Date

Sep 13, 1982

Description

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.

Source

Defense Department FOIA Reading Room

Document published in following posting(s):

Humanitarian Law of War: The U.S.-NATO Review of Additional Protocol I, 1978-1986

Sep 21, 2023

JCS 2497/24-6, U.S. Joint Staff, “Report by the J-5 to the Joint Chiefs of Staff on JCS review of the 1977 Protocols Additional to the 1949 Geneva Conventions,” 13 September 1982, with Joint Staff memorandum to Secretary of Defense, 1 October 1982 attached, Confidential