DAJA-IA SUBJECT 'Y 23 February 1978 Re-por t of U S Expert to NATO POLADS E perts Meeting on Protocols Additional to the 1949 Geneva Conventions DISTRIBUTION --' ✓Ambassador Aldrich Dep State t v 1 MG Reed TJAG AF BG Thompson ASD ISA Mr Dwayne Anderson ASD ISA COL Bowden JCS-JS COL McNealy DAJA-IA CAPT Fruchtcn ian NAVJAG CAPT Harlow NAVJAGI COL Norris AFJAGI Mr Matheson ' State-L PM - --- - LTC R berson DAMO-SSM LTC Miles AFJAGI CPT Cummings DAJA-IA MAJ Parl NAVJAGI Mr Konan OSDGC IA Mr Moss OSD-AE G-c o j ' c ' £r t- ' t - oc _ _ - 'J v-f- -t - s P jo '_ • h1 r DECLASSIFIED Authority N rJ U le J 1 'i -I DEPA RTMENT OF THE ARMY OFFICE OF THE JUDGE ADVOCATE GENERAL WASHINGTON O C 20310 R Pl V TO ATTENTION OP D JA-IA 23 February 1978 MEMORANDilli FOR SUBJECT 1 LAW OF WAR WORKING GROUP See Distribution Report of U S Exper t to NATO POLADS Experts Meeting on Protocol s Additional to the 1949 Geneva Conventions REFERENCES a Report of Milit ary Committee HCM- 76-77 dated 31 Oct 1977 which found that Articles 35-60 of Protocol I are militarily acceptable provided all members take measures to give legal effect to certain interpretations expressed by some nations during the Diplomatic Conference b CONF USNATO 01401 DTG 101903Z Feb 78 which transmitted a UK note of 8 Feb 1978 proposing NATO coordination as to timing of ratification and substance of under standings reservations hich will a ccot pany ratification Incl 3 c CONF US NATO 01738 DTG 2016452 Feb 78 telegraphic report on NATO POLADS Experts Meeting Incl 4 d CONF US NATO 01739 DTG 201707 Feb 78 state ent of FRG delegation Incl 5 2 PURPOSE The purpose of the POLADS Experts meeting was to provide for an exchange of views on a the concerns of the FRG for the need to formulate uni form combat rules giving eff ct to Protocol I and the recommendations of the 1'ATO Hilitary Committee as to both COI'ventional and nuclear warfare and b t he UK concern that there be coordination as to timing and substance in the i nstruments of ratification 3 AGENDA See Incl 1 4 PARTICIPANTS The meeting was chaired by Mr Reichler US International Secretariat In addition to the representatives of the POLADS experts from capitals were present A list of experts is at Incl 2 USMTSSION us N xo _ # _ 31 19 - - -8-4- - - • c--- £A DECLASSIFIED 1 Authority N tJ 1 lo oJ J ' i - - - -------- I l I 11 ·- 1-J DAJA-IA SUBJECT 5 t r- '1 t l r I t 11 i• ' ' I J • • •• · _ - I I 1 r' ''ii 23 February 1978 Report of U S Expert to NATO POLADS Experts Neeting on Protocols Additional to the 1949 Geneva Conventions HIGHLIGHTS a Uniformity of interpretation and application of the Protocol 1 Both the UK and the FRG stressed that it is essential to the conduct of NATO military operations that all armed forces allocated to NATO commands have the same understanding of the rules of warfare and apply them uniformly 2 The UK wished to limit the common understanding to the interpretation of Articles 35-60 of Protocol I and the development of studies as to the legal effect of understandings with a vi ew that all NATO members express similar understandings or reservations in t heir i nstruments of ratification In order to preclude an unaccept abl e hia tus in the application of the Protocols the UK urged t hat r atifications be deposited at about the same time Canada strongl support ed t he UK view and expressed disappointment that the Protocols do not have a general participation clause as in Article 2 Hague Convention o IV of 1907 Recognizing that such precise coordination is not a ttainable most dele ga tions agreed that there should be consultation wit hin NATO pr ior to submitt i ng the Protocols to each Parliament 3 The FRG which is strongl y influenced by Mr R Schne ider Head of the International Law Section MOD wishes t o go conside r ably farther The FRG proposes the deve lopment of uniform det a iled combat rules as to both the use of weapons and me thods o f war f are These rules should be integrated into Na tiona l Law of War Nanual s as we ll as in NATO documents Incl 4 Baron von Ma r shall made f r equent r ef erenc e to the fact tha t nine Allied Powers have forc e s in the FRG The combat rules that the FRG will develop are those demandc-d by interna tional law and German law It is essential that all nine Powers apply the same rules insofar as it involves the protection of the civilian populat ion and civil i an property b FRG experts expr essed doubt as to the previously expressed understandings that Protocol I does not affect or restrict the use of nucl ear weapons This doubt is generated in part by the ICRC introduction of the 1973 Com entary at page 2 which unlike the ICRC introduction to the Draft Protocols states It should be r ecalled tha t apart from s ome provj s i ons of a g£ neral na ure t he ICRC has not inc udPd in its draf t s any r ules gover ning atomic bacteriological and chemical weapons • The FnG consi der it a r gu