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An Appeal for Ratification by the United States

Published online by Cambridge University Press:  27 February 2017

Hans-Peter Gasser
Hans-Peter Gasser*
Affiliation:
Legal Adviser to the Directorate, International Committee of the Red Cross, Geneva
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Abstract

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Type
Agora: The U.S. Decision not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims
Information
American Journal of International Law , Volume 81 , Issue 4 , October 1987 , pp. 912 - 925
Copyright
Copyright © American Society of International Law 1987

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Footnotes

*

The views expressed in this article are personal and do not necessarily reflect those of the International Committee of the Red Cross.

References

1 Letter of Transmittal from President Ronald Reagan, Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Noninternational Armed Conflicts, S. Treaty Doc. No. 2, 100th Cong., 1st Sess., at III (1987), reprinted supra p. 910 [hereinafter Letter of Transmittal]. A detailed analysis of theprovisions of the Protocol and the text of recommended understandings and reservations areattached. Id. at 1.

For the text of Protocol II, see Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Final Act (1977), reprinted in S. Treaty Doc. No. 2, supra, at 7, 16 ILM 1442 (1977), International Committee of the Red Cross, Protocols Additional to the Geneva Conventions of 12 August 1949 (1977), and D. Schindler & J. Toman, The Laws of Armed Conflicts 619 (1981).

2 For the text of Protocol I, see Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Final Act (1977), reprinted in 16 ILM 1391 (1977), International Committee of the Red Cross, supra note1, and D. Schindler & J. Toman, supra note 1, at 551.

3 Letter of Transmittal, supra note 1, at III.

4 Letter of Submittal from Secretary of State George P. Shultz, S. Treaty Doc. No. 2, supra note 1, at VII, X [hereinafter Letter of Submittal].

5 On the two 1977 Protocols in general, see Bothe, M., Partsch, K.J. & Solf, W. A., New Rules for Victims of Armed Conflicts (1982)Google Scholar; Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Sandoz, Y., Swinarski, Ch. & Zimmermann, B. eds., 1987)Google Scholar [hereinafter ICRC Commentary]. For a comprehensive presentation of the results of the Diplomatic Conference by the head of the U.S. delegation to that conference, see Aldrich, , New Life for the Laws of War, 75 AJIL 764 (1981)CrossRefGoogle Scholar.

6 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention No. I), Aug. 12, 1949, 6 UST 3114, TIAS No. 3362, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II), Aug. 12, 1949, 6 UST 3217, TIAS No. 3363, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War (Geneva Convention No. III), Aug. 12, 1949, 6 UST 3316, TIAS No. 3364, 75 UNTS135; Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention No. IV), Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287.

7 Protocol I, supra note 2, Arts. 8–20.

8 Id., Arts. 24–31.

9 Id., Arts. 32–34.

10 Id., Arts. 68–71.

11 Id., Art. 75.

12 Hague Convention (No. IV) Respecting the Laws and Customs of War on Land, and annexed Regulations Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, TS No. 539, reprinted in D. Schindler & J. Toman, supra note 1, at 69.

13 Protocol I, supra note 2, Art. 35(1).

14 Id., Art. 48: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between civilian objectsand military objectives and accordingly shall direct their operations only against military objectives.”

15 See, e.g., the prohibition of indiscriminate attacks, id., Art. 51(4) and (5):

4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:

  • (a)

    (a) those which are not directed at a specific military objective;

  • (b)

    (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or

  • (c)

    (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;

and, consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

5. Among others, the following types of attacks are to be considered as indiscriminate:

  • (a)

    (a) an attack by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and

  • (b)

    (b) an attack which may be 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 military advantage anticipated.

16 See, on its history, ICRC Commentary, supra note 5, General Introduction, at XXIX–XXXV.

17 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Official Records (1974–1977) [hereinafter Official Records]. The conference was not convened by the United Nations, whose International Law Commission in 1949 did not include the development of international humanitarian law in its program, but by Switzerland, the depositary of the 1949 Geneva Conventions.

18 Rules of Procedure, Rule 58, 2 Official Records at 1.

19 8 id. at 102.

20 7 id. at 194 and 205.

21 International Rev. of the Red Cross, May–June 1987, at 344. The Netherlands ratified the Protocols on June 26, 1987.

22 Notification, par le Département politique fédéral Suisse aux Gouvernements des Etats parties aux Conventions de Genève du 12 août 1949 pour la protection des victimes de la guerre (Dec. 20, 1978).

23 See the portion of its conclusions reprinted in Contemporary Practice of the United States, 72 AJIL 405 (1978).

24 Letter of Submittal, supra note 4, at IX.

2 5 United Nations Charter arts. 1(2) and 55.

26 GA Res. 1514 (Dec. 14, 1960), 15 UN GAOR Supp. (No. 16) at 66, UN Doc. A/4684 (1960).

27 International Covenant on Economic, Social and Cultural Rights, Art. 1(1), 993 UNTS 3; and International Covenant on Civil and Political Rights, Art. 1(1), 999 UNTS 171.

