Secretary of State George Shultz (left), President Reagan (center), and Secretary of Defense Caspar Weinberger.
Reagan Administration Slammed Protocol I as “Humanitarian Law in Favor of Terrorists”
Pentagon’s Numerous Objections and Reservations Made Protocol “Too Complex”
Washington, D.C., September 21, 2023 – The Reagan administration rejected an international agreement on humanitarian laws of war—Additional Protocol I to the 1949 Geneva Conventions—due to insurmountable objections from the Pentagon and the belief that it favored terrorists, according to a collection of declassified documents posted today by the National Security Archive.
The “key operative provision would radically change humanitarian law in favor of terrorists and other irregulars at the expense of civilians,” wrote Defense Secretary Caspar Weinberger in a March 21, 1986, memo to Secretary of State George Shultz.
The international effort to advance the laws of war was set back in the mid-1980s when the Reagan administration rejected sending Additional Protocol I to the U.S. Senate for ratification. The Joint Chiefs of Staff (JCS) had so many objections to the measure—which proposed additional protections for civilians during international conflict—as to render the provision useless. To include all of their reservations, the JCS believed, would make the document “too complex to be a reliable codification of the law of armed conflict.” The fact some signatories rejected the U.S. view that Protocol I did not apply to nuclear weapons was also an important problem.
But the Reagan administration’s main objection was to the first article of Protocol I, the language of which stipulated that armed conflicts included wars “in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination,” one of the compromises that U.S. negotiators had accepted in Geneva. The Pentagon found it unacceptable, however, because it injected “political factors into the administration of the Geneva Conventions” by establishing “that the rights of combatants can legitimately be linked to the justice of the cause for which they fight.” To nullify that language’s impact, the Ford and Carter administrations had included offsetting provisions, but apparently that was not enough for the Reagan administration. Rather than ratify the Protocol, it would instead try to turn its “positive” features into “customary law.”
Today’s posting includes documents on the internal discussions within NATO in the year after the U.S. and other countries signed Protocol I in December 1977. A key issue was the nuclear weapons problem, but discussions between the U.S. and West Germany reconfirmed the view that a formal declaration was the best way to handle the agreement’s silence on nukes. Chief U.S. negotiator George Aldrich said it would be “several years” before U.S. ratification was possible, but whether higher-level discussion of ratification occurred during the Carter administration remains unclear pending further declassifications. To the extent that the Carter White House gave the matter any thought, it may have decided to postpone further consideration of Protocol I. With a second term denied to Jimmy Carter, the matter fell into the hands of the Reagan administration.
The few documents that are presently available on the Reagan administration’s review of Protocol I indicate that it did not take a stand until the Joint Chiefs of Staff finalized their review. In May 1985, the Chiefs presented their deeply negative appraisal to Secretary of Defense Weinberger. Some of it was not surprising, such as the objections to the prohibition of reprisals, but the fact that the Protocol did not take a position on whether it covered nuclear weapons use was also a concern. A leading objection, as noted, was the language concerning anti-colonial conflicts and wars of national liberation, an objection that Defense Department official Douglas Feith made public a few months later when he declared, in the neo-conservative journal the National Interest, that the Protocol was a “pro-terrorist treaty masquerading as humanitarian law.” Feith avowed that he supported the basic goals of Protocol I, the protection of noncombatants, but he argued that “the new law [was] less kind to civilians and more generous to irregulars - guerrillas and terrorists.”[1]
Documents from 1986 demonstrate that the administration moved closer to a decision when Secretary of Defense Weinberger and Secretary of State Shultz sent recommendations opposing ratification to President Reagan. While White House records on internal discussions of Protocol I have not surfaced, the final decision was pro forma in light of the recommendations from Defense and State, not to mention Feith’s article. In January 1987, President Reagan transmitted his recommendation to Congress. Echoing the earlier critiques, he declared that “we must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.”[2]
Soon after President Reagan sent his message, Hans-Peter Gasser, the senior legal adviser of the International Committee of the Red Cross, which had sponsored the Protocol I negotiations, responded with a detailed critique. According to Gasser, “contrary to the claims in the President's letter, Protocol I neither recognizes terrorist groups nor legitimizes terrorist acts.” For Gasser, the Geneva Convention and the Protocol were the “most comprehensive antiterrorist treaty system we know,” by “prohibiting various forms of terrorism such as murder, torture, the taking of hostages, summary executions, and inhumane treatment.” [3]
Gasser’s defense of Protocol I notwithstanding, the Reagan administration’s attack made the document so radioactive that future ratification by successor administrations would be most unlikely. But the contents of the Protocol lived on with U.S government lawyers and other interested experts seeking to find ways to incorporate its elements into operational military law, as discussed in Part I of this posting. For example, during a 1987 Red Cross-American University law school workshop, State Department lawyer Michael Matheson reviewed the Protocol in detail, itemizing those elements that the U.S. could not support, such as the prohibition of reprisals. He also declared, “We recognize that certain provisions of Protocol I reflect customary international law or are positive new developments, which should in time become part of that law.”
