bellion, could afford to apply international standards to captured rebels, if by so doing it implicitly acknowledged the justness of the rebels' cause or their right to self-determination. If we are to succeed in the development of the protocols before us, we must make laws to protect all war victims, friends and enemies alike.

*

See Report of the U.S. Delegation to the Conference, June 10, 1974, Annex D, pp. 39-41. See also Ch. 4, § 5, supra, pp. 188-189.

Implementation

On November 5, 1974, the Department of Defense issued a Directive on the implementation of the laws of war. The Directive provides policy guidance and assigns responsibilities within the Department "for a program to insure implementation of the law of war." The text of the Directive is as follows:

I. Purpose

This Directive provides policy guidance and assigns responsibilities within the Department of Defense for a program to insure implementation of the law of war.

II. Program Objectives

Its objectives are to:

A. Ensure that the law of war and the obligations of the United States Government under that law are observed and enforced by the Armed Forces of the United States.

B. Ensure that a program, designed to prevent violations of the law of war, is implemented by the Armed Forces of the United States.

C. Ensure that alleged violations of the law of war, whether committed by U.S. personnel or enemy personnel, are promptly reported, thoroughly investigated, and, where appropriate, remedied by corrective action.

III. Applicability

The provisions of this Directive apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, Defense Agencies, and the Unified and Specified Commands (hereinafter referred to collectively as "DoD Components").

IV. Definition and Scope

A. The law of war encompasses all international law with respect to the conduct of armed conflict, binding on the United States or its individual citizens, either in international treaties and agreements to which the U.S. is a party, or applicable as customary international law.

B. There is excluded from the scope of this Directive that part of the law of war relating to the acquisition and procurement of weapons and weapons systems for the Armed Forces of the United

States, which is the subject of DoD Instruction 5500.15 (reference (d)).

V. Policy

A. The Armed Forces of the United States will comply with the law of war in the conduct of military operations and related activities in armed conflict however such conflicts are characterized.

B. The Armed Forces of the United States will insure that programs to prevent violations of the law of war to include training and dissemination as required by the Geneva Conventions (GWS Art. 47 (reference (g)), GWS Sea Art. 48 (reference (h)), GPW Art. 127 (reference (i)), GC Art. 144 (reference (j)), and by Hague Convention IV (Art. I) (reference (f)), are instituted and implemented.

C. Violations of the law of war alleged to have been committed by or against members of, or persons accompanying or serving with, the Armed Forces of the United States will be promptly reported, thoroughly investigated, and, where appropriate, followed by corrective action.

D. Violations of the law of war alleged to have been committed by or against allied military or civilian personnel will be reported through appropriate command channels for ultimate transmission to appropriate agencies of allied governments.

VI. Responsibilities

A. The Assistant Secretary of Defense (Manpower and Reserve Affairs) will maintain overall coordination of and monitor the service plans and policies for training and education in the law of war. B. The Assistant Secretary of Defense (International Security Affairs) will coordinate DoD positions on international negotiations of the law of war.

C. The Assistant Secretary of Defense (Public Affairs) will monitor the public affairs aspects of the DoD law of war program and provide public affairs policy guidance as appropriate, to include coordination with the Department of State on matters of mutual public affairs concern.

D. The DoD General Counsel will provide overall legal guidance within the Department of Defense pertaining to the DoD law of war programs, to include review of policies developed in connection with the program and coordination of special legislative proposals and other legal matters with other Federal departments and agencies.

E. The Secretaries of the Military Departments will develop internal policies and procedures consistent with this Directive in support of the DoD law of war program in order to:

1. Provide publication, instructions, and training so that the principles and rules of the law of war will be known to members of their respective departments, the extent of such knowledge to be commensurate with each individual's duties and responsibilities.

2. Provide for the prompt reporting and investigation of alleged violations of the law of war committed by or against members of

their respective departments in consonance with directives issued pursuant to paragraph VI.H.4. of this Directive.

3. Provide for the appropriate disposition, under the Uniform Code of Military Justice, of cases involving alleged violations by persons subject to court-martial jurisdiction of their respective departments.

4. Provide for the central collection of reports and investigations of violations of the law of war alleged to have been committed by members of their respective military departments.

5. Insure that programs within their respective departments to prevent violations of the law of war are subject to periodic review and evaluation, particularly in light of any violations reported.

F. The Secretary of the Army is designated as the Executive Agent for the Department of Defense for the administration of the DoD law of war program with respect to alleged violations of the law of war committed against U.S. personnel. In this capacity he will act for the Department of Defense in the development and coordination of plans and policies for the investigation and, subject to the provisions of DoD Directive 5000.19, collection, recording, and reporting of information related to enemy violations of the law of war.

G. The Joint Chiefs of Staff will:

1. Provide guidance to the commanders of unified and specified commands conforming with the policies and procedures contained in this Directive.

2. Insure that a primary point of contact in the Organization of the Joint Chiefs of Staff is designated to handle actions concerning activities under the provisions of this Directive.