b e tb3t t h p-ovisions of Art i cles 35 51 55 n Si apply co tl e use of nude r 1 rcms In ord r c e-- ur egal eff c DECLASSlFIED 2 Authority N tJ 1 • le o11 'i - I ' ' DAJA-IA SUBJECT 7 J I J 23 February 1978 Report of U S Expert to NATO POLADS Experts Meeting on Protocols Additional to the 1949 Geneva Conventions to understandings expressed by the US and the UK and those reflected in the Military Committee Report it may be necessary to express reservations r ather than understandings Bot h the US and the UK disagreed They pointed out that r eserva tions would amount to an admission that the articles dealing with methods and means of combat govern the use of nuclear weapons The US and UK also s t ated that our statements made at the Diplomatic Conference clearly r eflect an understanding without which we would not have been able to participate in the conference 'hile recognizing that the use of nuclear weapons is subject to the present principles of international law there is nothing in the Protocols as such which has any effect on the use of nuclear weapons In other words the Protocols leave the law governing nuclear weapons as it was before the Diplomatic Conference Referring to a Canadian proposal the UK objected to any study on the rules to be applied by NATO concerning the use of nuclear weapons as being beyond the scope of the consideration of the Protocols c With regard to conventional warfare the FRG experts expressed the view that the Protocols demand detailed rules as to the employment of weapons to avoid indiscriminate effects Detailed rules ust also be developed as to methods of warfare to avoid violations of the rules against indfscriminate attacks and the rule of proportionality Incl 6 The subjects which require such regulation nre listed in Incl 7 which was delivered privately They include incendiary w 'apons high velocity bullets fragment a tion ammunition operational principles for long range patrols use of mines operational principles for artillery including harrassing fires unobserved fires reconnaissance by fire and a considerat ion of the stay-put policy Conv rsations with Mr Schneider indicate t hat he has in mind highly restrictive regulations based on a rigid and literal interpretation of Articl es 35-60 d The U S expert suggested in a private US-UK-FRG meeting that whereas coordination as to timing and substance were desirable ideals it is not likely to be politically feasible The problem of coordinating the basic rules for the conduct of military operations cannot feasibly be effected by common provisions in national manuals It may however be feasible t o develop NATO or subordinate NATO command rules of engagement or op rating procedures which could be fitted to the requirements presented by the count ries in which NATO forces might oper te These might differ among the various NATO coC I mJs based on conditions of the terrain population density and eneny capabilities DECLASSIFIED Authority N N D lot o11 ' -I r I j DAJA-IA SUBJECT · - i ' ju · It I 23 February 1978 Report of U S Expert to NATO POLADS Experts Heeting on Protocols Additional to the 1949 Geneva Conventions e Norway indicated that it would be ready to ratify the Protocols t his summer and ics represent a tive indicated doubt that Norway would be willing to wait until all others are ready to ratify Although agreeing with the U S nuclear underst and i ng it might not be politically feasible t o express it In response to a ques tion from Norway the US expert expressed the hope that as IDBny non-nuclear states as possible express t he nuclear understanding If any believe that it is not politically f easible their silence on the subject would be appreciated and construed a s an acquiescence in the US-UK understanding f Two working groups were proposed 1 A legal group to consider matters relevant to ratifica tion and A legal-military group to develop uniform combat r ules FRG proposals for the mandate of such a working group and model drafts on rule s r elevant to mine warfare are anticipated in mid- 1arch 1978 The Rep resentative of the Military Committee suggested that the proposal be referred to the Military Agency for Standardization 2 6 COUCLUSIONS a The developments outlined above require close attention by OSD JCS the Services and the State Department b The mat t er s raised by the FRG may substantially delay the process o f ratifi cation in several NATO countries c In order to avoid unacceptable restrictions on the conduct of suecessful military operation within NATO the US must participate in the working groups if they are established ' d Uniformit y of application of the law of war in regional NATO operat i ons can partially be effected through the development of Rules of Engagement Operating Procedures within each NATO command 7 Incl WALDBIAR A SOLF as U S Representative to NATO POLADS Expert s Neeting 4 DECLASSIFIED Authority N N 'D lo oJ J ' i -