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Hopefully this year's Geneva conference on the laws of war will be able to achieve agreement in the following areas: Application of the laws of war to internal armed conflicts; extension of prisoner-of-war status to guerrilla fighters; greater protection of civilians in armed conflicts; prohibition or restriction of the use of conventional weapons which cause unnecessary suffering; and a more effective system for the implementation of the humanitarian laws.

Internal Armed Conflicts

Article 3 of each of the Geneva conventions provides certain minimum humanitarian guarantees in armed conflicts not of an international character. Civilians as well as combatants who have laid down. their arms or who are placed hors de combat by sickness, wounds, detention, or any other cause are to be treated humanely. Acts specifically prohibited are violence to life and person, taking of hostages, humiliating or degrading treatment, and the passing of sentences and carrying out of executions without proper judicial guarantees.

The ICRC draft protocol on noninternational armed conflicts supplements article 3 by elaborating the protection which should be provided to civilians. It contains guarantees for the humane treatment of prisoners, special protection and treatment of wounded, sick and shipwrecked persons, restrictions on the methods and means of conflicts, and measures to protect and provide relief for the civilian population. The draft protocol indicates that its provisions shall apply to all armed conflicts not covered by the Geneva conventions "taking place between armed forces or other organized armed groups under responsible command." Moreover, the protocol shall not apply to "situations of internal disturbances and tensions, inter alia riots, isolated and sporadic acts of violence and other acts of a similar nature." As the subcommittee recommendation indicates, the laws of war would only apply to internal armed conflicts which meet the above international standards.

Many governments do not favor any extension of the Geneva conventions to internal armed conflict. They do not wish to provide guarantees-even in the strictly humanitarian field-to groups who are attempting to overthrow them. The draft protocol, however, does indicate that "the legal status of the parties to the conflict or that of the territories on which they exercise authority" shall not be affected by the protocol or the Geneva conventions.

The growing incidence of internal armed conflicts make it essential that the Geneva conventions be extended to cover this field.

Guerrilla Fighters

Under article 4 of the Geneva Prisoner of War Convention of 1949, guerrillas are accorded the right to POW status provided that they meet the following criteria:

(1) They belong to a party of the conflict;

(2) They are commanded by a person responsible for his subordi

nates;

(3) They have a fixed sign at recognizable distance;

(4) They carry arms openly; and

(5) They conduct their operations in accordance with the laws and customs of war.

Some of these criteria are obviously unrealistic under today's guerrilla warfare conditions. In his testimony, Maj. Gen. George S. Prugh, The Judge Advocate General of the Army, stated:

It has been the view of the Department of Defense that organized irregular forces should be accorded prisoner-of-war status when captured in combat but that they must conform to certain minimum requirements to receive this status. These would insure that such personnel be distinguishable from the civilian population during the conduct of military operations, have some recognizable system of command, and accept the requirement to conform to existing laws of war."

The draft protocol provides that guerrilla fighters shall only be provided POW status if they meet the three requirements referred to by General Prugh. Consequently, the recommendation of the subcommittee states that guerrilla fighters should only be granted POW status if they conform to international standards.

Protection of Civilians

In his testimony before the subcommittee, the Secretary General of the International Commission of Jurists, Niall MacDermot, stated that the protection of civilians in armed conflicts is the first priority in the field of human rights:

The right to life is the basic right of all, but the indiscriminate nature of modern war is such that the principal victims are innocent civilians. A few figures will illustrate this.

In World War I, 5 percent of the killed were civilians; in World War II, 50 percent; in the Korean war, 60 percent; and according to the estimates of the U.S. Government for killed and wounded in the Vietnam war, 70 percent.

The reason for this is plain, the acceptance of indiscriminate weapons and indiscriminate targets. Fearful weapons of mass destruction are now regarded as lawful and permissible, while The Hague Conventions are still in the stage of outlawing dum-dum bullets and the dropping of explosives from balloons. Targets are found acceptable which if attacked, will inevitably bring massive suffering, starvation and loss of life to the civilian population.'

The Geneva conventions of 1949 do not deal with the problems of weapons and methods of warfare which indiscriminately affect civilians and combatants alike. The Hague conventions of 1907 ban the use of weapons which cause unnecessary suffering, but these conventions are obsolete in many respects.

