¹ Opened for signature Dec. 12, 1977, 1125 UNTS 3, reprinted in International Committee of the Red Cross, Protocols Additional to the Geneva Conventions of 12 August 1949 (1977), 72 AJIL 457 (1978), 16 ILM 1391 (1977), Documents on the Laws of War 389 (A. Roberts & R. Guelff 2d ed. 1989) [hereinafter A. Roberts & R. Guelff].

For an overview of the Protocol and discussion of some of its major changes in the law, see Aldrich, New Life for the Laws of War, 75 AJIL 764 (1981).

Useful commentaries on the Protocol are found in M. Bothe, K.J. Partsch & W. A. Solf, New Rules for Victims of Armed Conflicts (1982); and Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Y. Sandoz, C. Swinarski & B. Zimmermann eds. 1987), published by the International Committee of the Red Cross [hereinafter ICRC Commentary].

² Letter of Transmittal from President Ronald Reagan, Protocol II Additional to the 1949 Geneva Conventions, and relating to the Protection of Victims of Noninternational Armed Conflicts, S. Treaty Doc. No. 2, 100th Cong., 1st Sess., at III (1987), reprinted in 81 AJIL 910 (1987) [hereinafter Letter of Transmittal].

³ Statement made in the final plenary session on the adoption of the two Protocols (June 9, 1977), quoted in United States Delegation to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Report, App. D (Sept. 8, 1977) [hereinafter U.S. Delegation Report]. Portions of the Report can be found in 1977 Digest of United States Practice in International Law 918–19.

⁴ U.S. Delegation Report, supra note 3, at 28.

⁵ Contemporary Practice of the United States, 72 AJIL 405, 407 (1978), reprinted in A. Roberts & R. Guelff, supra note 1, at 468.

⁶ South Africa attended only the first session of the Diplomatic Conference in 1974. While Israel attended and participated fully in all four sessions of the conference, its negative conclusions, which related primarily to the provisions on wars of national liberation and irregular combatants, were stated clearly in the final plenary sessions, and it did not sign the Final Act.

⁷ Algeria, Angola, Antigua and Barbuda, Argentina, Austria, Bahamas, Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin, Byelorussian Soviet Socialist Republic, Bolivia, Botswana, Bulgaria, Burkina Faso, Cameroon, Central African Republic, China, Comoros, Congo, Costa Rica, Cuba, Cyprus, Czechoslovakia, Democratic People’s Republic of Korea, Denmark, Ecuador, El Salvador, Equatorial Guinea, Finland, Gabon, Gambia, Ghana, Greece, Guatemala, Guinea, Guinea-Bissau, Guyana, Holy See, Hungary, Iceland, Italy, Ivory Coast, Jamaica, Jordan, Kuwait, Laos, Liberia, Libyan Arab Jamahiriya, Liechtenstein, Luxembourg, Mali, Malta, Mauritania, Mauritius, Mexico, Mozambique, Namibia (represented by the Council for Namibia), Netherlands, New Zealand, Niger, Nigeria, Norway, Oman, Qatar, Peru, Republic of Korea, Romania, Rwanda, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Solomon Islands, Saudi Arabia, Senegal, Seychelles, Sierra Leone, Spain, Suriname, Sweden, Switzerland, Syria, Tanzania, Togo, Tunisia, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, United Arab Emirates, Uruguay, Vanuatu, Vietnam, Western Samoa, Yemen, Yugoslavia, Zaire. International Committee of the Red Cross, 1977 Protocols Additional to the Geneva Conventions of 12 August 1949: Ratifications and Accessions (May 7, 1990).

⁸ Feith, Law in the Service of Terror—The Strange Case of the Additional Protocol, Nat’l Interest, No. 1, Fall 1985, at 36; Sofaer, Terrorism and the Law, 64 Foreign Aff. 901 (1986); Roberts, The New Rules for Waging War: The Case Against Ratification of Additional Protocol I, 26 Va. J. Int’l L. 109 (1985); Safire, Rights for Terrorists? A 1977 Treaty Would Grant Them, N.Y. Times, Nov. 15, 1984, at A31, col. 5.

