Nuclear Weapons and the Law of War

A message to Secretary of State Kissinger (then in the Middle East) from his Executive Assistant Lawrence Eagleburger, and transmitted by Brent Scowcroft, reported on a problem at the law of war conference. A key issue was whether to allow the Provisional Revolutionary Government (PRG) of Vietnam and the Royal Government of the National Union of Kampuchea [Cambodia] (GRUNK) to participate. The question posed by Eagleburger was that, if the two “puppet governments” were seated, should the U.S. walk out or “protest and stay.” Eagleburger explained why the U.S. was participating: to have a voice in decisions on the treatment of prisoners of war and “to refute the many criticisms that will be made of our tactic in Vietnam and elsewhere.” If the U.S. lost the vote and walked out, it would mean “forsaking our objectives” at the conference and “irritating Switzerland and a lot of other countries,” among other problems. As it turned out, the PRG and GRUNK failed in their bid to participate in the conference, so Kissinger did not have to decide about continued U.S. participation.

This report by the U.S. delegation gives perspective on how the “Diplomatic Conference” did its work in the opening months. Aldrich’s confidential discussion explained how the U.S. prevailed on the PRG issue, in part by not objecting to the seating of other “national liberation movements,” which conciliated African and Arab delegations enough to not support the PRG. While Aldrich saw a “politicization” of the conference, with developing countries voting as a bloc to force through a text “applying Protocol 1 to wars of national liberation,” he believed that some delegations, such as Egypt’s, could prove “helpful in getting other states in the same camp off their more extreme positions.” Not sure whether “many states are really serious about drawing up new humanitarian law and in becoming parties to the resulting treaties,” Aldrich believed that it would be “necessary for the United States to consider what advantages and disadvantages may lie in participation in the second session of the Conference and whether it would wish to become a party to the Protocols.”

The ongoing negotiations at the “Diplomatic Conference” led to a Pentagon review of the issues, ranging from prisoners of war to treatment of the “wounded, sick, and shipwrecked.” On the treatment of civilian populations, the Pentagon had no objection to rules that provided “reasonable protection … against the effects of hostilities,” but questioned language forbidding the targeting of civilians in reprisal attacks. On that point, Deputy Secretary of Defense William Clements had written to Deputy Secretary of State Robert Ingersoll that the Joint Chiefs believed that threat of reprisals was an “essential means for deterring serious violations of the laws of war.” The Chiefs recommended the inclusion of language permitting “reprisals against the enemy’s civilian population, but only in response to grave unlawful attacks on the other party’s civilian population.”

Aldrich informed Ingersoll that recent discussions had led to the reworking of the text so that the right of reprisal was “carefully restricted … for egregious cases.” It should be “quite acceptable to Defense.” Aldrich further emphasized the need to “preserve the decision-making authority of the chief of delegation.” With support from Secretary of State Kissinger, Aldrich was in a strong position to ward off such Pentagon moves.[8]

Secretary of State Kissinger received daily reports from State Department bureau chiefs to demonstrate how successfully they were doing their jobs. Kissinger received this one telegraphically when he was in Helsinki with President Ford for the signing of the agreement on European security and cooperation. According to Legal Adviser Monroe Leigh’s report, Aldrich had consulted with Defense and arms control officials on laws of war issues, in part to prepare for meetings with the West Germans on the Geneva negotiations. The Germans had “expressed concern that the negotiations may restrict the use of nuclear weapons.” According to Aldrich, those “concerns are groundless, and we shall try to persuade them of this.”

According to the U.S. Embassy’s report, the consultations with Bonn went smoothly. The West Germans believed that their ratification of the Protocols would require “some type of public interpretive statement … at least insofar as nuclear weapons are concerned.” According to the U.S. account, “they were gratified by our assurances that the USG would be very clear in submitting any protocol to the Senate that it would have no effect on the use of weapons of mass destruction.”