Matheson reviewed in detail provisions that, he believed, merited adherence, including articles 51 and 52 on the protection of civilians: “We support the principle that the civilian population as such, as well as individual citizens, not be the object of acts or threats of violence the primary purpose of which is to spread terror among them, and that attacks not be carried out that would clearly result in collateral civilian casualties disproportionate to the expected military advantage.” Tacitly endorsing the principle of distinction, Matheson endorsed “the principle that all practicable precautions … be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians and civilian objects.”[4]
While the nuclear weapons non-issue in Protocol I received scant attention at the 1987 workshop, Matheson produced disagreement when he stated the U.S. objections to the provisions in Article 56, prohibiting attacks on dams and dikes and including nuclear power generating stations. When some of his interlocuters raised the possibility of Chernobyl-like repercussions if the U.S. ever struck nuclear reactors, Matheson would only allow that the “United States would have to consider the possible effects on the civilian population and strive to obtain its military objective in ways that would not inflict drastic effects on that population.”[5]
Like their predecessors, U.S. defense officials during the 1980s assumed that Protocol I did not apply to nuclear weapons, and they supported the understanding to that effect. According to the Chiefs, without one, “the rules against indiscriminate methods of warfare and excessive collateral damage in Articles 51-57 might severely limit the utility of [nuclear] weapons.” Yet, consistent with the concerns about reducing or avoiding harm to civilian populations that had inspired Protocol I, similar problems, including the “collateral damage” issue, troubled the Reagan administration leadership just as it had the Carter White House. A top secret presidential directive on nuclear targeting instructed the Pentagon to review the problem of collateral damage. Consistent with that, the Joint Strategic Targeting Staff prepared a paper on the problem, although overclassification makes its conclusions elusive.
During the mid-to-late 1980s, at the same time that the Joint Chiefs panned Protocol I, the Pentagon secretly redesigned nuclear war plans so that decision-makers would have options that avoided excessive destruction and perhaps caused smaller levels of civilian casualties.[6] While elements of Protocol I would offer guidance to the Judge Advocate Generals of the U.S. armed services who vetted conventional military operations, it would take years before U.S. officials became interested in applying the same rules to nuclear targeting. Future declassifications may shed some light on the developments that led the Obama administration to do exactly that when it declared in 2013 that nuclear targeting must "be consistent with the fundamental principles of the Law of Armed Conflict."
Note: Thanks to Colonel Theodore T. Richard for his counsel.
Document 1
Records of the Arms Control and Disarmament Agency, Office of the General Counsel, Subject Files on Laws of War 1974-1978, box 1
To prepare for a meeting of NATO Political Advisers, chief U.S. negotiator George Aldrich met with lawyers from the State Department and other agencies, including Waldemar Solf, a civilian lawyer with the Army’s Judge Advocate General who would represent the U.S. in discussions about the timing of ratification, NATO understandings, and reprisals, among other issues. Although the British had requested a discussion among the allies on timing, Aldrich was skeptical of the value of doing so; it could take the U.S. “several years” to ratify while some could do it more quickly. On reprisals, Aldrich recommended against bringing it up at the meeting, but if it was brought up the U.S. representative could say that there was no agreement in Washington and that the issue had been “deferred.”
