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XIX Documentary Appendix Notes on Treaties and Other Relevant
Documents
Chapter Contents
19.1 Introduction 19.2 Lists of Treaties and Other Documents
19.3 Lieber Code 19.4 1856 Paris Declaration Respecting Maritime
Law 19.5 1864 GWS 19.6 1868 St. Petersburg Declaration 19.7 1899
and 1907 Hague Declarations on Weapons 19.8 1899 Hague II and 1907
Hague IV Conventions and Annexed Regulations
Regarding Land Warfare 19.9 1907 Hague X 19.10 1922 Washington
Treaty on Submarines and Noxious Gases 19.11 1923 Hague Air and
Radio Rules 19.12 1925 Geneva Gas and Bacteriological Protocol
19.13 1929 Geneva Conventions 19.14 1930 London Treaty for the
Limitation and Reduction of Naval Armament
and 1936 London Protocol 19.15 1935 Roerich Pact 19.16 1949
Geneva Conventions 19.17 1954 Hague Cultural Property Convention
19.18 Vienna Convention on the Law of Treaties 19.19 Biological
Weapons Convention 19.20 1977 Additional Protocols to the 1949
Geneva Conventions 19.21 CCW, CCW Amended Article 1, and CCW
Protocols 19.22 Chemical Weapons Convention 19.23 Rome Statute of
the International Criminal Court 19.24 1999 U.N. Secretary Generals
Bulletin for U.N. Forces 19.25 2005 ICRC Study on Customary
International Humanitarian Law 19.26 AP III
19.1 INTRODUCTION
This appendix provides background information about certain
treaties and other documents.
This appendix is intended to describe DoD views and practice
relating to those documents as of the date of publication of this
manual.
19.2 LISTS OF TREATIES AND OTHER DOCUMENTS
This section lists: (1) law of war treaties to which the United
States is a Party; (2) arms control agreements to which the United
States is a Party that are of direct relevance to the law of war;
(3) examples of treaties signed but not ratified by the United
States; (4) examples of treaties
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that the United States has neither signed nor ratified; and (5)
examples of treaties or documents of mainly historical value.
The categorization of a treaty as a law of war treaty or an arms
control treaty is intended to help practitioners understand the
context in which the treaty was concluded and its purposes. For
example, a law of war treaty generally focuses on restrictions on
the use of weapons during armed conflict, while an arms control
treaty generally focuses on restricting development and acquisition
of weapons.1 Some treaties that are characterized below as law of
war treaties have elements of arms control, and some treaties that
are characterized below as arms control treaties have elements of
the law of war.
Bold type within this section indicates an abbreviation used in
this manual; a full list of abbreviations is provided at the
beginning of the manual.2
Law of War Treaties to Which the United States Is a Party. Law
of war treaties to 19.2.1which the United States is a Party
include:
Washington Convention Regarding the Rights of Neutrals at Sea of
October 31, 1854.3
Hague Convention for the Exemption of Hospital Ships, in Time of
War, from the Payment of all Dues and Taxes Imposed for the Benefit
of the State of December 21, 1904.4
Hague Convention III of October 18, 1907, Relative to the
Opening of Hostilities.5
Hague Convention IV of October 18, 1907, Respecting the Laws and
Customs of War on Land (Hague IV), and the Annex thereto, entitled
Regulations Respecting the Laws and Customs of War on Land (Hague
IV Regulations).6
Hague Convention V of October 18, 1907, Respecting the Rights
and Duties of Neutral Powers and Persons in Case of War on Land
(Hague V).7
Hague Convention VIII of October 18, 1907, Relative to the
Laying of Automatic Submarine Contact Mines (Hague VIII).8
1 Refer to 1.6.2 (Arms Control). 2 Refer to List of
Abbreviations. 3 Convention with Russia, Jul. 22, 1854, 10 STAT.
1105. 4 Refer to 7.12.4.3 (Relief From Taxation in Time of War). 5
Convention Relative to the Opening of Hostilities, Oct. 18, 1907,
36 STAT. 2259. 6 Refer to 19.8.2 (Hague IV). 7 Convention
Respecting the Rights and Duties of Neutral Powers and Persons in
Case of War on Land, Oct. 18, 1907, 36 STAT. 2310. 8 Refer to 13.11
(Naval Mines); 13.12 (Torpedoes).
