1 The texts of the two Protocols, UN Doc. A/32/144, Anns. I and II (1977), are reprinted in 197–198 Int’l Rev. of the Red Cross 3 (1977) and 16 ILM 1391 and 1442 (1977).

2 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 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, 6 UST 3217, TIAS No. 3363, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, 6 UST 3316, TIAS No. 3364, 75 UNTS 135; and Convention Relative to the Protection of Civilian Persons in Time of War, 6 UST 3516, TIAS No. 3365, 75 UNTS 287.

3 See the Report of the Secretary-General, UN Doc. A/34/445 (1979), with attached list of signatories. The United States signed both Protocols, but they have not yet been sent to the Senate for advice and consent.

4 Ibid.; and Note from the Embassy of Switzerland dated Nov. 8, 1979, on file in the Office of the Legal Adviser, Department of State. The 11 parties covered by that Note are Botswana, Cyprus (Protocol I only), El Salvador, Ecuador, Ghana, Jordan, Libya, Niger, Sweden, Tunisia, and Yugoslavia. During 1980, Mauritania, Gabon, the Bahamas, and Finland acceded.

5 Arts. 8–23.

6 Arts. 43–47.

7 Hague Convention on the Laws and Customs of War on Land of Oct. 18, 1907, with annex of regulations, 1 Bevans 631.

8 Arts. 35–42 and 48–60.

9 Contrast, in particular, the extensive protection of medical aircraft under Protocol I with the cursory treatment in Articles 36 and 37 of the Geneva Convention of 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, in which the basic rule is that “medical aircraft . . . shall not be attacked, but shall be respected by the belligerents, while flying at heights, times and on routes specifically agreed upon between the belligerents concerned.” Given the increasing use of medical evacuation helicopters in recent wars and the clear correlation between quick evacuation of wounded to hospitals and higher survival rates, these new protections of medical aircraft may well prove to be by far the most significant humanitarian advance made by Protocol I.

10 See the survey of practice since 1949 in Abi-Saab, , The Implementation of Humanitarian Law, in The New Humanitarian Law of Armed Conflict 310 (ed. Cassese, A. 1979)Google Scholar. Abi-Saab indicates that protecting powers were appointed in the Suez crisis to cover French and British (but not Israeli) interests, but the United Kingdom was not then a party to the 1949 Conventions. He also states that a preexisting protecting power, appointed when diplomatic relations were severed, was permitted to function under the Geneva Conventions after the outbreak of hostilities in the Goa incident. For any extended conflicts, however, the failure of the protecting power system has been absolute.

11 In late December 1965, Egypt agreed to serve as the protecting power for U.S. prisoners in North Vietnam, but the request for Vietnamese agreement was rebuffed on January 10, 1966. Telegrams on file in the Office of the Legal Adviser of the Department of State.

12 It also seems likely that the North Vietnamese misunderstood and mistrusted the ICRC because of its refusal to denounce publicly American bombing of North Vietnam. That, at least, was the clear implication of remarks to me in January 1973 by then Vice Foreign Minister Nguyen Co Thach when we tried (unsuccessfully) to involve the ICRC in the release of U.S. POW’s pursuant to the Peace Agreement.

13 Article 5 reads as follows:

• 1.

  1. It is the duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers, including inter alia the designation and acceptance of those Powers, in accordance with the following paragraphs. Protecting Powers shall have the duty of safeguarding the interests of the Parties to the conflict.

• 2.

  2. From the beginning of a situation referred to in Article 1, each Party to the conflict shall without delay designate a Protecting Power for the purpose of applying the Conventions and this Protocol and shall, likewise without delay and for the same purpose, permit the activities of a Protecting Power which has been accepted by it as such after designation by the adverse Party.

• 3.

  3. If a Protecting Power has not been designated or accepted from the beginning of a situation referred to in Article 1, the International Committee of the Red Cross, without prejudice to the right of any other impartial humanitarian organization to do likewise, shall offer its good offices to the Parties to the conflict with a view to the designation without delay of a Protecting Power to which the Parties to the conflict consent. For that purpose it may inter alia ask each Party to provide it with a list of at least five States which that Party considers acceptable to act as Protecting Power on its behalf in relation to an adverse Party and ask each adverse Party to provide a list of at least five States which it would accept as the Protecting Power of the first Party; these lists shall be communicated to the Committee within two weeks after the receipt of the request; it shall compare them and seek the agreement of any proposed State named on both lists.

• 4.

