Additional Protocol w ll be forwarded in a separate memorandum s Without attachments tnis memorandum is UNCLASSIF D For the Joint Chiefs of Staff JOHN - q Cha JE Joint Chiefs of Staff Attachments Reference Memorandun by tte Cocer Secreta y cf Ce-ense fo Policy 20 December 1984 2vi w of the 1977 Addition l Protocols to the Geneva Con enticns of 19 9 ' JCS 2497 29 6-7 Revised by Decision Enclosure _J · I • • • • · ' · iii ' • I ' • • JCS REVIEW OF THE FIRST PROTOCOL ADDITIONAL TO THE GENEVA CONTRIBUTIC'· PROTOCOL I V J 1 2 A PART I GENERAL PROVISIONS ARTICLES 1-7 CJ' APPENDIX l r 4 Article 1--scope of Application of Protocol I Protocol I is intended to apply only to international armed conflicts Such conflicts include two types a r Wars Like the 1949 Geneva Conventions the Protocol would apply to international armed conflicts between two or more countries that are parties to it even if there were no formal It would not apply to a conflict between a state party and a non-party unless the non-party government undertook on an ad hoc basis to naccept and apply• the Protocol for the duration of the conflict b 11 Wars of National Liberation Article 1 paragraph 4 of the Protocol extends its application and the application of the 1949 Geneva Conventions to certain conflicts commonly referred to as wars of national liberation N 5 6 7 Between States Party to the Protocol declaration of war by either side 3 In particular the Protocol refers to wars of 8 9 11 - 12 13 14 17 - l8 19 21 cr A srF s R 1 Revised by Decision 22 Appendix _J • • •peoples• against •colonial domination and alien occupation and against racist regimes i 1 the exercise of their right of self-determination • This language was adopted over the protest of the United States in order to legitimize as international armed conflicts certain guerrilla wars in the Middle East and Africa It injects the political concerns of particular blocs of states into the administration of the Geneva Conventions which should be applied on the basis of neutral apolitical criteria Under Article l paragraph 4 a rebel organization would gain a degree of international status prestige and legitimacy if it were fighting for one of the just• causes listed in that paragraph but not if it were fighting for some other objective e g to overthrow a local totalitarian but non-racist dictatorship Further the United Nations General Assembly has supported outside intervention on behalf of peoples exercising their right of self-determination a right interpreted by many in the -1 5 6 1 8 9 g g g international community as only applicable against Western ll ll countries and not against socialist countries 19 The combatant members of a rebel organization would in theory similarly be entitled to prisoner of war status only if they fought for one of the just causes listed Revised 2 by By linking the Appendix Decision · _ - ll 22 -• • • a very bad precedent and polit cizes what should be an ' - objective determination and reverses several hundred years of practice 5 legal rights of individual combatants to the justice of the cause for which they fight Article l paragraph 4 creates In the Korean and Southeast Asian conflicts 2 Communist governments claimed that everyone fighting against 6 them was an •aggressor • and therefore a war criminal not 1 entitled to prisoner of war status or treatment The adoption of Article l paragraph 4 by the United States would lend support to such arguments by admitting that the status of individual combatants can be affected by the cause for which he is fighting c If As a practical matter the inclusion of Article 1 8 9 g g ll paragraph 4 in the Protocol will probably make it more difficult to apply the Geneva Conventions in doubtful or ambiguous situations In such situations the international Red Cross often urges the parties to the conflict to apply the Conventions anyway as a humanitarian matter In 1965 ll ll for example the United States decided as a matter of policy that its forces in South Vietnam would apply the 20 Geneva Conventions during combat operations there - In the future governments may be much more reluctant to take such 3 Appendix 21 22 -- • •• • c a step out of concern that the application of the Conventions might be const ed as an admission that their adversaries were fighting a just war against a colonial alien or racist regime d fj1 Conclusion 2 -' 5 into the administration of the Geneva Conventions and 6 because it establishes that the rights of combatants can 7 legitimately be linked to the justice of the cause for which they fight the United States should not become bound by 9 this paragraph 2 Because it injects political factors If the United States ratifies the Protocol this paragraph should be reserved '1' Substantive Obligations The substantive obligations of the Protocol are contained in its Parts II III and IV Articles 8-79 The acceptability of these provisions is examined in the following sections Y ll 19 - 20 ll 22 4 Appendix _J • • CONP B PART II WOUNDED SICK AND SHIPWRECKED ARTICLES 8-34 l J ll'f Part II of Protocol I conta·as three sections pl1 The first covers general protection of the wounded sick and shipwrecked medical and religious personnel and medical units and establishments The second section deals with the protection of medical transports The third section deals with ·- -' 6 the sea ch for the missing and the decent disposition of the 7 dead 8 Section I--General Protection Articles 8-20 2 JJ1f y Articles 8 l0 12 13 15 and 20--General Protection Extended to Civilians a yrf 9 10 - 11 Protocol I Article 8 expands the definition of 12 sick wounded and shipwrecked to include civilian war ll victims and expands the definition of medical personnel 14 units and transport to include civilian persons and 15 activities b pf Articles 10 12 and 15 then extend the provisions of 17 the Pirst and Second Geneva Conventions of 1949 to civilian 18 sick wounded and shipwrecked and to civilian medical 19 personnel and units and associated civilian religious 20 personnel all of whom would be respected and protected by 21 the parties to the conflict the sick and wounded to receive 22 CONF -'i ·-·· -- 5 Appendix _J • • in the Protocol the term •res ected and protected• means that an activity should not be knowingly attacked fired upon or unnecessarily interfered with it does not cover -54 i - required care •to the fullest extent practicable • As used accidental damage or casualties due to proximity to military objectives or to a justifiable mistake in identifying the activity 7 c u 'End of Protection Under Article 13 protection of civilian medical units would cease if they were used •to commit outside their humanitarian function acts harmful to the enemy • This is the same standard the 1949 Geneva Conventions prescribe for discontinuing protection of 9 11 from attack • a provision also taken from the 1949 -13 Conventions 16 military medical units Article 12 prohibits the use of medical units •in an attempt to shield military objectives d £Mf Reprisals Article 20 prohibits reprisals against civilian sick wounded or shipwrecked or civilian medical activities just as the 1949 Conventions prohibited reprisals against military sick wounded or shipwrecked or military medical activities 12 14 17 18 19 20 21 -22 6 Appendix J • • CORP IAL e JP Conclusion These articles are militarily 2 acceptable 3 ·- ' u ' Article 11--Protection of Persons •• J I Biological Experimen s The 1949 Geneva Conventions declare •biological experiments• on prisoners of war - 4 1 interned enemy civilians and others in the hands of an adverse party to be a •grave breach• of the Conventions The states party to the Conventions are required to seek out 8 and prosecute or extradite anyone in their territory guilty of such experiments Article 11 of the Protocol or scientific experiments • and the •removal of tissue or ll 1 organs for transplantation• are prohibited expands and reinforces this rule It applies not only to persons who are in the power of an adverse party• but also to any persons •who are interned detained or otherwise deprived of liberty• as a result of an armed conflict As to such persons Article 11 prohibits •any medical procedure which is not indicated by the state of health of the person concerned • In particular •physical mutilations 0 •medical Voluntary donations of blood for transfusion or skin for grafting are permitted so long as they are given without any coercion or 21 inducement and are only for therapeutic purposes • - 22 Appendix 7 _J ····· · • ·--•-· A4 · - - - · -'· - f - 3 t J - · -· - · • -· ' · ·_ ' r ii i Jr t _ · • • - x - - Right To Refuse Treatment Persons protected by this article also •have the right o refuse any surgical - operation • 3 Any willful violation of Article 11 is declared to be a •grave breach • of the Protocol which would require prosecution or extradition As Article 11 would provide additional protection to American prisoners of militarily acceptable and even advantageous war it is The provision 2 -5 -7 4 6 specifying an absolute right to refuse any surgery could 8 however operate in an inhumane manner in some 9 surgery necessary to save his own life in order to make a - political point or because of ignorance or mental ll circumstances incompetence A detainee might for example refuse Aside from the humanitarian considerations the death of a prisoner or detainee under such circumstances could be very embarrassing to the United States A 10 -13 14 reservation to paragraph Sis therefore proposed to deal 16 with surgery required to save life see Annex ll c y rf Conclusion Except for the one reservation noted above Article 11 is militarily acceptable - 18 19 4 Article 14--Reguisition of Civilian Medical Units 20 Article 14 of the Protocol prohibits an occupying power from 21 requisitioning civilian hospitals or other civilian medical 22 8 Revised by Decision Appendix • • necass ry for the health of tt civilian population Requisitions for the medical needs of the occupying power's 3 armed forces are permitted only if that power makes alternative units or their supplies equipment or personnel if these are arrangements to ensure the health of the population of the occupied territory a Jllf The Hague Regulations of 1907 and the Fourth Geneva 7 Convention of 1949 already make the occupying power responsible for health services in occupied territory and 9 limit requisitions to the needs of the occupation administration - Primary responsibility for the health needs of the civilian population will remain in the hands of the 11 military medical authorities of the occupying power within - existing capabilities will assist in coordinating with and ll_ supporting those institutions as needed b Conclusion implicit in existing international law and the article is therefore militarily acceptable J1'f - civilian medical institutions of an occupied territory 5 -6 The The substance of Article 14 is already Article 16--General Protection of Medical Duties Article 16 of the Protocol applies to anyone military or civilian of any nationality who performs medical activities 9 13 17 20 21 22 Appendix I II _Jj • • co It provides in paragraph l that none shall be punished for carrying out such activities •cJmpatible with medical ethics 2 regardless of the person benefiting therefrom • 3 Paragraph 3 provides that no person engaged in medical activities shall be 4 forced to give to an adverse party information concerning the wounded and sick who are or who have been unaer his care if 6 such information would in his opinion prove harmful to the 7 patients concerned or to their families • 8 a y f Impact on unconventional Warfare These provisions 9 would protect those who give medical care to resistance 10 fighters in occupied territory even if those fighters were 11 not considered lawful combatants These provisions of Article 16 are further reinforced by the first paragraph of 13 Protocol Article 17 which provides that the civilian population and civilian aid societies shall be permitted •to collect and care for the wounded sick and shipwrecked even 16 in invaded or occupied territory• and that no one nshall be 17 harmed prosecuted convicted or punished for such 18 humanitarian acts • - Under the Protocol the concept of sick and wounded• includes illegal combatants Taken 19 20 together Articles 16 and 17 would protect for example 21 persons including military personnel who create and or 22 10 ---• Appendix _J • • COKP AL operate clandestine medical activities for unlawful combatants even in occupied erritory If Articles 16 and ·- t 17 were accepted as written persons who aid illegal combatants in enemy territory occupied by Armed Forces would - not be subject to punishment under Article 104 of the J1f Conclusion 6 Uniform Code of Military Justice b 4 Articles 16 and 17 of the Protocol are 7 therefore militarily unacceptable to the extent that they 8 seek to add new limitations on the right of governments and 9 regular forces to stipulate the conditions under which 10 medical care is to be provided to enemy combatants A draft reservation designed to remedy this deficiency is contained 12 in the Annex ll This reservation reaffirms that existing international law limitations on the right to specify such 14 conditions do apply including the obligation to comply with the 1949 Geneva Conventions and the right of all victims of a conflict to receive humane treatment and adequate care 17 regardless of their status - In other words stipulation of 18 the conditions under which care can be provided to the sick 19 and wounded cannot be used to deny the opportunity for 20 adequate medical care to anyone 21 In certain circumstances such a reservation might of course result in adverse CONF L 22 Appendix 11 _J · r • • • consequences for insurgents or other irregular forces 1 friendly to the United States - If for example irregulars who were nationals of a state party to the Protocol were fighting against a government also bound by the Protocol in 2 3 4 a conflict for which both parties and the United States recognized the applicability of the Protocol the United 6 States might as a result of this reservation lose its 7 legal and perhaps moral standing to object to the 8 recognized government concerned establishing within the 9 existing framework of applicable international law certain 10 controls over the administration of medical care to 11 insurgent personnel 12 c JP' Impact on Military Justice Article 16 paragraph 2 also states that •persons engaged in medical activities shall not be compelled to perform acts or carry out work contrary to the rules of medical ethics or to other medical - 15 16 17 This could have a direct impact on the discipline of armed 18 forces medical officers and medical service personnel since 19 orders given them would have to be in accord with •medical 20 ethics a nonlegal body of rules created and subject to 21 revision by the organized medical profession 22 12 _- -- ll rules designed for the benefit of the wounded and sick •Medical flt tr · Appendix _J • • ethics• and medical rules designed for the benefit of the wounded and sick could be used as a defense to court- martial charges for disobedience by anyone failing to carry out military medical duties d jll conclusion 4 As it would impact on the administration of military justice Article 16 is militarily unacceptable A draft reservation designed to remedy this deficiency is contained in the Annex Section II--Medical Transportation Articles 21-31 J 1l'f G 111 Article 21--Medical Vehicles 7 9 a u f Article 21 of the Protocol states that medical vehicles shall be respected and protected in the same manner g g as •mobile medical units • This clarifies an ambiguity in the First Geneva Convention of 1949 Article 19 of which protects fixed military hospitals and •mobile medical units• but does not specifically protect ambulances Protocol 16 Article 21 would extend this protection to both military and ll civilian ambulances b 7 IA Conclusion Article 21 is acceptable vi Articles 22 and 23--Hospital Ships and Similar Craft Articles 22 and 23 of Protocol I revise the Second Geneva ll 22 13 Revised by Decision Appendix • I • • The first paragraph of Article 22 would extend the same protection to hospital ships carrying civilians that