____ __ - ---- DEPARTMCNT OF STATE ACTION MEMORANDUM S S January 15 1975 CONFIDENTIAL TO D - Mr Ingersoll FROM L - George H Aldrich Acting G n11A Response to Deputy Secretary of Defense on the Laws of War Conference Attached Tab A is a proposed response to Mr Clements ' memorandum of J anuary 3 1975 Tab B This memorandum forwards the views of the JCS and r epresents an effort to o verturn the position of the United States delegation at the first session of the Conference concerning the righ t of r eprisal against civi lians or the civilian population That issue was the only one out of the hundreds of is sues before the Conference on which State and Defense differed As chief of the d e l egation I decided tha t we would not oppose the draft provision before the Conference which would prohibit such reprisals The last paragraph of the Clements memorandum is apparently an attempt to prevent me from prevailing on this issue again this year The issue is complicated although I shall naturally b e h appy to go through it with you if you wish but the Clement memorandum has been overtaken by consultations this week in Washington in which the British Fre nch and Canadians have all expressed an inte rest in finding a solution to it which can be supported by most western countries It was agreed to try to do so at a meeting of the western delegations in London on January 27-30 The probable outcome will be a care f ully restricted right of reprisal for egregious cases which would be quite acceptable to Defense even though it will doubtless differ from the JCS formula tion Thus this should not be a continuing is sue between State and Defense CONFIDENTIAL CONFIDENTIAL • -2I believe it important that your response to Secretary Clements both note the remarkable degree of cooperation that exists between the two Departments in our work on this Conference and preserve the d ecision-making authority of the chief of delegation Recommendation That you sign the letter to Deputy Secretary of Defense Clements Tab A Attachme nts 1 2 Tab A - Letter to Mr Clements Tab B - Memorandum from Mr Clements Drafted by L GHAldrich lr 1 15 75 ext 28460 CONFIDENTIAL DECLASSIFIED Authority NrJbbb3 3-4 • THE DEPUTY SEC i T ARY OF STATE • L r P-S S 7500 246 - - - - WASHINGTON COP IES TO RF CWM L January 17 19 75 LIMI TED OFFICIAL USE Dear Bill Thank you for sending me the guidelines prepare d by the Joint Chi efs of Staff for the second sessi on of the Diplo atic Conference on the Reaffirmation and Develop ent of International Humanitarian Law Applicable in Armed Conflict Your memorandum anc the guide li nes have been give n to Georse H Aldrich who is our Acting Legal Advis er and chi ef of t he United State s delegation to the Con fer enc e Mr Aldrich informs me that work is nearly complete on position pape rs for t he Conference and that as was the c ase at the first sess ion of the Conference last year there is virtua lly complete agree ent with the represent atives of your Department on these pape rs I am gratified at the close and effective cooperation between our · two Dep a rtments which has characteri zed all of our work on this subject in rece nt years With res pect to the question of the prohibition of r epri sals against civilians o r the civilian population I understand that recent con s ultations with the British French and Can a dians h ave i proved the possibi lity of developing a n agreed western position This The Honor able William P Cl ements Jr Deputy Secretary of Defense T IMITED OFFi 1r USE DECLASSIFIED Authority NN bb' _ _J LHIITI D OFFICIAL USE -2possibility will be exp lored during a meeting of weste rn delegations in London beginning on January 27 Representatives of you r Departw ent including r epre sentative of the Joint Staff will partici pat e in the London eeting and I h ope a fully s atisfactory proposal Jill r es ult In tleternining the pos itions to be tak e n by the United States in t he Conference the chief of our delegat i on will naturally give serious and synpathetic con sideration to the vi ews expressed i n your enorandum of January 3 and its enclosures Very best