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The 1949 Geneva Conventions followed earlier multilateral treaties that addressed the
same subjects, including the 1864 GWS, the 1907 Hague X, the 1899 and 1907 Hague
Conventions on the Law of Land Warfare, and the 1929 Geneva Conventions.149
The Commentaries to the 1949 Geneva Conventions, published by the International
Committee of the Red Cross, under the general editorship of Jean S. Pictet, have often been
helpful in understanding the provisions of the 1949 Geneva Conventions and have often been
cited in this manual. As noted by the International Committee of the Red Cross, however, these
Commentaries are not an official interpretation of the 1949 Geneva Conventions, which only
participant States would be qualified to give.150
19.16.1 Common Provisions in the 1949 Geneva Conventions. The four 1949 Geneva
Conventions contain a number of common provisions, i.e., provisions that are substantively the
same (if not identical in text) among the conventions.
The four Geneva Conventions have this duplication, in part, because each convention is
designed to be effective, even if a State only ratifies that particular convention.151 For example,
the list of persons entitled to receive POW status in Article 4 of the GPW is repeated in the GWS
and GWS-Sea.152
148 See SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Report of the
Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 32 (Jun. 27, 1955)
(“Our Nation has everything to gain and nothing to lose by being a party to the conventions now before the Senate,
and by encouraging their most widespread adoption. As emphasized in this report, the requirements of the four
conventions to a very great degree reflect the actual policies of the United States in World War II. The practices
which they bind nations to follow impose no burden upon us that we would not voluntarily assume in a future
conflict without the injunctions of formal treaty obligations.”).
149 Refer to § 19.5 (1864 GWS); § 19.9 (1907 Hague X); § 19.8 (1899 Hague II and 1907 Hague IV Conventions
and Annexed Regulations Regarding Land Warfare); § 19.13 (1929 Geneva Conventions).
150 See, e.g., GWS COMMENTARY Foreword (“Although published by the International Committee, the Commentary
is the personal work of its authors. The Committee, moreoever, whenever called upon for an opinion on a provision
of an international Convention, always takes care to emphasize that only the participant States are qualified, through
consultation between themselves, to give an oficial and, as it were, authentic interpretation of an intergovernmental
treaty.”).
151 See, e.g., II-B FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 257 (“Mr. NAJAR (Israel): ...
We have a number of Conventions here, with different signatories, which constitute distinct legal instruments. It is
not at all surprising that one more of them should contain Articles of a more or less similar character; but one
Convention is distinguished from another by being a self-contained legal instrument, and by its signatories.”); id. at
283 (“Mr. FILIPPOV (Union of Soviet Socialist Republics): ... In the amendment submitted to us an allusion is made
to Article 20 of the Wounded and Sick Convention. This reference seems to us inadmissible, as the Prisoners of
War Convention is an entirely independent document and the allusions in its Articles to other Conventions, in
particular the Wounded and Sick, might involve difficulties if the Parties to the conflict were not signatories to both
Conventions.”).
152 Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWS-
Sea).
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19.16.1.1 Common Terms in the 1949 Geneva Conventions - Notes on
Terminology. In the 1949 Geneva Conventions, “Power” generally refers to a State.153
In the 1949 Geneva Conventions, the Detaining Power refers to the State that holds the
POW or internee.154
In the 1949 Geneva Conventions, the Protecting Power refers to a neutral State that helps
implement the Conventions.155
19.16.1.2 Common Article 2 of the 1949 Geneva Conventions. Common Article 2
of the four 1949 Geneva Conventions declares that the provisions of each convention apply “to
all cases of declared war or of any other armed conflict which may arise between two or more of
the High Contracting Parties, even if the state of war is not recognized by one of them.”156 This
language is used to help explain when the law of war applies.157
Common Article 2 also provides that each convention “shall also apply to all cases of
partial or total occupation of the territory of a High Contracting Party, even if the said occupation
meets with no armed resistance.”158 Common Article 2, thus, helps explain that the law of
belligerent occupation is applicable, even if the occupying forces are not opposed by force.159
The 1954 Hague Cultural Property Convention repeats language used in Common Article
2, and the CCW incorporates language from Common Article 2 by reference.
19.16.1.3 Common Article 3 of the 1949 Geneva Conventions. Common Article 3
to the 1949 Geneva Conventions has been described as a “Convention in miniature” that
153 Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the
Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 39 (“Finally, al
Qaeda is not a ‘Power[] in conflict’ that can ‘accept[] and appl[y]’ GC4 within the meaning of article 2(3). See, e.g.,
G.I.A.D. Draper, The Red Cross Conventions 16 (1958) (arguing that ‘in the context of Article 2, para. 3, ‘Powers’
means States capable then and there of becoming Contracting Parties to these Conventions either by ratification or
by accession’); 2B Final Record of the Diplomatic Conference of Geneva of 1949, at 108 (explaining that article
2(3) would impose an ‘obligation to recognize that the Convention be applied to the non-Contracting adverse State,
in so far as the latter accepted and applied the provisions thereof’) (emphasis added) (‘Final Record’); supra note 4,
at 23 (using ‘non-Contracting State’ interchangeably with ‘non-Contracting Power’ and ‘non-Contracting Party’).”).
154 Refer to § 9.1.2.1 (GPW - Notes on Terminology); § 10.1.1.1 (GC - Notes on Terminology).
155 Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).
156 GWS art. 2 (“In addition to the provisions which shall be implemented in peacetime, the present Convention shall
apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by one of them.”); GWS-SEA art. 2 (same); GPW art. 2
(same); GC art. 2 (same).
157 Refer to § 3.4 (When Jus in Bello Rules Apply).
158 GWS art. 2 (“The Convention shall also apply to all cases of partial or total occupation of the territory of a High
Contracting Party, even if the said occupation meets with no armed resistance.”); GWS-SEA art. 2 (same); GPW art.
2 (same); GC art. 2 (same).
159 Refer to § 11.2.2.3 (“Of the Hostile Army” - Belligerent Occupation Applies to Enemy Territory).
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addresses non-international armed conflict.160 It was the first provision in a multilateral law of
war treaty that addressed humane treatment during non-international armed conflict to gain
widespread ratification by States.161
Although Common Article 3 only applies by its terms to non-international armed
conflicts, Common Article 3 reflects a minimum yardstick of humane treatment protections that
apply more broadly, including during international armed conflict.162
19.16.1.4 POW Status and the 1949 Geneva Conventions. Article 4 of the GPW
explains which persons are entitled to receive POW status under the GPW.163 This provision is
mirrored in the GWS and GWS-Sea, as those conventions are intended to protect persons who
are entitled to POW status under the GPW.164
The GC excludes from its protection those persons who are entitled to POW status under
the GPW.165
19.16.1.5 Retained Personnel and the 1949 Geneva Conventions. Retained
personnel are addressed by both the GPW and the GWS.166
19.16.2
GWS. The GWS is often called the first Geneva Convention.167
The GWS
addresses the following subjects on land: (1) the protection of the wounded, sick, and dead; (2)
the rights, duties, and liabilities of military medical and religious personnel; and (3) the
protection of military medical units, facilities, and transports.168
19.16.2.1 Relationship Between the GWS and Earlier Conventions. The GWS
replaces the Conventions of August 22, 1864, July 6, 1906, and July 27, 1929, in relations
between the Parties to the GWS.169
160 GPW COMMENTARY 34 (“To borrow the phrase of one of the delegates, Article 3 is like a ‘Convention in
miniature’. It applies to non-international conflicts only, and will be the only Article applicable to them until such
time as a special agreement between the Parties has brought into force between them all or part of the other
provisions of the Convention.”).
161 Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).
162 Refer to § 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).
163 Refer to § 9.3.2 (Persons Entitled to POW Status).
164 Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWS-
Sea).
165 Refer to § 10.3.2.3 (Not Protected by the GWS, GWS-Sea, or the GPW).
166 Refer to § 7.9.1.2 (Medical and Religious Personnel Who May Be Retained).
167 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
of August 12, 1949, 75 UNTS 31.
168 Refer to § 7.1.1 (Interpretation and Application of Provisions Relating to Medical Issues in the GWS, GWS-Sea,
GPW, and GC).
169 GWS art. 59 (“The present Convention replaces the Conventions of 22 August 1864, 6 July 1906, and 27 July
1929, in relations between the High Contracting Parties.”).