In this memo the Joint Staff expressed its doubts about the implications for nuclear weapons policy of the proposed positions on laws of war. Besides raising earlier concerns about policy toward reprisals, the Joint Staff noted that it was not “feasible” to apply the Protocol’s provisions for the protection of civilians “in the event of general nuclear war.” Some of the articles in Parts III and IV could be read as “prohibiting nuclear weapons,” according to the Joint Staff, unless the United States took a clear and emphatic position on this matter. Also raising problems was an article referring to “long term major health problems,” which had implications for the effects of nuclear fallout, such as genetic effects. That provision, in the Joint Staff’s view, called for additional language stating that “provisions of the Protocol dealing with methods and means of combat are not intended to affect nuclear weapons.”

Aldrich sent the Pentagon the language for a position on nuclear weapons mentioned in the report to Kissinger (Doc 4. Noting that the Protocol had been drafted “with conventional weapons in mind,” Aldrich said that it was “wisely not designed to affect the use of [nuclear] weapons.” Restraints on the “acquisition, stockpiling and use of such weapons must be, and are being, sought elsewhere in other negotiations.”

The Department asked the embassies to invite host government representatives to attend an “inner core” meeting (U.S., U.K., France, Canada and West Germany) in Washington during mid-November to discuss draft protocol issues, with a “tentative” agenda to include reprisals, liberation movements, and the “use of nuclear weapons and other weapons of mass destruction,” among other questions. So far, no U.S. record of these “inner core” deliberations has turned up.

Concerned about the potentially “negative” aspects of the Geneva talks, West Germany asked for a conversation between Foreign Minister Hans-Dietrich Genscher and Secretary Kissinger. Especially troubling, in the West German view, were the implications of the “prohibitions of indiscriminate attacks on military objectives, the civilian population, and civilian [objects],” including “attacks the effects of which cannot be limited to the military objectives,” such as with nuclear weapons. According to the memo, such restrictions could have “negative effects on NATO’s concepts of deterrence.”

The West Germans worried that, if the Protocol I rules went into effect, NATO strategy would face “strong political and legal pressure” that could even call into question the “first use of nuclear weapons [which] is an element contained solely in NATO’s concept of deterrence.”

Leaving the conference was not an option, but the FRG was considering the possibility of a “declaration of understanding” to make it clear that the additional protocols would not have an impact on “the international rules on the use of nuclear weapons.” The West Germans were also looking at the possibility of “making reservations regarding individual provisions of protocol 1 upon” ratification. While the reservations would not mention nuclear warfare specifically, they should “restore the overriding validity of the principle of proportionality.”

In a report to Kissinger, who was traveling, Monroe Leigh related that Aldrich had drafted an “understanding/reservation for possible use in conjunction with the protocols on the laws of war” negotiations “to the effect that the rules established by the protocol are not intended to have any effect on and do not apply to the use of nuclear weapons.” The U.S. would consult with a few allies on this language, but it would not “surface it in the conference until such time as we have decided to sign the Protocol.”

The Mission recommended an early start for NATO Military Committee [MC] review of Protocol I. The Mission asked the State Department to keep in mind that “the process of producing an agreed NATO study and allied consensus on an issue of this complexity can be slow, cumbersome, and delayed by unforeseen snags.” Such problems made it better to begin the review sooner rather than later.

RG 59, George H. Aldrich Records, box 7, Conventional Weapons Folder # 2, Human Rights in Armed Conflict 1975

Instead of early review by the NATO MC, the Department favored consultations to begin with the “inner core” countries and then commence with NATO political advisers, adding that an MC study should not begin until the conclusion of the diplomatic conference. Reviewing the history of discussions with the “inner core” NATO member governments, the Department saw a good record of consultations. Of the NATO members, West Germany had posed the most problems. The U.S. recognized the West German concern about its domestic law and was “doing utmost to accommodate concern.” The Department was also concerned that “certain FRG officials may be trying to derail [the] draft protocol by using NATO as mechanism.” According to Aldrich, it was in the U.S. “interest to see [the protocols] interpreted reasonably, whether or not we become parties to them,” which was a consideration that the FRG seemed “thus far unable to understand, but we must keep trying to explain it.” The Department believed it was better to initiate consultations of the “inner core” group during the conference and begin formal NATO consultations once the conference has concluded.