3. Issue and review appropriate plans, policies, and directives as necessary in consonance with this Directive.

4. Insure that rules of engagement issued by unified and specified commands are in consonance with the law of war.

H. Commanders of unified and specified commands will:

1. Institute necessary programs within their respective commands to prevent violations of the law of war and insure that they are subject to periodic review and evaluation, particularly in light of any violations reported.

2. Implement Joint Chiefs of Staff guidance for the collection and investigation of reports of enemy violations of the law of war.

3. Designate an authority within the command to supervise the administration of those aspects of this program dealing with alleged enemy violations.

4. Issue appropriate plans and directives to insure that war crimes allegations to which this Directive applies are reported promptly to the appropriate authorities and investigated.

5. Insure that initial reports and reports of investigation of alleged war crimes committed by U.S. personnel are forwarded to the appropriate military departments.

6. Insure that rules of engagement issued by the command conform to the law of war.

I. The Director, Defense Intelligence Agency, will provide appropriate information from the intelligence community to the Secretary of the Army and the commanders of unified and specified commands pursuant to Paragraphs VI. F. and H. above, concerning violations of the law of war perpetrated against captured or detained United States nationals.

VII. Effective Date and Implementation

This Directive is effective immediately. Two copies of implementing documents and notification of designated representatives, in accordance with Section VI. above, and any revisions, changes or reissuances of appropriate directives or other documents thereafter, will be forwarded to the General Counsel and the Assistant Secretary of Defense (Manpower and Reserve Affairs) within 6 months. Dept. of Defense Directive No. 5100.77, Nov. 5, 1974.

Methods of Warfare

On January 18, 1974, Leonard Niederlehner, Acting General Counsel of the Department of Defense, replied to a letter of November 14, 1973, from Representative Donald M. Fraser which raised questions concerning the use of the M-16 rifle in armed conflict. One matter raised by Representative Fraser was whether the Department of Defense conducts a systematic review of weapons for conformity with international law standards prior to their adoption, and, if not, whether the Department intended to establish such a review. Mr. Niederlehner stated in his reply that at the time of the M-16 adoption and currently, "no existing regulations of the Department of Defense establish formal procedures respecting an analysis of the lawfulness of weapons newly to be introduced in service." He said that the Department "now intend[ed] to take the necessary measures to have such procedures formulated and adopted."

As for the appropriateness under international law of the M-16 rifle, Mr. Niederlehner cited paragraph 4 of Article 23 of the 1907 Hague Regulations, which provides, inter alia, that it is especially forbidden "to employ arms, projectiles, or materials calculated to cause unnecessary suffering," as well as the Army Field Manual comment on this regulation. He then said the following:

The distinguishing feature in Article 23 of the Hague Regulations is that it applies to all weapons, and qualifies the use of all weapons in armed conflict making unlawful uses which cause suffering intentionally superfluous to a valid military purpose. The term "unnecessary suffering" conveys this interpretation. The terms, "calculated to cause" convey the element of intent such that members of the

Armed Forces cannot justify the use of weapons inconsistent with attaining a legitimate military objective. This criterion must be distinguished from prohibitions agreed to by states for outlawing weapons regardless of how they are used or intended to be used. As noted in the Field Manual . . . one must refer to the practices of states in order to determine the present meaning of these principles.

With respect to such practices, our examination shows that numerous countries have acquired the M-16. Among such countries are Australia, New Zealand, the Philippines, Cambodia, Laos, Thailand, Korea and Singapore. Our examination also discloses that tests made on the M-16 have shown that the lethality-or wounding impact of the weapon does not differ from weapons such as the Soviet Union's AK-47, which have been supplied by that country to numerous governments.

The United States is not a party to the agreement prohibiting the use of expanding bullets or "dum-dums", signed at The Hague, July 29, 1899. In that Agreement, the parties agreed "to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core, or is pierced with incisions." The United States has, however, acknowledged that it will abide by the terms of the agreement prohibiting expanding bullets.

The M-16 and its ammunition do not violate either the prohibition on expanding bullets or the regulation forbidding employment of weapons calculated to cause unnecessary suffering. The M-16 projectile is fully jacketed and does not, therefore, violate the prohibibition on "dum-dum" bullets. Medical and technical data indicate that wounds inflicted by the M-16 are not substantially different from other modern military arms in use today, including the M-14 and AK-47.

For the agreement prohibiting the use of expanding bullets referred to above, see the Declaration (IV, 3) Concerning Expanding Bullets signed at The Hague, July 29, 1899.

Representative Fraser had also drawn attention to Article 34 of the ICRC draft protocols to the 1949 Geneva Conventions, noting that the United States had favored the inclusion of provisions in this Article which called for the contracting parties, "in the study and development of new weapons or methods of warfare," to determine whether their use would cause "unnecessary injury." Mr. Niederlehner said the following:

United States experts in the Conferences of Government Experts did adopt that position in principle but the precise language is still subject to review within the agencies of our Government and it may be modified in the course of negotiations during the diplomatic conferences themselves. But it should also be noted that Article 34 does not purport to be a codification of existing law; rather, it looks