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19.16.3
GWS-Sea. The GWS-Sea is often called the second Geneva Convention.170
The
GWS-Sea addresses the following subjects at sea: (1) the protection of the wounded, sick,
shipwrecked, and dead; (2) the rights, duties, and liabilities of military medical and religious
personnel; and (3) the protection of military medical units, facilities, and transports.171
19.16.3.1 Relationship Between the 1907 Hague X and the GWS-Sea. The GWS-
Sea replaces the Hague X in relations between the Parties to the GWS-Sea.172
19.16.4
GPW. The GPW is often called the third Geneva Convention.173
The GPW
addresses the protection of POWs.174
19.16.4.1 Relationship Between the GPW and the 1929 GPW. The GPW replaces
the 1929 GPW in relations between the Parties to the GPW.175
19.16.4.2 Relationship Between the GPW and the 1899 Hague II or 1907 Hague
IV. In the relations between States that are bound by the 1899 Hague II or the 1907 Hague IV,
and that are Parties to the GPW, the GPW shall be complementary to Chapter II of the
Regulations annexed to the 1899 Hague II or the 1907 Hague IV.176
19.16.5
GC. The GC is often called the fourth Geneva Convention.177
The GC addresses
the protection of civilians in the hands of a party a conflict, including civilian internees.178 The
GC also addresses belligerent occupation.
19.16.5.1 Application of Different Parts of the GC. Different parts of the GC
apply to different situations.
170 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea of August 12, 1949, 75 UNTS 85.
171 Refer to § 7.1.1 (Interpretation and Application of Provisions Relating to Medical Issues in the GWS, GWS-Sea,
GPW, and GC).
172 GWS-SEA art. 58 (“The present Convention replaces the Xth Hague Convention of October 18, 1907, for the
adaptation to Maritime Warfare of the principles of the Geneva Convention of 1906, in relations between the High
Contracting Parties.”).
173 Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 75 UNTS 135.
174 Refer to § 9.1.2 (Interpretation and Application of the GPW).
175 GPW art. 134 (“The present Convention replaces the Convention of July 27, 1929, in relations between the High
Contracting Parties.”).
176 GPW art. 135 (“In the relations between the Powers which are bound by the Hague Convention respecting the
Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and which are
parties to the present Convention, this last Convention shall be complementary to Chapter II of the Regulations
annexed to the above-mentioned Conventions of the Hague.”).
177 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, 75 UNTS
287.
178 Refer to § 10.1.1 (Interpretation and Application of the GC).
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In general, the GC uses the concept of protected person to define the individuals who are
entitled to receive its protections.179 The provisions of Part II of the GC (articles 13-26) are
wider in application; they do not only apply to those persons who are protected persons under the
GC.180 These provisions cover the whole of the populations of the countries in conflict.181
Section I (articles 27-34) of Part III of the GC includes provisions that are common to the
home territories of the parties to the conflict and to occupied territories.
Section II (articles 35-46) of Part III of the GC addresses aliens in the home territory of a
party to the conflict.
Section III (articles 47-78) of Part III of the GC addresses occupied territories.
Section IV (articles 79-135) of Part III of the GC provides regulations for the treatment of
internees.
19.16.5.2 Relationship Between the GC and the 1899 Hague II and the 1907
Hague IV Conventions. In the relations between States that are bound by the 1899 Hague II, or
the 1907 Hague IV, and that are Parties to the GC, the GC shall be supplementary to Sections II
(Articles 22-41 - Hostilities) and III (Articles 42-56 - Military Authority Over the Territory of
the Hostile State) of the Regulations annexed to the 1899 Hague II or the 1907 Hague IV.182
19.17 1954 HAGUE CULTURAL PROPERTY CONVENTION
The 1954 Hague Cultural Property Convention addresses the protection of cultural
property during international armed conflict.183 It addresses personnel who are engaged in duties
related to the protection of cultural property.184 It also has provisions that apply during
occupation.185 Some provisions of the 1954 Hague Cultural Property Convention apply to non-
international armed conflict.186
179 Refer to § 10.3 (Protected Person Status).
180 Refer to § 10.3.3 (Categories of Nationals Specifically Excluded From the Definition of Protected Person Under
the GC).
181 GC art. 13 (“The provisions of Part II cover the whole of the populations of the countries in conflict, without any
adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to
alleviate the sufferings caused by war.”).
182 GC art. 154 (“In the relations between the Powers who are bound by The Hague Conventions respecting the
Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and who are parties
to the present Convention, this last Convention shall be supplementary to Sections II and III of the Regulations
annexed to the above mentioned Conventions of The Hague.”).
183 Refer to § 5.18 (Protection of Cultural Property).
184 Refer to § 4.14 (Personnel Engaged in Duties Related to the Protection of Cultural Property).
185 Refer to § 11.19 (Protection of Cultural Property During Occupation).
186 Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC); § 17.11 (Protection of
Cultural Property in NIAC).
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The 1954 Hague Cultural Property Convention was adopted at a diplomatic conference
on May 14, 1954.187 The United States deposited its instrument of ratification to the Hague
Cultural Property Convention on March 13, 2009, and stated four understandings.188
Two Protocols to the 1954 Hague Cultural Property Convention have been adopted.189
The United States has neither signed nor ratified either one.
19.17.1 Relationship Between the 1954 Hague Cultural Property Convention and Earlier
Treaties.
19.17.1.1 Relationship Between the 1954 Hague Cultural Property Convention
and Certain 1899 and 1907 Hague Conventions. In the relations between States that are bound
by the Conventions of The Hague concerning the Laws and Customs of War on Land (IV)
(Hague IV) and Concerning Naval Bombardment in Time of War (Hague IX), whether those of
July 29, 1899, or those of October 18, 1907, and that are Parties to the 1954 Hague Cultural
Property Convention, the 1954 Hague Cultural Property Convention shall be supplementary to
the Hague IX Convention and to the Regulations annexed to the Hague IV Convention.190
19.17.1.2 Relationship Between the 1935 Roerich Pact and the 1954 Hague
Cultural Property Convention. In the relations between States that are bound by the 1935
Roerich Pact and that are Parties to the 1954 Hague Cultural Property Convention, the 1954
Hague Cultural Property Convention shall be supplementary to the Roerich Pact and shall
substitute for the distinguishing flag described in Article III of the Roerich Pact the emblem
defined in Article 16 of the 1954 Hague Cultural Property Convention—in cases in which the
1954 Hague Cultural Property Convention and the Regulations for its execution provide for the
use of this distinctive emblem.191
187 Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 UNTS
240.
188 2575 UNTS 7 (“RATIFICATION (WITH DECLARATIONS) United States of America Deposit of instrument with the
Director-General of the United Nations Educational, Scientific and Cultural Organization: 13 March 2009”).
189 Protocol for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 UNTS 358;
Second Protocol to The Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed
Conflict, Mar. 26, 1999, 2253 UNTS 172.
190 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 36(1) (“In the relations between Powers which are bound
by the Conventions of The Hague concerning the Laws and Customs of War on Land (IV) and concerning Naval
Bombardment in Time of War (IX), whether those of 29 July, 1899 or those of 18 October, 1907, and which are
Parties to the present Convention, this last Convention shall be supplementary to the aforementioned Convention
(IX) and to the Regulations annexed to the aforementioned Convention (IV) and shall substitute for the emblem
described in Article 5 of the aforementioned Convention (IX) the emblem described in Article 16 of the present
Convention, in cases in which the present Convention and the Regulations for its execution provide for the use of
this distinctive emblem.”).
191 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 36(2) (“In the relations between Powers which are bound
by the Washington Pact of l 5 April 1935 for the Protection of Artistic and Scientific Institutions and of Historic
Monuments (Roerich Pact) and which are Parties to the present Convention, the latter Convention shall be
supplementary to the Roerich Pact and shall substitute for the distinguishing flag described in Article III of the Pact
the emblem defined in Article 16 of the present Convention, in cases in which the present Convention and the
Regulations for its execution provide for the use of this distinctive emblem.”).
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19.18 VIENNA CONVENTION ON THE LAW OF TREATIES
The Vienna Convention on the Law of Treaties (VCLT) was adopted on May 23, 1969,
by the U.N. Conference on the Law of Treaties.
The United States signed the VCLT on April 24, 1970. President Nixon transmitted the
VCLT to the Senate for its advice and consent to ratification on November 22, 1971.192
The United States is not a Party to the VCLT but has viewed many of its provisions as
reflecting customary international law.
19.19 BIOLOGICAL WEAPONS CONVENTION
After negotiations at the Conference of the Committee on Disarmament at Geneva and at
the United Nations, the Biological Weapons Convention was opened for signature on April 10,
1972.193
The United States deposited its instrument of ratification on March 26, 1975.194
The Biological Weapons Convention followed the 1925 Geneva Gas and Bacteriological
Protocol.195
In implementation of the Biological Weapons Convention, Congress enacted legislation
prohibiting development, production, transfer, acquisition, or possession of a biological agent,
toxin, or delivery system for use as a weapon.196
192 Richard Nixon, Letter of Transmittal, Nov. 22, 1971, MESSAGE FROM THE PRESIDENT TRANSMITTING THE VCLT
III.
193 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological)
and Toxin Weapons and on Their Destruction, 1015 UNTS 164.