Answering the State Department’s concerns about the “extreme” views of FRG defense officials, the Embassy reported on Defense Ministry misgivings that German soldiers could go to military and administrative courts and “question the legality of NATO-agreed strategy and tactics and their conformity with internationally established rules, including the Protocol should it come into force.” An adverse judgement by the courts could “decisively affect FRG ability to play an effective role in NATO defense planning.” Moreover, given Bonn’s status as a non-nuclear weapons state, “some might interpret the protocol as prohibiting certain conventional [sic] weapons systems or their effective employment.” Making Germany’s defense problem all the “more intractable” was that “so many villages and cities are packed into a relatively limited geographic area, making it difficult if not impossible to defend against an aggressor’s invasion without involving areas where civilians are concentrated.”

The German Foreign Office believed that defense officials were “using a worst case analysis,” but that was attributable to the concern about the World War II experience where the Nazi regime “forced” German soldiers to violate rules of war. Nevertheless, both ministries agreed that West Germany has “built a humanitarian, functioning democracy since the Second World War and must be concerned about continuing to project a corresponding image.” This made U.S. embassy officials believe that Bonn would accept the Protocol for “diplomatic and political reasons.”

During a meeting of NATO Political Advisers, Bonn’s representative, supported by France, asked for a Military Committee study of the implications of the Protocols for alliance military strategy. The German representative’s “speaking notes” indicated that previous U.S. assurances about the non-applicability of the Protocols to nuclear weapons had not been wholly calming.

According to the “speaking notes,” some of the Protocol’s articles may “call into question the admissibility under international law of our present defence planning.”  Some articles prohibited “attacks not directed at a specific objective” and “attacks whose effects cannot be limited to the military objectives.” It was unlikely that the final session of the negotiations in Geneva would make any “decisive changes” in these provisions. From the German perspective, those and other articles would have “negative” implications for the alliance’s “concept of deterrence and defense, including its nuclear component.” There could be calls for a “ban on the use of nuclear weapons, especially in the densely-populated region of Central Europe” and “a drastic reduction of possibilities of conventional warfare.”

The speaking notes also included a point about West German law: that a soldier can lodge complaints with the courts “against the service and training regulations of the federal armed forces.” That would put the “compatibility of NATO’s defence concept with the new rules of international law” as a subject before a supreme court.”

The U.S. learned from West German Ambassador Horst-Krafft Robert that the West German foreign office had alleviated defense ministry concerns. U.S. interpretations had been “most helpful” in the “tough fight.” The “price” for wining over the defense ministry was “agreement that FRG would be prepared, during final plenaries and time of signature, to make a number of statements of understanding, covering most difficult issues.” Bonn hoped that Washington and “all NATO allies would make identical statements.” Aldrich assured Robert “that we would try to work out agreed texts of these statements and convince other allies to accept them.” Another understanding was that “these agreed statements will also provide much of the necessary interpretive basis for a study by the NATO Military Committee of the implications of the Protocol.”

Representatives of NATO governments met and agreed to Aldrich’s proposal that they recommend to their governments early approval of a study by the NATO military committee once the Geneva delegations have “produced agreed interpretations of the relevant articles,” and the conference had concluded that the “final structure of the protocol can be seen.” NATO political advisers would prepare the directive to the military committee but “there was consensus … that it should be simple and nonprejudicial.”

The NATO Political Advisers have agreed to a British proposal for the language of the directive to the Military Committee requesting a study of the “new law of warfare” and its compatibility with NATO military plans. While the U.S. had originally expressed support for a completion date later than August 31, the West Germans wanted the study completed by that date, and the representative of the International Military Staff indicated that the deadline was feasible. The study would not begin until delegations in Geneva had produced agreed interpretations. The U.S. Ambassador asked for instructions by April 5 on whether to accept the proposal.

Believing that the Protocol might not be signed until early 1978 and on the grounds that the “quality of the [Military Committee] study would be enhanced by allowing an additional month,” the State Department preferred a September 30 due date but would accept August 31 on “clear understanding, stated for record, that date is tentative.”