regards Sincerely ' 7 - Robert S Ingersoll LIMIT ED OFFICIAL USE o rafted by L· GHAldrich lr 1i1s 75 ext 28460 DECLASSIFIED - -· - _ - - - Authority N b t _ _J - - CONFIDENTIAt CONFI DENT IAL THE DEPUTY SECRETARY O F DEFENSE 75002 6 § WASltlNGTON D C 20301 I 1J- 3 JAN 1975 MEMORANDUM FOR DEPUTY SECRETARY OF STATE SUBJECT Preparation for the Second Session of the 1975 Diplomatic Conference on the Reaffirmation and Development of the International Humanitarian Law Applicable in Armed Conflict LOW U U In preparation for the second session of the 1975 Diplomatic Conference scheduled for Geneva beginning 3 February 1975 the Joint Chiefs of Staff have reviewed the results of the first session and prepared recommended guidelines The guidelines address broad issues Enclosure 1 as we ll as specific articles of the two draft protocols which will be under consideration at the conference Enclosure 2 C The Department of Defense continues to support the efforts of the International Committee of the Red Cross to make more explicit and complete the law which protects prisoners of war and other war victims I believe that it is important to the United States to continue to play a constructive role in the Geneva negotiations In this regard I recommend that our delegation adopt the principles in the general guidelines at Enclosure 1 Also in my opinion the detailed guidelines at Enclosure 2 provide an excellent basis on which to develop our negotiating instructions pertaining to specific articles of the two draft protocols under consideration C I understand that there is some diffe rence of view on the issue of reprisals Nevertheless I recommend that the delega tion adopt the limited JCS position Enclosure 2 page 9 paragraph d on this issue at least as initial guidance Should deve lopments at the conference warrant a deviation I would appreciate an opportunity to comment on proposed changes n•y Enclos ures 2 a s CO FlDE1 -lTlAC CONFIDENTI AL C ' i f if'1 b· __ J J __J_-_ ___ ______ ________ _______ - - ______ · ' 31 De c 80 DECLASSIFIE Authority N' _l _b b t SEC DtF cetrTR No X·- ____ 3 __ 8 ___ 2 1__ '• CONF IDCNTIA- l l PP F NDI X f GENERAL GUIDELI NF S F OR DEVLLOP I IG US NE GOTIATING POS IT IOtJS FOR TH E DIPLOMATIC CO FER ENCE ON THE REAFF IRY A TION l ND DEVELOPMENT OF THE INTERclATJONAL HUMAN ITARIAN LAW APPLICABLE IN ARMED CONFLICT SCHEDULED TO CONVENE 3 FEBRUARY 1975 U 4 1 C Suppor t rea ff irmation of the principle that the 5 humanitar ian law of armed conflict should be applied equa lly 6 r egardless of the s ide or cause for which combatants a re 7 fighting 8 2 C Co nti nue to support strengthening of the Protecting 9 Power provisions in the Internationa l Committee of the Red 10 Cross 11 3 ICRC Protocol s C Support provisions for protection of civilians and 12 civilian obj e cts but oppose provisions which would unreal- lJ istically l imit military operations or fail to reco gnize 14 military neces sity 1 4 C Continue to oppos e substantive discussion of limita- 16 tions on specific weapons in con junction with the Diplomatic 17 Conference 18 The US positio n ha s been and should continue to b e that measures involving arms control disarmament or 19 the prohibition o r restriction of the use of speci fic weapons 20 are matters to be considered in other forums such as the 21 Conference of the Committee on Disarmament 22 5 23 C Recognize that i t would not be feasible to attempt to make the provisions of th e s e protocols pertaining to the 24 conduct of hostilities applicable to the protection of 25 civilia ns in the event of general nuclear war 26 Director J-5 Cl us1fied by • • •• S1 '8 ECT 10 S Hl lll F ·I· AUTf • v ·- ·n ·•_ _ 1 YEAR li 11_ dl OECI A5S1FIED l' J ' · ·_ _ ••• fl •'I · I• • • T 3 1 - -O- _ CONFIDFNTIAL JCSM-473- 74 1 Appendix A DECLASSIFIED Authority NrJl bb3 3 4 - CONf' llJENTIAl 6 C Oppose draft provisions which would oblig e c xtcn iru1 prisoner-of-war status to individuals bclon Jing t o 110 11 t 11 l' entity who are engaged in disorganized or sporadic violence 3 Consistent with the guidelines concerning Article 1 as amende d 4 may accept