194 1015 UNTS 165.
195 Refer to § 19.12 (1925 Geneva Gas and Bacteriological Protocol).
196 18 U.S.C. § 175 (“Prohibitions with respect to biological weapons. (a) In general. -- Whoever knowingly
develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery
system for use as a weapon, or knowingly assists a foreign state or any organization to do so, or attempts, threatens,
or conspires to do the same, shall be fined under this title or imprisoned for life or any term of years, or both. There
is extraterritorial Federal jurisdiction over an offense under this section committed by or against a national of the
United States. (b) Additional offense. -- Whoever knowingly possesses any biological agent, toxin, or delivery
system of a type or in a quantity that, under the circumstances, is not reasonably justified by a prophylactic,
protective, bona fide research, or other peaceful purpose, shall be fined under this title, imprisoned not more than 10
years, or both. In this subsection, the terms ‘biological agent’ and ‘toxin’ do not encompass any biological agent or
toxin that is in its naturally occurring environment, if the biological agent or toxin has not been cultivated, collected,
or otherwise extracted from its natural source. (c) Definition. -- For purposes of this section, the term ‘for use as a
weapon’ includes the development, production, transfer, acquisition, retention, or possession of any biological agent,
toxin, or delivery system for other than prophylactic, protective, bona fide research, or other peaceful purposes.”).
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19.20 1977 ADDITIONAL PROTOCOLS TO THE 1949 GENEVA CONVENTIONS
A diplomatic conference between 1974 and 1977 negotiated two protocols to the 1949
Geneva Conventions that addressed international armed conflict (AP I) and non-international
armed conflict (AP II).
Because these treaties were negotiated at the same time, they may provide information on
States’ views on differences between the rules applicable in international armed conflict and the
rules applicable in non-international armed conflict.197
19.20.1 AP I. Protocol (I) Additional to the Geneva Conventions, and Relating to the
Protection of Victims of International Armed Conflicts (AP I) contains rules on the conduct of
hostilities during international armed conflict that are intended to supplement the 1949 Geneva
Conventions.198 For example, AP I provides additional protections for the wounded and sick,
and provides for the establishment of an international humanitarian fact-finding commission.199
AP I, however, does not apply to the use of nuclear weapons.200
The United States signed AP I and stated two understandings.201 As explained below, AP
I is a significant law of war treaty that the United States has decided not to ratify.
On January 28, 1987, President Reagan informed the Senate that AP I would not be
submitted for the Senate’s advice and consent to ratification because it is “fundamentally and
irreconcilably flawed.”202 However, President Reagan noted that the United States would
support “the positive provisions of Protocol I that could be of real humanitarian benefit if
generally observed by parties to international armed conflicts.”203
197 Refer to § 17.2.2.2 (Considered Absence of a Restriction in NIAC).
198 Protocol (I) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims
of International Armed Conflicts of June 8, 1977.
199 Refer to § 7.20 (AP I Provisions on the Wounded, Sick, and Shipwrecked); § 18.14.1.1 (AP I - International
Humanitarian Fact-Finding Commission (IHFFC)).
200 Refer to § 6.18.3 (AP I Provisions and Nuclear Weapons).
201 United States, Statement on Signature of AP I, 1125 UNTS 404, 434 (“1. It is the understanding of the United
States of America that the rules established by this Protocol were not intended to have any effect on and do not
regulate or prohibit the use of nuclear weapons. 2. It is the understanding of the United States of America that the
phrase ‘military deployment preceding the launching of an attack’ in Article 44, paragraph 3, means any movement
towards a place from which an attack is to be launched.”).
202 Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II III-IV
(“Like all other efforts associated with the International Committee of the Red Cross, this agreement has certain
meritorious elements. But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would
undermine humanitarian law and endanger civilians in war. … These problems are so fundamental in character that
they cannot be remedied through reservations, and I therefore have decided not to submit the Protocol to the Senate
in any form, and I would invite an expression of the sense of the Senate that it shares this view. Finally, the Joint
Chiefs of Staff have also concluded that a number of the provisions of the Protocol are militarily unacceptable.”).
203 Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II IV
(“In this case, for example, we can reject Protocol I as a reference for humanitarian law, and at the same time devise
an alternative reference for the positive provisions of Protocol I that could be of real humanitarian benefit if
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This manual references AP I provisions, some of which are consistent with DoD practice.
Unless explicitly noted, no determinations are made about whether any of these AP I provisions
reflect customary international law.
19.20.1.1 Examples of AP I Provisions Incorporated Into Other Treaties That the
United States Has Accepted. Some AP I provisions have been incorporated into later treaties to
which the United States is a Party. For example, AP I’s definition of military objective in Article
51(2) is substantially similar to the definition in Article 2(6) of CCW Amended Mines Protocol
and Article 1(3) of CCW Protocol III on Incendiary Weapons.204 Similarly, requirements under
the Child Soldiers Protocol and U.S. law are comparable to AP I’s requirements with respect to
child soldiers.205
19.20.1.2 Examples of AP I Provisions That Are Consistent With Longstanding
U.S. Practice. Certain provisions of AP I may not reflect customary international law, but may
be consistent with longstanding U.S. practice. For example, AP I requires that Parties to AP I
ensure that legal advisers are available to advise military commanders, and the United States has
long employed legal advisers in this role.206 Similarly, AP I requires that Parties to AP I
undertake a legal review of, inter alia, new weapons, and the DoD policy and practice of
conducting weapons reviews preceded this provision of AP I.207
19.20.1.3 Examples of AP I Provisions That the United States Has Supported.
The United States has expressed support for certain AP I provisions. For example, United States
has supported and sought to promote as a matter of national policy fundamental guarantees for
the treatment of persons detained during international armed conflict that are reflected in Article
75 of AP I.208
19.20.1.4 Examples of AP I Provisions Based on a Principle That the U.S.
Supports, Even Though the Provision Is Not Necessarily Customary International Law Nor
Militarily Acceptable in All Respects. In some cases, the United States has supported a principle
underlying an AP I provision, but the provision may not be customary international law or
militarily acceptable in all respects. For example, the United States has supported the principle
recognized in AP I that journalism is generally to be regarded as a civilian activity.209
Even where the United States has expressed support for an underlying customary
principle that AP I provisions are based upon, the United States may disagree that the language
of the provision reflects customary international law. For example, with regard to “direct
generally observed by parties to international armed conflicts. We are therefore in the process of consulting with
our allies to develop appropriate methods for incorporating these positive provisions into the rules that govern our
military operations, and as customary international law.”).
204 Refer to § 5.7.3 (Objects That Are Military Objectives).
205 Refer to § 4.20.5.1 (U.S. Offense of Recruiting or Using Child Soldiers).
206 Refer to § 18.5 (Role of Judge Advocates and Legal Advisers).
207 Refer to § 6.2.3 (AP I Requirement for Legal Review of a New Weapon, Means, or Method of Warfare).
208 Refer to § 8.1.4.2 (Article 75 of AP I and Relevant AP II Provisions).
209 Refer to § 4.24.2 (Other Journalists).
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participation in hostilities,” the United States has supported the customary principle underlying
Article 51(3) of AP I, but has disagreed that the language of that provision reflects customary
international law.210 Similarly, the intricacy of the provisions of AP I on objects indispensable to
the survival of the civilian population make it doubtful that such provisions could be
characterized as customary international law, although the United States has supported the
principle that the starvation of civilians not be used as a method of warfare.211 In addition,
although the United States has supported the principle that civilian civil defense organizations
and their personnel be respected and protected as civilians, a number of military operational
problems have been identified with respect to the system of protection for civil defense
established by AP I.212
19.20.1.5 Examples of AP I Provisions to Which the United States Has Objected.
The United States has objected to certain provisions of AP I. For example, the United States has
objected to AP I provisions on:
• national liberation movements;213
• mercenaries;214
• works and installations containing dangerous forces;215
• criteria for lawful combatant status;216
• the obligation of combatants to distinguish themselves;217
• environmental protection;218
• presumptions in favor of civilian status in conducting attacks;219
• prohibiting the use of enemy flags, insignia, or uniforms to shield, favor, protect, or
impede military operations;220 and
210 Refer to § 5.9.1.2 (AP I, Article 51(3) Provision on Direct Participation in Hostilities).
211 Refer to § 5.20.4 (AP I Provision on Objects Indispensable to the Survival of the Civilian Population); § 5.20.1
(Starvation - Distinction).
212 Refer to § 4.22 (AP I Provisions on Civil Defense Personnel).
213 Refer to § 3.3.4 (AP I Provision on National Liberation Movements).
214 Refer to § 4.21.1 (Treaties on Mercenaries).
215 Refer to § 5.13.1 (AP I Provisions on Works and Installations Containing Dangerous Forces).
216 Refer to § 4.6.1.2 (AP I and the GPW 4A(2) Conditions).
217 Refer to § 5.5.8.2 (AP I Obligation for Combatants to Distinguish Themselves During Attacks or Military
Operations Preparatory to an Attack).