The Geneva conference on the laws of war will attempt to provide greater protection of civilians through establishing standards and restrictions governing methods or means of combat which strike or affect indiscriminately the civilian population, and through restricting or prohibiting attacks on civilian objects.

General Prugh, reflecting the unwillingness of the Department of Defense to restrict its capabilities, stated that only the following acts should be prohibited: "attacks against civilians as such," "intentionally terrorizing civilian noncombatants," "aerial bombardment of a city containing no military targets," and deliberate rocket attacks on urban population centers." [Italic supplied.]

General Prugh's reluctance to prohibit attacks on the civilian population may be explained by an earlier statement he made in which he questioned whether it was possible to distinguish the civilian population from the enemy forces:

Hearing, Subcommittee on International Organizations and Movements, Sept. 20, 1973. Hearing, Subcommittee on International Organizations and Movements, Aug. 1, 1973.

8 Hearing, Subcommittee on International Organizations and Movements, Sept. 20, 1973.

It has become increasingly difficult to prevent the intermingling of military and civilian activities, to separate and protect the civilians who so often become the vehicle or provide the means through which one or more of the protagonists work. It is no simple task to protect a large body of civilian people when they are in fact and deliberately used as the medium for combat.'

General Prugh was doubtful that objects designed for civilian use could be distinguished from those used by enemy forces. He noted that such items as food and water are used both by the troops and by the civilians, and that a nation's industrial base contributes to the war effort. Neither civilian populations or objects, he said, can be distinguished from military forces and supplies.

The present applicable rule-the rule of proportionality-states that destruction of civilian property is lawful if it is not disproportionate to the military advantage gained. George Aldrich, Deputy Legal Adviser, Department of State, acknowledged that the rule of proportionality "lends itself to rather subjective interpretation. A rule stated in objective terms would be a most useful addition if one can be formulated that will take into account legitimate military interests. Certainly we shall give sympathetic considerations to any such proposals." 10

It is hoped that the Geneva conference will strike a reasonable balance between recognizing legitimate military requirements and providing protection to civilians and civilian objects.

Restricting Use of Weapons Which Cause Unnecessary Suffering

The Government and public witnesses before the subcommittee differed on the meaning of the Hague convention's prohibition of weapons which cause unnecessary suffering. Mr. Aldrich and General Prugh argued that no weapon, as such, causes unnecessary suffering. It rather depends on how the weapon is used: "Whether the suffering a weapon causes is 'unnecessary' in the sense to make it unlawful, requires a balancing of this suffering against the military necessity for its use." 11

"If it is necessary for the accomplishment of a proper military purpose to employ a particular weapon, it cannot be said that suffering caused by that weapon is unnecessary.

99 12

In his testimony, Prof. Thomas Farer of Rutgers University Law School, argued that these explanations do not respond to the fact "that certain weapons, no matter how you use them, are going to cause extreme pain, permanent disfigurement, permanent disability or are likely to cause indiscriminate effects to both civilians and soldiers." 13 Delayed action weapons are likely to explode when innocent civilians are in the affected area. Fragmentation bombs and mines contain many bomblets which are projected at a high velocity and in many directions. Small caliber high velocity projectiles cause interior damage and exit wounds of a massive size which are easily infectious and difficult to treat. Incendiary weapons, such as napalm, cause extreme burns and only 20 percent of the casualties live through convalescence.14

9 Statement made before Commission III of the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (second session), May 16, 1972.

10 Hearing, Subcommittee on International Organizations and Movements, Sept. 20, 1973. 11 Statement by George Aldrich, ibid.

12 Statement by Major General Prugh, ibid.

13 Ibid.

14 For a description of the effects of these weapons, see testimony of Donald Keys, U.N. representative for the World Federalists, ibid.

It is hoped that the Geneva Conference will agree to hold a second conference to deal with the question of restricting or prohibiting the use of specific weapons which cause unnecessary suffering.

