comJ1Qkr 1 n l • -- oOFFICE OF THE SECRETARY OF DEFENSE FF September 26 1975 Memo For MR ALDRICH MJCS 328-75 2 3 SEP 1975 Geo rge You may be l nterested in the attacjed JCS pape r Pl ease hold for your personal use CRETARY OF DEFENSE AFFAIRS POLICY J Reaffirmation and Dwayne S Anderson Humanitarian Law Deputy Director s Short title Negotiations and Arms Control Attachment 1 MJCS 328-75 w att dtd 23 Sep 75 75 dated requested that mmen t on the 7 4 onference committee s 1 DECLASSIFIED Authority NNf bb3 3 4 - ---- -- --- _ with particular on commanders and ombat environments assessment of the alid and has b e en mments offered in fects the re will o assure that all r legal obligations d positions with tion a t the confe rllowing comments are a The Joint Chiefs of Staff continue to adhere to the view that the threat of reprisals against the civilian population and civilian obj e cts under the control of the adverse party is an ess e ntia l means for deterring serious violations of the Law of War Director J-5 Cla slf1ed by - - - - - SUBJECT TO CENER4-L DECL-'SSIFICATICN SCHEDUL OF EXECUTIVE ORDER 11652 AUT0MATS CALL Y DOWNGRADED AT TWO YEAR IITTIERV ALS DECLASSllflED ON DECEMBER 31 • _9J CONFIDENTIAL 1 e CONFIDENTIAL THE JOINT CHIEFS OF STAFF WASHINGTON D C 41 t fl - R• A 20301 MJCS 328-75 2 3 SEP 1975 MEMORANDUM FOR THE DEPUTY ASSISTANT SECRETARY OF DEFENSE INTERNATIONAL SECURITY AFFAIRS POLICY PLANS AND NSC AFFAIRS Subject Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts Short title Diplomatic Conference U 1 U Reference your memorandum I-8245 75 dated 13 August 1975 subject as above which requested that the Joint Chiefs of Staff review and comment on the 74 articles adopted thus far in lhe main conference committees 2 U The articles have been reviewed with particular attention given to the pot e ntial impact on commanders and military operations in combat and non-combat environments The DOD Law of War LOW Working Group assessment of the effect on US commanders is considered valid and has been qsed as a point of departure for the comments offered in the enclosure In addition to these effects there will be an additional training requirement to assure that all US military personnel are aware of their legal obligations 3 C Although comments on the proposed positions with respect to all articles under conside ration at the conference will b e made in early 197G the fol lowing comments are considered pertinent at this point a The Joint Chiefs of Staff continue to adhere to the view that the threat of reprisals against the civilian population and civilian objects under the control of the adverse party is an essential means for deterring serious violations of the Law of War Director J-5 Cl a slf ed by_ - - - - - - - · · SUBJECT TO CENER -1 L DECL ASSIFICATICN SCHEDULE OF EXECUTIVE ORDER 1 i 652 AUTOM ATI CALLY DOWNGRADED AT TWO YEAR INTERVALS DECLASSFIEO ON DECEMBER 31 - J _9J DEC IFIED Authority NN ob3 3 4 CONFIDENTIAL - CJ 8'6 - - CONFIDENTl ll - b The Joint Chiefs of Staff recognize that it would not be feasible to attempt ·to make the provisions of these Protocols pertaining to the conduct of hostilities applicable to the protection of civilians in the e e t of general nuclear war In view of the possibility that certain articles could be interpreted as prohibiting nuclear weapons it is considered appropriate to establish clearly and emphatically the US position on this matter This particularly applies to Part III Methods and Means of Combat and Part IV Civilian Population Protocol I c The provisions of Articles 33 and 48 bis will require further evaluation and coordination within the US Government The committee report to the effect that battlefield damage incidental to conventional warfare would not normally be proscribed by the provision and the reference to long term major health problems suggests that nuclear weapons might be affected by these articles Depending on the intensity of fallout some long term health and genetic effects may be expected from Cesium 137 and Carbon 14 This emphasizes the necessity of establishin emphatically that provisions of the Protocol dealing with methods and means of combat are not intended to affect nuclear weapons Further there are apparent variances as regards the definition of long term and long lasting effects According to paragraph 3 of the DOD LOW Working Group comments on Article 33 long term was considered by some to be measured in decades with reference made to twenty to thirty years as a minimum State message 198673 210049Z August 1975 subject CCD Questions and Answers Concerning Draft ENMOD Convention defines long lasting effects as tho se which persisted for periods of months or more than one season rather than weeks It should be made clear that the terms long term and long lasting are unrelated and