the 5 Second Convention grants to hospital ships carrying military 6 sick and wounded relief organizations Article 22 of the Protocol extends 1 similar status to hospital ships of neutral states and international humanitarian organizations ll Convention's provisions concerning hospital ships and coastal rescue craft a J1f Article 22--Hospital Ships and coastal Rescue Craft The Seco d Convention also protects hospital ships used by national Red Cross societies and The Second Convention requires that the names and descriptions of hospital ships be notified to the enemy at least 10 days before their use Protocol Article 22 exempts coastal rescue craft from this requirement b prS Article 23--0ther Medical Ships and Craft Article 23 of the Protocol extends protection to other ll medical ships and craft that do not meet the requirements laid down in the Second Geneva Convention of 1949 that is 19 that may be used for purposes other than medical or for - 20 which the required notification has not been given to the enemy While engaged in medical duties such vessels would CONFI 14 ·- Appendix _J • CON L • • be authorized and encouraged to display the Red Cross or Red Crescent and would be give • the same protection as military 2 ambulances on land7 i e they would not be subject to 3 deliberate attack while engaged in medical duties and so 4 long as they are not used for purposes outside their hospital ships protected under the Second Convention of ' 1949 vessels protected only by this article would be humanitarian functions and harmful to the enemy 5 Unlike 7 subject to capture by the enemy c pf Conclusion Articles 22 and 23 of Protocol I are militarily acceptable a tJl'f Articles 24-31--Medical Aircraft The Geneva Conventions of 1949 provide almost no protection for medical aircraft This is of concern to the United States since the OS Armed Forces use medical evacuation by air extensively both in combat and intertheater Under the 1949 Conventions a medical aircraft is protected from attack only if its flight plan is agreed to in advance by the enemy Articles 24-31 of the 10 - 15 1 18 Protocol represent an effort to provide better protection for 19 medical aircraft - a y 5 20 Articles 25 26 and 27--Areas Where Protected When flying over land areas controlled by friendly forces or 15 Appendix 21 22 f _ · • • • over sea areas not under the actual control of the enemy medical aircraft are to be r1spected and protected Protocol Article 25 When flying over the •contact zone • that is 1 2 opposing forces are in contact with each other • in the absence of agreement medical aircraft operate •at their own 6 risk• but are still entitled to respect •after they have 7 been recognized as such• Protocol Article 26 8 over •any area on land where the forward elements of In practice ho ever recognition under these circumstances may be impossible Prior agreement is required for flights over enemy-controlled territory However if a recognized medical aircraft flies over enemy territory by mistake or through necessity it shall be given reasonable opportunity to comply with orders to land before an attack is resorted ii Article 28--Restrictions on Operations of Medical Aircraft Article 28 states the conditions a medical airc aft must comply with to warrant protection under the Protocol --- -· - - - - 15 to Protocol Article 27 b ll In general these parallel the conditions ll established by the 1949 Geneva Conventions for the 20 protection of other medical activities such as not carrying 21 arms except for small arms under specified conditions and - 16 22 Appendix _J • • m Ill not being used to acquire military advantage over the enemy 1 One condition may be of some con ern Paragraph 2 prohibits the use of medical aircraft for gathering intelligence or 3 carrying •any equipment intended for such purposes • but equipment •intended solely to facilitate navigation communication or identification• is not prohibited The 6 7 United States has interpreted this language as not prohibiting secure voice communications equipment 4 8 r 9 - ' However at least one delegation to the 1974-1977 Diplomatic forbids hospital ships from carrying cryptographic gear or secret codes such equipment would be prohibited 13 Therefore if the United States ratifies the Protocol it 14 should do so only subject to an understanding reaffirming that the use of secure voice communications equipment on medical aircraft is not prohibited 17 Conference expressed the opposite interpretation that by analogy to the Second Geneva Convention of 1949 which Draft language for such an understanding is contained in the Annex c J1l5 Article 30--Landing and Inspection of Medical Aircraft Article 30 of the Protocol provides that medical t - ---- - 20 aircraft may be required by th enemy to land for inspection 21 whenever t•hey are flying over areas controlled by the enemy 22 17 s1·· Appendix _J • • ll or where control by either side is not clearly established 1 This is an improvement oveL the 1949 Geneva Convention 2 requirement that medical aircraft land for enemy inspection on demand even if they are flying over areas controlled by friendly forces 5 Protocol Article 29 contains procedures to p f 6 facilitate agreements when required medical aircraft should enter the airspace of neutral states 1 only by prior agreement 9 d Article 31--Neutral States Article 31 provides that If such an entry occurs without usually be obtained for medical aircraft either through diplomatic clearance or in accordance with existing base M rights and access agreements however the United States has used intertheater medical ll ll flights far more than its adversaries have prior agreement through error or because of an emergency the medical aircraft should not be attacked except as a last resort Access to neutral airspace and facilities will Under the last paragraph of Article 31 neutral states are required to be impartial in granting access to medical aircraft of parties to the conflict which would require a neutral state to grant access to enemy medical aircraft to the same extent that it grants such access to the United States 18 Historically ·· -·· -t-··•· Appendix _J • • c e Conclusions and Recommendations In general the Protocol articles on medi al transportation are militarily acceptable Those dealing with medical aircraft improve on the 1949 Conventions and are in principle advantageous to the OS Armed Forces As a practical matter however ·- 2 medical aircraft may rarely be able to claim the new 6 protection provided by the Protocol 7 Because of the diverse difficulty concerns the requirement that protected aircraft li ll comply with enemy requests to land for inspection while 18 flying over areas not clearly under the control of either - nature of aeromedical airlift requirements and the fact that aeromedical airlift would be only one of several varied requirements levied on intratheater and intertheater airlift assets the United States would be unable to permanently dedicate--and thus identify with appropriate markings--all of those aircraft likely to be used in an aeromedical airlift role Additionally ambient conditions and the austere environment of forward locations would preclude use of temporary markings such as decals party A more serious As a matter of operational policy medical aircraft would not normally fly over either enemy-controlled or disputed territory The immediate decision as to whether or -- -- · · 19 - 20 21 22 • 19 Appendix _J • • • CONY AL not to obey an enemy order to land would be based on establishment of the aircraft's true position and an assessment of the enemy threat 4 determination of the authunticity of that order If any combination of the foregoing was in doubt the aircraft probably would land as 5 ordered -67 However numerous situations could arise under which a landing for inspection would be deemed inadvisable or unwarranted The combination of us inability to mark all aircraft flying medical missions and the scenario-dependent nature of US adherence to the inspection criteria of the Protocol mitigate against the United States being able to claim protection for medical aircraft except in very limited circumstances 9 ll ll ll - 20 21 COHFmf 20 Appendix _J • • • CaNFI Section III--Missing and Dead Persons Articles 32-34 Jlill J ' ·• states a general obligation to search for persons missing as a - -s result of armed conflict and to respect the dead resulting from 6 9 p 1 'l'he Geneva Conventio 1s require only that wounded sick and dead members of armed forces be searched for on the battlefield Section III of Part II of the 1977 Protocol I a p 1 Article 32--General Principle Article 32 of the Protocol recognizes a broad right of •families to know the b v f Article 33--Missing Persons Article 33 obligates parties to the conflict to search for anyone reported missing by an adverse party as soon as circumstances permit and no later than the end of active hostilities It requires the parties to record identifying information concerning anyone detained or held captive for more than 2 weeks as a result of the conflict or anyone who has died It encourages use of the Red Cross Central Tracing Agency and the formation of teams to search 8 9 - 11 -ll 16 - 18 for the missing pl - ' - fate of their relatives • c 4 7 armed conflict during captivity 2 Article 34--Remains of Deceased Article 34 establishes an obligation to respect the graves of persons 21 21 22 Appendix _J • ·coN IAL who die for reasons relating to a conflict or enemy occupation and requires that such graves be disturbed only to return remains to a deceased's home country or for reasons of •overriding public necessity • in which case the deceased' home country must be notified It encourages agreements for the repatriation of remains or the maintenance of foreign graves d j1f Conclusion These articles were negotiated largely 1 a to make it politically more difficult for nations to refuse 9 to account for persons missing in action after future armed g conflicts They are militarily acceptable E ll 17 18 20 - 21 22 22 Appendix c Jill • • ·- C PART III METHODS AND MEANS OF WARFARE COMBjjtNT AND PRISONER OF WAR STATUS Articles 35-47 1 Part III of the Protocol consists of two sections The first section revises Articles 22 23 and 25 of the 1907 Hague Regulations on Land warfare the second section amends Articles 4 and S of the 1949 Geneva Convention III on Prisoners of War It also revises Articles 29-31 of the 1907 jJ11 Section I--Methods and Means of warfare Articles 35-42 prf Article 35--Basic Rules a 'JI - s -7a 6 Hague Regulations 2 Paragraphs l and 2 of Additional Protocol Article 35 state that the right to choose means of warfare is not unlimited and that it is prohibited to use weapons that ll would cause unnecessary suffering or superfluous injury ll These provisions merely restate the rules in Articles 22 and 23 e of the 1907 Hague Regulations which have been binding on the United States for mere than 70 years b y Paragraph 3 of Article 35 introduces a new principle It prohibits the use cf •methods er means of warfare which 19 are intended or may be expected to cause widespread long term and severe damage to the natural environment This language is quite close to that of the Environmental 23 21 22 Appendix _J • • C AL ·- ' Mo4ification ENMOD Convention which entered into force for the United States in 1980 2 The ENMOD Convention prohibits •the military or hostile use of environmental severe effects as the m ans of destruction damage or injury • 6 modification techniques having widespread longlasting or While the Convention was directed at the use of environmental modification techniques as weapons the 7 Protocol is directed against the employment of weapons that 8 have environmental consequences ThP Protocol goes further means or methods employed in the Protocol must be widespread and long term 29 severe to be a violation-- The Convention's need only be widespread or longlasting or 17 severe c x t is not clear what type of weapons or methods of 19 than does the Convention in that it prohibits the employment of both means and methods of warfare which although not primarily intended to may be expected to damage the environment The Protocol's standard of prohibited conduct is different from the Convention's standard in that the warfare would be prohibited by paragraph 3 Article 35 The - 20 report of the committee that drafted this Article and 21 Article 55 stated that the term long-term was considered 22 24 Appendix _J • • by some delegations •to be measured in decades •••• However it is impossible to say with certainty what period of time might be involved It appeared to be a widely shared 4 conventional warfare would not normally be proscribed by This Article could have considerable impact on naval warfare - assumption that battlefield damage incidental to this provision • ·- ' Attacks against oil tankers and 5 6 7 ships carrying hazardous chemical cargoes might be expected 8 to have long-term widespread and severe effects on the sea ' environment d onclusion In light of the uncertainty surrounding the meaning of paragraph 3 Article 35 the United States should if it ratifies the Protocol reserve the words •or may be expected • This would eliminate the problem of collateral ecological damage from conventional weapons and 11 g 13 - 14 methods of warfare including herbicides and riot control agents and would limit the obligations imposed to 17 essentially those already established by the ENMOD Convention A draft reservation and understanding for this - 20 purpose appears in the Annex l 22 25 Appendix - • • CONPIDE 3 ✓ le a JJI 1 36--New Weapons Article 36 of the Protocol requires states party to it to conduct a legal review of new weapons means or The United States already conducts such reviews and this article would cause no problems for this 4 2 4 methods of warfare b Conclusion 5 6 country 1 ptf 8 a Article 37--Prohibition of Perfidy pl Article 37 of the Protocol expands and explains Article 23 b of the 1907 Hague Regulations on Land Warfare which makes it forbidden •to kill or wound treacherously individuals belonging to the hostile nation or army • b Rather than •treachery • paragraph 1 of Article 37 uses the modern term •perfidy • and defines it as •acts inviting 11 13 14 he is entitled to or is obliged to accord protection under the rules of international law applicable in armed conflict 17 with the intent to betray that confidence • the confidence of an adversary to lead him to believe that This definition and the examples provided are an accurate and -20 helpful clarification of existing law c 8t Paragraph 2 of Article 37 provides that •ruses of war 21 are not prohibited and goes on to distinguish permitted 22 26 f -- Appendi _J • • C IAL deception or ruses from forbidden perfidy This paragraph explains and clarifies Article 24 of the 1907 Hague Regulations which similarly refers to ruses of war as permissable d 2 9' Conclusion The clarification of existing law in Article 37 is both accurate and helpful from a military 8 S I' Articl e 38--Recognized Emblems Itf 6 7 standpoint a Article 38 of the Protocol expands and explains 9 truce of the national flag or of the military insignia and ll uniform of the enemy as well as the distinctive badges of 13 the Geneva Convention • Geneva Conventions of 1949 also prohibit unauthorized use of the Red Cross or Red Crescent symbol see Article 44 in each 16 Convention ll Article 23 f of the 1907 Hague Regulations which states that it is forbidden •to make improper use of a flag of In addition the First and Second Article 38 of the Protocol reaffirms the rule against the misuse of the flag of truce and the Geneva Convention symbols prohibits misuse of symbols established by the Protocol Articles 56 and 66 as well as the United Nations symbol and the cultural property emblem of the 1954 -21 19 20 22 Hague Convention 27 Appendix _J r· CO'IIPI b It Conclusion There is no military problem with Article 38 6 w1 Article 39--Emblems of Nationality a pf Article 39 paragraph l of the Protocol prohibits use of neutral flags uniforms or emblems in armed conflict This is already a rule of customary international law to which recognized exceptions exist governing espionage and warfare at sea The exceptions are preserved