For responses to these comments, see Aldrich, Progressive Development of the Laws of War: A Reply to Criticisms of the 1977 Geneva Protocol I, 26 Va.J. Int’l L. 693 (1986); Solf, A Response to Douglas J. Feith’s Law in the Service of Terror—The Strange Case of the Additional Protocol, 20 Akron L. Rev. 261 (1986); Gasser, An Appeal for Ratification by the United States, 81 AJIL 912 (1987).

⁹ Feith, supra note 8, at 47.

¹⁰ Sofaer, supra note 8, at 912.

¹¹ Although the critics of Protocol I probably do not know it, the U.S. delegation came very close to walking out of the Diplomatic Conference in 1975 during its second session. I was instructed by Secretary of State Kissinger to leave if the National Liberation Front of South Vietnam (the Vietcong) were admitted to the conference, and their admission was defeated by a tie vote. It was our last victory of the Vietnam War, as the North Vietnamese forces entered Saigon only a few weeks later.

¹² Letter of Transmittal, supra note 2, at IV.

¹³ 82 AJIL 784 (1988).

¹⁴ Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, TIAS No. 3362, 75 UNTS 31 [hereinafter Geneva Convention No. I]; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, TIAS No. 3363, 75 UNTS 85 [hereinafter Geneva Convention No. II]; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949,6 UST 3316, TIAS No. 3364, 75 UNTS 135 [hereinafter Geneva Convention No. III]; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287 [hereinafter Geńeva Convention No. IV].

¹⁵ Sofaer, supra note 13, at 786. Similar points were made in remarks prepared by the Legal Adviser for delivery to a workshop on international humanitarian law on Jan. 22, 1987. For the text, see The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law, 2 Am. U.J. Int’l L. & Pol’y 415,460 (1987) [hereinafter Workshop]. In those remarks, Sofaer went so far as to infer that the “political and philosophical intent” of the Protocol “aims to encourage and give legal sanction not only to ‘national liberation’ movements in general, but in particular to the inhumane tactics of many of them.” Id. at 463. Neither the Protocol nor those of us who negotiated it had such an intent, and I hope that the present article will help to correct that misapprehension.

¹⁶ See also Article 4, which provides:

The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question.

¹⁷ Solf also points out that the reference in paragraph 4 to the UN Declaration on Friendly Relations was intended to give an additional basis for states other than South Africa, Rhodesia and Israel to deny that any armed conflict they might face was a war of national liberation. Solf, supra note 8, at 281.

¹⁸ On Dec. 3, 1980, the African National Congress made a “Declaration” to the ICRC limited to an intention to respect the “general principles of humanitarian law applicable in armed conflicts.” The declaration was annexed to a letter from the chairman of the United Nations Special Committee against Apartheid to the Secretary-General, UN Doc. A/35/710 (1980). The declaration did not refer specifically to Article 1, paragraph 4 or to Article 96, but referred to the Geneva Conventions and the Protocol in the following terms: “Wherever practically possible, the African National Congress of South Africa will endeavour to respect the rules of the four Geneva Conventions of 1949 for the victims of armed conflicts and the 1977 Additional Protocol I relating to the protection of victims of international armed conflicts.”

¹⁹ Sofaer, supra note 13, at 786.

²⁰ Sofaer has also asserted that, as a result of Article 1, paragraph 4, “[a]ny group within a national boundary, claiming to be fighting against colonial domination, alien occupation, or a racist regime, can now argue that it is protected by the laws of war, and that its members are entitled to POW status for their otherwise criminal acts.” Workshop, supra note 15, at 465. One can, I suppose, argue anything, but I think that such an argument could not have been made seriously by anyone who understood Article 96, paragraph 3.

²¹ Letter of Transmittal, supra note 2, at IV.

²² Geneva Convention No. III, supra note 14, Art. 4(A)(2).

²⁹ See, e.g., M. Bothe, K.J. PARTSCH & W. A. Solf, supra note 1, para. 2.1.1, at 244–46: J. Stone, Legal Controls of International Conflict 566 (1954); Aldrich, supra note 1, at 768–70.

²⁴ Accord, ICRC Commentary, supra note 1, paras. 1672–75.

²⁵ States should of course ensure that this offense is made criminal under their law if it is not already criminal, and that appropriate penalties are provided.