  4. If, despite the foregoing, there is no Protecting Power, the Parties to the conflict shall accept without delay an offer which may be made by the International Committee of the Red Cross or by any other organization which offers all guarantees of impartiality and efficacy, after due consultations with the said Parties and taking into account the result of these consultations, to act as a substitute. The functioning of such a substitute is subject to the consent of the Parties to the conflict; every effort shall be made by the Parties to the conflict to facilitate the operations of the substitute in the performance of its tasks under the Conventions and this Protocol.

• 5.

  5. In accordance with Article 4, the designation and acceptance of Protecting Powers for the purpose of applying the Conventions and this Protocol shall not affect the legal status of the Parties to the conflict or of any territory, including occupied territory.

• 6.

  6. The maintenance of diplomatic relations between Parties to the conflict or the entrusting of the protection of a Party’s interests and those of its nationals to a third State in accordance with the rules of international law relating to diplomatic relations is no obstacle to the designation of Protecting Powers for the purpose of applying the Conventions and this Protocol.

• 7.

  7. Any subsequent mention in this Protocol of a Protecting Power includes also a substitute.

14 See, e.g., the comment of the representative of the USSR when the text was adopted in committee, in which he made clear that the compromise text was acceptable because it recognized that “the activities of the Protecting Power designated by one of the Parties to the conflict must be subject to the consent of the other Party.” And he noted approvingly that “the same held good in regard of the substitute.” See UN Doc. CDDH/I/SR.28, paras. 40–42 (1975), in 8 United Nations, Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Official Records 278 and 279, reproduced in 1 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Protection of War Victims 199 and 200 (H. Levie ed. 1979).

15 Article 4A, paragraph 3 states that prisoners of war include: “Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power” (emphasis added).

16 Article 43 provides:

• 1.

  1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

• 2.

  2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

• 3.

  3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

17 One must distinguish here the cases of the guerrilla in occupied territory and the guerrilla of a national liberation movement. In the former case, at least, it should usually be admitted that there is an armed conflict to which the Protocol and the 1949 Conventions apply and that the occupied country was a party to the conflict, even if the particular government in exile is not recognized by the occupying power. In the liberation war, however (now identified as an international armed conflict by Article 1, paragraph 4), the state allegedly suppressing the liberation movement is most unlikely to agree that the war is, in fact, a liberation war to which the Protocol applies, and therefore the very relevance of the rule of law is almost certain to be rejected by at least one of the two powers in a position to apply it. Thus, the new provisions on guerrillas in Protocol I are likely to affect practice only in occupied territory. In this connection, it is interesting to note that liberation movements also may refuse to accept the obligations of Protocol I and the Geneva Conventions. In most cases, the ability of the movement to comply with the obligations of a party to the conflict seems more than doubtful. In a declaration made to the ICRC on November 28, 1980, the African National Congress of South Africa stated its intention “to respect and be guided by the general principles of humanitarian law applicable in armed conflicts” (emphasis added). Instead of filing with the Swiss Government a declaration under Article 96, paragraph 3 of the Protocol, undertaking to apply the Convention and the Protocol, the ANC has merely informed the ICRC that, “wherever practically possible,” it “will endeavour to respect the rules” of the Convention and the Protocol. For the text, see the letter from the Chairman of the UN Special Committee against Apartheid to the Secretary-General dated Dec. 3, 1980, UN Doc. A/35/710 (1980).

18 Article 45 provides:

• 1.

  1. A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.

• 2.

  2. If a person who has fallen into the power of an adverse Power is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and have that question adjudicated. Whenever possible under the applicable procedure, this adjudication shall occur before the trial for the offence. The representatives of the Protecting Power shall be entitled to attend the proceedings in which that question is adjudicated, unless, exceptionally, the proceedings are held in camera in the interest of State security. In such a case the detaining Power shall advise the Protecting Power accordingly.

• 3.

  3. Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, any such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.

19 Art. 17 of the 1949 PW Convention, supra note 2.

20 The presumption is, of course, rebuttable.

21 Note the argument by Professor Kalshoven, which has considerable force, that the sanction of loss of PW status is important because trials of prisoners of war during hostilities are rarely held in view of the risks of reprisals. Kalshoven, , Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Diplomatic Conference, Geneva, 1974–1977 (pt. 1), in 8 Neth. Y.B. Int’l L. 107, 132 (1977)Google Scholar.

22 See the Report of the Third Committee on the work of the fourth session, UN Doc. CDDH/407/Rev. 1 (1977), para. 19, quoted in 15 Official Records, supra note 14, at 453.

23 At the time of signature the United States made several declarations, including the following: “It is the understanding of the United States of America that the phrase ‘military deployment preceding the launching of an attack’ in Article 44, paragraph 3, means any movement towards a place from which an attack is to be launched.”