by paragraph 3 of the Article ·• 5 6 7 8 9 b aragraph 2 of Article 39 however presents certain problems 11 Existing international law prohibits improper• use of the enemy uniform or insignia The United States interprets this rule to prohibit their use in combat but ll not in situations preceding or following combat 14 The Protocol would prohibit use of enemy uniforms and insignia •in order to shield favor protect or impede military operations • If adopted this rule could impact on the 15 16 17 personnel and possibly the escape and evasion of other military personnel 2 infiltration and exfiltration of special operations Under the command responsibility provisions of Articles 86 and 87 the superiors of special operations personnel might also be liable for war crimes 28 Appendix 22 CONY ll prosecution SHAPE has advi - d the NATO Military Committee that in the event of war in Europe •important Allied ground operations conducted behind Warsaw Pact lines would be - inhibited impeded or precluded by the provisions of Articles 39 • paragraph 2 lJI Conclusion Subject to a reservation to paragraph 2 Article 39 is acceptable An appropriate draft reservation Warfare prohibit declaring that no quarter will be given Article 40 of the Protocol merely reaffirms this long- p5 a Article 40 is acceptable Article 41--Safeguard of an Enemy Hors de Combat ¢ Article 23 c of the 1907 Hague Regulations forbids killing enemy personnel who are surrendering and the First Geneva Convention of 1949 forbids attacks on the sick and wounded 8 ll standing rule b JI Conclusion 9 - 11 Article 40--Quarter a Article 23 d of the 1907 Hague Regulations on Land 8 10 for this purpose is included in the Annex 4 7 paragraph c 3 ·-5 It is therefore proposed that the United States not become bound by this 7 ll - 2 Article 41 of the Protocol refines and expands this body of law by formally forbidding attacks against 29 22 Appendix --' c personnel who have clearly e ressed an intent to surrender in addition to those already captured and those who are unconscious or otherwise incapacitated due to wounds or sickness Immunity is lost if they continue to take part in • 5 combat or try to escape b Paragraph 3 of Article 41 provides that if due to 6 •unusual conditions of combat • prisoners of war cannot be 1 _yn evacuated to a safe internment camp as required by the Third Geneva convention of 1949 then they should be released as oon as practicable and all •feasible• precautions taken to ensure their safety While the term •unusual conditions of combat• has considerable ambiguity this rule would for -ll 10 - 13 example cover prisoners taken by patrols behind enemy lines or during unconventional warfare operations This - 15 paragraph may however be misinterpreted as requiring release of prisoners whenever they could not immediately be evacuated from the dangers of combat A draft understanding intended to preclude such an interpretation is included in Appendix A along with a draft declaration expressing the United States understanding of the term •feasible n as it is used throughout the Protocol c tJI Conclusion The provisions of Article 41 are already implicit in existing iuternational law the article simply 30 Appendi - 16 l 2 ll - 23 COHFfTIAL makes these rules explicit Subject to the understanding discussed above Article 41 is acceptable 9 v- 1 Article 42--0ccupants of A r craft a JI Article 42 of the Protocol prohibits attacks on aircrew members descending by parachute from disabled aircraft 1 The United States regards such attacks as - 5 6 prohibite under customary international law and the US 7 delegation argued for explicit recognition of such a rule at 8 the diplomatic conference which negotiated the Protocol 9 The adoption of Article 42 represents the success of those efforts 11 b M' Conclusion g Article 42 is acceptable Section II--Combatant and Prisoner of War Status Articles 43-47 19'l ✓Section 13 14 rules pertaining to combatant and prisoner of war status especially as they apply to guerrillas and other irregulars ll Under the 1949 Geneva Conventions members of a nation's 18 regular armed forces are entitled to prisoner of war status on 19 capture - 10 II of the Protocol radically changes the formal 20 Guerrillas resistance movements and other irregular however are only entitled to be prisoners of war 21 if they meet four strict criteria 22 co 31 Appendix _J • • C M a Being commanded by a person responsible for his or her 1 subordinates 2 b Wearing a fixed distinctive insignia recognizable at a 3 distance 4 c Carrying arms openly and s d Conducting their operations in accordance with the laws 6 and customs of war 7 To be entitled to prisoner of war status under the 1949 8 Convention a guerrilla unit must meet these criteria at all 9 Articles 43 and 44 of the Protocol eliminate the second and fourth of these criteria and circumscribe the operation of 11 the third criterion 12 11 vt rticles 43 and 44--Armed Forces Combatants and 13 Prisoners of War 14 times Article 43 declares that all members of the •armed forces with the exception of medical personnel and 15 including all organized armed forces groups and units which - are under a command responsible ••• for the conduct of its 20 subordinates 21 chaplains are •combatants • and Article 44 paragraph 1 provides that all combatants• are entitled to prisoner of war status on capture Article 43 defines armed forces as The intent is to include both regular armed forces and guerrilla units in this definition 32 Revised by Decision The Protocol Appendix 16 17 18 19 22 • ·• roHF thus eliminates the requirement that guerrillas wear fixed 1 insignia though Article 44 par raph 7 provides that it is 2 not intended to change the practice of uniform wear by the 3 regular uniformed units of a party to the conflict 4 It is generally accepted that the term uniform includes camouflage 5 fatigues CW protective clothing wetsuits and similar special 6 combat attire 7 Though such attire is often intended to conceal combatants from enemy observation in practice it also 8 distinguishes combatants from ordinary civilians 9 a Jlil As to the current requi ement that guerrilla units Article 43 retains a requirement that every armed force be subject to a disciplinary system that will among other ll things enforce compliance with the international law of war 14 among its members Article 44 paragraph 2 however makes it clear that the failure of such a system to function does not deprive a group of its right to claim combatant status 17 under the Protocol 18 Thus under the Protocol members of a -- ·-· 11 guerrilla group that routinely executes its own prisoners 19 would upon capture be entitled to prisoner of war status 20 Individual members of the group could still be punished for 21 the war crime of killing prisoners but only if sufficient 22 33 ' ' 10 - conduct operations in ccordance with the laws of war Appendix _J • • IAL evidence to prove individual guilt could be produced in 1 court b • tf'1n place of the existing general requirements to 3 carry arms openly and wear fixed visible insignia Article 4 44 paragraph 3 substitutes a general rule that all 5 •combatants are obliged to distinguish themselves from the 6 •e- - - · civilian population while they are engaged in an attack or 7 in a military operation preparatory to an attack • 8 However the paragraph then goes on to state that there are certain 9 •situations • not further defined where combatants cannot do this •owing to the nature of the hostilities • g_ The of war status if they carry their arms openly during military engagements and while they are visible to the enemy 17 in military deployments preceding the launching of an 18 attack 19 negotiating history together with paragraph 7 of the same Article make it clear that these •situations• refer to guerrilla warfare by irregular forces In such •situations • the guerrillas retain their right to prisoner If a guerrilla does not follow these rules he loses his right to prisoner of war status if he is captured 20 while violating them during a military engagement or a 21 deployment preceding an attack 34 Appendix _J Ill • • c • under paragraph 4 of Article 44 he is still to be given •protections equivale- t in all respects to those accorded to prisoners of war • It is not clear whether or hostilities -s 4 not this would preclude prosecution for taking part in The ordinary meaning of the text would suggest that such prosecution is prohibited since prisoners of war 6 cannot be punished simply for participating in combat 7 though the negotiating history may suggest a contrary 8 conclusion 9 In many cases however guerrillas might still _- _ -- ' -- be subject to prosecution for perfidy in violation of Article 37 discussed above d Critics of the treatment of guerrillas under the 1949 Geneva Convention argued that the Convention discriminates against guerrillas and in favor of regular forces because all members of a guerrilla unit lose their right to prisoner 15 of war status if the group in general failed to wear visible the other hand individual members of regular forces only ll lose their right to prisoner of war treatment if they personally violate the rules of war 21 insignia or carry arms openly or follow the law of war even if some individual guerrillas followed these rules on 22 35 Appendix _J CONPAill e If - • 'l'he Protocol has in a sense reversed this discrimination to favor gusrrillas As noted above the requirement that an armed force as a whole comply with the 3 law of war has been dropped as a condition for granting PW status to individual members of the force - Under paragraphs 5 3 and 7 of Article 44 however members of the regular armed forces are expected to wear a uniform whenever they are - engaged in combat or in any military operation preparatory to combat Guerrillas on the other hand are only required 7 sentence of paragraph 3 applies f Jlll'This improved status for gu rrillas may be of considerable military importance for countries that rely on 1 a territorial defense concept including many of the Uni ed ll States allies States would ever rely on guerrilla warfare in defense of its own territory there is little military advantage fer 20 the United States armed forces in recognizing improved 21 status for guerrilla fighters 22 to carry arms openly in actual combat and in military deployments preceding the launching of attacks a much more limited set of circumstances than that applicable to regulars at least in the •situations• to which the second Since it is very unlikely that the United On the contrary the United 36 Appendix _J • forces are more likely to continue to meet guerrillas a • adversaries ttan as allies in power projection situations 12 Jlllf a Article 46 of the Protocol on espionage also accords guerrillas a more favorable position than regulars 6 Under Articles 29-31 of the 1907 Hague Regulations a member 7 of the armed forces sent into enemy-controlled territory n disguise in order to gather information could be tried and punished as a spy if captured before he returned to his own _ forces only if while gathering information they engage in some g act of false pretense beyond merely wearing civilian ll attire such as using a concealed camera 18 Article 46--Spies Paragraphs l 2 and 4 of Article 46 Protocol I preserve and rest te these old rules b aragraph 3 however attempts to create parallel rules for guerrillas in occupied territory Under that paragraph such guerrillas can be convicted of espionage Also the guerrilla cannot be convicted of spying in occupied territory unless captured while actually engaging in espionage Again this improved status for guerrilla spies 37 - 19 20 21 Appendix _J • • CONFIDENTIAL may be quite important to nations planning to defend their -1 2 national territory by such means 3 13 pf Effects of Articles 43 44 and 46 a It is clear that Articles 43 44 and 46 of the 4 Protocol make many far-reaching changes in the international s law of guerrilla warfare 6 following scenario They can be illustrated by the a regular force is sent into territory 7 occupied by the enemy to carry out an operation jointly 8 with a friendly guerrilla force 9 The regulars make contact with the guerrillas and in the course of planning their joint operation a member of the regular force and a member 11 of the guerrilla force jointly spy on the enemy target while dressed in civilian clothing The target is successfully g ll attacked but both forces are later captured by the occupying power b 1 under both existing law and the Protocol the regulars were required to be in uniform during the attack ll and in all military operations preparatory to the attack 18 i e from the time they penetrated enemy-controlled territory until the completion of the attack Failure to abide by this rule could result in their trial and ll punishment by the enemy 22 Under existing law the same would 38 Appendix • • be true of the guerrillas under the Protocol however the ·- guerrillas would be entitlud to prisoner of war status and could not be punished for their participation in the attack 3 so long as they had carried their arms openly during the attack and their deployment prior to the attack Also the s guerrilla who spied on the target prior to the attack could 6 not be punished for espionage but the regular who 7 accompanied him would be liable for punishment as a spy 8 since he was captured before he left enemy-contrclled 9 territory c onclusion As can be seen guerrillas especially those in occupied territory would have a better legal position than regulars under the Protocol g - 12 and Conclusions--Articles 43 44 and 46 sum up there appears to be little if any military a _ advantage to the United States in recognizing an improved 16 legal position for guerrillas ll This improved position lessens the protection of the civilian population since the 18 guerilla will have no incentive or reasons in fact just the 19 opposite to mark himself off from the civilian population 20 b uch an improved position would also make it more difficult to suppress guerrilla movements in any future 39 Appendix - 21 22 ' • • situation in which United States Armed Forces must occupy territory and exercise military government powers over it Members of the local population who would otherwise be deterred from joining such a movement by the threat of punishment from the occupying power might join in guerrilla activity if they knew that the United States would treat them as lawful combatants in accordance with the Protocol c Conclusion From a military standpoint therefore the United States should reserve Articles 43 44 and 46 if ·- ' -s 3 - 7 9 it ratifies Protocol I 15 s t Article 45--Protection of Persons Who Have Taken Part ll in Hostilities E a pf Article 45 of the Protocol expands and elaborates ll Article S of the 1949 Geneva Convention on Prisoners of War 14 which provides that if •any doubt• arises as to whether a person committing a belligerent act is entitled to prisoner of war status that person will be treated as a prisoner of ll war until his status has been determined by a competent tribunal • b ¢ In United States practice administrative boards of 20 officers are the competent tribunals used to settle doubtful 21 cases of PW entitlement Article 45 of the rotocol 40 Appendix l 2· '' • anyone taking part in hoJtilities •shall be presumed to be a prisoner of war• if l he claims that status 2 •he 3 appears to be· entitled• to it or 3 the authorities of bis clarifies this provision by declaring that upon capture side claim it for him Doubts as to whether this presumption should continue will be resolved by a •competent 7 tribunal• c fJIThe second paragraph of Article 45 provides-that if someone who has taken part in hostilities is to be tried for an offense arising out of the conflict1 e g a war crime the accused will be allowed to raise his entitlement to prisoner o war status before a judicial tribuna11• i e not merely an administrative tribunal If possible this issue is to be adjudicated before trial but it is sufficient if the trial court itself considers the issue of PW status 6 American military courts would presumably follow the latter practice as they do now 9 11 ll The third paragraph requires that any person who has 18 taken part in hostilities be