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Hague Convention IX of October 18, 1907, Concerning Bombardment
by Naval Forces in Time of War (Hague IX).9
Hague Convention XI of October 18, 1907, Relative to Certain
Restrictions with Regard to the Exercise of the Right of Capture in
Naval War (Hague XI).10
Hague Convention XIII of October 18, 1907, Concerning the Rights
and Duties of Neutral Powers in Naval War (Hague XIII).11
1928 Pan American Maritime Neutrality Convention.12
1930 London Treaty for the Limitation and Reduction of Naval
Armament.13
Treaty on the Protection of Artistic and Scientific Institutions
and Historic Monuments of April 15, 1935 (Roerich Pact).14
Charter of the United Nations (U.N. Charter).15
1949 Geneva Conventions,16 including the
o Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field of August 12, 1949
(GWS);17
o Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of
August 12, 1949 (GWS-Sea);18
o Geneva Convention Relative to the Treatment of Prisoners of
War of August 12, 1949 (GPW);19 and
o Geneva Convention Relative to the Protection of Civilian
Persons in Time of War of August 12, 1949 (GC).20
9 Convention Concerning Bombardment by Naval Forces in Time of
War, Oct. 18, 1907, 36 STAT. 2351. 10 Convention Relative to
Certain Restrictions With Regard to the Exercise of the Right of
Capture in Naval War, Oct. 18, 1907, 36 STAT. 2396. 11 Convention
Concerning the Rights and Duties of Neutral Powers in Naval War,
Oct. 18, 1907, 36 STAT. 2415. 12 Pan American Maritime Neutrality
Convention, Feb. 20, 1928, 47 STAT. 1989. 13 Refer to 19.14 (1930
London Treaty for the Limitation and Reduction of Naval Armament
and 1936 London Protocol). 14 Refer to 19.15 (1935 Roerich Pact).
15 Refer to 1.11.2 (U.N. Charter Framework and the U.N. Security
Council). 16 Refer to 19.16 (1949 Geneva Conventions). 17 Refer to
19.16.2 (GWS). 18 Refer to 19.16.3 (GWS-Sea). 19 Refer to 19.16.4
(GPW).
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Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict of May 14, 1954 (1954 Hague Cultural
Property Convention).21
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 of October 10, 1980,
its Protocols I, II, III, IV, and V, its Amended Protocol II, and
its Amended Article 1 (CCW);22
o CCW Amended Article 1;23
o Protocol on Non-Detectable Fragments (Protocol I). Geneva,
October 10, 1980 (CCW Protocol I);24
o Protocol on Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices as amended on May 3, 1996 (Protocol
II to the 1980 CCW Convention as amended on May 3, 1996) (CCW
Amended Mines Protocol);25
o Protocol on Prohibitions or Restrictions on the Use of
Incendiary Weapons (Protocol III). Geneva, October 10, 1980 (CCW
Protocol III on Incendiary Weapons);26
o Protocol on Blinding Laser Weapons (Protocol IV to the 1980
Convention), October 13, 1995 (CCW Protocol IV on Blinding Laser
Weapons);27 and
o Protocol on Explosives Remnants of War (Protocol V to the 1980
Convention), November 28, 2004 (CCW Protocol V on Explosive
Remnants of War).28
Optional Protocol to the Convention on the Rights of the Child
on the involvement of Children in Armed Conflict, May 25, 2000
(Child Soldiers Protocol).29
Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Adoption of an Additional Distinctive Emblem
(Protocol III), December 8, 2005 (AP III).30
20 Refer to 19.16.5 (GC). 21 Refer to 19.17 (1954 Hague Cultural
Property Convention). 22 Refer to 19.21 (CCW, CCW Amended Article
1, and CCW Protocols). 23 Refer to 19.21.1.1 (CCW Amended Scope of
Application). 24 Refer to 19.21.2 (CCW Protocol I). 25 Refer to
19.21.3 (CCW Amended Mines Protocol). 26 Refer to 19.21.4 (CCW
Protocol III on Incendiary Weapons). 27 Refer to 19.21.5 (CCW
Protocol IV on Blinding Laser Weapons). 28 Refer to 19.21.6 (CCW
Protocol V on Explosive Remnants of War). 29 Refer to 4.20.5.2
(Child Soldiers Protocol).
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Arms Control Agreements to Which the United States Is a Party
That Are of 19.2.2Direct Relevance to the Law of War. The United
States is a Party to the following treaties that contain
restrictions on the use of weapons during armed conflict:
Geneva Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous or Other Gases, and of Bacteriological
Methods of Warfare of June 17, 1925 (1925 Geneva Gas and
Bacteriological Protocol).31
Convention on the Prohibition of Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and
on Their Destruction of April 10, 1972 (Biological Weapons
Convention).32
Convention on the Prohibition of Military or Any Other Hostile
Use of Environmental Modification Techniques of May 18, 1977 (ENMOD
Convention).33
Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on Their Destruction of
January 13, 1993 (Chemical Weapons Convention).34
Examples of Treaties Signed but Not Ratified by the United
States. This section is 19.2.3not comprehensive. It lists examples
of treaties that the United States has signed, but not
ratified.