218 Refer to § 6.10.3.1 (AP I Provisions on Environmental Protection).
219 Refer to § 5.5.3.2 (AP I Presumptions in Favor of Civilian Status in Conducting Attacks).
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• reprisals.221
19.20.2 AP II. Protocol (II) Additional to the Geneva Conventions, and Relating to the
Protection of Victims of Non-International Armed Conflict (AP II) addresses certain types of
non-international armed conflicts.222 AP II reaffirmed, elaborated upon, and supplemented the
protections contained in Common Article 3 of the 1949 Geneva Conventions.223
19.20.2.1 The United States and AP II. The United States is not a Party to AP II.
The United States signed AP II and stated one understanding on December 12, 1977.224
President Reagan transmitted AP II to the Senate for its advice and consent to ratification on
January 29, 1987.225
After the Supreme Court’s decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the
Bush Administration moved AP II down on the Executive’s treaty priority list, indicating that it
did not seek Senate action on the treaty at that time, so that the Administration could study the
treaty in light of the decision. On March 7, 2011, after interagency review, the Obama
Administration urged the Senate to act as soon as practicable on AP II.226
Although the United States is not a Party to AP II, reviews have concluded that the
provisions of AP II are consistent with U.S. practice, and that any issues could be addressed with
reservations, understandings, and declarations.227
220 Refer to § 5.23.3 (AP I and the Use of Enemy Flags, Insignia, or Uniforms to Shield, Favor, Protect, or Impede
Military Operations).
221 Refer to § 18.18.3.4 (AP I Provisions on Reprisals).
222 Protocol (II) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims
of Non-International Armed Conflicts of June 8, 1977.
223 Refer to § 19.16.1.3 (Common Article 3 of the 1949 Geneva Conventions).
224 United States, Statement on Signature of AP II, 1125 UNTS 699 (“It is the understanding of the United States of
America that the terms used in Part III of this Protocol which are the same as the terms defined in Article 8 of
Protocol I shall so far as relevant be construed in the same sense as those definitions.”).
225 Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II III.
226 The White House, Office of the Press Secretary, Fact Sheet: New Actions on Guantánamo and Detainee Policy,
Mar. 7, 2011 (“Additional Protocol II, which contains detailed humane treatment standards and fair trial guarantees
that apply in the context of non-international armed conflicts, was originally submitted to the Senate for approval by
President Reagan in 1987. The Administration urges the Senate to act as soon as practicable on this Protocol, to
which 165 States are a party. An extensive interagency review concluded that United States military practice is
already consistent with the Protocol’s provisions.”).
227 George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II VIII
(“With the above caveats, the obligations contained in Protocol II are no more than a restatement of the rules of
conduct with which U.S. military forces would almost certainly comply as a matter of national policy, constitutional
and legal protections, and common decency.”); Hillary Rodham Clinton, Secretary of State and Robert Gates,
Secretary of Defense, Letter to Senators Kerry and Lugar, Mar. 7, 2011 (“We have now completed a comprehensive
interagency review of Protocol II, and, subject to reservations, understandings, and declarations that were submitted
to the Senate in 1987, along with refinements and additions that we will submit, assess it to be consistent with
current military practice and beneficial to our national security and foreign policy interests.”).
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19.20.2.2 AP II’s Requirements for Its Application. By its terms, AP II does not
apply to all armed conflicts not of an international character. Instead, according to its terms, AP
II only applies to armed conflicts that are not covered by Article 1 of AP I and that take place in
the territory of a Party to AP II between its armed forces and dissident armed forces or other
organized 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 AP II.228
This threshold limits the application of AP II to a subset of armed conflicts that would be
covered by Common Article 3 of the 1949 Geneva Conventions. For example, AP II would only
cover conflicts in which dissident armed forces or other organized armed groups are organized
and disciplined like regular armed forces.229 In addition, non-State armed groups must be in a
position to implement AP II before it is deemed to apply to all parties to the conflict.230
Although AP II specifies more strict requirements for its application, President Reagan,
in submitting AP II to the Senate for its advice and consent to ratification, recommended that the
United States take the position that it would apply AP II to all armed conflicts that would be
covered by Common Article 3 of the 1949 Geneva Conventions.231
19.21 CCW, CCW AMENDED ARTICLE 1, AND CCW PROTOCOLS
19.21.1 CCW. The Convention on Certain Conventional Weapons (CCW) and Protocols
I, II, and III were adopted at Geneva on October 10, 1980. Subsequent conferences adopted: (1)
228 AP II art. 1(1) (“This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of
12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are
not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a
High Contracting Party between its armed forces and dissident armed forces or other organized 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 this Protocol.”).
229 BOTHE, PARTSCH, & SOLF, NEW RULES 626 (AP II art. 1, ¶2.5) (“Regarding the concept of ‘organized armed
groups’ the ICRC delivered the following statement during the negotiations in Working Group B of Committee I:
The expression does not mean any armed band acting under a leader. Such armed groups must be structured and
possess organs, and must therefore have a system for allocating authority and responsibility: they must also be
subject to rules of internal discipline. Consequently the expression ‘organized armed groups’ does not imply any
appreciable difference in degree of organization from that of regular armed forces.”).
230 ICRC AP COMMENTARY 1353 (¶4470) (“This is the fundamental criterion which justifies the other elements of
the definition: being under responsible command and in control of a part of the territory concerned, the insurgents
must be in a position to implement the Protocol. The threshold for application therefore seems fairly high. Yet,
apart from the fact that it reflects the desire of the Diplomatic Conference, it must be admitted that this threshold has
a degree of realism. The conditions laid down in this paragraph 1, as analysed above, correspond with actual
circumstances in which the parties may reasonably be expected to apply the rules developed in the Protocol, since
they have the minimum infrastructure required therefor.”).
231 George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II VIII
(“We are therefore recommending that U.S. ratification be subject to an understanding declaring that the United
States will apply the Protocol to all conflicts covered by Article 3 common to the 1949 Conventions
This
understanding will also have the effect of treating as non-international these so-called ‘wars of national liberation’
described in Article 1(4) of Protocol I which fail to meet the traditional test of an international conflict.”).
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an amended Protocol II; (2) Protocols IV and V; and (3) an amendment to apply the CCW and
Protocols I, II, III, and IV to non-international armed conflicts.
Protocols to the CCW are subject to ratification or other acceptance by a State before
such protocols enter into force for that State. Additional protocols that have been adopted by a
Conference of States Parties enter into force as provided in paragraphs 3 and 4 of Article 5 of the
CCW.232 Paragraphs 3 and 4 of Article 5 of the CCW provide, inter alia, that each of the
CCW’s Protocols may only enter into force for a State after that State has notified its consent to
be bound by it.233 Thus, a State’s notification of its consent to be bound by a Protocol is a
prerequisite to the Protocol’s entry into force for that State.
Similarly, amendments to the CCW or its Protocols are subject to ratification or other
acceptance by a State before such amendments enter into force for that State. Amendments to
the CCW or its Protocols are adopted and enter into force in the same manner as the CCW and
its Protocols.234 As discussed above, a State must provide notification of its consent to be bound
by a CCW Protocol before that Protocol’s entry into force for that State. Similarly, the CCW is
subject to ratification or other acceptance by States.235 And, the CCW only enters into force for
a State after that State has deposited its instrument of ratification or other acceptance.236 Thus, a
State’s acceptance of any amendment to the CCW or its Protocols is a prerequisite to that
amendment’s entry into force for that State.
232 CCW art. 8(2)(b) (Additional protocols to the CCW adopted at a conference convened under Article 8(2) “shall
enter into force as provided in paragraphs 3 and 4 of Article 5 of this Convention.”); CCW art. 8(2)(b) (Additional
protocols to the CCW adopted at a conference convened under Article 8(3) “shall enter into force as provided in
paragraphs 3 and 4 of Article 5 of this Convention.”).
233 CCW art. 5 (“3. Each of the Protocols annexed to this Convention shall enter into force six months after the date
by which twenty States have notified their consent to be bound by it in accordance with paragraph 3 or 4 of Article 4
of this Convention. 4. For any State which notifies its consent to be bound by a Protocol annexed to this Convention
after the date by which twenty States have notified their consent to be bound by it, the Protocol shall enter into force
six months after the date on which that State has notified its consent so to be bound.”). See also CCW art. 4 (“3.
Expressions of consent to be bound by any of the Protocols annexed to this Convention shall be optional for each
State, provided that at the time of the deposit of its instrument of ratification, acceptance or approval of this
Convention or of accession thereto, that State shall notify the Depositary of its consent to be bound by any two or
more of these Protocols. 4. At any time after the deposit of its instrument of ratification, acceptance or approval of
this Convention or of accession thereto, a State may notify the Depositary of its consent to be bound by any annexed
Protocol by which it is not already bound.”).