²⁶ Solf points out that irregulars who fail to meet the minimum standards of paragraph 4 and thus forfeit their rights to POW status are vulnerable to trial not only as common criminals, but also for breaches of the law of armed conflict, for example, perfidy, as prohibited by Article 37 of the Protocol. Solf, supra note 8, at 279.

²⁷ The Diplomatic Conference considered, but ultimately decided to reject, an article that would have prohibited reservations to certain specified provisions. Being unable to agree on the nonreservable provisions, the conference recognized that, pursuant to Article 19 of the Vienna Convention on the Law of Treaties, a reservation would be permissible unless it was “incompatible with the object and purpose of the treaty.” See M. Bothe, K.J. Partsch & W. A. Solf, supra note 1, at 570–72.

²⁸ Thus, while the President’s letter of transmittal, the Secretary of State’s letter of submittal, and the Legal Adviser’s Rationale all set forth at length the political objections related to Articles 1(4) and 44, the references to the JCS study and conclusions were limited to one brief paragraph.

²⁹ The quotations are from the Secretary of State’s letter of submittal, attached to President Reagan’s letter of transmittal. Letter of Submittal from Secretary of State George P. Shultz, S. Treaty Doc. No. 2, supra note 2, at VII, IX [hereinafter Letter of Submittal]. Virtually identical language appears in the Legal Adviser’s Rationale. Sofaer, supra note 13, at 785.

³⁰ See Workshop, supra note 15, at 423–29.

³¹ Article 56 provides, in part, as follows:

1. Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.

2. The special protection against attack provided by paragraph 1 shall cease:

(a) for a dam or a dyke only if it is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support;

(b) for a nuclear electrical generating station only if it provides electric power in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support;

(c) for other military objectives located at or in the vicinity of these works or installations only if they are used in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.

3. In all cases, the civilian population and individual civilians shall remain entitled to all the protection accorded them by international law, including the protection of the precautionary measures provided for in Article 57. If the protection ceases and any of the works, installations or military objectives mentioned in paragraph 1 is attacked, all practical precautions shall be taken to avoid the release of the dangerous forces.

³² Workshop, supra note 15, at 434, 468.

³³ Aldrich, supra note 8, at 714–16.

³⁴ Report to Committee III, Conf. Doc. CDDH/III/264/Rev.l (Mar. 13, 1975), 15 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Official Records 347 (1978), reprinted in 3 H. Levie, Protection of War Victims: Protocol I to the 1949 Geneva Conventions 293, 295 (1980).

³⁵ Sofaer also construed Article 56 as prohibiting attacks against a nuclear plant that is used to produce plutonium for nuclear weapons purposes. Workshop, supra note 15, at 469. Such a plant, however, is a weapons plant, not a power plant covered by Article 56 at all.

³⁶ Professor Solf’s view is that Article 56 “differs little from customary international law.” Solf, Protection of Civilians Against the Effects of Hostilities Under Customary International Law and Under Protocol 1, 1 Am. U.J. Int’l L. & Pol’y 117, 134 (1986).

³⁷ See the excerpts from the records of the conference collected in 3 H. Levie, supra note 34, at 259–77.

³⁸ M. Bothe, K. J. Partsch & W. A. Solf, supra note 1, para. 2.7, at 348, state the following conclusion:

In view of the well established and uncontradicted interpretations in the Report of the Committee [Committee III of the Diplomatic Conference], as well as that made in declarations, Arts. 35(3) and 55 will not impose any significant limitation on combatants waging conventional warfare. It seems primarily directed to high level policy decision makers and would affect such unconventional means of warfare as the massive use of herbicides or chemical agents which could produce widespread, long-term and severe damage to the natural environment.

³⁹ I no longer have access to the State Department records relevant to the use of herbicides in the Vietnam War, so I cannot cite the appropriate documents. From 1965 to 1969, I was Assistant Legal Adviser for East Asian and Pacific Affairs. From 1969 to 1977, I was Deputy Legal Adviser.

As for the Protocol, it should be noted that Solf comments in connection with the provisions on damage to the environment that “[a]lthough the formulation is new, and the protections granted by Protocol I are greater, this prohibition is so basic that it must be construed as being inherent to a general principle of law and thus, general international law.” Solf, supra note 36, at 134.