A State that has signed a treaty is obliged to refrain from acts
that would defeat the object and purpose of a treaty, until it
shall have made its intention clear not to become a Party to the
treaty.35
Procs-Verbal Relating to the Rules of Submarine Warfare set
forth in Part IV of the Treaty of London of April 22, 1930 (1936
London Protocol).36
30 Refer to 19.26 (AP III). 31 Refer to 19.12 (1925 Geneva Gas
and Bacteriological Protocol). 32 Refer to 19.19 (Biological
Weapons Convention). 33 Refer to 6.10 (Certain Environmental
Modification Techniques). 34 Refer to 19.22 (Chemical Weapons
Convention). 35 Consider VCLT art. 18 (A State is obliged to
refrain from acts which would defeat the object and purpose of a
treaty when: (a) It has signed the treaty or has exchanged
instruments constituting the treaty subject to ratification,
acceptance or approval, until it shall have made its intention
clear not to become a party to the treaty; or (b) It has expressed
its consent to be bound by the treaty, pending the entry into force
of the treaty and provided that such entry into force is not unduly
delayed.). See also William P. Rogers, Letter of Submittal, Oct.
18, 1971, MESSAGE FROM THE PRESIDENT TRANSMITTING THE VCLT 2
(Article 18 sets forth rules governing the obligation of States not
to defeat the object and purpose of a treaty prior to its entry
into force. That obligation is limited to (a) States that have
signed a treaty or exchanged ad referendum instruments constituting
a treaty, until such time as they make clear their intention not to
become a party, and (b) States that have expressed consent to be
bound, pending entry into force and provided such entry into force
is not unduly delayed. This rule is widely recognized in customary
international law.).
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Vienna Convention on the Law of Treaties (VCLT).37
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 (AP I).38
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 (AP II).39
U.N. Convention on the Law of the Sea (LOS Convention).40
Rome Statute of the International Criminal Court of July 17,
1998 (Rome Statute).41
Examples of Treaties That the United States Has Neither Signed
Nor Ratified. 19.2.4This section is not comprehensive. It lists
examples of law of war and arms control treaties that the United
States has neither signed nor ratified:
Declaration respecting maritime law signed by the
Plenipotentiaries of Great Britain, Austria, France, Prussia,
Russia, Sardinia, and Turkey, assembled in Congress at Paris, April
16, 1856.42
Hague Declaration on Expanding Bullets of July 29, 1899.43
Hague Convention VI Relating to the Status of Enemy Merchant
Ships at the Outbreak of Hostilities of October 18, 1907.
Hague Convention VII Relating to the Conversion of Merchant
Ships into Warships of October 18, 1907.
First Protocol to the Hague Convention of 1954 for the
Protection of Cultural Property in the Event of Armed Conflict of
May 14, 1954.
Ottawa Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on Their
Destruction of September 18, 1997.44
36 Refer to 19.14 (1930 London Treaty for the Limitation and
Reduction of Naval Armament and 1936 London Protocol). 37 Refer to
19.18 (Vienna Convention on the Law of Treaties). 38 Refer to
19.20.1 (AP I). 39 Refer to 19.20.2 (AP II). 40 Refer to 13.1.2
(The United States and the LOS Convention). 41 Refer to 19.23 (Rome
Statute of the International Criminal Court). 42 Refer to 19.4
(1856 Paris Declaration Respecting Maritime Law). 43 Refer to
19.7.1 (1899 Declaration on Expanding Bullets). 44 Refer to 6.12.14
(Ottawa Convention on Anti-Personnel Landmines).
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Second Protocol to the Hague Convention of 1954 for the
Protection of Cultural Property in the Event of Armed Conflict of
March 26, 1999.
Convention on Cluster Munitions of May 30, 2008.45
Examples of Treaties or Documents of Mainly Historical Value.