234 CCW art. 8(1)(b) (Amendments to the CCW or its protocols adopted at a conference convened under Article 8(1)
“shall be adopted and shall enter into force in the same manner as this Convention and the annexed Protocols, … .”);
CCW art. 8(3)(a) (Amendments to the CCW or its protocols adopted at a conference convened under Article 8(3)
“shall be adopted and enter into force in accordance with subparagraph 1 (b) above.”)).
235 CCW art. 4 (“1. This Convention is subject to ratification, acceptance or approval by the Signatories. Any State
which has not signed this Convention may accede to it.”).
236 See CCW art. 5 (“1. This Convention shall enter into force six months after the date of deposit of the twentieth
instrument of ratification, acceptance, approval or accession. 2. For any State which deposits its instrument of
ratification, acceptance, approval or accession after the date of the deposit of the twentieth instrument of ratification,
acceptance, approval or accession, this Convention shall enter into force six months after the date on which that
State has deposited its instrument of ratification, acceptance, approval or accession.”).
1165
The United States is a Party to the: (1) CCW; (2) CCW Protocol I; (3) CCW Amended
Mines Protocol; (4) CCW Protocol III on Incendiary Weapons; (5) CCW Protocol IV on
Blinding Laser Weapons; and (6) CCW Protocol V on Explosive Remnants of War. The United
States deposited its instrument of ratification to the CCW and accepted Protocols I and II on
March 25, 1995. The United States provided notification of its consent to be bound by the CCW
Amended Mines Protocol on May 24, 1999. The United States deposited its instrument of
ratification to the Amendment to Article 1 of the CCW, and provided notification of its consent
to be bound by Protocols III, IV, and V, on January 21, 2009.
19.21.1.1 CCW Amended Scope of Application. For the United States, the CCW
and its Protocols apply to non-international armed conflict.237
On December 21, 2001, Parties to the CCW adopted an amendment to Article 1 of the
CCW that modified the application of the CCW and Protocols I, II, III, and IV to apply to non-
international armed conflicts.238 The CCW Amended Mines Protocol and CCW Protocol V on
Explosive Remnants of War also apply to non-international armed conflicts.239
The amended scope of the CCW does not prejudice additional protocols to the CCW
adopted after January 1, 2002, which may apply, exclude, or modify the scope of their
application in relation to Article 1 of the CCW.240
The United States deposited its instrument of ratification to the amendment to Article 1 of
the CCW on January 21, 2009.241
U.S. policy before the entry into force for the United States of the amendment to Article 1
of the CCW was to apply the CCW, Protocol I, Protocol II, and CCW Protocol IV on Blinding
Laser Weapons to non-international armed conflict. At the time of the deposit of U.S.
instruments of ratification of the CCW, CCW Protocol I, and CCW Protocol II, the United States
declared its intent to apply the provisions of those instruments to all armed conflicts referred to
in Articles 2 and 3 of the GPW, i.e., both international and non-international armed conflicts.242
237 Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).
238 Amendment to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects - Overview, 3, MESSAGE FROM
THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVE
REMNANTS OF WAR 9 (“By its terms, this paragraph means that the amended scope provision automatically applies
to CCW Protocols I, II, III, and IV.”).
239 Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).
240 CCW AMENDED art. 1 (“The provisions of paragraphs 2 to 6 of this Article shall not prejudice additional
Protocols adopted after January 1, 2002, which may apply, exclude or modify the scope of their application in
relation to this Article.”).
241 2562 UNTS 39 (RATIFICATION United States of America Deposit of instrument with the Secretary-General of
the United Nations: 21 January 2009).
242 United States, Statement on Ratification of the CCW, Accepting Protocols I & II, Mar. 24, 1995, 1861 UNTS 482,
482-83 (“The United States declares, with reference to the scope of application defined in Article 1 of the
Convention, that the United States will apply the provisions of the Convention, Protocol I, and Protocol II to all
armed conflicts referred to in Articles 2 and 3 common to the Geneva Conventions for the Protection of War
Victims of August 12, 1949.”).
1166
Similarly, before the United States ratified the amendment to Article 1 of the CCW, U.S. policy
was to apply the CCW Protocol on Blinding Laser Weapons to all armed conflicts and in
peacetime.243
19.21.1.2 U.S. Reservation to Article 7(4)(b) of the CCW. The United States took
a reservation to Article 7(4)(b) of the CCW.244
Article 7(4) of the CCW provides:
This Convention, and the annexed Protocols by which a High Contracting Party is
bound, shall apply with respect to an armed conflict against that High Contracting
Party of the type referred to in Article 1, paragraph 4, of Additional Protocol I to
the Geneva Conventions of 12 August 1949 for the Protection of War Victims:
…
(b) where the High Contracting Party is not a party to Additional Protocol I and
an authority of the type referred to in subparagraph (a) above accepts and applies
the obligations of the Geneva Conventions and of this Convention and the
relevant annexed Protocols in relation to that conflict. Such an acceptance and
application shall have in relation to that conflict the following effects:
(i) the Geneva Conventions and this Convention and its relevant annexed
Protocols are brought into force for the parties to the conflict with immediate
effect;
(ii) the said authority assumes the same rights and obligations as those
which have been assumed by a High Contracting Party to the Geneva
Conventions, this Convention and its relevant annexed Protocols; and
(iii) the Geneva Conventions, this Convention and its relevant annexed
Protocols are equally binding upon all parties to the conflict.
The High Contracting Party and the authority may also agree to accept and apply
the obligations of Additional Protocol I to the Geneva Conventions on a
reciprocal basis.
243 Article-by-Article Analysis of CCW Protocol IV on Blinding Laser Weapons, 3-4, Enclosure C to Warren
Christopher, Letter of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED
MINES PROTOCOL, PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 43-
44 (“The United States favored an expanded scope of application for the Blinding Laser Weapons Protocol. As a
matter of policy, the United States will refrain from the use of laser weapons prohibited by the Protocol. Therefore,
while the Blinding Laser Weapons Protocol does not legally apply to all armed conflicts, it is U.S. policy to apply
the Protocol to all such conflicts, however, they may be characterized, and in peacetime.”).
244 United States, Statement on Ratification of the CCW, Accepting Protocols I & II, Mar. 24, 1995, 1861 UNTS 482
(“(1) Reservation. Article 7 (4) (b) of the Convention shall not apply with respect to the United States.”).
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The U.S. reservation to Article 7(4)(b) of the CCW is consistent with the longstanding objections
of the United States to Article 1(4) of AP I regarding national liberation movements.245
19.21.1.3 CCW and Customary International Law. The restrictions and
prohibitions in the CCW and its Protocols on weapons generally have not been based on the
premise that such restrictions or prohibitions are warranted because the weapons at issue are
calculated to cause superfluous injury or are inherently indiscriminate.246 Rather, the CCW and
Protocols have been drafted on the basis that they are largely new contractual rules, and not a
restatement of existing customary international law.247
19.21.2 CCW Protocol I. CCW Protocol I prohibits the use of weapons whose primary
effect is to injure by fragments not detectable by X-rays.248
CCW Protocol I was adopted by the first CCW Conference in 1980. The United States
accepted CCW Protocol I on March 24, 1995, when it deposited its instrument of ratification to
the CCW.249
19.21.3 CCW Amended Mines Protocol. The CCW Amended Mines Protocol addresses
landmines, booby-traps, and other devices.250
CCW Protocol II on Mines, Booby-traps and Other Devices was adopted by the first
CCW Conference in 1980. The United States accepted CCW Protocol II on March 24, 1995,
when it deposited its instrument of ratification to the CCW.251
CCW Protocol II was later substantially amended by the first Review Conference of
CCW States Parties, which concluded its work on May 3, 1996. The CCW Amended Mines
245 Refer to § 3.3.4 (AP I Provision on National Liberation Movements).
246 George Aldrich, Ambassador, Chairman of the Delegation, Report of the United States Delegation to the United
Nations Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May be
Deemed to be Excessively Injurious or to have Indiscriminate Effects, Second Session, Geneva, Switzerland,
September 15-October 10, 1980, 16 (Jan. 15, 1981) (“Finally, it is significant to note that the Conference ended with
no finding that these restrictions and prohibitions were imposed because of any agreed belief or finding that they
were in fact excessively injurious or had indiscriminate effects. Thus the adoption of this Convention in no way
affects the legality, under the customary and conventional law of war, of past uses of these weapons in the modes to
be restricted or prohibited. The restrictions and prohibitions contained in the Convention were recognized by the
Conference as being primarily new contractual rules which would only bind parties in the future.”).