Defense Department Review Procedures

Article 34 of the draft protocol relating to international conflicts states that "In the study and development of new weapons or methods of warfare, the high contracting parties shall determine whether their use will cause unnecessary injury." The United States, which has favored the inclusion of this article, should begin now to put it into effect. In their testimony, both Professor Farer and Donald Keys of the World Federalists asserted that the M-16 rifle-standard equipment for our troops-is a high velocity projectile which causes unnecessary suffering:

Bullets fired from high velocity weapons cause terrible damage to the human body by inducing shock effects which tear apart vital tissues. When, in addition, these bullets are light, the combination of high velocity and low weight imputes a spinning motion which causes them to rip through the human body doing irreparable damage. The M-16, now standard issue for U.S. Forces, is just such a weapon. Last year a conservative British Army officer told me that in his opinion it was "barbarous."

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It was noted that in all 50 States big game hunters are prohibited from using the M-16 because it is inhumane.

General Prugh could not reply to the question of whether prior to the adoption of the M-16 for military use there had been a review of its injurious effects. Moreover, he indicated that although the Office of the Judge Advocate General is responsible for reviewing new weaponry it is not frequently asked to do so.

I would be less than candid if I left the impression that every development that comes along with respect to a weapon is referred to the lawyers for their comment. This is, of course, the desire that we have, and as the military legal adviser to the Secretary of the Army, that is a position I further as much as I can. But the research and development process is a very complex one, too, and a lot of these things, I am sure, would never be addressed in their early stage to us. When we have an opportunity at all to weigh in on the question of applicability of the Geneva Conventions, we certainly do. I regard this as one of the important functions for us, but I cannot say it is a frequent one.1 [Italic supplied] Later, in a letter dated January 18, 1974, the General Counsel of the Department of Defense, L. Niederlehner, indicated that "There has been no written legal opinion as to whether the M-16 is compatible with *** the prohibition against weapons calculated to cause unnecessary suffering." He stated that a verbal opinion rendered by the General Counsel of the Department of Army declared the M-16 was compatible to the above prohibition.

In addition, Mr. Neiderlehner indicated that the Department does not have "formal procedures respecting an analysis of the lawfulness of weapons newly to be introduced in service." However, he stated that "We now intend to take the necessary measures to have such procedures formulated and adopted."

It is hoped that these new procedures will soon be enacted and publicized, and that they will be effective in insuring that the United States does not adopt weapons which cause unnecessary suffering.

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Recommendations

23. The Department of State and the Department of Defense, at the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, should support:

(a) Extension of the laws of war to internal armed conflicts as defined under international standards;

(b) Provision for prisoner of war status for guerrilla fighters who conform to international standards;

(c) Greater protection of civilians in armed conflicts including

(1) standards and restrictions governing methods or means of combat which strike or affect indiscriminately the civilian population and combatants, or civilian objects and military objectives;

(2) restriction or prohibition of attacks on objects designed for civilian use, objects indispensable to the survival of the civilian population, and works and installations containing dangerous forces-dams, dikes, and nuclear generating stations; and

(d) Convening a second diplomatic conference to consider the restriction or prohibition of the use of specific weapons which cause unnecessary suffering such as delayed action weapons, incendiary weapons, and certain types of fragmentation bombs and high velocity projectiles.

24. The Department of Defense should establish a regular procedure for reviewing new weapons, if possible early during the research and development stage, to determine whether they cause unnecessary suffering.

PREVENTING MASSACRE

Since its founding the United Nations has been faced with a number of situations involving human massacre. In his testimony before the subcommittee, Dr. Homer Jack estimated that since World War II:

More human beings have been killed by massacre than by traditional war * * * estimates vary from a conservative one of 1 million persons killed by massacre to 4 million or more. Compare these figures to an estimated 500,000 persons killed in the Korean war and 1,500,000 persons killed in the Vietnam war.

17

Some of the massacres could be described as acts of genocide since the killing was directed against a particular national, ethnic, racial, or religious group as such.

The subcommittee devoted special attention to the recent massacres in Bangladesh in 1971 and Burundi in 1972. The U.N. and U.S. responses to these massacres were examined and suggestions were made for a more effective response to future situations.

17 Statement by Dr. Homer Jack, Secretary General, World Conference of Religion for Peace, Hearings, Subcommittee on International Organizations and Movements, Oct. 18, 1973.

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