are intended to have distinct meanings and to serve different purposes 2 CONFIDENTIAL DECLASSIFIED Authority Nrll bbll4 CONFIDENTIAL e 4 U It is requested that the Joint Chiefs of Staff be afforde d ade quate opportunity to review and comme nt on the propos e d positions with respect to all articles to be considered at the 1976 Diplomatic Conference For the Joint Chiefs of Staff - Q id-C I J JOHN H ELDER JR • rL cu mar t uenera l USA Direct or Pla ns and Policy Directorate Attachment a s References JCSM-473-74 12 Dec 74 Laws of · War Confe rence Preparation U 11 · Attachment to JCSM-473-71 3 CONFIDENTlAl DECLASSIFIED Authority tJ l -bb3 _ _j ENCLOSURE ASSESSMENT OF IMPACT OF ARTICLES ON COMMANDERS AND MILITARY OPERATIONS PROTOCOL I Article 13 - Discontinuance of protection of civilian medical units Without r e cognition of the inherent right of self def ense as well as comparable provisions of the 1949 Geneva Conventions paragraph 1 might be construed to r estrict the ability of military elements particula rly aircraft to defend themselves against attack from weapons operati ng within civilian medical units The second sentence implies that a warning must be given before a response to fire can be made Weapons could be relocated in the interval during which a warning of impending response is promulgated I Articl e 19 - States not Party to a conflict The DOD Law of War LOW Working Group assessment states that there is no effect on US Commanders as this article deals with responsibilities of neutral or other States not Parties to a conflict It must be recognized that the US can easily fall·into the category of other States not Parties to a conflict As a result US Commanders will be responsible for complying with th e provisions of this Protocol in r espect of such persons protected by Part II who may be received or interned within their t erritory and to any dead of the Parti e s to that conflict whom they may find This requirement will require training and awareness of responsibilities Article 29 - Restrictions on operations of medical aircraft It should be noted that aircraft used for medical evacuation frequently carry mixed loads of both patients and other personnel Additionally some equipment not associated with the medical evacuation mission is not removable This article could hamper long haul medical Enclosure DECLASSIFIED FOR OFFICIAL USE ONL· AulhorityN ' l _bb E J evacuation and the capability to carry non-medical evacuation personnel and or equipment on large aircraft if protection is desired for temporary medical aircraft It could restrict flexible employment of general purpose aircraft to the extent that protection is desired Article 33 - Basic rules Present wording of the article allows wide interpretation of its applicability to current as well as future weapons Without caveats to the contrary this article could be interpreted as prohibiting nuclear and chemical warfare as well as certain conventional weapons Impact of this article on commanders could be substantial Article 48 bis - Protection of the natural environment Without caveats to the contrary this article could be interpreted as prohibiting nuclear and chemical warfare If these means of warfare are prohibited impact on com manders as well as strategic and tactical concepts will be unacceptable I Article 49 - Works and installations containing dangerous forces Many power stations provide power into a national grid and it is likely to be ·impossible to verify whether power from a given plant is being used for support of military operations Moreover powe from one installation can be directed to meet civilian needs thus freeing power from another perhaps less vulnerable installation for use in supporting military operations Accordingly it is necessary to - establish some presumption as to what constitutes r egular direct support Lacking this Article 49 is vague as to the extent of protection for hydroelectric and nuclear electric facilities PROTOCOL II Article 17 - Protection of medical units and transports Without recognition of the inherent right of self defense as well as comparable provisions of the 1949 Geneva Conventions paragraph 2 might be construed to 2 Enclosure FOR OFFICIAL USE ONL DECLASSJFIED AuthorityNN bb3 3 4 restrict _the ability of military elements particularly aircraft to defend themselves against attack from weapons operating within civilian medical units The second sentence implies that a warning must be given before a response to fire can be made Weapons could be relocated in the interval during which a warning of impending response is promulgated I Article 28 bis - Protection of the natural environment Without caveats to the contrary this article could be interpreted as prohibiting nuclear and chemical weapons ' ' 3 Enclosure FOR Ol FIC I i IJ USE C N I Y