provisions which confer a right of prisoner 5 of war treatment to combatants meeting appropriate l egal 6 criteria· and b elonging to a nonstate 7 entity which has accepted and is capable of applying the Conventions and 8 Protocol I 9 7 C Develop provisions in Protocol I which would reaffirm 10 the unde rlying principles of the Third Geneva Convention 11 1949 for the protection of all prisoners of war and there- 12 by attempt to nullify the present rese rvations to that 13 Convention which e rode those principles 14 C Support provisions in Protocol II which would make 15 the humanitarian provisions of that Draft Protocol appli - 16 cable in low-intensity low-threshold noninternational 17 conflicts and oppose provisions which either grant legal 18 status to insurgent groups or interfere with the ordinary 19 orderly process of national judicial systems 20 8 There must be a careful balancing between the threshold of application 21 of the protocol and the substantive provisions th rcin 22 CONFIDENTIAL 2 Appendix A DECLASSIFIED Authority NrJI bb 3 3 4 CONFIDEt Tia APP END IX fl DCTJ IT ED GUIDEL rnEs FOR DEV LOP ING us NEGOT I ATING r os 'rlllNS FOR THE DIPLOMA TIC CONFERE - CE ON THE REAFFIRMAT ION NO DEVELOPMENT OF THE INTER ATIOt 11 L HUMANITARIAN LAW APPLIC nLI- IN ARMED CONFLICT SCHEDULBD TO CONVENE 3 FEBRUARY 1975 U 4 Protocol I 1 Cl Part I 5 GENERAL PROVISIONS 6 a Response to Article 1 as amended by Committee I at the 7 1974 Diplomatic Conference 8 The US Delegation may refrain from opposing Article 1 9 as amended conditional upon acceptance of certain provisions 10 The Delegation should esta blish clearly in the negotiating 11 history of A1Licle l a n in terpretation that armed conflict 12 within the meaning of paragraph 2 of Article 1 implies sus- 13 tained hostilities between Parties having organized armeq 14 forces and that such Parties either arc high contracting 15 parties or are capable of app lying the Geneva Conventions 16 and the Protocol and have declared that they accept the 17 obligations of the Conventions and the Protocol 18 The Dele- gation should also insist on the adoption of a provision 19 which negates implications that the application of the law ol 20 war is dependent on the nature of the cause for which com- 21 batants are fighting 22 The Delegation should clearly indi- cate in the course of tne negotiations that the US vic s 23 Article 1 as a broadening of the scope of humanita ria n law 24 and regards the specific references to racist regimes 25 alien occupation and colonial domination as merely 26 illustrative of the struggles for self-determination 27 to which the article applies 28 Finally the Del e gati on Classified by Oir ectoA• J - __ SUBJECT TO CENER ' L DECL S IFICATION SCHE Lc - F ' C' JTIVC C -'uER 11G'i l AUTO 1 1I uv t t r· zD AT Tl'i YEAR INTC 'I • S DECLASSIFIED ON DEC Moi R 31 J 9 Q __ CONFIDENTIAL 3 Appendi x n JCSM-473-74 rcity DECLASSIFIED N b_bb3 _3 4 - CONFIDENTIAL should clearly indicate that us acceptance of Article l l is premi sed on the deve lop ment of r e a sonable provisions 2 for the r emainde r of the Protocol 3 b The US Delegatio n should continue to press for a 4 mechanism which will increase the probability for the 5 appointment and acceptance of Prot cting Powers and provide 6 for t he mandatory acceptance of the International Committee 7 of the Re d Cross ICRC as a substitute if arrangements 8 cannot be made for the services of a Protecting Power 9 10 Article 5 2 c In order to improve the probability that a neutral state 11 or an i mpar tial huma ni t ar ian organization will agree to 12 serve as a Protecting Power and that Parties to a conflict 13 will accept these services the Protocol must make clear 14 that the supervisory d u ties are limited to those concerned 15 with the protection of the wounded and sick prisoners of H war and protected civilians in the hands of an adversary 17 The Protocol should specifically exclude supervision of 18 combat operations from the scope of the Protecting Power's 19 duties Articles 2 and 5 20 C Part II 21 WOUNDED SICK AND SHIPWRECKED a The US Delegation should