247 United States, Statement on Signature of the CCW, Apr. 8, 1982, 1342 UNTS 255 (“As indicated in the
negotiating record of the 1980 Conference, the prohibitions and restrictions contained in the Convention and its
Protocols are of course new contractual rules (with the exception of certain provisions which restate existing
international law) which will only bind States upon their ratification of, or accession to, the Convention and their
consent to be bound by the Protocols in question.”).
248 Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).
249 1861 UNTS 482 (“Instrument deposited on: 24 March 1995 UNITED STATES OF AMERICA (With effect from 24
September 1995. Accepting Protocols I and II.)”).
250 Refer to § 6.12 (Landmines, Booby-Traps, and Other Devices).
251 1861 UNTS 482 (“Instrument deposited on: 24 March 1995 UNITED STATES OF AMERICA (With effect from 24
September 1995. Accepting Protocols I and II.)”).
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Protocol includes more detailed restrictions on the use of mines, booby-traps, and other devices,
and prohibitions on specific types of such devices. The CCW Amended Mines Protocol also
applies to non-international armed conflicts.252 The CCW Amended Mines Protocol has
provisions that are to be observed at all times, e.g., provisions that are to be implemented in
peace-time.253
Before the United States accepted the CCW Amended Mines Protocol, U.S. policy was to
observe the requirements of the CCW Amended Mines Protocol to the fullest extent possible.254
The CCW Amended Mines Protocol entered into force on December 3, 1998.255 The
United States provided notification of its consent to be bound by the CCW Amended Mines
Protocol with declarations and a reservation on May 24, 1999.256
19.21.4 CCW Protocol III on Incendiary Weapons. CCW Protocol III on Incendiary
Weapons places certain restrictions on the use of incendiary weapons.257
CCW Protocol III on Incendiary Weapons was adopted by the first CCW Conference in
1980. The United States provided notification of its consent to be bound by CCW Protocol III
on Incendiary Weapons on January 21, 2009, with a reservation and an understanding.258
252 Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).
253 Article-by-Article Analysis of CCW Amended Mines Protocol, 3-4, Enclosure A to Warren Christopher, Letter of
Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,
PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 3-4 (“Finally, it was
understood that certain provisions of the amended Protocol must be observed at all times. A statement to this effect
was made part of the negotiating record by the delegation of Belgium, speaking on behalf of 24 other delegations,
including the U.S. delegation, at the final plenary session of the Review Conference and was not contested by any
other delegation. This conclusion is supported, as well, by the scope of the Convention itself which makes clear that
it and its annexed Protocols shall apply in situations referred to in Article 2 common to the Geneva Conventions of
12 August 1949. Common Article 2 refers specifically to provisions which shall be implemented in peace-time, a
recognition that certain provisions must be observed at all times if they are to be implemented in good faith. Among
the provisions of the amended Protocol that must be so observed are: the provisions regarding the recording,
marking, monitoring and protection of areas containing mines; provisions of Article 8 regarding transfers; and
provisions of Articles 13 and 14 regarding consultations and compliance. A statement to this effect was made part
of the negotiating record by the U.S. Delegation, and was not contested by any other delegation.”).
254 Review Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects,
Summary Record of the 14th Meeting (Second Part), Second resumed session, Geneva, Apr. 22 - May 3, 1996,
CCW/CONF.I/SR.14/Add.1, May 9, 1996, ¶¶6-8 (“Mr. MATHESON (United States of America) said that the
revised Protocol II on land-mines was a significant advance that would, if widely observed, result in a substantial
decrease in civilian casualties and be an important first step towards the elimination of such mines. … While such a
commitment did not legally bind the United States or prejudice the Senate’s consideration of the amended Protocol,
it was his country’s policy, pending the entry into force of the Protocol, to observe all of its restrictions to the fullest
extent possible from the time of adoption.”).
255 2048 UNTS 93 (“Entry into force: 3 December 1998, in accordance with article 2 of the Protocol”).
256 2065 UNTS 128 (“CONSENT TO BE BOUND (WITH DECLARATIONS AND RESERVATION) United States of America
Notification effected with the Secretary-General of the United Nations: 24 May 1999”).
257 Refer to § 6.14 (Incendiary Weapons).
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19.21.5 CCW Protocol IV on Blinding Laser Weapons. CCW Protocol IV on Blinding
Laser Weapons prohibits the use of blinding laser weapons and requires that feasible precautions
be taken in the employment of laser systems to avoid causing permanent blindness.259
States Parties to the CCW adopted CCW Protocol IV on Blinding Laser Weapons at the
first Review Conference of CCW States Parties, which concluded its work on May 3, 1996.260
This Protocol was consistent with DoD policy on blinding lasers before the Protocol was
adopted.261
The United States provided notification of its consent to be bound by CCW Protocol IV
on Blinding Laser Weapons on January 21, 2009, with an understanding.262
U.S. legal reviews before CCW Protocol IV was adopted concluded that the use of a laser
for the purpose of blinding an enemy combatant would not constitute unnecessary suffering
under the law of war.263 Similarly, the restrictions in CCW Protocol IV on Blinding Laser
Weapons may be characterized as arms control obligations in that these restrictions do not
establish that the use of lasers as anti-personnel weapons, including for the purpose of blinding,
258 United States, Statement on Consent to Be Bound by CCW Protocol III on Incendiary Weapons, Jan. 21, 2009,
2562 UNTS 36, 37 (“It is the understanding of the United States of America that any decision by any military
commander, military personnel, or any other person responsible for planning, authorizing or executing military
action shall only be judged on the basis of that person’s assessment of the information reasonably available to the
person at the time the person planned, authorized, or executed the action under review, and shall not be judged on
the basis of information that comes to light after the action under review was taken.”). Refer to § 6.14.3.2 (U.S.
Reservation to CCW Protocol III on Incendiary Weapons).
259 Refer to § 6.15 (Laser Weapons).
260 Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol IV, entitled
Protocol on Blinding Laser Weapons), Oct. 13, 1995, 2024 UNTS 163.
261 William J. Perry, Secretary of Defense, DOD Policy on Blinding Lasers, Jan. 17, 1997 (amending policy
statement of Aug. 29, 1995) (“The Department of Defense prohibits the use of lasers specifically designed to cause
permanent blindness and supports negotiations to prohibit the use of such weapons. However, laser systems are
absolutely vital to our modern military. Among other things, they are currently used for detection, targeting, range-
finding, communications and target destruction. They provide a critical technological edge to U.S. forces and allow
our forces to fight, win and survive on an increasingly lethal battlefield. In addition, lasers provide significant
humanitarian benefits. They allow weapon systems to be increasingly discriminate, thereby reducing collateral
damage to civilian lives and property. The Department of Defense recognizes that accidental or incidental eye
injuries may occur on the battlefield as the result of the use of lasers not specifically designed to cause permanent
blindness. Therefore, we continue to strive, through training and doctrine, to minimize these injuries.”).
262 United States, Statement on Consent to Be Bound to CCW Protocol IV on Blinding Laser Weapons, Jan. 21,
2009, 2562 UNTS 38 (“It is the understanding of the United States of America with respect to Article 2 that any
decision by any military commander, military personnel, or any other person responsible for planning, authorizing
or executing military action shall only be judged on the basis of that person’s assessment of the information
reasonably available to the person at the time the person planned, authorized or executed the action under review,
and shall not be judged on the basis of information that comes to light after the action under review was taken.”).
263 Major General Hugh R. Overholt, The Judge Advocate General, Army, Memorandum of Law: Use of Lasers as
Antipersonnel Weapons, ¶7, Sept. 29, 1988, reprinted in THE ARMY LAWYER 3, 4 (Nov. 1988) (“The fundamental
issue with which this review is concerned is whether the use of a laser for the purpose of blinding an enemy soldier
would constitute unnecessary suffering. The conclusion is that it would not.”).
1170
is prohibited by the rule against weapons calculated to cause unnecessary suffering nor otherwise
prohibited by the customary law of war.264
19.21.6 CCW Protocol V on Explosive Remnants of War. CCW Protocol V on
Explosive Remnants of War addresses explosive ordnance and explosive remnants of war.265
CCW Protocol V on Explosive Remnants of War contains no restrictions or prohibitions on the
use of these weapons; rather, it addresses what must be done with respect to unexploded
munitions that threaten civilians and post-conflict reconstruction.266 CCW Protocol V on
Explosive Remnants of War addresses primarily the steps to be taken before or after hostilities,
not during them, and it includes a Technical Annex of suggested best practices for greater
munitions reliability.267
CCW Protocol V on Explosive Remnants of War was adopted on November 28, 2003.268
The United States provided notification of its consent to be bound by CCW Protocol V
on Explosive Remnants of War on January 21, 2009.269 The United States expressed its
understanding relating to future arrangements in connection with the settlement of armed
conflicts.270
264 W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters,
Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in
THE ARMY LAWYER 33, 36 (Jun. 1997) (“As the delegate from Sweden observed in the fourth and final meeting of
the Laser Working Group on 6 October 1995, Protocol IV is a unique step in combining law of war and arms control
mechanisms. The first sentence of Article 1 follows arms control lines by creating a national obligation to forego
the use on the battlefield of a laser weapon of the type described in the balance of the sentence, rather than
establishing that an antipersonnel laser weapon is inconsistent with the law of war prohibition on unnecessary
suffering. … Neither the prohibition in Article 1 nor anything else in Protocol IV establishes, nor was it intended to
establish, that an individual, intentional act of blinding by a laser constitutes unnecessary suffering or is otherwise a
violation of the law of war, for several reasons.”).