This section is 19.2.5not comprehensive. It lists examples of
treaties and documents that are regarded as having mainly
historical value:
General Order No. 100, Instructions for the Government of Armies
of the United States in the Field, 1863 (Lieber Code).46
Geneva Convention for the Amelioration of the Wounded in Armies
in the Field of August 22, 1864 (1864 GWS).47
St. Petersburg Declaration Renouncing the Use, in Time of War,
of Explosive Projectiles under 400 Grams Weight of December 11,
1868 (1868 St. Petersburg Declaration).48
Hague Declaration (IV, 1) to Prohibit for the Term of Five Years
the Launching of Projectiles and Explosives from Balloons, and
Other Methods of a Similar Nature of July 29, 1899.49
Hague Declaration on Asphyxiating Gases of July 29, 1899.50
Hague Convention II with Respect to the Laws and Customs of War
on Land, with Annex of Regulations of July 29, 1899 (1899 Hague
II).51
Hague Convention X for the Adaptation to Maritime Warfare of the
Principles of the Geneva Convention of October 18, 1907 (Hague
X).52
Hague Declaration XIV Prohibiting the Discharge of Projectiles
and Explosives from Balloons of October 18, 1907.53
Washington Treaty Relating to the Use of Submarines and Noxious
Gases in Warfare of February 6, 1922.54
45 Refer to 6.13.4 (Convention on Cluster Munitions). 46 Refer
to 19.3 (Lieber Code). 47 Refer to 19.5 (1864 GWS). 48 Refer to
19.6 (1868 St. Petersburg Declaration). 49 Refer to 19.7.3 (1899
and 1907 Declarations on the Discharge of Projectiles and
Explosives From Balloons). 50 Refer to 19.7.2 (1899 Declaration on
Asphyxiating Gases). 51 Refer to 19.8.1 (1899 Hague II). 52 Refer
to 19.9 (1907 Hague X). 53 Refer to 19.7.3 (1899 and 1907
Declarations on the Discharge of Projectiles and Explosives From
Balloons).
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General Report of the Commission of Jurists to Consider and
Report upon the Revision of the Rules of Warfare, Feb. 19, 1923
(1923 Hague Air and Radio Rules).55
Geneva Convention Amelioration of the Condition of the Wounded
and Sick of Armies in the Field of July 27, 1929 (1929 GWS).56
Geneva Convention Relative to the Treatment of Prisoners of War
of July 27, 1929 (1929 GPW).57
19.3 LIEBER CODE
General Order No. 100, Instructions for the Government of Armies
of the United States in the Field, 1863, issued on April 24, 1863,
is often called the Lieber Code because it was prepared by Francis
Lieber.58 It is an early example of the law of war being
implemented through military instructions or regulations.59
The Lieber Code was the first comprehensive publication on the
law of war for U.S. armed forces and is regarded as an important
work of historical significance in the law of war.60
The Lieber Code established rules governing martial law,
military jurisdiction, the treatment of spies and deserters, and
the treatment of POWs. Many key law of war principles, such as the
principle of military necessity, were codified in the Lieber
Code.61 However, parts of 54 Refer to 19.10 (1922 Washington Treaty
on Submarines and Noxious Gases). 55 Refer to 19.11 (1923 Hague Air
and Radio Rules). 56 Refer to 19.13.1 (1929 GWS). 57 Refer to
19.13.2 (1929 GPW). 58 E. D. Townsend, Assistant Adjutant General,
General Orders No. 100, Instructions for the Government of Armies
of the United States in the Field, Apr. 24, 1863, reprinted in
INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN
THE FIELD, 2 (Government Printing Office, 1898) (The following
Instructions for the Government of Armies of the United States in
the Field, prepared by Francis Lieber, L.L.D., and revised by a
Board of Officers, of which Major General E.A. Hitchcock is
president, having been approved by the President of the United
States, he commands that they be published for the information of
all concerned.). 59 Refer to 18.7 (Instructions, Regulations, and
Procedures to Implement and Enforce the Law of War). 60 See, e.g.,
Kononov v. Latvia, European Court of Human Rights, App. No.
36376/04, 63 (May 17, 2010) (The Lieber Code 1863 is regarded as
the first attempt to codify the laws and customs of war. Although
only applicable to American forces, it represented a summary of the
laws and customs of war existing at the time and was influential in
later codifications.); Elihu Root, Francis Lieber, 7 AJIL 453, 457
(1913) (In the Brussels Conference of 1874, convened at the
instance of the Emperor of Russia for the purpose of codifying the
laws and customs of war, the Russian delegate, Baron Jomini, as
president of the conference, declared that the project of an
international convention then presented had its origin in the rules
of President Lincoln. The convention agreed upon at Brussels was
not ratified, but in 1880 the Institute of International Law made
the work of the Brussels Conference and the work of Lieber, which
so far as it was of general application was incorporated in that
convention, the basis of a manual of the laws of war upon land; and
finally, in The Hague Conferences of 1899 and 1907, the conventions
with respect to the laws and customs of war on land gave the
adherence of the whole civilized world in substance and effect to
those international rules which President Lincoln made binding upon
the American armies fifty years ago.). 61 Refer to 2.2 (Military
Necessity).