Document 2
RG 59, Department of State Records, George H. Aldrich Records, box 6, Human Rights in Armed Conflict 1978
Waldemar Solf recounted the “highlights” of the meeting organized by NATO’s International Secretariat. Both the British and the West Germans supported a “common understanding” of the rules of warfare that would be applied to NATO military operations, with the Germans favoring “detailed combat rules” concerning “use of weapons and methods of warfare.” Privately, the U.S. told the British and the Germans that it could be possible to develop NATO “rules of engagement or operating procedures” but questioned the possibility of “common provisions in national [military] manuals.” On the use of nuclear weapons, the Germans believed that “reservations,” rather than declarations of understandings, were necessary because it was “arguable that Articles 31, 51, 55, and 57 apply to the use of nuclear weapons.” London and Washington both disagreed because they believed that a formal reservation would be an acknowledgement that Protocol I applied to nuclear weapons. The U.S. would never have participated in the negotiations without such an understanding.
Document 3
RG 59, Department of State Records, George H. Aldrich Records, box 6, Human Rights in Armed Conflict 1978
Responding to a NATO mission report on the meeting of experts [described in Document 25], the State Department saw no special need for “elaborate machinery” in Brussels for NATO consideration of Protocol I. The “relevant articles” are “largely codification of existing customary law” and the “substantive problems” are not as “serious as FRG [Federal Republic of Germany] asserts.” Having never supported the provision of Protocol I on “means and methods of warfare,” the FRG Defense Ministry was proposing an “elaborate interpretive exercise” to “inhibit its entry into force.” The NATO Military Committee “should play an important role in any consideration of FRG proposals.”
Document 4
U.S. National Archives, RG 59, Access to Archival Databases
Indicating that the State Department was thinking about the requirements for U.S. ratification, the Department instructed the U.S. delegation to share with NATO experts current thinking, including the Pentagon’s, on the statements that the U.S. would make at the time of ratification of Protocol I. Besides one on nuclear weapons, the U.S. would make statements on article 44, section 3, concerning combatants and prisoners of war; on articles 51 and 57, concerning the meaning of military advantage; and article 53, concerning the protection of cultural and spiritual objects. Moreover, the U.S. proposed refinements of language for article 52. The statements were consistent with what the Defense Department had recommended in its 1977 report, although the message did not mention the proposed reservation on reprisals.
Document 5
RG 59, Department of State Records, George H. Aldrich Records, box 6, Human Rights in Armed Conflict 1978
To support a meeting on 28 June 1978 of the NATO Political-Legal Working Group, the NATO Secretariat compiled the Allied interpretations that had been declared so far. The first part concerned interpretations of the nuclear weapons issue, outlining the positions taken by the British, Belgians, Canadians, Norwegians, and the United States. The second part concerned interpretations of specific articles of the two Protocols with statements by those governments along with Italy.
Document 6
RG 59, Department of State Records, George H. Aldrich Records, box 6, Human Rights in Armed Conflict 1978
Participants in the meeting of experts endorsed the “interpretations found to be necessary” in the NATO Military Committee study, including the “understanding that the rules of the protocol do not affect or regulate or prohibit the use of nuclear weapons.” The participants did not agree to any uniform procedure “as to the form for making these interpretations.” Norway was the only government that would not make a nuclear understanding at ratification. The French would not become a “party to the Protocols.” The U.S., British, and West German participants agreed that all participants with nuclear weapons delivery systems on their territories should make a nuclear declaration.
Document 7
RG 59, Department of State Records, George H. Aldrich Records, box 6, Human Rights in Armed Conflict 1978
West German talking points reviewed the divisions in Bonn on the nuclear issue; the government had “not yet reached definitive consensus.” Some officials believed that the “clear and unequivocal wording” in Protocol I barred nuclear weapons use even though it did not “contain a prohibition of specific weapons.” Suggesting that under the Vienna Convention on the law of treaties an interpretive statement was insufficient, a “clear reservation” would be “indispensable” at the time of ratification because otherwise, West Germany could be bound to “forbid its nuclear allies to stockpile nuclear warheads in its territory or to make any first use of [them] in its territory,” and that could “seriously jeopardize NATO strategy.”