given at least a minimum level d of humane treatment even if he is not entitled to PW status e onclusion Article 45 is consistent with existing United States law and policies 41 Its general adoption by the Appendix - 21 r ·_ _ • nations of the world would be militarily advantageous since it would make it politically uore difficult for our adversaries to deny humane treatment to captured Americans In both the Korean and southeast Asian conflicts specious •war crimes• charges were used as a pretext for denyin prisoner of war status and humane treatment to American PWs Article 45 reaffirms that prisoner of war status can be 5 7 - ·· _ -- 1 ' denied only after a proper hearing and that even then the captured individual has a right to humane treatment - 16 0 Article 47--Mercenaries a Article 47 of the Protocol provides that •a mercenary shall not have the right to be a combatant or a prisoner of war • Article 47 was included in the Protocol not for humanitarian reasons but purely to make the political point that mercenary activity in the Third World is unwelcome b v 1 Most of the practical impact of the Article is eliminated by paragraph 2 which defines •mercenary• in 9 l ll l be specially recruited to fight 2 actually take part ll in combat and 3 o be motivated essentially by a desire for private gain and be paid more than members of the armed ll forces performing similar duties exceedingly narrow terms To be a mercenary a person must In addition anyone who is 1· l· 42 Appendix ·· J • • C ll D PART IV--CIVILIAN POPULATION Articles 48-79 p f l From a military standpc nt Articles 48 through 60 are 2 probably the most important provisions in the Prctcccl since they would directly regulate the conduct of combat operations 4 In assessing the acceptability cf these articles several factors should be kept in mind 6 a i First the Protocol rules are stated as prohibitions any method or means of combat not forbidden by these 8 articles or existing international law would still be legally permitted b second many of the Protocol rules are stated in vague language that will be subject to considerable interpretation in practice e g •severe civilian losses Article 56 •concrete and direct military advantage Articles Sl and 57 It is then impossible to say with any degree of accuracy exactly what methods and means of combat would in the abstract be forbidden by Protocol I The most that can be said is that there would be strong pressure on the Government to give a broad construction to these rules during low-intensity or unpopular conflicts to bring civilian losses to the lowest possible level During high-intensity conflicts especially those enjoying domestic 44 1 · •- ·· ll - 13 ll - 20 ll 22 Appendix _J • c and international political support considerations of ' military effectiveness wil undoubtedly play a grea er role in determining the US Government position on what the 4 Protocol requires c Recommended Understanding When applying rules that are so ambiguous it is important to ensure that commanders 5 6 and other decisionmakers are judged only on the basis of 1 knowledge actually available to them and not nn the basis 8 of hindsight - A draft understanding to this effect is 9 included in the Annex Section I--General Protection Articles 48-67 II 2 pt Article 48--Basic Rule a V11 Article 48 of the Protocol states a general principle--that the parties to a conflict should always distinguish civilians from combatants and direct their perations only against military objectives 1 Subsequent articles then apply this principle in particular contexts a1 3 '1 Article 49--Defini tion of Attacks and scope of Application b V' Conclusion Article 48 is acceptable Article 49 defines the term •attack • as used in the 21 Protocol to include any act of violence against the enemy 22 a 45 Appendix • or sea warfare that would affect the civilian population on land 4 whether in offense or defense It also limits the scope of this part of the Protocol co land combat to include any air b g 1 Conclusion Article 49 is acceptable - 4 J1if Article S0--Definition of Civilians 6 a f# Article 50 defines •civilians• and •civilian 7 population• is terms of persons who are not members of an armed force under either the Protocol or the 1949 Geneva 9 Convention on Prisoners of war b The only controversial provision in these articles is ll in the second sentence of paragraph 1 Article 50 which states that •in case of doubt whether a person is a civilian that person shall be considered to be a civilian • The acceptability of this provision will be discussed below in conjunction with a parallel provision in Article 52 on civilian objects S p Article 51--Protection of Civilian Population Article ll 16 51 of the Protocol covers the protection due to civilian persons both enemy and friendly who are in enemy-controlled territory ll 46 Appendix ·--- • • •• Paragraphs l and 3 restate the generally accepted principle that civilian persons should not be made the 2 object of attack and that acts or threats of violence which an international rejection of the terrorist tactics often used by guerrilla groups 7 have the primary purpose of terrorizing the civilian population are prohibited The latter provision represents It is also expressly provided that civilians lose legal immunity from attack if they take Paragraph 4 prohibits indiscriminate attacks and defines that term 8 9 a dir t part in hostilities b - Questions have been raised as to whether certain effective methods of warfare e g harassing fires meet the test of this prohibition against indiscriminate - attacks and interdiction fires common in past armed conflict would Bar ssing fires are delivered on enemy locations 13 terrain for the purpose of denying the enemy the unrestricted use of these areas for the purpose of disturbing the rest curtailing the movement or lowering the morale of troops Interdiction fires are delivered at random intervals en selected Neither of these types of attacks should be considered indiscriminate and an ll understanding to that effect is offered 22 47 Appendix • • CONFIDENTIAL c Paragraphs 4 and 5 of Article 51 prohibit •indiscriminate• attacks i e • those which •are of a nature 2 to strike military objectives and civilians ••• without 3 distinction • Such attacks include those which may cause collateral civilian losses which are •excessive• in relation to •the concrete and direct military advantage anticipated • This rule would require a weighing of expected civilian losses against the expected military advantage of any military operation Many legal experts believe that this -s 6 1 9 rule is already binding on the United States as part of 10 customary international law 11 Even if this rule is not already legally binding considerations of proportionality have always been a major faclor underlying political and practical restraints on military operations of the United States - 14 • ndiscriminate• attacks also include a •bombardment ••• which treats as a single military objective a number of clearly separated and distinct military 17 objectives located in a city town village or other area containing a similar concentration of civilians Whether a group of military targets in a city are clearly separated 20 and distinct would be judged from the viewpoint of the ll attacking force if enemy camouflage makes it impossible to 48 Appendix _J - • • distinguish the military objectives from the surrounding 1 civilian population then this rule would not prevent an attack on the entire area where the target is believed to 3 be d t i c l e 51 paragraph 7 would also prohibit the use of the civilian population to •shield military objectives -'s 6 l from attacks or to shield favor or impede military 7 operations • 8 This rule should be militarily advantageous to the United States since it expressly outlaws a practice 9 used by US adversaries both during and since World War II Use of civilians as a screen has also been a common practice among7errilla and terrorist groups -g e There is however a problem with the last paragraph ll of Article 51 which provides that any violation of Article 51 by one side will not release the other side from fully complying with its provisions This is reinforced by 11 paragraph 6 of the article which forbids any reprisal ll attacks agains the civilian population i e attacks that 18 would otherwise be forbidden but that are in response to the enemy's own violations of the law and are intended to deter 20 future violations 11 49 Appendix - • CONFIDEN'1'7 f Historically reciprocity has been the major sanction 1 underlying the law of war If paragraphs-6 and 8 of Article 51 come into force this sanction would be removed at least 3 insofar aa the civilian population is concerned Thus the enemy could deliberately carry out attacks against friendly s civilian populations and the United States would be legally 6 forbidden to reply in kind Similarly if an adversary used 7 the civilian population as a shield for military objectives e g by hiding a guerrilla headquarters in the center of a 9 to n or refugee camp an attack on such objectives would be 10 forbidden if •excessive• civilian casualties might result As a practical matter the United States might for political or humanitarian reasons decide in a particular case not to carry out retaliatory or reprisal attacks involving unfriendly civilian populations To formally - 14 renounce even the option of such attacks however removes a significant deterrent that presently protects civilians and 17 other war victims on all sides of a conflict g 19 I Conclusion If it ratifies Protocol I therefore the United States should reserve paragraphs 6 and 8 of 20 Article 51 - A draft reservation that would preserve the principle of reciprocity appears in the Annex _ Since the fng would apply to the prohibitions against 50 21 22 23 Appendix _J • • CONE AL reprisals on civilian objects in Articles 52-56 below the draft reservation is phrased to cover these articles as 2 well - Paragraphs 1-5 are acceptable though a clarifying 4 understanding is required see Annex 6 3 u Article S2--General Protection of Civilian Objects s a Article 52 prohibits attacks against civilian 6 objects defined as anything which is not a military 7 objective - Military objectives are •those objects which by their nature location purpose or use make an effective 8 9 contribution to military action and whose total or partial destruction capture or neutralization in the circumstances 11 ruling at the time offers a definite military advantage This definition which is consistent with customary ll international 1a·wi1 is broad enough to meet military 14 requirements Under this definition an area of land could for example be a military objective as could political and economic activities that support the enemy's war effort - b pl If 18 The problem with Article 52 is paragraph 3 which 19 provides that •in case of doubt as to whether an object 20 normally dedicated to civilian purposes is a military 21 objective •it shall be presumed not tc be• a military c 51 Appendix _J objective • This rule would apply to al st any object except for weapons and simi ar things that are military in the narrowest sense Railroads telecommu ications -2 3 facilities and electrical power plants are all •normally 4 dedicated to civilian purposes • 5 This rul together with the comparable rule in Article SO that •1n case of doubt• whether a person is a civilian he or she •shall be 7 considered to be a civilian • is unrealistic a C mmanders of war must do so in good faith and on the basis of whatever -109 information they have available at the time and other military personnel who make decisions in che fog Such decisi ns Articles SO and 52 of the Protocol could adversely impact on -ll -ll American military operations and personnel in many ways •war crimes accusations have been a principal means used to 17 deny prisoner of war status to Americans in both Korea and southeast Asia the existence of a rule that everyone and everything is civilian in case of •doubt could be used to 20 prove such charges in the future or at least lend credence 21 to them for propaganda purposes 22 will almost never be free of doubt • either subjective or objective d The presumption of civilian status established by A requirement that there 52 Revised by Decision Appendix 12 14 C tI •• • ' be no •doubt• that the persons and objects attacked were military could also be used to place American prisoners of war on tbe psychological defensive during interrogation This presumption also provides an additional protection for guerrillas and other irregulars who may find it advantageous to be presumed a civilian rather than a ombatant Finally such a presumption would make it more difficult to defend the legality of military operations in domestic and If the United States ratifies Protocol I therefore it should reserve the second sentence of paragraph 1 Article 50 and paragraph 3 of Article 52 draft reservation is included in the Annex A The rest of s tf a Article 53--Cultural Objects and Places of Worship Article 53 of the Protocol concerns protection of cultural property The United States recognizes a general obligation in customary international law to respect and protect important cultural property such as historic monuments In addition Articles 27 and 56 of the 1907 Hague Regulations on Land Warfare prohibit deliberate bombardment of cultural property or its willful destruction 53 1 - Os a -· - ll 14 Article 52 is militarily acceptable 7 2 9 international public opinion e Conclusion ll 18 - 19 20 21 Appendix ··· J • CONRitAL in occupied territory Article 53 which prohibits acts of purposes is in accord with these existing policies and obligation 4 b Jf'rrwo aspects of Article 53 raise problems however First it should be made clear that if cultural property is 6 used for military purposes it loses its protection 7 Second the protection of the article must be limited to a 8 relatively few highly important cultural monuments and 9 hostility toward cultural property or its use for military objects This was the position of the United States and most of its allies at the diplomatic conference However a 10 11 few states regarded Article 53 as protecting all temples 12 chapels mosques and other places of worship an extension ll that would make the article impractical in operation 14 A d aft understanding to reflect these views appears in the Annex c 8 ·- Conclusion Subject to the proposed understanding in 17 the Annex Article 53 is acceptable CJ Article 54--0bjects Indispensible to the Survival of the 19 a Article 54 of the Protocol prohibits starvation of civilians as a method of warfare This is a change from Appendix 54 - · • - t•• r - 1 --• - - -- • i - fJ t t J i· ··' ' ' ' ' t -- --- -21 ll _ · - _ · • - f 7 - · - · _ ---• ·· co -llL • • customary international law which permits the starvation of 1 the enemy population both civilian and military in sieges and blockades The possible impact of this new rule on 3 naval blockades is discussed below in conjunction with Article 70 on relief supplies As a general proposition 5 however there is little military need for a modern armed militarily acceptable -7 - 9 b Article 54 also specifically forbids the attack or 11 destruction of •objects indispensible to the survival of the value• to either the civilian population or to the enemy Destroying these items for some other purpose would still be 17 lawfulr e g destroying standing crops to clear a field of 18 fire force to retain the option of starving the-enemy's civilian population into submission This prohibition on 8 deliberately starving the civilian population is therefore civilian population • including foodstuffs crops livestock drinking water and irrigation installations •for t ne specific purpose of denying them for their sustenance The Article also provides that these objects lose their protection if they are used solely as sustenance for the enemy armed forces or if they are used some other way 21 in direct support of military action 22 55 They can then be Appendix c • • attacked not only to terminate that support but also for the purpose ·of denying sustenance to the enemy provided that the civilian population is not starved or forced to move as a result These restrictions