28 GA Res. 2625 (Oct. 24, 1970), 25 UN GAOR Supp. (No. 28) at 121, UN Doc. A/8028 (1970).

29 Id., section entitled “The principle of equal rights and self–determination of peoples.” See also Gros Espiell, The Right to Self-Determination: Implementation of United Nations Resolutions, UN Doc. E/CN.4/Sub.2/405/Rev.1, para. 60, at 10 (1980).

30 Sofaer, , Terrorism and the Law, 94 Foreign Aff. 901, 913 (1986)CrossRefGoogle Scholar. Mr. Sofaer is the present Legal Adviser of the Department of State.

31 See note 29 supra.

32 Protocol I, supra note 2, Art. 96(3).

33 For a thorough discussion, see ICRC Commentary, supra note 5, Commentary to Article 1, paras. 95–118, at 50–56; and M. Bothe, K. J. Partsch & W. A. Solf, supra note 5, Commentary to Article 1, paras. 2.13–2.23, at 45–52.

34 Article 2 common to the four Geneva Conventions, supra note 6.

35 See also Article 4 of Protocol I, which states that “application of the Convention and of this Protocol . . . shall not affect the legal status of the Parties to the conflict.”

36 Solf concludes the discussion of Article 1(4) with the following remark: “[I]t follows that the self-determination provision in Article 1(4) is largely symbolic and is not at all likely to present any practical problems in operations except that it automatically excludes Israel and South Africa from becoming parties to the Protocol.” Solf, , A Response to Douglas J. Feith’s Lawin the Service of Terror—The Strange Case of the Additional Protocol, 20 Akron L. Rev. 261, 285 (1986)Google Scholar.

37 Letter of Transmittal, supra note 1, at IV.

38 Letter of Submittal, supra note 4, at IX.

39 Feith, , Law in the Service of Terror—The Strange Case of the Additional Protocol, National Interest, No. 1, Fall 1985, at 36, 47Google Scholar. See the reply to this article by Solf, supra note 36.Waldemar A. Solf was Chief of the International Affairs Division, Office of the Judge Advocate General, U.S. Army, and a member of the U.S. delegation to the Diplomatic Conference thatproduced the two 1977 Protocols.

40 See, in particular, Solf, supra note 36; Aldrich, , supra note 5; and Aldrich, Progressive Development of the Laws of War: A Reply to Criticisms of the 1977 Geneva Protocol I, 26 Va. J. Int’l. 693 (1986)Google Scholar. See also Gasser, , Prohibition of Terrorist Acts in International Humanitarian Law, International Rev. of the Red Cross, July-August 1986, at 200–12CrossRefGoogle Scholar.

41 Article 4A(2)(b) of Geneva Convention No. Ill, supra note 6, mentions a “fixed distinctive sign recognizable at a distance.”

42 Protocol I, supra note 2, Art. 43(1).

43 Id., Art. 43(2).

44 Id., Art. 43(1).

45 ICRC Commentary, supra note 5, Commentary to Article 43, para. 1675, at 513. For a slightly differing view, see M. Bothe, K.J. Partsch & W. A. Solf, supra note 5, Commentary [by Solf] to Article 43, para. 2.3.2, at 238.

46 ICRC Commentary, supra note 5, Commentary to Article 44, para. 1698, at 529 (with reference to the rapporteur’s report and to opinions expressed by the delegations during the Diplomatic Conference).

47 Id., Commentary to Article 44, paras. 1709–14, at 534–36.

48 Notification, supra note 22.

49 M. Bothe, K.J. Partsch & W. A. Solf, supra note 5, Commentary to Article 44, para. 2.7.2.2, at 254.

50 See ICRC, Reservations, Declarations and Communications Made at the Time of or in Reference to Ratification or Accession (as of June 1987) (internal note, 1987).

51 This was the view expressed by the representative of the PLO, 6 Official Records, supra note 17, at 148.

52 Vienna Convention on the Law of Treaties, Art. 31(1), UNTS Regis. No. 18,232, UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969).

53 Protocol I, supra note 2, Art. 44(3), 1st sentence.

54 Id., Art. 44(4).

55 Id.

56 Solf, supra note 36, at 273. See United States Military Assistance Command, Vietnam, Criteria for Classification and Disposition of Detainees, Ann. A of Directive No. 381–46 (Dec. 27, 1967), reprinted in 62 AJIL 766 (1968).

57 Protocol I, supra note 2, Art. 37.

58 Gasser, supra note 40, at 203–07.

59 Protocol I, supra note 2, Art. 85(3)(a).

60 Geneva Convention No. IV, supra note 6, Art. 49(2), and Protocol I, supra note 2, Art. 85.

61 Contemporary Practice of the United States, 74 AJIL 420 (1980).

62 International Convention Against the Taking of Hostages, Dec. 17, 1979, reprinted in 18 ILM 1456 (1979) (ratified by the United States on Dec. 7, 1984). See Solf, supra note 36, at 285 n.86.

63 Letter of Transmittal, supra note 1, at IV.

64 Letter of Submittal, supra note 4, at IX.

65 Id.

66 See note 3 supra and accompanying text.

67 See text at note 21 supra.

68 Letter of Transmittal, supra note 1, at IV.