24 This is quite apart from the valid concern raised by Kalshoven about the political viability of wartime trials of POW’s. See note 21 supra. It is possible that U.S. law would already permit such punishment as an offense against the laws of war if Ex parte Quirin (317 U.S. 1 (1942)) is still sound law, but it seems preferable to enact a more specific offense as part of the implementation of the Protocol.

25 See the definition of a spy in Article 29 of the regulations annexed to the fourth Hague Convention, note 7 supra.

26 See the Report of the Third Committee on the work of the third session, UN Doc. CDDH/236/Rev. 1 (1976), paras. 36–38, quoted in 15 Official Records, supra note 14, at 388 and 389, which suggests that each act of espionage should end when the information is transmitted by the spy to his armed forces. The report also notes the importance of the question of who is and is not a “resident” of occupied territory.

27 See note 7 supra.

28 On the choice between custom and codification, see Aldrich, , Establishing Legal Norms Through Multilateral Negotiation—The Law of War, 9 Case W. Res. J. Int’l L. 9 (1977)Google Scholar.

29 Arts. 35 and 36.

30 Art. 37.

31 Art. 40.

32 Art. 41.

33 Art. 42.

34 Art. 51, para. 5(b), and Art. 57, para. 2(a)(iii) and 2(b). In essence, the rule prohibits any 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.”

35 Art. 54.

36 Art. 56.

37 Art. 51, para. 5(a).

38 Art. 35, para. 3, and Art. 55.

39 See the careful analysis of the interrelation between the substantive rules and the required precautionary measures in part II of Professor Kalshoven’s article, supra note 2 1 , 9 Neth. Y.B. Int’l L. 107 (1978).

40 Article 54 provides:

• 1.

  1. Starvation of civilians as a method of warfare is prohibited.

• 2.

  2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

• 3.

  3. The prohibition in paragraph 2 shall not apply to such of the objects covered by it as are used by an adverse Party:

  • (a)

    (a) as sustenance solely for the members of its armed forces; or

  • (b)

    (b) if not as sustenance, then in direct support of military action, provided, however, that in no event shall actions against these objects be taken which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.

• 4.

  4. These objects shall not be made the object of reprisals.

• 5.

  5. In recognition of the vital requirements of any Party to the conflict in the defence of its national territory against invasion, derogation from the prohibitions contained in paragraph 2 may be made by a Party to the conflict within such territory under its own control where required by imperative military necessity.

41 Art. 70, para. 3.

42 See Article 69 on occupied territory and Article 70 on other territory.

43 See UN Docs. CDDH/III/SR.16 and 17 (1975), 14 Official Records, supra note 14, at 135–50.

44 Art. 51, para. 5(b).

45 Art. 51, para. 5(a).

46 See para. 56 of the Report of the Third Committee on the work of the second session, UN Doc. CDDH/215/Rev.l (1975), 15 Official Records, supra note 14, at 263, 275.

47 The representatives of the United States, Egypt, and Canada so indicated. See UN Doc. CDDH/III/SR.31 (1975), paras. 50, 56, and 58, 14 id. at 299, 307, and 308.

48 In the Introduction to the two draft Protocols which formed the basis for the negotiations at the diplomatic conference, the International Committee of the Red Cross dealt with the problem in the following terms:

Reprinted in 1 id., pt. 3, at 2.

The representatives of the United Kingdom, France, and the United States stated during the diplomatic conference that the Protocols did not affect the use of nuclear weapons. See, e.g., the U.S. statement at the 58th Plenary Session, UN Doc. CDDH/SR.58 (1977), para. 82, 7 id. at 295. And the United Kingdom made a formal statement of understanding upon signature similar to that of the United States (France has not signed).

49 Art. 51, para. 6.

50 On the subject generally, see F. Kalshoven, Belligerent Reprisals (1971).

51 Other prohibitions of reprisal in Protocol I include reprisals against civilian objects (Art. 52, para. 1); certain cultural monuments, works of art, and places of worship (Art. 53); food, crops, and drinking water (Art. 54, para. 4); the natural environment (Art. 55, para. 2); and dams, dikes, and nuclear power stations (Art. 56, para. 4). In general, it seems fair to say that the Protocol, coupled with all the other specific prohibited acts of reprisal set forth in other conventions (such as the 1949 Geneva Conventions’ prohibitions of reprisals against prisoners of war, the wounded, sick, and shipwrecked, medical, and religious personnel, and civilians in occupied territory), leaves only acts against enemy armed forces, including the use of prohibited weapons, as permissible measures of reprisal.

52 See p. 781 supra.

53 This is particularly true in view of the vastly increased use of medical evacuation helicopters in recent wars and the virtually complete lack of protection they were given by the 1949 Conventions. See, e.g., Arts. 36 and 37 of the Convention on the Wounded and Sick in Armed Forces in the Field, note 2 supra.