265 Refer to § 6.19 (Explosive Ordnance); § 6.20 (Explosive Remnants of War).
266 Overview and Article-by-Article Analysis of CCW Protocol V on Explosive Remnants of War 1-2, MESSAGE FROM
THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVE
REMNANTS OF WAR 11-12 (“Protocol V is the first international agreement specifically aimed at reducing the
humanitarian threat posed by unexploded and abandoned munitions of all types remaining on the battlefield after the
end of armed conflicts. Protocol V contains no restrictions or prohibitions on the use of these weapons; rather, it
addresses what must be done with respect to unexploded munitions that threaten civilians and post-conflict
reconstruction.”).
267 Overview and Article-by-Article Analysis of CCW Protocol V on Explosive Remnants of War 1-2, MESSAGE FROM
THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVE
REMNANTS OF WAR 11-12 (“The Protocol deals primarily with steps to be taken before or after hostilities, not during
them. Protocol V also includes a Technical Annex of suggested best practices that states Parties to the Protocol are
encouraged to follow on a voluntary basis in order to achieve greater munitions reliability.”).
268 Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects
(Protocol V), Nov. 28, 2003, 2399 UNTS 100-177.
269 2562 UNTS 39, 40 (“Receipt of notification by the Secretary-General of the United Nations: 21 January 2009”).
270 Refer to § 6.20.5 (Obligations Under the CCW Protocol V on Explosive Remnants of War That Are Triggered by
the Cessation of Active Hostilities).
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19.22 CHEMICAL WEAPONS CONVENTION
The Chemical Weapons Convention creates extensive obligations for States with respect
to the use and possession of chemical weapons.271
Article 22 of the Chemical Weapons Convention prohibits reservations to the Convention
and prohibits reservations to the Convention’s Annexes incompatible with its object and
purpose.272
During the negotiation of the Chemical Weapons Convention, President George H.W.
Bush on May 13, 1991, announced that the United States was formally forswearing the use of
chemical weapons for any reason, including retaliation, against any State, effective when the
Convention entered into force.273
The United States signed the Chemical Weapons Convention on January 13, 1993, and
President Clinton submitted it to the Senate for its advice and consent to ratification on
November 23, 1993.274 In transmitting the Chemical Weapons Convention to the Senate for its
advice and consent to ratification, President Clinton notified the Senate that the administration
was reviewing the effect of the Convention’s prohibition on the use of riot control agents as a
method of warfare on Executive Order No. 11850, which specified the current policy of the
United States with regard to the use of riot control agents in war, and would submit the results of
that review separately to the Senate.275 The review concluded that under then-current
interpretations of the Chemical Weapons Convention, certain uses of riot control agents
authorized under Executive Order 11850 would no longer be permissible and that a new
Executive Order on riot control agents would be issued.276 The Senate, as a condition of its
271 Refer to § 6.8.3 (Chemical Weapons).
272 CHEMICAL WEAPONS CONVENTION art. 22 (“The Articles of this Convention shall not be subject to reservations.
The Annexes of this Convention shall not be subject to reservations incompatible with its object and purpose.”).
273 George H. W. Bush, Statement on Chemical Weapons, May 13, 1991, 1991-I PUBLIC PAPERS OF THE PRESIDENTS
503 (“To demonstrate the United States commitment to banning chemical weapons, we are formally forswearing the
use of chemical weapons for any reason, including retaliation, against any state, effective when the convention
enters into force, and will propose that all states follow suit.”).
274 William J. Clinton, Letter of Transmittal, Nov. 23, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE
CHEMICAL WEAPONS CONVENTION III (“The Convention was opened for signature and was signed by the United
States at Paris on January 13, 1993.”).
275 William J. Clinton, Letter of Transmittal, Nov. 23, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE
CHEMICAL WEAPONS CONVENTION V (“The Administration is reviewing the impact of the Convention’s prohibition
on the use of riot control agents as a method of warfare on Executive Order No. 11850, which specifies the current
policy of the United States with regard to the use of riot control agents in war. The results of the review will be
submitted separately to the Senate.”).
276 William J. Clinton, Message to the Senate on the Impact of the Chemical Weapons Convention on the Use of Riot
Control Agents, Jun. 23, 1994, 1994-I PUBLIC PAPERS OF THE PRESIDENTS 1127, 1128 (“—The CWC does prohibit
the use of RCAs solely against combatants. In addition, according to the current international understanding, the
CWC's prohibition on the use of RCAs as a ‘method of warfare’ also precludes the use of RCAs even for
humanitarian purposes in situations where combatants and noncombatants are intermingled, such as the rescue of
downed air crews, passengers, and escaping prisoners and situations where civilians are being used to mask or
screen attacks. However, were the international understanding of this issue to change, the United States would not
consider itself bound by this position. Upon receiving the advice and consent of the Senate to ratification of the
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advice and consent to ratification, required that the President certify to Congress that the United
States is not restricted by the Chemical Weapons Convention in its use of riot control agents in
certain cases and that Executive Order 11850 would not be modified.277 President Clinton
provided this certification on April 25, 1997.278
The United States ratified the Chemical Weapons Convention on April 25, 1997, with
one condition that relates to the Annex on Implementation and Verification.279 The treaty
requires that sixty-five nations become Party to it before it enters into force, which occurred on
April 29, 1997.280
Chemical Weapons Convention, a new Executive order outlining U.S. policy on the use of RCAs under the
Convention will be issued.”).
277 Senate, Conditions to Ratification of the Chemical Weapons Convention, Senate Resolution 75, 105th Congress,
143 CONGRESSIONAL RECORD S3651, S3657 (1997) (“(26) Riot control agents: (A) Permitted uses. — Prior to the
deposit of the United States instrument of ratification, the President shall certify to Congress that the United States is
not restricted by the Convention in its use of riot control agents, including the use against combatants who are
parties to a conflict, in any of the following cases:
(i) UNITED STATES NOT A PARTY. — The conduct of peacetime
military operations within an area of ongoing armed conflict when the United States is not a party to the conflict
(such as recent use of the United States Armed Forces in Somalia, Bosnia, and Rwanda). (ii) CONSENSUAL
PEACEKEEPING. — Consensual peacekeeping operations when the use of force is authorized by the receiving state,
including operations pursuant to Chapter VI of the United Nations Charter. (iii) CHAPTER VII PEACEKEEPING. —
Peacekeeping operations when force is authorized by the Security Council under Chapter VII of the United Nations
Charter.
(B) Implementation. — The President shall take no measure, and prescribe no rule or regulation, which
would alter or eliminate Executive Order 11850 of April 8, 1975. (C) Definition. — In this paragraph, the term ‘riot
control agent’ has the meaning given the term in Article II(7) of the Convention.”).
278 William J. Clinton, Message to the Congress on the Chemical Weapons Convention, Apr. 25, 1997, 1997-I
PUBLIC PAPERS OF THE PRESIDENTS 495, 495-97 (“In accordance with the resolution of advice and consent to
ratification of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical
Weapons and on Their Destruction, adopted by the Senate of the United States on April 24, 1997, I hereby certify
that: ... In connection with Condition (26), Riot Control Agents, the United States is not restricted by the Convention
in its use of riot control agents, including the use against combatants who are parties to a conflict, in any of the
following cases: (i) the conduct of peacetime military operations within an area of ongoing armed conflict when the
United States is not a party to the conflict (such as recent use of the United States Armed Forces in Somalia, Bosnia,
and Rwanda); (ii) consensual peacekeeping operations when the use of force is authorized by the receiving state,
including operations pursuant to Chapter VI of the United Nations Charter; and (iii) peacekeeping operations when
force is authorized by the Security Council under Chapter VII of the United Nations Charter. … In accordance with
Condition (26) on Riot Control Agents, I have certified that the United States is not restricted by the Convention in
its use of riot control agents in various peacetime and peacekeeping operations. These are situations in which the
United States is not engaged in a use of force of a scope, duration and intensity that would trigger the laws of war
with respect to U.S. forces.”).
