The Rationale for the United States Decision Author(s): Abraham D.

Sofaer Source: The American Journal of International Law, Vol. 82, No. 4 (Oct., 1988), pp. 784-787 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/2203512 . Accessed: 10/03/2014 10:12
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AGORA: THE U.S. DECISION NOT TO RATIFY PROTOCOL I TO THE GENEVA CONVENTIONS OF WAR VICTIMS (CONT'D) ON THE PROTECTION
THE RATIONALE FOR THE UNITED STATES DECISION

The October 1987 issue of theJournal contains an article writtenby Hans-Peter Gasser,' the Legal Adviser to the Directorate of the InternationalCommitteeof the Red Cross (ICRC), on the U.S. decisionnot to ratify Protocol I (on international armed conflicts) to the 1949 Geneva Convendid not theJournal tionson the Protectionof War Victims.Unfortunately, but only the President'snecesinclude any response by the administration, to the Senate ofJanuary18, 1987, recomsarilybriefletterof transmittal of Protocol II (on noninternamendingadvice and consent to ratification The President'sletterof transmittal was not intended to tional conflicts).2 of the U.S. objectionsto Protocol I, nor does it be an exhaustivestatement purportto be such. The underlyingassumption of Dr. Gasser's article is that the United or accede to Protocol I simply because States is somehow obligatedto ratify it was adopted by the Geneva Conference.We disagree. We appreciatethat Protocol I was the product of a substantial effort by the Swiss Government and the ICRC to alleviate the plightof victimsof war. Nonetheless,each such agreements sovereignstatemustmake itsdecisionon whetherto ratify based on a comprehensiveassessmentof theirmerits,includingthe consequences of ratification. The United States would have preferredto ratifyProtocol I, since it containssome sound and meritorious elements.The new provisionson the are in thiscategory, missing and dead and on protectionof medical aircraft and are largelydesigned to address problems experienced by membersof We willsupportefforts the U.S. Armed Forces duringthe Vietnamconflict. to have these provisions observed and in time recognized as customary law. international The enforcement provisionsof the Protocol give no assurance,however, would actuallybe compliedwith.Further, the Protocol thattheseprovisions also containsprovisions thatthe United Statescannotaccept froma military, political or humanitarianstandpoint.These problems were raised at the factis conference,and theyshould come as no surprise.The unfortunate thatThird World and othercountrieschose not to respectour strongviews and those of our European allies, and thus chose to create a new legal regimethatwe findunacceptable.
' Gasser,An AppealforRatification bytheUnited States, 81 AJIL 912 (1987).

Letter ofTransmittal, id. at 910. The President'sletterof transmittal and Dr. Gasser's article constituted an Agorasectionentitled"The U.S. Decision Not to Ratify Protocol I to the Geneva Conventionson the Protectionof War Victims." 784

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1988]

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aftera carefuland extensivestudy,concluded The JointChiefsof Staff, operations. thatProtocol I is unacceptablefromthe pointof viewof military The reasons, spelled out in a detailedJCS reportof more than a hundred pages, include the fact that the Protocol grants irregularsa legal status whichis at timessuperiorto thataccorded regular forces;thatit unreasonbeen attacks against certain objects that have traditionally ably restricts remediesin cases where targets;and thatit eliminatessignificant legitimate an enemyviolatesthe Protocol. The total eliminationof the rightof repriof the United Statesto respondto sal, forexample,would hampertheability establishedin the Geneva disregardof the limitations an enemy'sintentional Conventionsof 1949 or Protocol I, forthe purpose of deterringsuch disreany agreementthatdeals withU.S. nationalsecurity, gard. Before ratifying thatthe termsof the agreementare reasonable and that we mustbe satisfied they can be implementedwithoutundue consequences in terms of U.S. concluded thatthisis have unanimously casualties.Our JointChiefsof Staff clearlynot the case withrespectto Protocol I. U.S. soldierswould have to casualthroughunnecessary pay the price forsuch unreasonable limitations ties and charges of criminalactivity. is thatpart of Protothe principaldeficiency From a politicalstandpoint, the col I whichdeals withso-calledwarsof nationalliberation.Traditionally, law of war has recognizedtwo general categoriesof armed conflicts-interbetween sovereignstates)and inter(e.g., conflicts national armed conflicts nal ones (e.g., civil wars). No distinctionhas ever previouslybeen made under the law of war based on the cause forwhichone of the partiesclaims to be fighting. Rather,the law of war has had some degree of success in the world because it attemptsto be objective in its categorizationof conflicts concepts. ratherthan using subjectiveand hence politicaland controversial no is ever in prepared laws of since party war, are vital the Neutralprinciples its that warfare on the opponent has been assumption to apply rules of to be is fighting the justifiably opponent that wronged, and particularly "liberated." As the record of the 1974 session of the Diplomatic Conferencedemondominated the conference) strates,Third World states(whichnumerically armed conflict to in rules of international the applying were not interested wars rules to civil that on these insisted civil but applying wars, ordinary involved causes they favored-the so-called wars of national liberation, those being conducted by the PalestineLiberationOrganization specifically and the liberationmovementsof southernAfrica. To accomplish this objective, theypushed througha provision-Article 1(4) of Protocol I-that conflictsin treatsas internationalarmed conflictsthose noninternational against colonial dominationand alien occupawhich "peoples are fighting tion and racistregimes." One resultof thisprovision,ifactuallyapplied, would be thatthose fightstatusifcapobtain prisoner-of-war ing forsuch causes would theoretically On the for acts. from and thus belligerent prosecution immunity tured, for less-favored political causes (at least froma other hand, those fighting Third World perspective) would be treated under the rules of internal