Because several NATO partners had argued that reservations would amount to an admission that the Protocol does, in fact, “regulate the use of nuclear weapons,” Bonn proposed a statement that could be understood either as “a substantive reservation or only as an understanding”: “the rules established by this protocol have been designed with a view to conventional weapons and were not intended to have any effect on and do not regulate or prohibit the use of nuclear weapons.” An alternative “formula” was a statement made specifically with reference to Article 49 (Definition of Attacks and Scope of Application).
Document 8
RG 59, Department of State Records, George H. Aldrich Records, box 6, Human Rights in Armed Conflict 1978
U.S. military lawyers criticized the West German paper, disagreeing with its understanding of the Vienna Convention and the implications about the U.S. declaration. For example, while the Germans had implied that the U.S. declaration on Protocol I would be inapplicable in the event of a nuclear conflict and that provisions on the treatment of the wounded and the sick, civilians, and prisoners of war would not apply, the Army lawyers argued that the declaration concerned the use of the weapons, not their consequences. According to the Air Force paper, “many of the fears and interpretations expressed in the FRG paper seem to be rather fanciful.” For example, “even if nuclear weapons are assumed to be indiscriminate, there is no explicit prohibition on stockpiling such weapons on the soil of a state party to the Protocol.” Evidence of whether or not the U.S. shared any of that critique with West German officials has not surfaced in the archives.
Document 9
RG 59, Department of State Records, George H. Aldrich Records, box 6, Human Rights in Armed Conflict 1978
Walking back from further consideration of a reservation on nuclear weapons, the West Germans provided NATO experts with this language for a “declaration”: “That the rules relating to the use of weapons established by this Protocol have been designed with a view to conventional weapons and were not intended to have any effect on or do not regulate or prohibit the use of nuclear weapons.”
The NATO experts found the West German approach acceptable. In addition, the U.S., along with Belgium, Canada, the United Kingdom and West Germany, “urged all non-nuclear weapons states which possessed nuclear delivery means and those from whose territory nuclear weapons may be launched to have an appropriate declaration.” Italy had not made a declaration, and apparently neither had the Netherlands, while Denmark and Norway were trying to avoid making one. What happened next remains unclear.
Document 10
CIA FOIA Website
When Protocol I came up for signature in 1977, the Joint Chiefs supported it, but they had yet to undertake the “full military review” that would be necessary for taking a position on ratification. Under Secretary of Defense for Policy Fred Iklé requested the Chiefs to move up their timetable for completing the review to the end of July, but Joint Staff director James Dalton indicated that was not possible. In the attached telegram, the Joint Chiefs directed the uniformed services and top military commands to complete the initial review for presentation to the Chiefs by 17 September 1982.
Document 11
Defense Department FOIA Reading Room
This preliminary report by the Joint Staff’s J-5 division (policy and plans) made it evident that the “full military review” was an ongoing process. In fact, it would take over two years for the Chiefs to complete their review and submit recommendations to the Secretary of Defense. What the Joint Staff did instead was prepare a study that focused on reservations that the U.S. could make should the Joint Chiefs recommend ratification of Protocol I. It did not, however, include a statement concerning the “increasingly important issue of the non-applicability of the Protocols to nuclear weapons.” Recognizing that there were a “variety of legal options” on the nuclear questions, there needed to be an assessment of “whether those options will effectively protect U.S. political and military interests.”
As before, the Joint Staff raised questions about the provisions in Articles 51-56 barring reprisals. It argued that “attempts to prohibit reprisals are unrealistic, since
their use, or threatened use, represents the only real sanction or deterrent, to violations of the law of war by the other side.” Accordingly, the Joint Staff presented versions of statements of reservations that could be used upon the ratification of the Protocol. One of them declared that the United States reserved the right to reprisal “in the event of massive and continuing attacks directed against the civilian population.” Even though the reprisals could involve attacks against “the civilian population or civilian objects of the State perpetrating these illegal attacks,” they were necessary “for the sole purpose and only to the extent necessary to bring the illegal attacks to an end.”