do not apply o attacks that are not for the specific purpose of denying sustenance an understanding to clarify this is included in 6 the Annex a state to destroy such items in defense of its own 1 territory as part of a •scorched earth• policy 9 c The article also contains an exception allowing conclusion In light of the many exceptions that this article is militarily acceptable subject to the proposed understanding Article 54 allows in the interests of military necessity 9 JI Article 55--Protection of the National Environment 14 a Article 55 deals with damage to the natural environment in language similar to the third paragraph of _ Article 35 ll The first sentence requires that •care• be taken to avoid widespread long-term and severe damage to the environment - This requires only that reasonable efforts be taken to avoid such damage b Jlf 1 9 20 The aecond sentence is stronger in that it prohibits 21 use of methods or means of warfare that •are intended or may 22 56 Appendix --_J • • CONF JIAL be expected to cause such damage This prohibition is 1 however qualified by the phrase and thereby to prejudice 2 the health or survival of the population n which makes it 3 clear that it only prohibits collateral environment damage 4 that threatens the civilian population as a whole 5 Any conventional method or means of warfare having a foreseeable 6 result of that nature will be subject to severe political 7 restraint in any event 8 c J Conclusion Article 55 is militarily acceptable 9 subject to a reservation of the words nor may be expected 10 for reasons stated above in the discussion of Article 35 ll 10 11 Article 56--Works and Installations Containing 12 ----- Fo rc_e_s 13 Article 56 of the Protocol gives rise to a number of problems It protects dams dikes and nuclear power plants against attacks that could result in •severe civilian losses In the first place it is difficult to determine 14 1S 16 ll exactly which dams dikes and nuclear plants will be 18 protected and which will not 19 The negotiating history indicates that Article 56 is intended to protect objects 20 that would be considered legitimate military objectives 21 under Article 52 of the Protocol and under customary law 22 57 Appendix • • such military nbjectives would be prohibited if 1 •severe• civilian casualties might result from flooding or 2 release of radiation 3 The negotiating history throws little clear however that under this article civilian losoes are not to be balanced against the military value of the target 6 if severe losses would result then the attack is forbidden 7 no matter how important the target 8 light on what level of civilian losses is •severe b It It is also appears that Article 56 forbids any attack 9 that raises the possibility of severe civilian losses even though considerable care is taken to avoid them g At the diplomatic conference which drafted the Protocol the wording of this article was changed from •likely to• result 13 in severe losses to may• result in severe losses precisely such losses will result rather than that such losses be merely improbable ll c Paragraph 2 of Articl 56 provides for termination of 18 protection but only in limited circumstances 19 to make it clear that the attacker must guarantee that no If it is once conceded that a particular dam dike or nuclear power station is entitled to protection under Article 56 that protection can only end if it is use •in regular 58 Appendix - 20 21 22 C IAL • • significant and direct support of military operations • l This is intended to create a higher standard than the 2 criterion in Article 52's definition of a military 3 objective i e •effective contribution to military 4 action 5 As noted above the negotiators assumed that everything protected by Article 56 would already be a 6 militarly objective in the sense of Article 52 7 In the case of a nuclear power plant this support must be in the 8 form of •electric power • 9 The negotiating history refers to electric power for production of arms ammunition and 10 military equipment as removing a power plant's protection ll but not •production of civilian goods which may also be used 12 by the armed forces 13 The diplomatic conference thus individual case the power from a plant can be identified as 17 going to a particular military installation this would 18 under Article 56 remove the immunity from attack from a 19 neglected the nature of modern integrated power grids where it is impossible to say that electricity from a particular plant goes to a particular customer Assuming that in an nuclear power plant but not from a hydroelectric dam In 14 16 order for a dam or dike to lose its immunity it must be 21 used for other than its normal function in support of 22 59 Appendix ----- ----- -- ---- Cl-Ill • • military operations e g to support a road used as a main 1 supply route 2 This distin tion between nuclear power plants and dam and dikes appears unreasonable 3 d 'IJl'1t is also unreasonable for Article 56 to terminate the protection of nuclear power plants only on the basis of the use of ·their electric power Under this provision a nuclear power plant that is being used to produce plutonium for nuclear weapons purposes would not lose its protection e ' Another problem with Article 56 is that it bas the potential to create safe-havens for enemy military forces Paragraph 5 of Article 56 prohibits attacks against •installations erected for the sole purpose of defending the protected works • Such installations would include both antiaircraft and ground defenses This provision is not 4 5 6 7 8 9 10 11 12 ll k limited to installations intended to protect against 15 unlawful attacks 16 It would be perfectly lawful to try to capture a dam dike or nuclear power station with infantry since this would create no danger of destroying the installation As paragraph 5 literally reads however it would still be unlawful for the attacking infantry to fire at pillboxes and other installations erected for the ground defense of the dam dike or nuclear station 60 Another 17 18 19 20 21 - 22 Appendix Revised by Decision - I - --------- • • problem with this provision is that the presence of military forces a a particular location may affect enemy military -23 operations even if they confine their activities to defending the dam dike or nuclear station involved Thus 4 the presence of heavy antiaircraft defenses at a nuclear 5 power station will affect the route attacking aircraft will 6 take to other targets and may make defense of those targets 7 easier 8 In the case of radar near a dam dike or nuclear installation it will probably be impossible to tell whether it is confining its activities to defense of that - g installation or participating in the air defense of other ll possible targets 12 f j Finally Article 56 creates a new international symbol for' objects protected by it the same axis 13 three orange circles on 14 The problem with this emblem is that it will 15 be practically impossible to tell whether it is being used in good faith or not 17 The criterion for displaying the new sign is whether an attack might cause •severe civilian 18 losses 19 There is no internationally accepted criterion to determine whether particular losses are severe In 20 practice a party controlling a darn dike or nuclear 21 station will probably mark it as entitled to protection if 22 61 Appendix • • C IAL there is any chance at all of civilian casualties the party attacking such a facility will probably regard such marking 2 as illegitimate unless it determines that hundreds or even - thousands of civilians might be endangered Unlike existing 3 4 emblems for medical activities prisoner of war and s internment camps and cultural property it will be almost 6 impossible to verify whether a party to the conflict is using thh new symbol in good faith or not the criteria are entirely subjective Acceptance of this new sign would thus have no military benefit to the united States On the other hand its adoption could give rise to specious war crimes accusations whenever a facility displaying the sign is 10 - 11 attacked even if no civilian casualties actually result existing accepted symbols such as the Red Cross g Conclusion from that attack Its adoption could also erode respect for Article 56 has so many defects both in concept and in drafting that it should not be considered militarily acceptable - If the United States ratifies the Protocol it should reserve Article 56 An appropriate JI' a Article 57--Precautions in Attack Article 57 summarizes many of the general obligations in Articles 48 51 and 52 such as doing everything 62 19 20 draft reservation is included in the Annex 11 18 Appendix 22 23 _____ _ a MMiil EA -1• • --••m11-------•-•------------- s z sll I ' $ • • co feasible to ensure that only military objectives are attacked and that collatdral civilian lesses are kept to a 2 minimum 3 As such it acts as a convenient summary or checklist for persons responsible for planning or executing 4 military operations s It also contains a general obligation to warn the civilian population of attacks unless 6 circumstances do not permit • e g because surprise is 7 required - This warning requirement is a more modern 8 expression of the rule in Article 26 of the· 1907 Hague 9 Regulations which requires a warning before the bombardment of inhabited places •except in cases of assault • 11 Article g 57 generalizes this exception so that it applies to all circumstances where military need prevent a warning With one exception Article 57 is militarily acceptable b yThe exception is subparagraph 2 b of the article This paragraph requires that an attack be canceled or suspended if it becomes apparent• that the objective is not a military one or that the attack may e expected to cause incidental loss of civilian life injury to civilians damage to civilian objects or a combination thereof which would be excessive in relation to the concrete and direct ll ll - 20 ll 22 63 Revised by Decision Appendix --------- ----------------·------------ t • • military advantage anticipated • This prevision miqht provide a defense to military personnel accused of 2 disobedience or misbehavior before the enemy as a result of 3 refusal o participate in a particular combat operation 4 Under military law members of the armed forces may and 1 should refuse to obey an order to commit a crime such as 6 the shooting of prisoners of war or unarmed civilians 7 Article 57 however goes considerably beyond this in allowing each individual combatant to call off an •attack -9a or at least his participation in it if it appears to him 10 that collateral damage •may• be excessive to whatever 11 military advantage he is aware of In order to overcome To do this would often require y the declassification of information known to the accused's 17 superiors and its discussion in a public trial 18 this defense in a trial by court-martial the prosecution would have to prove beyond a reasonable doubt that the possible collateral damage would net be excessive to the military advantage gained Finally the accused might be able to prevail on this issue simply by demonstrating a reasonable mistake of fact on his part--a 20 reasonable belief perhaps formed in part on the basis of ll 22 64 Appendix -------- - - ffl------------------------------- • • CONtTIAL propaganda reports in the public media that collateral 1 dama was excessive to any expected military advantage c Conclusion - If the United States ratifies Protocol I therefore it should do so subject to an understanding 4 that this paragraph of Article 57 only applies to commanders s who have authority to terminate attacks 6 A draft understanding appears in the Annex 12 3 a 7 Article S8--Precautions Against Effects of Attacks c Article 58 requires any party to the conflict that is a in control of civilians to take certain measures to protect them against the dangers of war •to the maximum extent feasible • This article thus recognizes that responsibility for avoiding civilian losses does not fall totally on the attacking party the defender has a responsibility in this 14 matter too b 16 cf The term feasible• refers to what is practical or practically possible and allows for the consideration of reasonableness and military necessity in applying the Article 19 It would thus be impractical to move major headquarters and other permanent military installations 20 completely away from urban areas since such installations 21 require utilities transportation services and a civilian E 65 Appendix Revised by Decision '·-•• rt •• • C DBNTIAL What the Article requires rather is that the ·- ' parties to the Protocol take civilian danger into account as one factor amo g many in their defense planning - work force that can only be obtained in an urban environment However 4 several countries have voiced concerns about the possible 5 impact of Article 58 on their national defense especially ' 7 in densely populated areas such as Europe c ✓Conclusion To ensure that Article 58 is interpreted in a reasonable manner a draft understanding has been included in the Annex Subject to the adoption of this understanding Article 58 is militarily acceptable 13 lr1 Articles 59 and 60--Nondefended Localities and 9 10 - 13 Demilitarized zones a Protocol Articles 59 and 60 on undefended localities 14 and demilitarized zones supplement Article 25 of the 1907 15 Hague Regulations on Land Warfare which prohibits bombardment of •undefended• cities and towns - In practice 17 it has come to be commonly accepted that an •undefended• town is one which is open to unresisted occupation by enemy 19 land forces in the vicinity 20 b tJf Article 59 of the Protocol expresses and clarifies 21 this practice by requiring that a nondefended locality be 22 66 Appendix • • COll'l Ill near enemy land forces and opPn for their occupation and 1 that no hostile activities take place there c ltS Article 60 provides for the creation of 3 •demilitarized zones• in cases where the locality is not subject to immediate occupation S The zones contemplated by Article 60 can be created only by express agreement of the Bo h articles are in accordance with customary international law and with existing legal obligations 14 ¢ 8 9 10 They are militarily acceptable Articles 61-67--Civil Defense 6 7 parties to the conflict however d y conclusion - Articles 61-67 of the Protocol create a new class of persons and objects to be 12 specially protected during armed conflict - Under these Articles civil defense organizations personnel equipment and activities would receive a degree of protection that is in 13 general similar to that accorded medical personnel equipment - and activities under the Geneva Conventions of 1949 ll a General Protection Under Article 62 of the 16 18 Protocol civil defense personnel and organizations are thus 19 to be •respected and protected by the parties to the - 20 conflict i e not deliberately attacked or unnecessarily 21 interfered with 22 CONFIDENTIAL Civil defense functions may be interfered 67 Appendix I I ' • • CO HAL with for reasons cf imperative military necessity a concept that goes back to the general protection of civilian property provided by Article 23 g of the 1907 Hague Regulations on Land warfare Invocation cf this exception 3 4 is a matter cf professional military judgment for commanders 5 on the scene 6 individual weapons• for personel protection Articles 65 and 1 67 a rule similar to that applying to the arming of 9 b I' - Civil defense personnel-may carry light medical personnel under the 1949 Conventions An understanding regarding light individual weapons is proposed ll occupying power is to allow civil defense organizations to -14 continue to function and furnish them with the facilities 12 see Annex c '11' Occupied Territory In occupied territory the necessary for this purpose Article 63 13 A clarifying understanding to this article is included in the Annex d Military Personnel Military personnel may be used ll for civil defense if they are •permanently assigned and 19 exclusively devoted to such duties and do not perform 20 other military duties during the conflict Article 67 21 22 68 Appendix ____ -c · - __________ - - - cf m • e 'JI New Sign • Article 66 establishes a blue triangle in ·- protected civil