279 United States, Declaration Made on Ratification of the Chemical Weapons Convention, Apr. 29, 1997, 1975
UNTS 475 (“Subject to the condition which relates to the Annex on Implementation and Verification, that no
sample collected in the United States pursuant to the Convention will be transferred for analysis to any laboratory
outside the territory of the United States.”).
280 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and
on Their Destruction, Jan. 13, 1993, 1974 UNTS 317 footnote 1 (“Came into force on 29 April 1997, in accordance
with article XXI:”). See also CHEMICAL WEAPONS CONVENTION art. 21 (“This Convention shall enter into force
180 days after the date of the deposit of the 65th instrument of ratification, but in no case earlier than two years after
its opening for signature.”).
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In implementation of the Chemical Weapons Convention, Congress enacted laws
prohibiting, inter alia, development, production, acquisition, transfer directly or indirectly,
receipt, stockpiling, retention, possession, use, or threat of use of any chemical weapon.281
19.23 ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
The Rome Statute of the International Criminal Court (“Rome Statute”) establishes the
International Criminal Court (“ICC”) at The Hague, Netherlands.282 Under the Rome Statute,
the ICC may investigate and prosecute certain international crimes (e.g., genocide, war crimes)
in certain situations.283
The United States signed the Rome Statute on December 31, 2000, but President Clinton
did not submit the treaty to the Senate for its advice and consent to ratification. Because of
“significant flaws,” President Clinton recommended that his successor not submit the Rome
Statute to the Senate until the United States’ fundamental concerns with the treaty were
addressed.284 In particular, the United States has expressed concern that the ICC would claim
jurisdiction over personnel of States that have not ratified the Rome Statute.285 In addition, for
example, concerns have been raised that the ICC would not provide U.S. persons accused of war
crimes with the procedural protections that they are afforded under U.S. domestic law.286
On May 6, 2002, the United States filed a letter with the U.N. Secretary General, the
depositary for the Rome Statute, indicating that it “does not intend to become a party to the
treaty,” and that “[a]ccordingly, the United States has no legal obligations arising from its
signature on December 31, 2000.”287 The United States participated as an observer in the Rome
Statute’s first Review conference in Kampala, Uganda, May 30-June 11, 2010, and has
281 18 U.S.C.S. § 229 (“(a) Unlawful conduct. Except as provided in subsection (b), it shall be unlawful for any
person knowingly— (1) to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile,
retain, own, possess, or use, or threaten to use, any chemical weapon; or (2) to assist or induce, in any way, any
person to violate paragraph (1), or to attempt or conspire to violate paragraph (1). (b) Exempted agencies and
persons. (1) In general. Subsection (a) does not apply to the retention, ownership, possession, transfer, or receipt of
a chemical weapon by a department, agency, or other entity of the United States, or by a person described in
paragraph (2), pending destruction of the weapon. (2) Exempted persons. A person referred to in paragraph (1) is—
(A) any person, including a member of the Armed Forces of the United States, who is authorized by law or by an
appropriate officer of the United States to retain, own, possess, transfer, or receive the chemical weapon; or (B) in an
emergency situation, any otherwise nonculpable person if the person is attempting to destroy or seize the weapon.”).
282 Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187 UNTS 90.
283 Refer to § 18.20.3 (The International Criminal Court (ICC) Created by the Rome Statute).
284 William J. Clinton, Statement on the Rome Treaty on the International Criminal Court, Dec. 31, 2000, 2000-III
PUBLIC PAPERS OF THE PRESIDENTS 2816.
285 Refer to § 18.20.3.1 (Attempt to Assert Jurisdiction With Respect to Nationals of Non-Party States).
286 See, e.g., 22 U.S.C. § 7421 (“Congress makes the following findings: … (7) Any American prosecuted by the
International Criminal Court will, under the Rome Statute, be denied procedural protections to which all Americans
are entitled under the Bill of Rights to the United States Constitution, such as the right to trial by jury.”).
287 John Bolton, Letter to Kofi Anan, U.N. Treaty Collection Depository Notification, C.N.434.2002, May 6, 2002.
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supported ICC efforts in certain cases.288 The Department of State Legal Adviser has noted that
U.S. policy is explicitly not to frustrate the object and purpose of the Rome Statute.289
19.24 1999 U.N. SECRETARY GENERAL’S BULLETIN FOR U.N. FORCES
The U.N. Secretary General has promulgated a bulletin for the purpose of setting out
fundamental principles and rules of international humanitarian law applicable to United Nations
forces conducting operations under United Nations command.290 The bulletin is not a legally
binding instrument, although, in many cases, the rules reflected in the bulletin reflect law of war
rules that are binding upon the United States as a matter of treaty or customary international law.
The bulletin has been the subject of criticism by States.291
19.25 2005 ICRC STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN LAW
There is no list of treaty provisions (or other codification) that the United States has
agreed reflects the entirety of the customary international law of war.292
In 2005, the International Committee of the Red Cross published a study on customary
international humanitarian law (ICRC CIHL Study), which has been criticized for its
methodology and formulation of certain specific rules.293 The United States likewise has
expressed serious concerns about the methodology used in the ICRC CIHL Study and has stated
288 Refer to § 18.20.3.3 (U.S. Law and Policy on Support to the ICC).
289 Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international criminal justice at the Vera
Institute of Justice in New York and at Leiden University, Campus The Hague, 2012 DIGEST OF UNITED STATES
PRACTICE IN INTERNATIONAL LAW 61, 68 (“Putting all of this together, as I made clear more than two years ago in a
speech at New York University, ‘What you quite explicitly do not see from this Administration is U.S. hostility
towards the Court. You do not see what international lawyers might call a concerted effort to frustrate the object
and purpose of the Rome Statute. That is explicitly not the policy of this administration. Because although the
United States is not a party to the Rome Statute, we share with the States parties a deep and abiding interest in
seeing the Court successfully complete the important prosecutions it has already begun.’”).
290 U.N. SECRETARIAT, Secretary-General’s Bulletin: Observance by United Nations Forces of International
Humanitarian Law, U.N. Doc. ST/SGB/1999/13 (Aug. 6, 1999) (“The Secretary-General, for the purpose of setting
out fundamental principles and rules of international humanitarian law applicable to United Nations forces
conducting operations under United Nations command and control, promulgates the following:”).
291 Report of the Special Committee on Peacekeeping Operations, Comprehensive review of the whole question of
peacekeeping operations in all their aspects, U.N. Doc. A/54/839 ¶82 (Mar. 20, 2000) (“The Special Committee
notes the Secretary-General’s comments on the guidelines on compliance with international humanitarian law by
United Nations peacekeepers. The Committee expresses concern about the lack of consultation with Member States
by the Secretariat before finalizing Secretary-General’s Bulletin ST/SGB/1999/13. It requests further clarification
on the Bulletin’s legal status, and stresses that it must accurately reflect the terms of international humanitarian law.
It requests the Secretary-General to carry out consultations on the Bulletin with the Special Committee.”).
292 Refer to § 1.8 (Customary International Law).
293 See, e.g., Daniel Bethlehem, The Methodological framework of the Study, ELIZABETH WILMSHURST & SUSAN
BREAU, PERSPECTIVES ON THE ICRC STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 4 (2007)
(“Without detracting from this genuine appreciation, it is necessary and appropriate to draw attention to some
important misgivings about the Study, as regards both methodology and the formulation of certain specific Rules.”).
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that it is not in a position to accept without further analysis the Study’s conclusions that certain
rules related to the law of war in fact reflect customary international law.294
19.26 AP III
A third additional protocol to the 1949 Geneva Conventions was adopted on December 8,
2005.295 AP III recognizes a red crystal as an additional distinctive emblem for the same
purposes as the distinctive emblems of the Geneva Conventions.296
The United States deposited its instrument of ratification to AP III on March 8, 2007,
without making any statements of reservation, declaration, or understanding.297
294 U.S. RESPONSE TO ICRC CIHL STUDY 514 (“Given the Study’s large scope, we have not yet been able to
complete a detailed review of its conclusions. We recognize that a significant number of the rules set forth in the
Study are applicable in international armed conflict because they have achieved universal status, either as a matter of
treaty law or - as with many provisions derived from the Hague Regulations of 1907 - customary law. Nonetheless,
it is important to make clear - both to you and to the greater international community - that, based upon our review
thus far, we are concerned about the methodology used to ascertain rules and about whether the authors have
proffered sufficient facts and evidence to support those rules. Accordingly, the United States is not in a position to
accept without further analysis the Study’s conclusions that particular rules related to the laws and customs of war in
fact reflect customary international law.”).
295 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional
Distinctive Emblem (Protocol III), Dec. 8, 2005, 2404 UNTS 1.
296 Refer to § 7.15.1.3 (Red Crystal).
297 2444 UNTS 287 (“RATIFICATION United States of America Deposit of instrument with the Government of
Switzerland: 8 March 2007”).
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