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786

THE AMERICAN JOURNAL OF INTERNATIONAL

LAW

[Vol. 82

and would not receive POW statusor immunity conflicts, fromprosecution for warlikeacts. If one is dealing witha group like the PLO, elementsof which often use terrorist tactics,this distinction becomes very important. Treating theseterrorists as soldiersalso enhances theirstature,to the detriment of the civilizedworld community. These problems are compounded by Article 44 of Protocol I, which allows irregularfighters to retaincombatantand POW rightseven though they do not comply with the traditional requirement of distinguishing themselvesfromthe civilianpopulation by carrying theirarms openly and wearingsome distinctive sign. (The onlyexceptionwould be duringattacks and militaryoperations preparatoryto an attack.) This provision would make it easier for irregularsto operate, and it would substantially increase the risksto the civilianpopulation. Inevitably,regular forceswould treat civilians more harshlyand with less restraintif they believed that their opponents were freeto pose as civilianswhile retainingtheirrightto act as combatants and their POW status if captured. Innocent civilians would thereforebe made more vulnerableby applicationof the Protocol. This is no advance forhumanitarian law. In addition,the Protocoleliminates one of thebasic existing requirements that irregulargroups mustmeet to qualifyforcombatantand POW status: that the group as such generallyconduct its operationsin accordance with the laws and customsof war. Instead, Protocol I provides that individual membersof such groupsmustbe accorded POW benefits (withverylimited exceptions) even if the group as such (e.g., the PLO) displaysa callous and systematic thatliberationgroups disregardforthe law. This means in effect can enjoy manyof the benefits of the law of war withoutfulfilling itsduties, and withthe confidencethatthe belligerent statehas no real remedyunder the Protocol to deal withthismatter. The experience of the last decade confirms the hypocrisy of the regime establishedby Article 1(4). Having achieved a politicalvictory by "internationalizing" their own internalconflicts, so-called liberationgroups have shownlittleinterest in following throughon the obligationsof the Protocol. They have not acted in accordance withthe existingrequirementsof customaryinternational law, nor have theyeven bothered to filedeclarations with the Swiss Governmentaccepting the obligationsof the Protocol (as contemplatedin Article 96). They have been contentto cite the Protocol (e.g., in the United Nations) forthe propositionthattheymustbe accorded the benefits of humanitarian law (e.g.,.prisoner-of-war fulfillstatus)without ing the duties expected. In practice, they have continued to make indiscriminateattackson innocentcivilians. The Journalarticle complains that the U.S. decision deprives the world of a "common framework" community and "hinder[s]thedevelopmentand acceptance of universal standards in a field where they are particularly needed."3 This viewfailsto take intoaccount the factthatthe mainproblem withthe currentlaws of war is not theirsubstantive adequacy but the lack of
3 Gasser, supra note

1, at 924.

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1988]

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observance of even the most basic principles,such as immunity for noncombatantsfromintentional attack.Sadly, manyof those countriesor entities demanding new rules appear to have littleregard for the existingrequirementsof international law. In addition, the charge in the article thatthe U.S. positionis "political" and "partisan" is polemical.4The U.S. positionis based on the merits of the Protocols,and our conclusion on whethertheyadvance humanitarianlaw. From the standpointof the United States,it is not sufficient thatProtocol I was the product of enormous negotiatingefforts over manyyearsand that manycountrieshave and will become a party.The approval of the United States should never be taken for granted, especially when an agreement deals with national security,the conduct of militaryoperations and the protectionof victims of war. Finally,as the Presidentstatedin his transmittal letter,we mustnot, and need not,give recognition and protectionto terrorist groupsas the price for progressin humanitarianlaw. Article 1(4) of Protocol I creates "an unacceptable and thoroughlydistastefulprice"5 for adherence. The United States is not willingto acquiesce in such a regime.
ABRAHAM

D.

SOFAER*

4Id.

* Legal Adviser,Departmentof State.

5 Letter ofTransmittal, supra note 2, at 91 1.

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