support the provisions of Part II 22 which extend protection to civilian medical units and 23 establishments personnel and transpo rts comparable to that 24 provided to military medical units estoblishments personnel and transport under the First and Second Geneva Conventions 26 1949 27 It should however oppose any provisions which degrade or limit the medical services provided within a 28 In this connection the us Delegation 29 should seek t o modify t he provisions of Dr 1ft Art I r · 1 P 11 nation's armed forces CONFIOCNTIAL 4 Appendix B DECLASSIFIE Authority N _1 _b b • CONFIDENTIAL whic h may b e construed to limit unduly the services wh ich may l be performed by skilled paramedical pe rsonnel on ships a nd in units where professional medical personnel are 3 not available 4 b Restric t i on of medica l experiments similar to those 5 proposed on persons who have fallen into the hands of the 6 adverse Party or who are detained or deprived of liberty as 7 a r esult of hos t i l ities shou ld be supported 8 Broader restrictions which would put an end to reasonable medical ' research on other freely consenting human subjects should be 10 opposed Articles 11 and 65 2 c 11 c The 12 US Delegation should continue to support the optional use of distinctive visual and nonvisual s ignals for better 13 identification of medical transport particularly medical 14 aircraft 15 Flashing blue lights for medical aircraft a distinctive medical r adio call and a secondary 16 surve illance radar specified or agreed code on MODE 3A 17 medical aircraft should be reserved for the exclusive use 18 of me dical transport These prov isions must be supplemented 19 by an obligation for the parties to take reasonable measures 20 for the r ecogni tion of the distinctive signals 21 Optional designation and publication by the High Contracting 22 Parties of national radio frequencies to bo used by them 23 to facilitate radio communications should be supported 24 Article 18 and Annex 25 d Efforts to achieve a ccmnon set of rules for all types 26 of medical transport must not infringe upon the special 27 privileged status and protection of hospital ships described 28 in Articles 22 24 and 25 of the Second Geneva Convention 29 1949 or that of their medical personnel and crews 30 Article 23 31 CONFIDENTIAL 5 Appendix B DECLASSIFIED Authority N f bb3 3 J CONFIDENT e The US Delegation should support measures for t h0 2 reasonable protection of medical aircraft includinq au thority to operate without prior agreement over l 11ul areas controlled by itself or its allies and over ' 1 ire i 4 '1'111• 5 not controlled by the enemy its allies or neulr '11s 3 Delegation should support provisions tu prior aqrccmc-1 ts 6 for me ical aircraft operating over land or sea areas 7 controlled by neutrals or the enemy and their allies 8 Thesc- measures should however be balanced by adequate 9 provisions for insuring the security of forces against abuse 10 of the protected status of such aircraft Articles 26-32 11 C Part III 12 METHODS AND MEANS OF COMBAT AND PRISONER- OF- WAR STATUS I l a If attempts are made to expand paragraph 2 tho 14 US Delegation should seek to limit Article JJ 15 paragraph 2 to a reaffirmation of the principle of the 16 conventional Hague Regulations Article 23e and customary 17 law of war which prohibits the use of weapons projectiles 18 materials or methods so as intentionally to cause unnecessary 19 su ff ring The text of Article 34 should be related to ind consistent with paragraph 2 of Article 33 Thus it should 20 21 provide that in its study and development of new weapons or 22 methods of warfare each Party is obliged to deterMine 23 whe ther the subject of its R D falls within the prohibition 24 of p iraqraph 2 of rticlc- 33 25 b The us Delegation should oppose spcc1fic weapc ns pro- 26 hibitions or restrictions wilhin the scope of tho Protocols 27 a nd oppose substantive con5ideration of this subject in any 28 form by the Diplom itic Conference 29 The US Delegation may howcvrr support procedural considerations with a view to 30 recommendi ng an appropriate forum to study and consider