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the Lieber Code reflect 19th century understandings of the law
of war that have been modified by treaties that the United States
has ratified or by subsequent customary international law. For
example, the Lieber Code permitted the denial of quarter in certain
circumstances.62 However, denying quarter in those circumstances is
no longer acceptable.63
The Lieber Code was prepared during the Civil War. The
Confederate forces agreed with some provisions of the Lieber Code,
but disagreed with others.64
The Lieber Code reflected rules for regular war or what today
would be classified as international armed conflict. Such rules
were applied to the Confederate forces for humanitarian reasons,
even though the United States did not recognize the Confederacy as
a legitimate government or State.65 In this way, the Lieber Code is
an example of the application of the doctrine of recognition of
belligerency.66
19.4 1856 PARIS DECLARATION RESPECTING MARITIME LAW
The 1856 Paris Declaration respecting Maritime Law is an early
multilateral law of war treaty that was intended to be open to
accession by all States, including States that did not participate
in its negotiation.67 This treaty illustrates how law of war
treaties may be written with a view towards being able to be
accepted and applied by all States.
The United States is not a Party to the 1856 Paris Declaration.
The 1856 Paris Declarations provision that blockades must be
effective in order to be binding reflects customary international
law.68
62 LIEBER CODE art. 61 (All troops of the enemy known or
discovered to give no quarter in general, or to any portion of the
army, receive none.). 63 Refer to 5.5.7 (Prohibition Against
Declaring That No Quarter Be Given). 64 James A. Seddon, Letter to
Robert Ould, Jun. 24, 1863, reprinted in FRED C. AINSWORTH &
JOSEPH W. KIRKLEY, VI THE WAR OF THE REBELLION: A COMPILATION OF
THE OFFICIAL RECORDS OF THE UNION AND CONFEDERATE ARMIES, SERIES
II, 41 (1899) (Order No. 100 is a confused, unassorted, and
undiscriminating compilation from the opinion of the publicists of
the last two centuries, some of which are obsolete, others
repudiated; and a military commander under this code may pursue a
line of conduct in accordance with principles of justice, faith,
and honor, or he may justify conduct correspondent with the warfare
of the barbarous hordes who overran the Roman Empire, or who, in
the Middle Ages, devastated the continent of Asia and menaced the
civilization of Europe.). 65 Refer to 17.2.3 (Application of
Humanitarian Rules and the Legal Status of the Parties to the
Conflict). 66 Refer to 3.3.3.2 (Assertion of War Powers by a State
Engaged in Hostilities Against a Non-State Armed Group). 67
Declaration respecting maritime law signed by the Plenipotentiaries
of Great Britain, Austria, France, Prussia, Russia, Sardinia, and
Turkey, assembled in Congress at Paris, Apr. 16, 1856, reprinted in
1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 89 (1907) (The Governments of
the undersigned Plenipotentiaries engage to bring the present
Declaration to the knowledge of the states which have not taken
part in the Congress of Paris, and to invite them to accede to it.
Convinced that the maxims which they now proclaim cannot but be
received with gratitude by the whole world, the undersigned
Plenipotentiaries doubt not that the efforts of their governments
to obtain the general adoption thereof will be crowned with full
success.). 68 Refer to 13.10.2.3 (Effectiveness of the
Blockade).
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19.5 1864 GWS
The Geneva Convention for the Amelioration of the Wounded in
Armies in the Field of August 22, 1864 (1864 GWS) was one of the
earliest multilateral law of war treaties.69
The 1864 GWS provided for the use of the red cross as a
distinctive emblem to help identify medical personnel.70 It also
provided for wounded and sick combatants to be collected and cared
for regardless of the nation of their armed forces.71
The United States acceded to the 1864 GWS on March 1, 1882.72
The 1864 GWS was replaced by the GWS in relations between the
Parties to the GWS.73
19.6 1868 ST. PETERSBURG DECLARATION
The Declaration Renouncing the Use, in Time of War, of Explosive
Projectiles Weighing Under 400 Grams Weight (1868 St. Petersburg
Declaration) was promulgated by an international conference held in
St. Petersburg, Russia on December 11, 1868. The 1868 St.
Petersburg Declaration prohibits Parties from, in case of war among
themselves, the employment, by their military or naval forces, of
any projectile of less weight than four hundred grammes, which is
explosive, or is charged with fulminating or inflammable
substances.74
The United States is not a Party to the 1868 St. Petersburg
Declaration.