defense personnel property and activities f QJf Cessation of Protection The special protection of 4 civil defense personnel and activities would cease if they S are used to commit acts harmful to the enemy outside their 6 proper functions Article 65 again a standard tuken fr m 7 the medical articles of the 1949 Conventions 8 an orange square as the international distinctive sign for For personnel performing civil defense duties committing such acts would subject them to immediate attack Prior to such attack a 9 10 warning and time limit for ceasing protection must be given 11 whenever appropriate 12 Whether a warning is •appropriate in a particular case of abuse is to be decided by the 13 military authorities affected by the violation based on their assessment of the military situation This 15 interpretation is based on the generally accepted - 16 interpretation of parallel language on protection of 17 hospitals and hospital ships under the First and Second 18 Geneva Conventions of 1949 19 g JI Conclusion 20 In general the system of protection for civil defense established by the Protocol is well-meaning 21 but creates a number of military operational problems 22 The main practical problems arise from the ambiguity of the Appendix 23 ------------------------------ ------ _ _ _ -_ u - - - CONFl AL • • definition of civil defense activities in Article 61 That definition includes in addition to expected activities such as fire fighting management of shelters and provision of 1 2 3 I I medical services a number of activities that could be of 4 military importance such as warning of attacks detection 1 I of danger areas decontamination •emergency repair of 6 indispensible public utilities and preservation of 7 objects essential to survival 8 In theory then a civil defense organization will be entitled to special protection 9 when it warns the civilian population of an impending 10 attack but not when it warns enemy military organizations 11 To the extent that such activities substantially lessen the 12 military impact of surprise they should be considered to be 13 legitimate objects of attack 14 Obviously there will be cor siderable overlap among these situations and in practice it will often be unclear whether a particular activity is a legitimate civil defense function or not 17 This ambiguity could encourage misuse of the orange and blue civil defense 18 identification sign in an attempt to shield otherwise lawful 19 targets from attack 20 An attacking force will often have difficulty deciding whetner to respect the sign in a 21 particular case 22 To lessen the risk of misuse of this sign I ' - 70 Appendix f - ·- - _______- _ - --____ z - - •- -----• - •------- • ·C111111w•·-11111 --·ne r ____ rc __ 'I' ' ' - _ I _ _ _ _ _ _ co tll • • and avoid placing an unacceptable burden on proof of an attacking force an understanding is proposed that makes it 1 2 clear that Articles 61-67 do not preclude an attack on an 3 otherwise lawful military objective 4 15 U Articles 68-71--Relief for the Civilian Population 5 Articles 68 through 71 require the parties to the conflict to 6 assist relief efforts for the civilian population 1 Relief workers are to be assisted _respected and protected Article 71 9 occupying power is to the fullest extent of the means available to it • to ensure provisions of clothing 12 bedding ••• shelter religious objects and other essential 13 a c 1' Occupied Territory supplies Articles 69 In occupied territory the 10 This provision supplements already requires the occupying power to provide medical supplies and food •to the fullest extent of the means 17 available to it • - Ar ticle 55 of the Fourth Geneva Convention of 1949 which b v 18 Other Areas Outside occupied territory Article 70 19 requires the parties to the conflict to facilitate rapid 20 and unimpeded passage of all relief consignments equipment ll and personnel 22 This duty is however •subject to the 71 Appendix • ·-· t • • CONFITIAL agreement of the Parties concerned The Protocol does not state on what basis such agreement might be refused One 1 reading of Article 70 suggested by the plain meaning of its 3 text would allow the agreement between the parties to cover 4 only technical arrangements and the conditions of 5 distribution as stated in paragraph 3 of the Article Such 6 an interpretation would cause a radical if perhaps 7 unintended change in the customary law of seige and a blockade warfare which has always allowed the beseiging and g blockading power to cut off all supplies going to areas under enemy control c JI Military Necessity One prominent legal commentary £ ll on the Protocol suggests an alternative interpretation ll however based on negotiating history - Under this interpretation agreement to transit of relief supplies 14 15 could be refused due to imperative considerations of 16 military necessity ll This interpretation would also make the Protocol compatible with United States law which allows the President to cut off relief supplies subject to the jurisdiction of the United States to any areas of the 20 world if s ch supplies would •endanger the Armed Forces of - the United States which are engaged in hostililties 72 Appendix 21 22 • • COVPf AL d 81 Conclusion Both in order to ensure compatibility with United States law and to ensure that the requirements of military necessity are taken into account an understanding reflecting the above interpretation is recommended A draft appears in the Annex Subject to this understanding Articles 68-71 are acceptable 'i Conflict 4 5 6 16 gtj Articles 72-79--Persons in the Power of a Party to the I Articles 72-79 are intended to protect persons who are •tn the power• of a party to the conflict including 1 prisoners of war civilian internees and anyone else including a state party's own nationals who is somehow affected by the armed conflict and under the control of one of ll the parties to the conflict a If Refugees Article 73 clarifies the 1949 Geneva protections to refugees and others who do not have a clearly defined nationality at the beginning of the armed conflict ll b Reunion of Families Convention on Civilian Persons by expressly extending its Article 74 creates a general duty to facilitate the reunification of families whose ll - members are dispersed by the conflict 20 22 CONFIDENTIAL 73 Appendix ------a - ' ' 9 P'___________ ___________ • • c '-9'7 Fundamental Guarantees Article 75 establishes certain minimum norms of humane treatment for anyone affected by a conflict including a prohibition on murder 3 torture degrading treatment and the taking of hostages Minimum due process requirements for anyone being punished for an offense relating to the conflict are also listed 6 The United States welcomed the adoption of Article 75 1 because it applied to anyone deprived of liberty for reasons a related to an armed conflict 9 In the Korean and Vietnam conflicts captured Americans were denied prisoner of war 10 status due to Communist allegations that they were all •war 11 criminals • 12 Article 75 it was hoped would undercut such excuses in future wars since paragraph 7 •to avoid any doubt • expressly states that it applies to persons accused 14 or convicted of war crimes session of the Diplomatic Conference that adopted the Protocol the Soviet delegation stated its understanding• 17 that the effects of Article 75 do not extend to war 18 criminals and spies • who would be dealt with under national -20 legislation alone However during a plenary There is therefore considerable reason 19 to doubt that adoption of Article 75 will affect the 21 behavior of Soviet-bloc governments in future armed 22 Appendix 74 - ___ -------·-- -- - W S e l -5 -d l- •••••--a·n- -• anu _______________________ • • co conflicts An understanding to counter this perspective is 1 proposed see Annex d '1 Protection of Women Article 76 establishes special 3 rules for the protection of women including a prohibition 4 on execution of death sentences on pregnant women and S mothers with dependent infants 6 e Jlf Protection of Children Article 77 prescribes 7 similar rules to p otect children including a prohibition 8 on execution of persons under the age of 18 when they commit 9 _ an offense f tf Evacuation of Children Article 78 sets up detailed 11 rules to govern evacuation of children out of their national territory 13 Under these rules the desires of parents or legal guardians should be respected and detailed information 14 recorded on each child evacuated g vi Protection of Journalists Article 79 clarifies the 16 position of journalists declaring them to be civilians and 17 entitled to treatment as such 18 The Article authorizes the issuance of a uniform identify card for journalists h r Conclusion acc ptable Articles 72-79 are militarily It is understood that the special protections afforded women and children in Articles 76 and 77 of 75 Appendix 21 22 It • • Protocol I apply only to noncombatants Women and children 1 who directly participate in military operations are not 2 entitled to special respect but should be treated as other 3 combatants are in accordance with the provisions of the - Geneva conventions and this Protocol Entitlement to 4 5 special protection would only begin when they are captured 6 In the case- of Article 75 its adoption is militarily 7 advantageous insofar as it might make mistreatment or 8 captured American military personnel more difficult to 9 justify in future conflicts An understanding to reject 10 Soviet misinterpretation of this article should be adopted 11 if the United States ratifies ll ' 15 - 16 17 18 21 22 76 Appendix _ _ -iJ - - - - - - - - - · - ' _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ t • • E COMPLIANCE MECHANISMS l iJrl' us Negotiating Objectives • ¢ In World War II the Korean War and the war in southeast Asia the United States faced the problem of systematic violations of the Geneva Conventions by its adversaries A major objective of the United States in - 2 entering the negotiations that led to the Protocol was 6 therefore to achieve more effective mechanisms to ensure 1 compliance with th s body of law In particular the United States sought to strengthen the institution of the •protecting power • Under this concept a neutral state assumes the responsibility for protecting a country's citizens who are in ll the custody or control of a particular enemy power whether as prisoners of war civilian internees or inhabitants of ll occupied territory This practice which worked reasonably largely be ause of the refusal of Communist governments to allow a neutral power to inspect either their prisoner of war ll or internment camps well in the t• o World Wars has only rarely worked since 1945 2 ¢' The Soviet Compliance Record Soviet policies on Geneva Convention matters have strongly influenced those of its allies and client states The Soviet record of compliance with these - 20 21 22 instruments should have considerable impact on us Appendix -·------------ ----- --···--- ------------------ • • CONF £ expectations as to whether the c ventions and the Protocol would be followed in practice by adversaries in future 2 conflicts 3 a V our ing world War II the OSSR was not a party to the 4 1929 Geneva Conventions It was however bound by the 1907 5 Hague Regulations on Land Warfare which contain basic rules 6 on the humane treatment of prisoners of war and civilians in 7 occupied territory 8 these obligations The Soviets consistently disregarded After the September 1939 invasion of 9 Poland thousands of Polish prisoners of war disappeared and 10 have never been accounted for by the USSR some of them were 11 apparently killed and buried in mass graves in the Katyn - Forest During the 1939-1940 conflict with Finland the 12 l Finns allowed the international Red Cross to inspect one of 14 their PW camps and furnished the Red Cross with information 15 on cap ured Russians The Soviets never reciprocated 16 During World War II itself about 40 percent of German 17 prisoners of war died in Soviet captivity After the German invasion of Russia the Red Cross offered its services t 19 both belligerents 20 The Germans gave the Red Cross one list of captured Russians and allowed them to briefly visit one 21 prisoner of war camp but again despite assurances to the 22 78 Appendix • CONF contrary the Soviets never reciprocated in practice The 1 Germans therefore refused to cooperate further where 2 Russian prisoners of war were concerned 3 In the Far East the soviets also failed to account for thousands of Japanese 4 prisoners of war captured in the closing days of the war 5 To a degree Soviet mistreatment of German prisoners of war 6 and civilians can be rationalized as a result of the 7 similarly brutal Nazi policies toward Russians this does B not account however for Soviet mistreatment of the Poles 9 and Japanese PWs 10 b JI Afghanistan is the first extended combat operation 11 conducted by the Soviet Union since 1945 12 In the view of the United States Afghanistan is occupied territory 13 governed by the provisions of the 1949 Geneva Convention on 14 Civilian Persons 15 In the Soviet view Afghanistan is involved in an internal conflict with the Soviet Army 16 helping the legitimate government 17 Even on that premise however common Article 3 of the 1949 Conventions would apply to the conflict - Soviet practices in Afghanistan have suggested no change in its policies since World War II insofar as those policies place an extremely low priority on compliance with the Geneva Conventions CDNFIDEt ·· _ - --· 20 21 22 Torture ppendix 79 19 -----m1 m me ----•111 11•··-----•- 1111 --- --lat ·•rn• • 11111 1MBZllil--'aiiPf iltiillP--m• a · frolQ'tfflrllllm--•------ •tr • • without trial all forbidden by common Article 3 have been widely practiced by Soviet forces in Afghanistan indiscriminate killing of noncombatants and executions In 1982 the international Red Cross negotiated an agreement among 4 the Soviets the Afghan Government and the guerrillas s under which prisoners taken by the guerrillas would be 6 interned in Switzerland Several prisoners have been interned under this arrangement but its future is in doubt 7 8 due to a failure to reciprocate on the part of the Afghan 9 and Soviet Governments The guerrillas entered into this 10 arrangement in the expectation that the Red Cross would also 11 be allowed to visit political prisoners being held in Afghan 12 Government prisons - After one such visit in 1982 the Afghan Government refused to allow any further Red Cross visits Red Cross appeals to the soviet and Afghan 13 14 15 Governments to allow further visits have not to date been effective 17 c Conclusion For 40 years the Soviet Union has persistently refused to carry out its humanitarian obligations in armed conflicts In particular it has persistently refused to allow any third-party inspection of its prisoner of war camps or other detention facilities 80 - 18 19 20 -22 21 Appendix I I • 3 • whether by a neutral protecting power or by the 1 International Committee of tt1e Red Cross 2 9 f Compliance Mechanisms in the Protocol Consistently 3 with practices described in the preceding paragraph the 4 Eastern Bloc countries strongly resisted any effort to require 5 third-party supervision of compliance with the Protocol and the Geneva Conventions The results of the effort to strengthen 7 the Geneva Conventions' compliance mechanisms were therefore 8 meager 9 a pl Third-Party Involvement Articles 5 Bl and 89 Article 5 of the Protocol describes in detail the procedures ll to be used in appointing a neutral protecting power 12 It does not however expressly require that a state holding 13 enemy prisoners of war or civilians accept such a power 14 On the contrary it expressly refers to the requirement that l a protecting power be accepted by the detaining power 16 In a sense this is a step backward from the 1949 Conventions 17 which do not mention the requirement that the detaining 18 power •accept• the protecting power though the need for 19 this consent was recognized in custom 20 Article 5 of the Protocol does state that the detaining power shall accept• 21 the services of the International Committee of the Red Cross 22 Bl Appendix - -- w- a • • CONF or a similar organization if a protecting power is not 