In a statement at the Geneva conference, Ambassador Aldrich summarized U.S. “views of the delegations on the accomplishment of the conference.” That was probably one of the agreed statements that would inform the Military Committee study. According to Aldrich, the U.S. looked “with satisfaction” on the “important advances in the law made in the Protocol, “such as the prohibition on indiscriminate attacks, including target area bombardment in cities, the clear and helpful definition of military objectives [and], the prohibition of starvation of civilians as a method of warfare.” One problem was enforcing prohibitions on reprisals because, if a nation’s civilian population is the subject of “massive and continuing attacks,” that nation may not be able to avoid a “response in kind.“ As for the problem of nuclear weapons, “it has been our understanding that the rules to be developed have been designed with a view to conventional weapons.” Nuclear weapons “are the subject of separate negotiations and agreements, and … their use in warfare is governed by the present principles of international law.”

The Military Committee’s study, completed past the August 31 deadline, spelled out the implications of Protocol I for alliance military operations. The MC found much of it “militarily acceptable,” as long as the rules did not preclude NATO’s “options to use nuclear weapons.” The literal meaning of Protocol articles 35, 51 and 55 “would inhibit essential uses of nuclear weapons, if they were held to apply to” them. Thus, the detailed review of the Protocol was “based on the understanding that the rules introduced by the Protocol do not affect the use of nuclear weapons, and that member states of the Alliance will coordinate and consult to ensure that their national positions are in harmony and that this understanding shall be legally effective throughout the Alliance.”

The detailed analysis of Articles 35, 51, 55 and 66 made it clear enough why NATO members found them problematic because of their implications for nuclear weapons use. Thus, Article 35 constrained signatories from using “weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.”

Annexes to the Military Committee report included statements made by various NATO country delegates—such as the previously cited statement by George Aldrich—explaining their votes on specific articles and general statements about the work of the conference.

In the weeks before the signing of Protocol I in Geneva, a Department of Defense working group led by Deputy Assistant Secretary of Defense Walter Slocombe prepared a comprehensive analysis of the Protocol and its negotiating history, the position on each section taken by the U.S., other Western countries, and “Third World” nations, beginning with the preamble and proceeding article by article.  The report found much that was beneficial and positive in Protocol I but, like the NATO analysts, the working group was concerned about articles 35 and 55 because of their implications for nuclear weapons use. Such concerns supported the conclusion on the need for an “express understanding that the Rules of the Protocol do not affect the use of nuclear weapons.”

Like the NATO analysts, the working group saw Articles 51 (paragraph 5B) and 57 as affirming the rule of proportionality. Thus, incidental civilian casualties were not prohibited, as long as it was evident that they would not be “excessive in relation to the concrete and direct military advantage anticipated.” Also prohibited was the “indiscriminate” use of weapons that could cause casualties that were “excessive in relation to the concrete and direct military advantage anticipated.” Besides codifying the rule of proportionality, the Article “gives to military commanders uniformly recognized guidance on this responsibility to civilians and the civilian population in carrying out attacks against military objectives.”

While Defense officials saw the articles as “a major step in the reaffirmation and development of humanitarian law applicable in armed conflict,” they also recognized the implications for nuclear weapons use. Also worrisome was language about weapons causing “long term major health problems.” The Defense group did not believe that nuclear weapons would necessarily cause “excessive casualties,” but they concluded that “in a situation of general nuclear warfare it would be impracticable to apply the rules of the Protocol relating to protections of civilians.” That further supported the view that the Protocol did not apply to nuclear weapons.

As before, the prohibitions against reprisals concerned Pentagon officials, and the report discussed the possibility of lodging a formal reservation on this point when the U.S. signed Protocol I. While the report found it “unlikely that the U.S. would have to resort to reprisals against civilian populations, as such, except in situations involving nuclear weapons,” it expressed interest in a reservation if it could be made without weakening the U.S. understanding that excluded the Protocol's application to nuclear weapons.  None of this, however, would be the Pentagon’s last word on reprisals and other issues raised by Protocol I because the Joint Chiefs of Staff had not yet given it a full review, which would have great bearing on any Defense Department recommendations on ratification.

This request for authorization to sign Protocols I and II reviewed their history and included two understandings, one concerning nuclear weapons, which would be declared at the time of the signing. The Defense Department wanted to include a reservation on reprisals, but both the Arms Control and Disarmament Agency and the State Department believed that would be “unworkable in the event of massive and continuing violations of the Convention.” (The Pentagon would continue to treat that as a sticking point). As regards the attitude of the U.S. Congress, the State Department anticipated “no significant” objection.