The final section of the Joint Staff report included discussion of language where “statements of understanding” were necessary. For example, the report claimed that paragraphs 4 and 5 of Article 51, prohibiting indiscriminate attacks, were “vague and ambiguous.” The problem was that they could be “interpreted as excluding use of tactical nuclear weapons.” Also of concern was language in Article 52 limiting attacks to “military objectives.” For the Joint Staff, even if targets such as “infrastructure” or “industrial establishments” made only “a remote contribution to military action,” their destruction could “significantly curtail the enemy’s will to continue hostilities.” Such a restriction was problematic, because if that article could be read as “prohibit[ing] strategic bombing, it could severely impede US war efforts.” The final report would include a draft reservation relating to those issues.
Document 12
FOIA release by U.S. Strategic Command, under appeal
Presidential directives on strategic targeting, Presidential Directive 59 and National Security Decision Directive 13, signed respectively by Jimmy Carter and Ronald Reagan, explicitly referred to the “collateral” damage that nuclear targeting could cause and the need to reduce it, for example, by excluding certain targets from direct attack. While neither directive referred to the laws of war, the interest in collateral damage reflected a broader concern about avoiding or reducing harm to civilian populations that was a feature of Protocol I. Consequently, the Joint Strategic Target Planning Staff at Offutt Air Force Base prepared a paper on collateral damage, but what it found and what it recommended—much less whether it found that it was possible or desirable to reduce collateral damage—is nearly impossible to glean from this massively excised FOIA release from the U.S. Strategic Command. Even references to collateral damage are excised. This release is published not for the information it provides but as an example of the Pentagon’s virtual prohibition against the declassification of substantive information, even from 40 years ago, on nuclear targeting issues.
Document 13
Defense Department FOIA Reading Room
Having completed their review, the Joint Chiefs recommended against U.S. ratification of Protocol I. “The military problems created by the Protocol cannot be remedied except by taking an unusually large number of reservations and understandings.” According to the report, the JCS believed that 23 understandings or reservations were necessary relating to 27 articles. For the Chiefs, that many would make the Protocol “too complex to be a reliable codification of the law of armed conflict.” That conclusion was in striking contrast to the 1977 Defense Department study which found no significant military problems except on the matter of reprisals.
This report saw the problem of nuclear weapons as a significant obstacle to the ratification of Protocol I. For the Chiefs, it was regrettable that the Protocol did not mention nuclear weapons by explicitly excluding them from its reach. Therefore, they supported a specific understanding that excluded nuclear weapons from the Protocol’s scope. Without such an understanding, “the rules against indiscriminate methods of warfare and excessive collateral damage in Articles 51-57 might severely limit the utility of [nuclear] weapons.” The Chiefs opposed a reservation because it would “constitute a formal admission that, in the absence [of one], the Protocol does apply to nuclear and chemical weapons.” That would “create problems if the United States needed to launch such weapons from the soil of allies who had not taken a similar reservation.” Probably referring to India and East Germany, the Chiefs noted that not all countries accepted the U.S. position that Protocol I did not apply to nuclear weapons. Consequently, because the “nuclear deterrent is the cornerstone of our defense of the free world,” the U.S. “should carefully consider whether ratification would compromise [its] ability to protect strategic interests.”
The Chiefs stood by the position that they had taken for years: that the reprisals forbidden by Article 6 required specific language reserving U.S. freedom of action, which they presented in reservation 15 of the annex.
One of the principal objections made by the Chiefs was to paragraph 4 of Protocol I’s first article, concerning wars of national liberation, because it “injects political factors into the administration of the Geneva Conventions” by establishing “that the rights of combatants can legitimately be linked to the justice of the cause for which they fight.” According to the Chiefs, “the United States should not become bound by this paragraph.” In contrast to the 1977 Defense Department study, the Chiefs did not mention the workarounds that had been negotiated in Geneva to dilute the practical application of Article I. Both the Preamble and Article 96 ensured that the “rights and duties” of Protocol I would apply to both sides of a conflict and thereby prevent discriminatory treatment of the party to a conflict that was in conflict with a national liberation movement. Nevertheless, the JCS’s critique of Article I would take hold in the Reagan administration, which would use even more inflammatory language.
While rejecting ratification of Protocol I, the Chiefs proposed an alternative: “certain parts of the Protocol would eventually be accepted in practice by most of the world’s nations and would then become customary law.” They proposed that the U.S. “should encourage the adoption as customary law of advantageous portions of Protocol, specifically those portions dealing with medical aircraft and missing in action personnel.” As U.S. allies would eventually ratify the Additional Protocol, the U.S. would eventually be left by itself to determine which “portions” were advantageous.