1 agreed upon 2 The same language already appears in the 1949 Conventions but this has not prevented Communist governments and others from refusing to allow the Red 4 Cross to function as a alternative to a protecting power S Article 81 of the Protocol requires the parties to help both the national and international Red Cross in their 2 humanitarian activities 8 Article 89 requires the parties to cooperate with the United Nations in the event of $erious violations of the Conventions and Protocol 9 Neither of these provisions creates an unambiguous positive obligation 11 to allow third-party supervision of the implementation of humanitarian law in armed conflict believe that Articles s There is no reason to 81 and 89 of the Protocol will be 14 more successful than comparable provisions in the 1949 Geneva Conventions ll b Fact-Finding Commission Article 90 One major innovation of the Protocol is the creation of a permanent 18 15-member International Fact-Finding Commission to investigate alleged grave breaches or serious violations of 20 the Protocols and the Conventions and to facilitate 21 through its good offices the restoration of an attitude of 22 82 Appendix - - -· · _ _ I 1 c t • respect for the Conventions and the Protocol • The 1 Commission cannot act however without the consent of the parties to the dispute 3 Such consent can be given either on a one-time permanent basis or on an ad hoc basis for a particular dispute ' Given the persistence of the Soviet 5 refusal to allow third-party supervision of the Geneva 6 Conventions it is extremely unlikely that either the USSR 7 or any of its allies or clients would consent to the activities of the Commission Historically the United 9 States has consented to the jurisdiction of such bodies on a 10 permanent basis e g the World Court in The Hague and the us Government would presumably do so again if it ratifies the Protocol 13 c 5 IJ Criminal Liability and •Grave Breaches• Articles 14 85-88 Following World War II the Allied Powers 15 prosecuted a number of enemy personnel for •war crimes•-- violations of the laws and customs of war as they then 17 existed The 1949 Geneva Conventions building on this 18 precedent created the concept of •grave breaches• of the Conventions 20 These are exceptionally serious deliberate violations of the Conventions e g murdering or torturing prisoners of war The parties to the Conventions are 83 Appendix - 21 22 • ·--· t CONFI required to search for persons suspected of such breaches 1 and either bring them to trial when found or extradite them -2 to another party for trial In practice these provisions 3 have been largely a dead letter and few if any trials or 4 extraditions have been held as a result of the •grave 5 breaches• provisions of the Conventions 6 The Protocol does Article 88 does state a generalized obligation to cooperate -7a with other parties in criminal prosecution and extradition 9 little to strengthen the •grave breaches• system though matters Article 85 builds on the 1949 provisions by 10 reading into them a new set of •grave breaches of the 11 Protocol Again these are serious and deliberate Article 86 creates an obligation on commanders to prevent the commission of grave breaches whenever they have _ information that should lead them to believe that that a grave breach can be committed by inaction as well as -17 -1920 by a positive act 21 violations of the Protocol especially those parts of it that regulate combat operations Articles 48-57 subordinates have been or will be committing grave breaches of the Conventions or the Protocol It also makes it clear Article 87 requires the parties to ensure that their military commanders disseminate the 84 Appendix 18 22 --------------------- • CONPfAt Protocol and the Conventions to their commands and suppress 1 prevent and report grave breaches of those instruments The obligations created by Articles 86 and 87 are well 3 within the precedents for war crimes liability established 4 by American tribunals after World War II s To fully integrate them into military law would probably require the 6 adoption of punitive regulations by the Services - In general the Protocol provisions on grave breaches are 7 8 First Article 85 9 paragraph 3 c makes deliberate attack on works and lO installations containing dangerous forces a grave breach 11 This implements Article 56-of the Protocol and since a acceptable with two exceptions reservation of that Article is recommended a parallel reservation should be taken to Article 85 paragraph 3 c Second Article 85 paragraph 4 c makes •practices of apartheid • in willful violation of the Conventions or Protocols a grave breach As with Article l paragraph 4 and Article 47 this provision is intended to express a - 17 18 political point of view not to create an enforcible 19 obligation 20 •Apartheid• is a concept unique to the internal law of the Republic of South Africa Without a thorough knowledge of South African domestic law it is impossible to 85 Appendix ll -- --------------- r------- _ _ _ _ - _ -£ -- 'w - _ ____ a _- n _ __ ' _ _ _ _ _ _ _ ·------·-- ·- ---- CONFltAL say what this paragraph forbids While a reservation to l this provision might validly oe recommended such a 2 reservation would probably be misconstrued as expressing 3 support for the apartheid policy An understanding is therefore recommended if the United States ratifies the 5 Protocol 6 d jJI A draft appears in the Annex Miscellaneous Mechanisms Articles 6 7 82 83 84 and 91 The Protocol includes various other mechanisms to encourage compliance 7 8 Most of these simply build on the 9 existing provisions of the Hague and Geneva Conventions - which require dissemination and education in the rules of international humanitarian law Thus the Protocol contemplates the adoption of implementing regulatio1 s for the armed forces of states party to it Article 84 and the 10 11 12 13 14 dissemination of the Protocol to those forces Article 83 It also requires that legal advisors be made available to national armed forces Article 82 and encourages the 17 training of specialized experts in the Protocol and - Conventions Article 6 Article 91 requires states whose 19 armed forces have violated the Protocol or Conventions to 20 pay compensation to injured parties a provision that merely 21 restates existing law of state responsibility 22 86 · 18 • ' ' •A-•'· ••·' - -r - _ ---•-·-- One Appendix 1u t mw CQMt- ' lllt 1• •• • promising compliance mechanism introduced by the Protocol is to convene a meeting of states party to the Protocol at the· - request of any party and with the approval of a majority of 4 in Article 7 which authorizes the Government of Switzerland parties to discuss •general problems concerning application • Attempts to convene such a meeting to discuss specific alleged violations would probably meet with 2 3 considerable resistance especially from any Eastern Bloc - parties since the Article limits the meeting•s competence 9 to •general problems • It might still be possible to discuss specific violations as evidence of a •general 7 8 -11 10 such efforts as out of order and walk out of the meeting or not participate 14 problem• but the alleged violators would probably regard e Conclusion While its compliance articles are acceptable the Protocol has not significantly improved the international machinery for ensuring compliance with international humanitarian law in armed conflict The - 16 - 17 18 United States did not therefore achieve its most important 19 negotiating objective in participating in the Protocol 20 negotiations This conclusion lends greater importance to 21 the earlier recommendation that the limits on reprisals in 22 87 I l · ' Tl •J · -··-·• •· • _ · - •• - · · · ' · Appendix 4 • • CaffI zll Articles 51-56 be reserved If the United States cannot rely on neutral supervision to ensure compliance with humanitarian law then the threat of unilateral retaliation 3 retains its importance as a deterrent sanction to ensure at 4 5 least a minimum level of humane behavior by OS adversaries 1 8 11 ll ll - 19 ll 22 88 ·-------------li iiiiliiiiiiiimiiiiiil ii ii iii1iill il' iiliiir 1 ai l lilli im- L _- - Appendix j' - · · •w- - J 'M' 'W' •• ____ _ l I ---------- - ''· ---·•• ------------------------------ tll F APPLICABILITY TO NUCLEAR AND CHEMICAL WEAPONS 1 SJ'1' p 1 The United St tes parti ipated in the negotiation of the ·- combat operations would not apply to the use of nuclear - weapons a position based on statements in the introduction to 5 the original draft of the Protocol tabled by the Red Cross Protocol on the assumption that its rules on the conduct of 3 During the course of the negotiation the United St tes and several of its allies made statements for the record reflecting this position These statements were expressly contradicted by 9 only one delegation India but the legal advisor to the East 10 German delegation has recently asserted in an article 11 published by the Red Cross tha his delegation's statement in relation to Article Sl's ban on •indiscriminate• attacks was 12 13 also intended to assert that the Protocol applied to nuclear 14 weapons This statP ment referred to •the uncontrolled development and barbarous use of highly-sophisticated weapons• and to using Article 51 as •a solid basis for mobilizing public opinion against imperialist methods and means of warfare •••• Both the United States and Great Britain signed the Protocol subject to an understanding that its rules on the conduct of 20 warfare did not apply to nuclear weapons 21 In 1983 the Joint Chiefs of Staff advised the Secretary of Defense that this 89 Appendix 22 'l E 'e t ' 11 --•--•1-•--•-----------•• n ---_ r ewe _________ 4 _ _ _ _ _ _ • s '' ss_ · - zala ' •• • •· understanding should be expanded to include use of chemical weapoy as well as the use cf nuclear weapons 2 1 By its express terms the Protocol does not exclude the absence of an understanding excluding such weapons from the -5 scope of the Protocol the rules against indiscriminate methods 6 of warfare and excessive collateral damage in Articles Sl-57 1 chemical and nuclear weapons from the purview of its rules might severely limit the utility of such weapons In The problem with taking a reservation on this subject is that such an act would constitute a formal admission that in the absence of the reservation the Protocol does apply to nuclear and chemical weapons This could create problems if the United States 4 9 g needed to launch such weapons from the soil of allies who had not taken a similar reservation or a reservation to Articles - 35 and 55 on collateral impact on the environment At a 14 15 local opinion against deployment of nuclear and chemical 1 weapons yt' minimum a reservation would as the East German delegate predicted make the Protocol a more solid basis for mobiliz ng 3 The problem with using an understanding to expressly exempt these weapons from the terms of the Protocol is that an ll understanding is merely a statement that a particular country 22 90 Appendix l r I I COIIFI AL intends to interpret a treaty in a particular manner Other countries can reject the understanding as an erroneous interpretation of the treaty but still regard the first country as a party bound by all its terms There is already considerable dispute among legal experts as to whether the 1 2 3 4 5 Protocol by its terms would apply to nuclear and chemical 6 weapons so rejection of such an understanding is not unlikely 7 The only solution consistent with ratification of the 8 Protocol that would arguably protect our interest in 9 preserving flexibility in the employment of weapons of mass 10 destruction would be to make our agreement to enter treaty 11 relations with any country expressly conditional on acceptance of our understanding concerning nuclear and chemical weapons ll Rejection of such an understanding would in effect require rejection of the ratification itself However the understanding would have to be broadly worded to make it clear 16 that the rules related to use of weapons in the Protocol do not have any effect on the use of nuclear or chemical weapons This wording is needed to minimize the risk that after 19 ratification some nations might nevertheless attempt to apply - the Protocol to such weapons by arguing that the Protocol 20 il 22 CONFI 91 Appendix • COHPI merely codifies existing general interne • ional law norms e g prohibiting indiscriminate attacks 4 ¢ Conclusion and Recommendation It is recommended that 3 its ratification on acceptance of an understanding excluding the use of nuclear and chemical weapons from regulation by the Protocol 1 if the United States ratifies it should expressly condition ' Such an understanding would still leave herbicides and riot control agents under the Protocol rules but reservations proposed earlier to Articles 35 and 55 should take - care of any unforeseen environmental problems surrounding the use of these weapons A draft understanding appears in the 9 - 10 11 12 Annex 13 18 - 19 20 21 22 Appendix 92 ____________ ----- _____ _ _ __ __ ······•-- ··-··••·· ·····•··· ·····-······ ··-····--· G EVALUJ 'l'ION AND CONCLUSIONS 1 1 u f The Protocol is one of the most complex agreements ever negotiated on the law of armed conflict The complexity has 3 been generated by both the length of the agreement and by the 4 vagueness and breadth of i s many provisions 5 While containing certain improvements to the 1949 Geneva Conventions there is 6 considerable controversy over what some provisions mean 7 Additionally many of the Protocol provisions do not mirror 8 principles of military strategy and tactics Moreover the 9 operational and legal problems associated ith the Protocol 10 have necessitated numerous reservations and understandings A 11 resolution of the issue of ratification requires a balancing of the problems identified with the advantages to the United - States which might result from ratification of the Protocol 14 2 U The objectives of the United States in entering into the 15 Protocol negotiation were to improve compliance procedures for 16 12 13 existing and future humanitarian law to improve accounting for missing personnel in future wars and to increase protection ll for medical aircraft Of these three objectives the first is obviously the most important since the value of the other two 20 will largely depend on whether there is a reasonable chance 21 that our adversaries will comply with the Protocol 22 93 As noted Appendix ·- • - · • •-• · -· - - · -_-· · • - 0 COlfl IDtM above US efforts to improve the compliance mechanisms failed almost completely due to Eastern Bloc resistance Although · permit teams to search for identify and recover the dead Practical difficulties may often prevent us medical aircraft 6 from using some of the protection of the Protocol 7 some improvements were made in the areas of missing personnel and medical aircraft there is still no firm obligation to Further the Soviet Union's record of compliance with humanitarian law 8 together with the experiences of the United States in its last 9 three major wars give little reason for confidence that adversaries in future conflicts would make a serious effort to comply with either the Protocol or the 1949 Geneva conventions 3 Y The argument is sometimes made that where humanitarian law treaties are concerned the United States should not be concerned with the possibility of enemy violations when deciding whether or not to ratify As long as one side in a 13 - 16 war complies this argument goes then at least some innocent 17 victims of war have been saved and that is a better result 18 than if neither side complies 19 There might be some validity to this argument if the Protocol merely regulated the subjects 20 traditionally covered by the Geneva Conventions i e 21 protection of medical activities and persons in the custody of 22 94 Appendix cmwit an enemy power Articles 48-60 however go far beyond this and attempt to regulate all G pects of combat operations If one side in a war tries to conduct all its operations in 3 conscientious compliance with such a comprehensive set of 4 rules perhaps under neutral supervision while its adversary 5 makes little effort to do the same it seems inevitable that 6 the result would be a