The language in the Preamble of the 1868 St. Petersburg
Declaration that notes that the employment of arms which uselessly
aggravate the sufferings of disabled men would be contrary to the
laws of humanity is an early statement of the prohibition against
weapons
69 Convention for the Amelioration of the Wounded in Armies in
the Field, Aug. 22, 1864, 22 STAT. 940. 70 Refer to 7.15.1.1 (Red
Cross). 71 Refer to 7.5.2.2 (Affirmative Obligation to Provide
Adequate Care). 72 Chester A. Arthur, Proclamation Regarding the
1864 GWS, Jul. 26, 1882, 22 STAT. 940, 950-51 (And whereas the
President of the United States of America, by and with the advice
and consent of the Senate, did, on the first day of March, one
thousand eight hundred and eighty-two, declare that the United
States accede to the said Convention of the 22d of August, 1864,
and also accede to the said Convention of October 20, 1868; And
whereas on the ninth day of June, one thousand eight hundred and
eighty-two, the Federal Council of the Swiss Confederation, in
virtue of the final provision of a certain minute of the exchange
of the ratifications of the said Convention at Berne, December 22,
1864, did, by a formal declaration, accept the said adhesion of the
United States of America, as well in the name of the Swiss
Confederation as in that of the other contracting States; And
whereas, furthermore, the government of the Swiss Confederation has
informed the Government of the United States that the exchange of
the ratifications of the aforesaid additional articles of 20th
October, 1868, to which the United States of America have in like
manner adhered as aforesaid, has not yet taken place between the
contracting parties, and that these articles cannot be regarded as
a treaty in full force and effect:). 73 Refer to 19.16.2.1
(Relationship Between the GWS and Earlier Conventions). 74 The
Declaration of St. Petersburg, 1868, reprinted in 1 AJIL
SUPPLEMENT: OFFICIAL DOCUMENTS 95, 96 (1907) (The contracting
parties engage, mutually, to renounce, in case of war among
themselves, the employment, by their military or naval forces, of
any projectile of less weight than four hundred grammes, which is
explosive, or is charged with fulminating or inflammable
substances.).
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calculated to cause unnecessary suffering, which is a principle
that is found in treaties to which the United States is a Party and
in customary international law.75
The prohibition in the Declaration against any projectile of
less weight than four hundred grammes, which is explosive, or is
charged with fulminating or inflammable substances does not reflect
customary international law.76 For example, for many decades
without legal controversy, States have used, and continue to use,
tracer ammunition, grenades, explosive bullets, or other
projectiles of less weight than four hundred grams with a burning
or explosive capability.77
19.7 1899 AND 1907 HAGUE DECLARATIONS ON WEAPONS
1899 Declaration on Expanding Bullets. The 1899 Declaration on
Expanding 19.7.1Bullets prohibits Parties from using bullets which
expand or flatten easily in the human body, such as bullets with a
hard envelope which does not entirely cover the core or is pierced
with incisions. 78 The Declaration only creates obligations for
Parties to the Declaration in international armed conflicts in
which all the parties to the conflict are also Parties to the
Declaration.79
The United States is not a Party to the 1899 Declaration on
Expanding Bullets and does not regard the 1899 Declaration on
Expanding Bullets as customary international law applicable in
either international or non-international armed conflicts.80
75 Refer to 6.6 (Weapons Calculated to Cause Superfluous
Injury). 76 U.S. RESPONSE TO ICRC CIHL STUDY 524 (Since the St.
Petersburg Declaration, there has been considerable State practice
involving the anti-personnel use of exploding bullets, despite the
ICRCs statement that governments have adhered to the Declaration.
