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On August 11, 1975, Secretary of State Kissinger addressed the annual convention of the American Bar Association at Montreal on the subject of international law, world order, and human progress. Among the contemporary issues presenting international challenge he included "the laws of war where new practices of barbarism challenge us to develop new social and international restraint.” He emphasized the need for greater protection of war victims and the application of international standards for humane conduct in civil wars. The following is an excerpt from his address:

The struggle to restrain violence by law meets one of its severest tests in the law of war. Historically, nations have found it possible to observe certain rules in their conduct of war. This restraint has been extended and codified, especially in the past century. In our time new, ever more awesome tools of warfare, the bitterness of ideologies and civil warfare, and weakened bonds of social cohesion have brought an even more brutal dimension to human conflict.

At the same time our century has also witnessed a broad effort to ameliorate some of these evils by international agree ments. The most recent and comprehensive is the four Geneva Conventions (of 1949 ) for the Protection of War Victims.

But the law in action has been less impressive than the law on the books. Patent deficiencies in implementation and compliance can no longer be ignored. Two issues are of paramount concern: First, greater protection for civilians and those imprisoned, missing, and wounded in war; and, second, the application of international standards of humane conduct in civil wars.

An international conference is now underway to supplement the 1949 Geneva Conventions on the law of war. We will continue to press for rules which will prohibit nations from barring a neutral country, or an international organization such as the International Committee of the Red Cross, from inspecting its treatment of prisoners. We strongly support provisions requiring full accounting for the missing in action. We will advocate immunity for aircraft evacuating the wounded. And we will seek agreement on a protocol which demands humane conduct during civil war, which bans torture, summary execution, and the other excesses which too often characterize civil strife.

The United States is committed to the principle that fundamental human rights require legal protection under all circumstances; that some kinds of individual suffering are intolerable no matter what threat nations may face. The American people and Government deeply believe in fundamental standards of humane conduct; we are committed to uphold and promote them; we will fight to vindicate them in international forums.

See Dept. of State Bulletin, Vol. LXXIII, No. 1889, Sept. 8, 1975, pp. 353-362.

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The United States and 124 other states participated in the second session of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, held in Geneva from February 3 to April 18, 1975. George H. Aldrich, Deputy Legal Adviser of the Department of State and Chairman of the U.S. Delegation to the Conference, submitted a delegation report on July 18, 1975, stating that the session had made substantial progress in developing draft protocols to the 1949 Geneva Conventions on the Protection of War Victims and that the interests of the United States had been reasonably well served.

The Conference, organized into committees, considered two draft protocols: Protocol I—International Armed Conflicts, and Protocol II—Non-International Conflicts. The protocols had been prepared by the International Committee of the Red Cross (ICRC) on the basis of two prior conferences of government experts which had met in Geneva in 1971 and 1972 under ICRC auspices. Committee I of the 1975 Conference dealt with the general provisions of the two protocols. Committee II dealt with the wounded, sick and shipwrecked, civil defense, and relief. Committee III dealt with protection of the civilian population, means and methods of combat, and a proposed new category of prisoners of war. An Ad Hoc Committee, studying certain categories of conventional weapons which might be thought to cause unnecessary suffering or to be indiscriminate in their effects, deferred adopting any texts pending further work by a conference of experts.

Important issues on which committee action was completed and articles were prepared for consideration by the Conference included:

-more specific procedures for the appointment of a protecting power for prisoners of war and protected civilians (Article 5 of Protocol I);

-the formulation of reasonable rules to provide a protected status for medical aircraft (Articles 26-30 of Protocol 1);

-a provision on protection of the civilian population, including a definition of indiscriminate attacks by bombardment (Article 46, especially paragraph 3, of Protocol 1);

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-a prohibition on the starvation of civilians as a method of warfare (Article 48 of Protocol I);

-a clause on protection of the natural environment (Article 48 bis of Protocol I);

-a restriction on making works or installations containing dangerous forces-namely dams, dikes, and nuclear generating stations-an object of attack (Article 49 of Protocol I);

-a provision on precautions to be taken to spare the civilian population, civilians, and civilian objects (Article 50 of Protocol I); and

-the scope of application of the protocol on non-international conflicts (Article 1 of Protocol II).

Excerpts from Mr. Aldrich's delegation report describing these issues and their development in the Conference follow:

Among the provisions considered by Committee I, the two most important and difficult were Article 5 of Protocol I, and Article 1 of Protocol II, concerning the scope of application of Protocol II.

Even before the beginning of the Conference, the United States urged the protecting power system be improved as the most critical element in ensuring that the law would be implemented. In June 1971, at the first Conference of Government Experts, the United States experts submitted a draft procedure for the appointment of protecting powers. In 1972, the United States experts submitted a formal amendment on this matter. These ideas proved to be the genesis of draft Article 5 in Protocol I, as proposed by the ICŘC. The draft article contained a series of procedures to facilitate the appointment of protecting powers, including a mechanism for the submission of lists to the ICRC. In its crucial paragraph, however, the ICRC draft presented two alternatives. One provided that the parties to the conflict would have to accept, as the final, mandatory fallback, an offer made by the ICRC to act as a substitute for a protecting power. The other alternative provided that the ICRC could assume the functions of a substitute provided the parties to the conflict so agreed. The United States favored the former solution because, in our view, it was the only way to ensure that, if all else failed, the functions of a protecting power would in fact be performed.