this 31 issu 32 CONfIDENTIAL 6 Appendix B DECLASSIFIED Authority t J -6 3 J CONF IllI _N_l- c It is noted that Article 37 Emblems of Nationality 1 changes the existing l aw by prohibiting the use of enemy 2 or neutral flags distinctive er ibl ems and military insignia 3 in such a way as to shield favor or impede military 4 operations 5 Under existing law the use of enemy uniforms is impro per only when used in actual combat The Joint Chiefs 6 of St ff oppose this extension of the rules of warfare 7 qoverning ruses 8 d The US Delegation should resist any provisions in the 9 protocol which could c ompel their application to the conduct 10 of hostilities at sea in order to avoid an unintended 11 co lification of many areas of t he law of m 1rltime w r f r • I ' not presently covered by any treaty o r conve ntion I I e The US Delegation should oppose provisions which would 14 confer prisoner-of-war status o n individuals of nonstate 15 entities engaged in spora dic or disorganized vio lence The 16 United States sho uld also oppose provisions which suggest 17 unequal application of the humanitarian law of armed conflict 18 and should seek provisions which reaffirm the requirement of 19 equal application of the law regardless of cause 20 Consistent with these requirements paragraphs 1 and 2 of ICRC draft 21 Article 42 may be acce pted provided that the article is 22 amended to establish reasonably concrete and unambiguous 23 standards on the means of distinguishing irregular comba t ants 24 from the civi lian population 25 f The US Delegation should exploit the opportunities 26 af forded by provisions for t he protection of irregular 27 ·nmh t rn t s 'l'hi1·d i n order to reaffirm the protection which the 28 GtJne v- Convention 19 49 provides for a ll persons 29 ent i tl 'd to prisoner-of-war status and to nullify the 30 reservations of Communist states to Article 85 of the Third 31 CONFIDI NTIAL 7 Appendix B DECLASSIF - 1 Authority N f _bb 3 J - •• CONFIDENTIAL Gene va Convention o f 1949 which in prac tice h i ve b ocome reservations incompatible with tho objcc LiVllG 111tl l pu1 1 11 of the Third Convention Article 42 4 • C Part IV J CIVILIAN POPULATION 4 a The Delegation should seek to limit the field of 5 application of Section I Article 44 to the civilian 6 population and civilian objects on land insofar as they may 7 be directly affected by military operation s involvinq land 8 sea or air forces 9 Application of the Protocol to sea warfare or its imposition of limita tions on Parties to 10 control their own populations should be opposed Article 44 11 See subparagraph 3d above for rationale on sea warfar e 12 b The US Delegation should support a reaffirmation of the 13 principle that the civilian population as such as well 14 as individual civilians shall not be made the object of Vi a ttack Article 46 16 It should however oppose any rule derived from this principle which might create the 17 illusion th t civilian casualti es incidental to at t acks 18 g inst military targets locat ed in popula t ed areas can be 19 a voided Prohibition against indiscr iminate means of 20 combat should not extend beyond restrictions against 21 1 Those which are intended t o attack indiscriminately 22 the civilian population and military targets and 23 2 Those for which there is a high probability of 24 incidental civili n casualtie s known to be dispropo r- 25 tionate to t he military advantage anticipated Article 26 46 27 c The rule s limi t ing militJry operations with a view to 28 providing reasonable protection o f the civilian population 29 and civilian objec ts against the effects of hosti li ti es 30 should be state d more clearly so that they can be e a si ly 31 and r eadi ly understood Ar ticle s 46-50 32 CONF IDENTIAL 8 Appendix B DE CLASSI F Authority NM_ b _ J • CONFlUI N'rihL d It is noted that t e US Delegation at the first session of th e Diplomatic Confer ence did not oppose the prohibi- 2 tion against r epri sals directed a gains t the c ivilia n J popu l tion under the c o ntrol of the enemy Ar Lic lc 46 4 4 cont r a ry to the r ecommenda tion in parag ruph 