legal obligation to comply with the Protocols. Furthermore, the U.S. considers many of the provisions of the Protocols to
be applicable as customary international law. The impetus for drafting the Protocols was the International Committee of
the Red Cross' belief that the four Geneva Conventions and the Hague Regulations insufficiently covered certain areas of
warfare in the conflicts following WWII, specifically aerial bombardments, protection of civilians, and wars of national
liberation. New or expanded areas of definition and protection contained in Protocols include provisions for: medical
aircraft, wounded and sick, prisoners of war, protections of the natural environment, works and installations containing
dangerous forces, journalists, protections of civilians from indiscriminate attack, and legal review of weapons.
The U.S. views the following GP I articles as either legally binding as customary international law or acceptable
practice though not legally binding: 5 (appointment of protecting powers); 10 (equal protection of wounded, sick, and
shipwrecked); 11 (guidelines for medical procedures); 12-34 (medical units, aircraft, ships, missing and dead persons);
35(1)(2) (limiting methods and means of warfare); 37 (perfidy prohibitions); 38 (prohibition against improper use of
protected emblems); 45 (prisoner of war presumption for those who participate in the hostilities); 51 (protection of the
civilian population, except para. 6 -- reprisals); 52 (general protection of civilian objects); 54 (protection of objects
indispensable to the survival of the civilian population); 57-60 (precautions in attack, undefended localities, and
demilitarized zones); 62 (civil defense protection); 63 (civil defense in occupied territories); 70 (relief actions); 73-89
(treatment of persons in the power of a party to the conflict; women and children; and duties regarding implementation of
GPI).
The U.S. specifically objects to articles: 1(4) (GP I applicability to certain types of armed conflicts - wars of national
liberation from "colonial domination," "alien occupation," and "racist regimes"); 35(3) (environmental limitations on
means and methods of warfare); 39(2) (limits on the use of enemy flags and insignia); 44 (expansion of definition of
combatants, relaxing of requirement to wear fixed distinctive insignia recognizable at a distance; reducing threshold of
lawful combatants status to requirement to carry arms openly during military engagement or in military deployment
preceding an attack; when visible to an adversary); 47 (non-protection of mercenaries); 55 (protection of the natural
environment) and 56 (protection of works and installations containing dangerous forces). See Michael J. Matheson, The
United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949
Geneva Conventions, 2 Am. U. J. Int'l L. & Pol'y 419, 420 (1987)
Other Treaties. The following treaties restrict specific aspects of warfare:
Gas (ref. (8) and (9)). Geneva Protocol of 1925 prohibits use in war of asphyxiating, poisonous, or other gases . . . .
U.S. reserved the right to respond with chemical weapons to a chemical attack by the enemy. The Chemical Weapons
Convention (CWC), article I(1), prohibits production, stockpiling, and use (even in retaliation). The U.S. ratified the
CWC in April 1997.
Cultural Property (ref. (10)). The 1954 Hague Cultural Property Convention prohibits targeting cultural property,
and sets forth conditions when cultural property may be used by a defender or attacked. Although the United States has
not ratified the treaty, it does regard its provisions as relevant to the targeting process: "United States policy and the
conduct of operations are entirely consistent with the Convention's provisions. In large measure, the practices required
by the convention to protect cultural property were based upon the practices of US military forces during World War II."
Message from the President of the United States transmitting the Hague Protocol to the 106th Congress for Advice and
Consent, 6 January 1999.
Biological Weapons (ref. (11)). Biological weapons are prohibited by the 1925 Geneva Protocol. In addition,
prohibitions on their use in retaliation, as well as on production, manufacture, and stockpiling, are included in the 1972
Biological Weapons Convention.
Conventional Weapons (ref. (12)). The 1980 Conventional Weapons Treaty restricts or prohibits the use of certain
weapons deemed to cause unnecessary suffering or to be indiscriminate: Protocol I non-detectable fragments; Protocol
II - mines, booby traps and other devices; Protocol III - incendiaries; and Protocol IV - laser weapons. The U.S. has
ratified the treaty by ratifying Protocols I and II. The Senate is currently reviewing Protocols III and IV and amendments
to Protocol II for its advice and consent to ratification. The treaty is often referred to as the UNCCW - United Nations
Convention on Certain Conventional Weapons.
Chapter 2
7
Law of War
Previous Page