degradation in the combat performance of 7 the fi dt belligerent a This is true even of rules that are in principle acceptable such as Articles 52 and 57 4 ✓A us 9 critical issue with respect to Articles 35-60 of the Protocol is the applicability to nuclear weapons - Although the Regrettably -y the specific terms of the Protocol are silent on the nuclear position has been clearly stated that the Protocol does not cover such weapons there is contrary opinion issue The bottom line is that the us nuclear deterrent is the 12 cornerstone of our defense of the free world and the United - States should carefully consider whether ratification would compromise US ability to protect strategic interests 5 vf Against the improvements in missing in action accounting 15 16 and protection of medical aircraft that might flow from Protocol ratification are to be weighed the militarily 21 significant problems associated with the Protocol including 22 95 Appendix ----- I ________ __ __________ __ _ ·---·-··--····· EN'l'IAL a 'Tbe likelihood that some nations would reject the critical nuclear understanding 2 b II Changes in the legal status of guerrillas who would 3 enjoy a better legal position than regular combatants in 4 some situations c -V1 ' 'he virtual elimination of reprisals as a deterrent E against violations of the law of armed conflict 1 d VI' Presumptions that objects and persons be considered civilian in case of doubt g e 11' Prohibitions against attacking certain dams dikes and nuclear power stations - 11 £ JI The injection of a political element into the application and administration of humanitarian law by 13 Article l paragraph 41 Article 471 and Article as ll ll paragraph 4 c 1 g V Ambiguous restraints against the use of cities and towns for military activities such as logistics and C2 sites and against attacks as enemy forces conducting h - 18 19 military operations from cities and towns The likelihood that Soviet bloc countries will reject 20 the Western understanding of the fundamental guarantees in 21 Article 75 22 96 L Appendix CONFitAL 6 l JIJ Statistically in order to make individual provisions acceptable it would be necessaLy to enter at least 23 In other words there are operational and 4 5 legal problems with more than 25 percent of the Protocol exclusive of the problem concerning the applicability to nuclear weapons 3 reservations or understandings covering some 27 different numbered articles l 6 Historically so many reservations and 7 understandings would likely be considered incompatible with the object and purpose of the treaty by many other nations 9 The technical legal and operational difficulties associated with other parties' selective accept nce or rejection of our reservations and understandings could make the entire Prot col 12 unworkable Thus even with the numerous fixes designed to make individual provisions acceptable the reservations and understandings as a whole do not adequately reconcile the overall legal and operational problems associated with the serious question whether the United States can in good faith - 17 ratify the Protocol with the many reservations and understandings necessary to correct the Protocol's numerous ambiguities and defects 21 Protocol Consequently as a practical matter there is a Finally it should be noted that even if the many reservations to the Protocol had not been 22 Appendix 97 Revised by Decision I Alb%' b W t 4 1 iab W l'l l - ' ··'• t··· ' I · • p - -· • -- --- -------------------- --- --··· 0 0 CONPtIAL 1 a guide for military operations ue to the large number of - clarifying understandings required The Prococol is neither a reliable codification nor an acceptable development of the law 2 3 Even on the best assumptions it -' can be made practical and acceptable only by the adoption of an 6 applicable in armed conflict excessive number of reservations and understandings This result is in contrast to a fundamental obj ctive of the United States during the Protocols negotiation to develop new rules of law that are clear are capable of being accepted by States and are capable of being applied in practice 7 £111 Even if the United States does not ratify the Protocol become binding on our government as customary international law This would require that the Protocol be generally accepted by the other nations of the world including the other major military powers and that its provisions be actually foll wed in war for a sufficient period of time to become a general practice accepted as law 5 7 9 11 there is some danger that the unacceptable portions of it might At present only 46 nations - 12 ll to the 1949 Geneva Conventions and the over 170 nations party - to the UN Charter so the Protocol is far from being generally 22 are party to the Protocol as compared to the 161 nations party Appendix 98 Revised by Decision 1 necessary there would still be serious problems in using it as 19 20 21 0 0 accepted at this time The Protocol is so complex that it is unlikely that all of it would ever be accepted as customary international law 3 A far more likely scenario is that certain by most of the world's nations and would then become customary law 6 parts of the Protocol would eventually be accepted in practice The Onited States should therefore encourage the specifically those portions dealing with medical aircraft and -a7 missing in action personnel 9 adoption as customary law of advantageous portions of Protocol 8 II New rules of customary international law do not bind nations that have persistently objected to the new custom 10 The 11 United States should therefore publicly make known its opposition to those parts of the Protocol which are militarily ll unacceptable primarily Articles 50-58 customary law and would prevent the Onited States from becoming bound even if they are accepted as custom by other 17 nations 18 9 pf On balance the problems with the Protocol seem to far 19 outweigh the benefits of ratification This might prevent these provisions from becoming accepted by other nations as Further ratification simply as a leadership device or as an incentive for compliance ll by others historically has not born fruit 22 CO ID A decision against Appendix ' ' • •C•• -t•••- - • '• •• ' •• -- • •'--'-' - • 0 COW t ratification however would still permit the United States to introduce into its military practices those provisions which are fundamentally fair clear and genuinely h nitarian in their nature his approach would compromise neither our 3 4 legitimate military concerns nor our principled world 5 leadership 6 Therefore the United States should not ratify this Protocol 1 £ - ' jI_ - 9 M Bothe K Partsch and w Solf New Rules for Victims of Armed conflicts 1982 p 434 50 United States Code 1702 b Volume VI •official Records of the Diplomatic conference 187 1978 JCSM-92-83 28 March 1983 •The 1977 Additional Protocols and Weapons of Mass Destruction O ll ll - 19 ll - 22 Appendix 100 -•· 0 • - • - - - - - - - - - - - - - - - - - - - 'l ' __ '-' '-'X'i ' -Y ••• • _ i••-•_ - llA •a -J --'---• •I l'J ·- ANNEX DRAFT RESERVATIONS AND UNDERSTANDINGS 1 Treaty relations with the United States are expressly conditioned on acceptance of the following understanding That the rules relating to the use of weapons introduced by this Protocol apply exclusively to conventional weapons without prejudice to any other rules of international law applicable to other types of weapons In particular the rules so introduced do not have any effect on and do not regulate or prohibit the use of nuclear or chemical weapons 6 7 8 9 10 2 The United States reserves Article 1 paragraph 4 11 3 In reference to Article 11 5 the United States reserves 12 the right to authorize any surgery necessary to save the life of any person in its custody or under its control 4 In reference to Articles 16 and 17 the United States makes the following reservations a Article 16 is reserved to the extent that it would affect the internal administration of the United States Armed Forces including the administration of military justice b To the extent permitted under existing international law the United States reserves the right to stipulate the - 20 21 conditions under which medical care is to be provided to individuals committing bellige ent acts against the United 23 l Annex 11· v it _r ·r ------- ijjjjlaamm l l•_ •111••••••••••u rl i· ilirii· 1'5 Mtfffi··sfti71R•p rl 0 0 States or its allies and cobelligerents Measures taken under this reservation will comply with the 1949 Geneva Conventions and will recognize the obligation of the Parties l 2 3 to an armed conflict to ensure that all victims of the 4 conflict including the sick and wounded receive humane treatment and adequate care 6 in Article 28 2 prohibiting medical aircraft from carrying - equipment used to collect or transmit intelligence data does 9 5 The United States Government understands that the provision not preclude the presence of communications equipment and encryption materials or their use solely to facilitate navigation identification and communication in support of 7 - 12 medical operations 6 In reference to paragraph 3 of Article 35 and paragraph l M of Article 55 the United States reserves the words •or may be expected • 7 In reference to the second paragraph of Article 39 the United States reserves the words •or in order to shield favor - 17 - 18 19 protect or impede military operations • 8 The United States understands in relation to Articles 41 20 56 57 58 78 and 86 that the word feasible• means that 21 which is practicable or practically possible taking into 22 2 Annex account all circumstances ruling at the time including humanitarian and military cono derations 2 9 It is the understanding of the United States that Article - 41 paragraph 3 does not obligate a Detaining Power to release 3 4 i'· prisoners of war simply because these individiuals cannot be immediately •vacuated from a combat zone 6 The United States continues to recognize however an obligation to provide for 1 the safety of such personnel - · ' if· ·rt ' l 8 10 It is the understanding of the United States in relation to 9 advantage anticipated from an attack must be considered as a -ll whole and not only f om isolated or particular parts of the 12 attack and that incidental civilian losses are excessive only when tantamount to the total disregard for the safety of the 14 civilian population viewpoint of the attacking force taking into account all factors either within or beyond the control of the attacking 19 force which might affect its ability to separate and identify - Articles 51 5 b 52 2 and 57 2 a iii that the military It is the understanding of the United States that whether targets are •clearly separated and distinct military objectives• will be judged on the basis of the military targets 10 20 ll 22 3 Annex · · · · •· •·· · -·-- ·--·- ·•· ·-·------ •··- • I •- - ----- -----iiltrllil·----•••M-•••- tiliii - - ' - - _ ____ __ ·-·-· 11 The United States reserves the first paragraph of Article 1 43 Article 44 and the third paragraph of Article 46 12 The United States reserves Article 47 13 In reference to paragraph 1 of Article SO tha United States reserves the second sentence of that paragraph The 5 14 The United States reserves Article 56 and paragraph 3 c -7 of Article 85 8 15 The United States declares that it accepts the obligations 9 United States reserves the third paragraph of Article 52 6 of Articles 51-55 except as reserved herein only on the basis 10 that any adverse party against which the United States might be 11 engaged will itself scrupulously observe those obligations as 12 well as its other obligations under the law applicable in armed ll conflict In particular if an adverse party makes deliberate population or civilians or against civilian objects including such attacks in the territory of an ally of the United States 17 the United States will regard itself as entitled to take - attacks in violation of Articles 51-55 against the civilian 18 measures otherwise prohibited by those articles to the extent that it considers such measures necessary for the purpose of 20 compelling the adverse party to cease committing violations of ll its humanitarian obligations 22 4 Annex ------------ - -- --------------------------r 16 The United States understands that Article 53 establishes a 1 special protection for a limited class of objects which because of their recognized importance constitute a part of the cultural or spiritual heritage of peoples and that such 4 objects will lose their protection if they are used in support - of the military effort 5 f I I 17 It is the understanding of the United States that para- 7 graph 3 of Article 54 has no application to attacks that are 8 carried out for a specific purpose other than denying 9 sustenance of the civilian population or the adverse party 10 18 It is the understanding of the United states that the obligation to comply with Article 57 paragraph 2 b only g extends to commanders who have the authority to cancel or 58 does not prohibit the use of urban terrain for military purposes when military necessity dictates such use and further ll that potential danger to the civilian populace is only one factor to be considered in formulating overall defense planning 20 19 It is the understanding of the United States that Article u 22 5 Annex t• f I - 6 suspend attacks j - t-' -• - ·------ C 20 The Onited States understands that in relation to Articles 51-58 military commanders and others responsible for planning deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information 2 3 from all sources that is available to them at the relevant time 6 21 The Onited St tes understands in re ation to paragraph 4 of Article 51 that neither harassing fires delivered en enemy locations for the purpose of disturbing the rest curtailing the movement or lowering the morale of troops nor interdiction fires delivered on selected· terrain for the purpose of denying the enemy the unreotricted use of these areas are indiscriminate attacks 22 In reference to Article 85 paragraph 4 c the United States understands that the word •apartheid refers solely to acts of discrimination on the basis of race or color in violation of the Conventions or this Protocol 7 8 9 2 ll ll 14 15 23 The United States understands that the term light - individual weapons• excludes fragmentation grenades and milar 19 17 devices as well as weapons which cannot fully be handled or fired by a single individual and those designed or intended for non-human targets 18 20 ll 22 6 Annex • 24 It is the u derstanding of he United States that Articles 61-67 of the Protocol are not intended to restrict the rights of belligerents to attack a military objective as defined in other articles of the Protocol and other applicable international law 3 4 It is further understood that deliberate s misuse of the civil defense sign· is a violation of Article 38 6 of this Protocol and that killing injuring or capturing an enemy through such misuse is a violation of Article 37 of this - Protocol 25 In relation to Article 63 paragraph 1 it is the understanding of the United States that facilities will be provided to civil defense organizations only within the ·capabilities of the occupying power 26 In reference to Articles 54 and 70 the United States understands that these articles do not affect the existing rules of naval warfare regarding naval blockade contraband 7 8 ll 10 12 - 15 control submarine warfare or mine warfare and further understands reasons of imperative milit ry necessity may dictate against conclusion of the agreements contemplated by Article 70 27 It is the understanding of the United States that Article 75 protects all persons not otherwise specifically 7 Annex _J - -·· -------- II ' 1 ' X protected under the Conventions and Protocol I by more specific 1 and elaborate guarantees - The Onited States further under- stands that all Parties must meet these standards of humane 2 treatment at all times and in all circumstances The United t States rejects any reservation or understanding that attempts to limit the class of persons to which this Article applies 6 other than those who are expressly excluded by the language of the Article 8 9 10 11 - 12 13 14 - 19 - 20 21 22 8 ---------- ' di' •- • • Annex iIi I