There were lengthy discussions and negotiations concerning Article 5. Eastern bloc countries, France, and some other countries were insistent that there must be agreement of the parties involved on any protecting power or substitute, and that it was both undesirable and unrealistic to impose a protecting power or substitute without the consent of the states involved. On the other hand, the United States and a number of other Western European countries took the position that it was possible for states to agree, in becoming parties to the new Protocol, that

they would accept an impartial organization, such as the ICRC, as a final, fallback substitute for a protecting power.

The final compromise on this point provides that the parties to the conflict: “Shall accept without delay an offer which may be made by the International Committee of the Red Cross or by any other organization which offers all guarantees of impartiality and efficacy ... to act as a substitute. The functioning of such a substitute is subject to the consent of the parties to the conflict; all efforts shall be made by the parties to facilitate the operation of a substitute. ...” The second sentence of this paragraph, which requires the consent of the parties for the “functioning" of the substitute, does not qualify the basic obligation to accept an offer made by an appropriate organization to act as a substitute. Rather, it recognizes the obvious fact that the parties, especially the detaining party, will have control over the actual operations of the substitute and that, therefore, the cooperation of the parties in matters such as obtaining visas and transportation for representatives of the substitute will be essential. While the United States Delegation would have preferred a stronger formulation, it was probably the best compromise text that could be achieved and ... was considered by the United States Delegation to be a significant strengthening of the protecting power system.

Article 5 as adopted, in addition, clearly sets forth the duty of the parties to secure the supervision and implementation of the Geneva Conventions and the new Protocol by the application of the system of protecting powers. Each party to the conflict is under the duty to designate and to accept protecting powers. The article as adopted also provides that the ICRC, without prejudice to the right of any other impartial humanitarian organization to do likewise, shall offer its good offices to the parties with a view to the designation without delay of protecting powers. For that purpose, it may ask each party to provide a list of at least five states which it would accept.

The other key issue considered in Committee I was the scope of application of Protocol II, which pertains to non-international armed conflicts. The draft submitted by the ICRC, which the U.S. and other Western European countries supported, provided that the Protocol would apply to all armed conflicts not covered by Article 2 common to the Geneva Conventions of August 12, 1949, taking place between armed forces or other organized armed groups under responsible command. The draft excluded situations of internal disturbance and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature. This "low threshold” of application would have been complementary to the elaboration of a protocol prescribing basic humanitarian protection and applicable in a large number of cases, an orientation of which the Canadian Delegation has been the key exponent during the past four years. However, a wide range of states, including Argentina, Honduras, Brazil, Mexico, Nigeria, Indonesia, Pakistan, India, Romania and to some extent the U.S.S.R., desired to add additional criteria which would effectively raise the threshold of application of the protocol or make it more subjective, thus permitting individual governments more latitude to decide that the protocol did not apply. Such criteria included, for example, large-scale violence, high intensity violence, duration, and control of territory.

Despite efforts to allay fears of those who believe that the application of basic humanitarian norms in non-international conflicts would elevate the status of the rebels, it was impossible to negotiate a threshold of application of the protocol of a low level. The version adopted by Committee I by consensus on March 17 requires that the armed conflict take place "in the territory of a high contracting party between its armed forces and dissident armed forces or other armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement the present protocol.” The U.S., Canada and other Western European Delegations, in the end, acquiesced in this formulation. As a price for raising the threshold, we were able to exact a formulation which we hope will lend itself less readily to subjective interpretation by a state which is involved in an internal armed conflict. Adjectives such as “important" and "substantial" were kept out. The basic problem of Article 1, as adopted, is that one of the elements required for the applicability of the Protocol is the ability of the rebel to apply it; thus, with each increase in the complexity of the substantive provisions of Protocol II, the threshold of application of the protocol itself becomes higher. If the protocol achieved is a basic, humanitarian text, it will be possible to argue that the threshold is reasonably low. A trend appears to be developing, however, to adopt articles in Protocol II that establish extensive and complicated affirmative obligations for insurgent groups. If this trend continues, the extensive obligations will tend to establish a threshold so high that Protocol II will be unlikely to be applied.

Section II of Part II of Protocol I extends to civilian medical transport on land and sea the protections provided to military land and sea medical transport, and establishes a new regime for the protection of military and civilian medical aircraft. Previously, Article 36 of the First Geneva Convention, Article 39 of the Second, and Article 22 of the Fourth limited protection for such aircraft to those flying under an agreed flight plan. The U.S. Delegation worked to establish a new regime which would facilitate improved identification of medical aircraft through the use of visual and electronic signals, and liberate medical aircraft from the requirement of an agreed flight plan except while flying in areas controlled by enemy forces. The articles finally adopted were based in major part on an extensive revision of the entire section proposed by the U.S. and Belgium, Canada, and

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