S S 8608291 I Co NFiLl NTIAknited States Department of State Washington D C - J j-5°' 20520 March 21 1986 MEMORANDUM FOR VADM JOHN M POINDEXTER THE WHITE HOUSE SUBJECT 1977 Protocols Additional to the Geneva Conventions of 1949 on Protection of War Victims C The Joint Chiefs of Staff and the Departments of State Defense and Justice have completed their reviews of these two Protocols and have agreed upon a recommendation that 1 the USG not ratify Protocol I and 2 the Administration submit Protocol II to the Senate for advice and consent on ratification with certain reservations and understandings Attached at Tabs 1 and 2 is an exchange of letters between Secretaries Weinberger and Shultz reflecting these conclusions C We propose that the USG formally notify the Swiss Government as depository of our intention not to ratify and request it to note that fact in its publications listing signatories We propose also that we work to persuade our allies to follow our lead The only allies that have ratified already are Denmark and Norway France has declared it will not ratify We can accomplish these objectives in a low-key business like manner U Several provisions of Protocol I represent welcome innovations in the law We recommend that the USG develop and raise with our llies a possible common declaration of principles incorporating the positive aspects of Protocol I which will assist in their recognition as customary international law U Protocol II applies to non-international armed conflicts Most of its provisions promote basic human rights in line with U S policy and practice We recommend that the Administration support ratification of Protocol' II with minor reservations and understandings along the lines of the examples set forth at Tab 3 The exact wording of the required understandings and or reservations for Protocol II should be worked out among the Departments and then with our allies DECLASSIFIED cmi c mAL D C L R BY NLRR Nqor CJf'l 7 SJ NARA ATE CON NTIAL - 2 - C To accomplish these objectives we suggest the following iffimediate steps By DOD 0 Providing the JCS study on the Protocols on a confidential basis to the allies and other appropriate foreign military authorities We suggest in addition to all NATO countries Australia Israel Japan and Korea 0 Providing State and Justice with background material on Protocol II that DOD believes might be useful in preparing a transmittal package for the Senate 0 Informally advising the Armed Services Committees as DOD believes appropriate of our course of action By State In coordination with Justice 0 Advising the ICRC the NATO Political Committee and other appropriate foreign political authorities of our decision to ratify Protocol II but not Protocol I and our intention to develop a possible common declaration of principles incorporating the positive aspects of Protocol I Work on such a declaration should proceed in a low-key confidential manner We contemplate contacting in addition to all NATO countries Australia Israel Japan and Korea 0 Preparing a draft transmittal package for Protocol II taking into account the materials DOD would provide as described above 0 Preparing a draft declaration of principles incorporating the positive aspects of Protocol I 0 Informally advising the Congressional foreign affairs committees of our course of action C RECOMMENDATIONS 1 That the USG not ratify Protocol I 2 That the Administration submit to the Senate Protocol II with reservations and understandings along the lines of the examples set forth in Tab 3 CONffiltNTIAL CON NTIAL - 3 - 3 That the program described above and approved by State DefeRse and Justice be implemented promptly AcM ff Nicholas Platt Executive Secretary cc The Attorney General The Secretary of Defense Attachments Tab 1 - From Weinberger to Shultz July 2 1985 Tab 2 - From Shultz to Weinberger December 10 1985 Tab 3 - Draft Understandings and Reservations to Protocol II CON NTIAL ' 4' 1 ••I I r - I 1 AH ' -••·•• •• 11 J#• 1ut ACTION J C opies to MEMORANDUM FOR THE SECRETARY EtJR SUBJECT• p JO L I ·• L j_ • U•' 1 'H 1 • 11 'It 1• 1U1 - D ru r l or JUL l E STATE 1977 Protocol • Additional to the Geneva Convention• of 1949 on War Victim• PM The 3oint Chief• of Staff have completed their review of the two • ubject Protocol •• They have recommended again• t ratification S •S of Protocol I and in favor of ratification with certain re • ervationa and under• tandin9 • of Protocol II Their analyaia i• well•1rounded and J concur with their reco ndationa SIS t ··-''a-n i tc t I rN r l t l l Protocol 1 n•t iate4 under a 4 Croe • auapic•• froa 1974 o 1177 and • igned by the Carter Ac mini • tration in 1977 would politicise international hWIIAnitarian lav and inter alia afford legal protection• to terroriata and •national liberation aovement •• at the eapen•• of non-combatant •• In ay judgment the treaty would abet terrori • m through 1 u • e of hi9hly•c har9ed rhetoric ••I•• • the Protocol cover • conflict• in vhich people• are fiptin9 a9ain• t colonial domination and alien occupation and a9ainat raciat regi••••••• inappropriate in an hWIIAnitarian lav treaty and 2 9rantin9 of coabatant POW atatua to irregular fithter • vbo do not wear uniform• and othervi•• fail to di • tin9ui • h them••1••• from non-eClllbatanta t would aboli • h the traditional diatinction between international and non-international conflict• a • aivnint tQ the former cate9ory conflict • involving only one aoverei9n atate Th• Soviet• in particular would benefit from thia creation of a •national liberation war• esception to the rule a9ain• t interference in ot ber atat••• internal affair •• There are nwaerou • operational re • triction• in Protocol I that the Chief • and I deem unacceptable but even if th••• were not pre • ent the Protocol would be unacceptable for the aforementioned rea • ona We reco9ni e that Protocol I contain• aome 9004 language ur9in9 all fighter • to di • tin9uiah them• elv•• from non-combatant • and refrain from attacking civilian• but that lan9ua9e ia •••entially hortatory while the Protocol'• key operative provi • ion• would radically change humanitarian lav in favor of terroriata and other irre9ulara