4d of 5 the Appendix to JCSM- 4-74 8 January 1974 6 l Upo n furth e r ·nn• ldcration the Joint Chiefs of Staff c o ntinue 7 lo idhc r e to th e view that the threa t of reprisal is an 8 c s s nt i a l means for deterring serious violations of the 9 law o f wa r 10 Recognizi ng t hat the risk of escalating counter repr isals should be minimized it is proposed 11 that the US De l egation should seek t o amend draft 12 Article 46 4 so as to permit reprisals against the 13 enemy 's civilian pop lation in enemy territory but only 14 i n r sponse to grave unlawful enemy attacks on the 15 other party ' s civilian population 16 The US Delegation should also support provisions restating customary international 17 law prerequi s ites for resor t to repri als no t forbidden by 18 international law 19 e The US Delegatio n should support the concept that objec ts 20 which are not military objectives should not be made objects 21 of attack Articles 47 48 and 49 22 The prohibition should not howeve r preclude attacks and destruction rendered 23 necessary by military operations nor ho uld it p r ohihit 24 a Party from c e rtain a ctions on its own territory e g 25 CONFi l E 'l'IA L 9 Append ix B bb -l DECLASSIFIE Authority N '_f • CONFl UCNTihL d It is noted that t e US Delegation at the first session l of th e Diplomatic Conference did not oppose the prohibi- 2 tion aga inst reprisals directed against the civilian J popul tion under the control of the enemy Ar licle 46 4 4 contr ry to the recommenda tion in parag r ph 4tl of 5 the Appendix to JCSM-4-74 8 January 1974 6 ·nn tdcratio n Upon further the Joint Chiefs of Staff conlinue 7 l o dhcrc to the view that the threa t of reprisal is an 8 ial means for deterring serious violations of the 9 cs s ·11t law of war Recognizing that the risk of escalating 10 counter rep isals should b e minimized it is proposed 11 that the US Delegation should seek to amend draft 12 Article 46 4 so as to permit reprisals against the 13 enemy's civilian pop lation in enemy territory but only 14 in response to grave unlawful enemy attacks on the 15 other party's civilian population 16 The US Delegation should also support provisions restating customary international 17 law prerequisites for resort to repr als not forbidden by 18 international law 19 e The US Delegation should support th e concept that objects 20 which are not military o bjectives should not be made objects 21 of attack Articles 47 48 and 49 22 The prohibition should not however preclude attacks and destruction rendered 23 necessary by military opPrations nor should it prohibit 24 a Party from certain actions on its own territory e g 25 CONf•IllEN'l'IAL 9 Appendix B DECLASSIFIED Authority NN bb3 3 4 - CONFIDENTIAL destructio n of specified objects to deny them to an invading 1 enemy 2 The prohibition in Article 49 against attacks upon works and installations containing dangerous forces 3 shoul be limited to the prohibition agai nst destruction 4 intended to cause damage disproportionate to the military 5 advantage expected 6 Moreover the article should be modified in r ecognition of t he fact that attacks against military 7 obj ectives located on such works and objects need not 8 9 necessaril y destroy them f The rule of proportionality along the lines of Proposal II lO Article SO i s acceptable in princ iple so l ong as it is clear Lh1 t - the term military advantaqe is undcr t oocl to ini lutlc thr• • Jc urity of the military fo r cr and economy of force lhc· pri1wipl0 or In addition the US Ucl cgal1on should 11 12 I I 14 r esist any r eference to those who launch an attack 15 since the broad application of this phrase places upon 16 l ower ranks r esponsibilities that a re unreasonable and 17 difficult or impossible to discharge 18 The Delegation should support a rule which prov ides for reasonable 19 precautions in choice of weapons and method of attack 20 so as not to cause unnecessary civilian losses however 21 consideration of military losses when attacking a mili tary 22 objective remains a most important principlo 23 g It is noted that Weste rn European delegations at