Two participants in the ICRC-hosted 1974 Lucerne Meeting of Experts
on certain weapons conventional weapons concluded: At present it is
widely held that in view of the development in weapons technology
and state practice the St. Petersburg Declaration cannot be
interpreted literally, or in any case that it has not as such
become declaratory of customary international law.... [T]he
prohibition contained in it serves to illustrate the principle
prohibiting the causing of unnecessary suffering, at least as it
was contemplated in 1868. U.S. legal reviews have detailed State
practice contrary to the ICRCs statement and consistent with the
conclusion contained in the above quotation.) (amendments to
internal quote shown in U.S. Response to ICRC CIHL Study). 77
Consider Commission of Jurists to Consider and Report Upon the
Revision of the Rules of Warfare, General Report, Part II: Rules of
Arial Warfare, art. 18, Feb. 19, 1923, reprinted in 32 AJIL
SUPPLEMENT: OFFICIAL DOCUMENTS 12, 21 (1938) (The use of tracer,
incendiary or explosive projectiles by or against an aircraft is
not prohibited. This provision applies equally to states which are
parties to the Declaration of St. Petersburg, 1868, and to those
which are not.). Refer to 6.5.4.3 (Exploding Bullets). 78
Declaration to Abstain From the Use of Bullets Which Expand or
Flatten Easily in the Human Body, Jul. 29, 1899, reprinted in 1
AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 155, 155-56 (1907) (The
Contracting Parties agree to abstain from the use of bullets which
expand or flatten easily in the human body, such as bullets with a
hard envelope which does not entirely cover the core, or is pierced
with incisions.). 79 Declaration to Abstain From the Use of Bullets
Which Expand or Flatten Easily in the Human Body, Jul. 29, 1899,
reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 155, 156 (1907)
(The present Declaration is only binding for the Contracting Powers
in the case of a war between two or more of them. It shall cease to
be binding from the time when, in a war between the Contracting
Powers, one of the belligerents is joined by a non-Contracting
Power.). 80 Refer to 6.5.4.4 (Expanding Bullets).
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1899 Declaration on Asphyxiating Gases. The 1899 Declaration on
Asphyxiating 19.7.2Gases was concluded at The Hague on July 29,
1899.81 This 1899 Declaration prohibits the use of projectiles the
object of which is the diffusion of asphyxiating or deleterious
gases.82
The United States did not ratify this declaration.
This declaration was followed by the 1922 Washington Treaty on
Submarines and Noxious Gases, and the 1925 Geneva Gas and
Bacteriological Protocol.83 The United States is a Party to the
1925 Geneva Gas and Bacteriological Protocol and applies the
broader prohibition in it on the use of asphyxiating, poisonous, or
other gases, and all analogous liquids, materials, or
devices.84
1899 and 1907 Declarations on the Discharge of Projectiles and
Explosives From 19.7.3Balloons. In the 1899 Hague (IV, 1), Parties
agreed to prohibit, for a term of five years, the launching of
projectiles and explosives from balloons, or by other new methods
of similar nature.85 The United States deposited its instrument of
ratification to the 1899 Hague Declaration (IV, 1) on September 4,
1900.86
The 1907 Hague Declaration (XIV) Prohibiting the Discharge of
Projectiles and Explosives from Balloons sought to renew the
expired 1899 Hague Declaration (IV, 1).87 The United States
deposited its instrument of ratification to the 1907 Hague
Declaration (XIV) on
81 Declaration to Abstain From the Use of Projectiles the Object
of Which Is the Diffusion of Asphyxiating or Deleterious Gases,
Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS
157, 158 (1907). 82 Declaration to Abstain From the Use of
Projectiles the Object of Which Is the Diffusion of Asphyxiating or
Deleterious Gases, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT:
OFFICIAL DOCUMENTS 157 (1907) (The Contracting Powers agree to
abstain from the use of projectiles the object of which is the
diffusion of asphyxiating or deleterious gases.). 83 Refer to 19.10
(1922 Washington Treaty on Submarines and Noxious Gases); 19.12
(1925 Geneva Gas and Bacteriological Protocol). 84 Refer to 6.8.2
(Asphyxiating, Poisonous, or Other Gases, and All Analogous
Liquids, Materials, or Devices). 85 Declaration Prohibiting for a
Term of Five Years the Launching of Projectiles or Explosives from
Balloons, or By Any Other New Methods of Similar Nature, Jul. 29,
1899, 32 STAT. 1839 (The Contracting Powers agree to prohibit, for
a term of five years, the launching of projectiles and explosives
from balloons, or by other new methods of similar nature.). 86
Theodore Roosevelt, Proclamation Regarding the 1899 Declaration
Prohibiting the Launching of Projectiles or Explosives from
Balloons, Nov. 1, 1901, 32 STAT. 1839, 1842 (And Whereas, the said
Declaration was duly ratified by the Government of the United
States of America, by and with the advice and consent of the Senate
thereof, and by the Governments of the other Powers aforesaid, with
the exception of those of China and Turkey; And Whereas, in
pursuance of a stipulation of the said Declaration, the
ratifications thereof were deposited at the Hague on the 4th day of
September, 1900, by the Plenipotentiaries of the Governments of the
United States of America, Austria-Hungary, Belgium, Denmark, Spain,
France, Italy, the Netherlands, Persia, Portugal, Roumania, Russia,
Siam, Sweden and Norway, and Bulgaria .). 87 Declaration (XIV)
Prohibiting the Discharge of Projectiles and Explosives from
Balloons, Oct. 18, 1907, 36 STAT. 2439 (The Undersigned,
Plenipotentiaries of the Powers invited to the Second International
Peace Conference at The Hague, duly authorized to that effect by
their Governments, inspired by the sentiments which found
expression in the Declaration of St. Petersburg of the 29th
November (11th December), 1868, and being desirous of renewing the
declaration of The Hague of the 29th July, 1899, which was now
expired,).