at the ••p•n•• of civilian•• I' 2 ' The unacceptable ele111enta of Protocol I are ultifarioua and fundamental in nature Given that reaervationa muat be compatible with the object and purpoae of the treaty the Chief• and 1 have concluded- that Protocol J'a flava are not remediable through reaervation• and underatandinga We therefore recoaaend that the United Stat • declare ita intention not to ratify Protocol 1 Th• Swiaa Government aa depoaitory ahould be informed formally of our intention and requeated to note the fact in it• publication• li • tin9 • i9natori••• We are confident that a clear exposition of our ca•• againat Protocol I will win aubatantial aupport on the Hill and with the public · ' f - i • an I f f 0 N 0 'ID Protocol JI appli•• to non-international armed conflict •• Moat of it• proviaiona promote baaic human right• in line with us policy and practice Th• Chief• and J reco1111Dend that the Adminiatration aupport ratification of Protocol JI vith lllinor reaervation• and underatandin9a alon9 the 11 •• of the example• ••t forth in Attachment A Th• exact wording of the required reaervationa for Protocol JI • uat be worked out firat among OJCS your office lline and other relevant a9enciea and then with our Alli••• our • ATO Alli••• in particular are eager to learn our concluaiona re9ardin9 P t ocola I and JJ J have been ld that in th• l'RG the lundeata9 haa pr••••d inquiri•• vith the 9overnment on the ratification iaaue Vhich ha• been under atudy aince December 1977 Jt i• in our intereat to inform our alli•• and the international community without delay of our poaition on Protocol J •• our oppoaition can be aspect ad to diacoura9e other • from endoraing it I do not think ve ahould aate the public announee nt of our poaition await the preci•• foraulation of the Attach nt A item•• When ve declare · our intention _not to ratify Protocol J J reC0111Dend ve alao declare our intention to ratify Protocol ll with certain ainor reaervationa and under• tandin9a that ve ahall work out vith our Alli••• -- · I • cca The Aaaiatant to the Preaident for Hational Security Affair• Yi - ATTACHMENT A DR n UND£RSTAN01NG AND RESERVATIONS 1 Article 10 i• re • erved to the extent that it would affect the internal adminiatration of the United Stat•• Armed Poree • inelud• ing the admini • tration of military ju• tic e 2 The United State • under • tand • that Article 16 e • tabli • hea a apecial protection for a limited cl••• of object • that bec auae of their recogni ed importance con• titute a part of the cultural 0- or apiritual heritage of peopl••• and that • uch objects will lose their protect ion if they are u• ed in •upport of the military I- u • 0 ' l effort • J Jt i• the underatandin9 of the United States that Vhen aa• iat- ance ia provided to the armed force • of a High Contractin9 Party N by another High Contracting Party in relation to• • ituation IO deacribed in Article 1 1 the Protocol will 90vern the conduct of C l»oth Bi9h Contractin9 Parties only to the aame eztent and under ' tD the••- condition• that it binds the High Contractin9 Party in vho•• terri ry the conflict tat•• place The United Stat•• • hall through a reaervation or under- • tanding aake clear that it doe• not accept the reference in Article 1 to Article 1 4 of Protocol J J CON ENTIAL T t SECRETARY OF' STATE WASHINGTON December 10 1985 Deir Cap The Department of State has previously expressed its sympathy for the -underlyin9 objectives of the 1977 Additional Protocols and its appreciation especially for the continuing effort• of the ICRC to improve humanitarian aspects of international law Our prior position• on the Protocol• have always been conditional however on their military acceptability The JCS Review of Protocol I • akea clear that it la • ilitarily unacceptable to the u s and should not be ratified I a9ree with the Joint Chiefs that ve should • ake every effort to see to it that the positive aspects of Protocol I beco• e widely accepted as cuato• ary law I also agree that Protocol It can an should be ratified with appropriate reservation• and uhderstandinga We will however need to carry out these decisions in a • anner deai9ned to • ini• ize any potentially adverse inter- national consequences of repudiation of Protocol I and in particular we should handle the issue publicly in a low-key way In the aeanti• e I request that you arr•nge to -have the JCS atudy provide4 on a confidential basis tc the RATO Military co-ittee and other appropriate foreign • ilitary authorities and we will initiate interagency work on future steps inclading docuaenta for the submission of Protocol II to the Senate and a possible proposal to allies for a co-on declaration of principles Sincerely yours p Jb George P Shultz cc The Attorney General The Assistant to the President for National Security Affairs The Honorable Caspar w Weinberger Secretary of Defense CON TIAL DECLASSIFIED NLRR_ Y' o5'µ ' ' • • r BY M NA DAT 2 t1ft1 o DRAFT UNDERSTANDINGS AND RESERVATIONS l Article lo is reserved to the extent that it would affect the internal administration of the United States Armed Forces including the administration of military justice 2 The United States understands that Article 16 establishes a special protection for a limited class of objects that because of their recognized importance constitute a part of the cultural or spiritual heritage of peoples and that such objects will lose their protection if they are used in support of the military effort 3 It is the understanding of the United States that when assistance is provided to the armed forces of a High Contracting Party by another High Contracting Party in relation to a situation described in Article 1 1 the Protocol will govern the conduct of both High Contracting Parti s only to the same extent and under the same conditions that it binds the High Contracting Party in whose territory the conflict takes place 4 The United states shall through a reservation or understanding make clear that it does not accept the reference in Article 1 to Article 1 4 of Protocol I and that the scope of the Protocol will be the same as that of Article 3 conman to the Geneva Conventions of 12 August 1949