Document 14
Ronald Reagan Presidential Library, Sven Kraemer Files, box 6, Laws of War 1977 Protocol March 1986
Executive Secretary Platt informed National Security Adviser Poindexter that the Defense Department and the State Department had decided against ratification of Protocol I but favored sending Protocol II (on non-international armed conflicts) to the Senate. The Pentagon memorandum, signed by Secretary of Defense Weinberger, drew on the JCS report to explain the rejection of Protocol I, but went even further to condemn it. While acknowledging that the Protocol included “good language” to distinguish combatants from non-combatants, it found that language to be “essentially hortatory, while the Protocol’s key operative provision would radically change humanitarian law in favor of terrorists and other irregulars at the expense of civilians.” Noting the various objections raised by the JCS, Weinberger agreed with Chiefs that the flaws of Protocol I were “not remediable through reservations and understandings.”
Noting that the State Department had “previously expressed its sympathy” for the objectives of Protocol I, George Shultz’s memorandum to Weinberger indicated that “our prior positions … have always been conditional … on their military acceptability.” With the Defense Department’s recommendation against ratification, Shultz agreed that the U.S. could make “positive” features of Protocol I as “customary law.” Shultz recommended that the U.S. carry out its decisions “in a manner designed to minimize any potentially adverse international consequences of repudiation of Protocol I.”
Document 15
Ronald Reagan Presidential Library, Sven Kraemer Files, box 6, Laws of War 1977 Protocol March 1986
A memorandum that Shultz sent to President Reagan adopted the Pentagon’s hard line. Strongly attacking Protocol I, Shultz opined that, “The shortcomings … are fundamental in nature and cannot be remedied through reservations and understandings.” He further recommended that U.S. agencies “should work in a low-key business-like manner to persuade our allies to follow our lead.” If Reagan signed off on a decision memorandum accepting Shultz’s recommendation, it has not yet surfaced.
Document 16
Ronald Reagan Presidential Library, Sven Kraemer Files, box 6, Laws of War 1977 Protocol March 1986
The Department of Defense made plans for a statement of the U.S. position on the decision on Protocol I, but as far as can be told did not follow up on with the announcement until President Reagan’s 1987 message to Congress. More needs to be learned about the circumstances that led to the delay. In any event, the proposed announcement emphasized the alleged terrorist risk: “As the essence of terroristic criminality is the obliteration of the distinction between combatants and non-combatants, it would be hard to square ratification of this protocol with the United States’ announced policy of combatting terrorism.” In addition, it characterized the President’s decision as a “repudiation of the intense efforts of terrorist organizations and their supporters to promote the legitimacy of their aims and
practices.”
[1]. Douglas Feith, “Law in the Service of Terror—The Strange Case of the Additional Protocol,” The National Interest 1 (1985), 47, as cited in Samuel Moyn, Humane: How the United States Abandoned Peace and Reinvented War (New York: Farrar, Strauss, and Giroux, 2021), which, at pages 210-214, reviews the Reagan approach to Protocol I.
[2]. Reagan supported ratification of Protocol II, which covered internal, as opposed to international armed conflict, but it had become a dead letter because of its association with Protocol I.
[3]. “Agora: The US Decision not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims: The Rationale of the United States Decision,” American Journal of International Law 4 (October 1988): 910-925. Going to the letter of the Protocol, Gasser explained that if an insurgent group sought to benefit from its rules it would make a declaration that would have the effect of requiring the group along with the government that it was fighting to “assume the same rights and obligations,” with both sides required “to spare the lives of the wounded, care for prisoners and refrain from attacking civilians, and both sides must likewise respect all the other rules of humanitarian law.” See also George H. Aldrich, “Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions,” American Journal of International Law 85 (1991): 1-20.
[4]. “Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions,” American University Journal of International Law and Policy, 2 (1987): 418-431.
[5]. Ibid., 434.
[6]. See George Lee Butler, Uncommon Cause: A Life at Odds with Convention, Volume II, The Transformative Years (Denver: Outskirts Press, 2016).