⁴⁰ Protocol I, supra note 1, Art. 5.

⁴¹ Paragraph 2(c) of Article 90 provides:

The Commission shall be competent to:

(i) enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol;

(ii) facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol.

⁴² In January 1987, Judge Sofaer stated that “it is extremely unlikely that either the Soviet Union or any of its allies or clients would consent to the activities of the Commission.” Workshop, supra note 15, at 470. On that point, I certainly would have agreed with him at that time.

⁴⁵ See F. Kalshoven, Belligerent Reprisals (1971).

⁴⁴ Convention Relative to the Treatment of Prisoners of War, July 27, 1929, Art. 2, 47 Stat. 2021, TS No. 846, 2 Bevans 932.

⁴⁵ Geneva Convention No. I, supra note 14, Art. 46; Geneva Convention No. II, supra note 14, Art. 47; Geneva Convention No. III, supra note 14, Art. 13; Geneva Convention No. IV, supra note 14, Art. 33.

⁴⁶ Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, Art. 4, para. 4, 249 UNTS 240.

⁴⁷ A state party cannot simply suspend or terminate the operation of all or part of the Protocol on the ground of material breach by its adversary. Article 60, paragraph 5 of the Vienna Convention on the Law of Treaties excludes from the relevant rules of suspension or termination “provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.” Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331.

⁴⁸ ICRC, Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Reservations, Declarations and Communications as at 30 June 1989 (1989), reprinted in A. Roberts & R. Guelff, supra note 1, at 465.

⁴⁹ It is arguable, of course, that a right of reprisal should also be reserved in the event of other systematic and serious war crimes.

⁵⁰ Several remarks reported to have been made by an active-duty officer, Lt. Col. Burrus M. Carnahan, although apparently not made in his official capacity, at the January 1977 American University workshop on the Protocol, suggest some of the provisions that may have been meant by this objection. He identified the presumption of civilian status in case of doubt (Arts. 50(1) and 52(3)) and the requirement that parties respect their legal obligations with respect to civilians even when an enemy has violated its obligations not to place civilians near military objectives in an effort to deter attacks on such objectives (Art. 51(7) and (8)). Workshop, supra note 15, at 506. He also pointed to Article 57 on precautions in attack, id. at 516, and concluded that “the Joint Chiefs of Staff carefully reviewed the Protocol but could not recommend ratification simply because it would create too many problems as a result of the complexity and comprehensiveness of the Protocol,” id. at 519. Certainly, the Protocol is both comprehensive and, in places, complex, as are most laws, but 1 have no doubt that the Government of the United States has the competence to translate it into military manuals that would be both practicable and comprehensible to military officers. What appears to be lacking is the desire.

⁵¹ U.S. Delegation Report, supra note 3, App. C.

⁵² Letter of Submittal, supra note 29, at X; Workshop, supra note 15, at 420 (remarks of Michael J. Matheson); see also Parks, Remarks, Customary Law and Additional Protocol I to the Geneva Conventions for Protection of War Victims, 81 ASIL Proc. 27 (1987) [hereinafter ASIL Panel].

⁵³ Matheson has acknowledged that achievement of agreement would be difficult, if not impossible, even among governments with similar interests and outlooks. Workshop, supra note 15, at 422; Matheson, Remarks, ASIL Panel, supra note 52, at 29.

⁵⁴ Since Israel opposed the Protocol from the moment Article 1, paragraph 4 was adopted, whereas the United States supported the Protocol prior to the advent of the Reagan administration, it may be more accurate to say that Israel has no followers except the United States.

⁵⁵ On the basic problem, see T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989). Comments on the efforts by the United States to identify certain principles and provisions of Protocol I as customary law are found at pp. 62-70 and 74-78. For discussion of how the norms of general international law may be ascertained, see Workshop, supra note 15, at 436-60; ASIL Panel, supra note 52, at 26-43.

⁵⁸ See supra note 36. Meron points out that the United States has identified relatively few provisions of Protocol I as unlikely candidates for customary law status and adds that “[a]lthough these provisions are very important, it can be suggested, a contrario, that the United States agrees that the bulk of the provisions of Protocol I embodies norms which either have already matured into customary law or are appropriate for maturation into customary law.” T. Meron, supra note 55, at 67.