the 24 first session strongly urged strengthening of the protec- 25 tion afforded by Articlo 63 of the Fourth Convention with 26 respect to civil defense organizations and personnel 27 The J oint Chiefs of Staff have a c cordingly revie wed the 28 ins lrucLion of the US Delegation relative to Articles 54- 29 59 dealing with civil defense 30 These instructions remain 31 suitable insofar as without interfering with the CONFIDENTIAL 10 Append ix B ' DECLASSIFIED Authority NN bb3 3 4 • • CONFIDENTIAL performance of military • missions they support respect l and protection of civil defense organizations of u nonmili tary character whose purpose i t is to insure the sur- vival ef the civilian population by the maintenance o 4 essential services by the distribution of relief and by 5 the organization of rescue 5 The us Delegation should 6 oppose the extension of special protection to nonmedical 7 military units or mil tary personn l performing civil 8 d ef n se tasks 9 Cl Part v 10 EXECUTION OF THE CONVENTIONS AND OF THE PRESENT PROTOCOL 11 a The provisions dealing with the repression of breaches 12 ar e deficient in that they do not define grave breaches 13 nor does Article 2 c provide a clear definition of the class 14 of victims protected by the p e n a l sanc tion of grave breaches 15 As grave b r eaches of the present Geneva Conventions are 16 universal crimes over which all Parties have jurisdiction 17 they should be r eserv ed for e xtreme l y serious offen5es ag insl 18 persons committed willfully If there is substantial suppor t 19 f or including certain offenses against property among grave 20 breaches the US Delegation should seek to li it those 21 offenses to those committed voluntarily or willfully against 22 property the destruction or seizure of which is not justified 23 by military necessity and seriously endangers tho life 24 or h ealth of persons Articles 2 c and 74 25 b Except as now provided in the First and Second Geneva 2G Conventions crimes by nationals of a Party agains t their 27 own nationa l s or the property of such nationals should be 28 reserved for disposition by the Party 's own national 29 courts and s hould not be grave treaches 30 CONFIDENTIAL 11 Appendix B DECLAssIFIED Authority JyrJf 6b3 3-4 • CONP il•l f'l' l Protocol rr l DRAFT PROTOCOL ON NONINTERNATIONAL ARMED CONFLICT 2 l C The principal · · establishing a position with issue 1n regard 0 3 Protocol II is to identify the type of noninternationaJ conflic t to which this Pro tocol shall apply 4 The Joint Chiefs 5 of Staff would accep t a Protocol based on a low level of violence 6 and organization which is limited substantively to provisions 7 of a strictly humanitarian nature 8 It is r ecognized that there arc infinite de grees o f intensi ty in noninternational conflicts 9 and th0 US Delega tion must carefully balance the threshold of 10 application vi s - a-vis the s ubstantive proposals 11 Provisions such as those presently found in Parts rv and V of Draft Protocol 12 II can apply only when both parties have o rganized armed f orces 13 under r esponsible command and have an administrative and 14 disciplinary system capable of carrying out the obligations o f the Protocol 16 Such a scenario could indicate a high- i ntensity conflict 2 17 C Application of Protocol II should be expressly limited 18 to armed conflict not of a n international character occurring 19 within t he territor y of a Party O The a bsence of such a limitation would tend t o encourage the export of internal 21 armed conflicts and t errorism 22 3 Cl The US Delegation should oppose any provision in the 23 Protoco l the app lication of which would imply recognition 24 l egit fr1acy or international standing to insurgent groups 25 Cons istent with this t he US Delegation should i ns ure t he 26 negotinting record reflects the US understanding that the 27 applica tion of the humanitarian law of armed conflict in no 28 way signifies or implies a artial or complete r ecognition 29 of the opposing group or Movement or change in its legal 30 status 31 CONFIDENTIAL 12 Appendix B DECLASSIFIED Authority N' _1 bll J