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November 27, 1909.88 This treaty was intended to have effect
until the end of the Third Hague Peace Conference.89 The Third
Hague Peace Conference never met due to the outbreak of World War
I.90 The application of the 1907 Hague Declaration (XIV) is
limited, inter alia, due to its general participation clause
providing that it only applies if all the parties to the conflict
are also Parties to the Declaration.91 During World War II, the War
Department took the position that the 1907 Hague Declaration (XIV)
is not binding and will not be observed.92
19.8 1899 HAGUE II AND 1907 HAGUE IV CONVENTIONS AND ANNEXED
REGULATIONS REGARDING LAND WARFARE
1899 Hague II. The Hague Convention II with Respect to the Laws
and Customs 19.8.1of War on Land of July 29, 1899 (1899 Hague II),
with its annexed Regulations, was an early multilateral law of war
treaty that contains provisions that were incorporated into later
law of war treaties.
Article 1 of the 1899 Hague II Regulations addressed the
criteria for militia and volunteer corps to qualify as lawful
belligerents and for their members to be entitled to POW status if
captured; these criteria are repeated in Article 4 of the GPW.93 In
addition, Articles 4-20 of the 1899 Hague II Regulations provide
basic rules for the care and protection of POWs.
The United States deposited its instrument of ratification to
the 1899 Hague II on April 5, 1902.94
88 William H. Taft, Proclamation Regarding the 1907 Declaration
Prohibiting the Discharge of Projectiles and Explosives from
Balloons, Feb. 28, 1910, 36 STAT. 2439, 2442-43 (And whereas the
said Declaration has been duly ratified by the Government of the
United States of America, by and with the advice and consent of the
Senate thereof, and by the Governments of China, Great Britain, the
Netherlands, Bolivia, and Salvador, and the ratifications of the
said Governments were, as provided for by the said Declaration,
deposited by their respective plenipotentiaries with the
Netherlands Government on November 27, 1909.). 89 Declaration (XIV)
Prohibiting the Discharge of Projectiles and Explosives from
Balloons, Oct. 18, 1907, 36 STAT. 2439 (The Contracting Powers
agree to prohibit, for a period extending to the close of the Third
Peace Conference, the discharge of projectiles and explosives from
balloons or by other new methods of a similar nature.). 90
SCHINDLER & TOMAN, THE LAWS OF ARMED CONFLICTS: A COLLECTION OF
CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 309 (2004) (The
Declaration of 1907 was to remain in force until the projected
Third Peace Conference. This Conference never having met, the
Declaration of 1907 is still formally in force today.). 91
Declaration (XIV) Prohibiting the Discharge of Projectiles and
Explosives from Balloons, Oct. 18, 1907, 36 STAT. 2439, 2440 (The
present Declaration is only binding on the Contracting Powers in a
case of war between two or more of them. It shall cease to be
binding from the time when, in a war between the Contracting
Powers, one of the belligerents is joined by a non-Contracting
Power.). 92 WAR DEPARTMENT CIRCULAR NO. 136, 1 (May 7, 1942) (The
Hague Declaration Number XIV, October 18, 1907, prohibiting the
discharge of projectiles and explosives from balloons (H.D. XIV),
is not binding and will not be observed.). 93 Refer to 4.6.1 (GPW
4A(2) Conditions in General). 94 Theodore Roosevelt, Proclamation
Regarding the 1899 Hague II, Apr. 11, 1902, 32 STAT. 1803, 1825
(And whereas the said Convention was duly ratified by the
Government of the United States of America, by and with the advice
and consent of the Senate thereof, and by the Governments of the
other Powers aforesaid with the exception of Sweden and Norway and
Turkey; And whereas, in pursuance of the stipulations of Article
III of the said
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The 1899 Hague II was followed by Hague IV, which replaces the
1899 Hague II as between Parties to Hague IV.95 Not all the States
that ratified the 1899 Hague II have also ratified Hague IV.96
Hague IV. States sought to expand upon and clarify provisions of
1899 Hague II 19.8.2and the 1899 Hague II Regulations through the
Hague Convention IV Respecting the Laws and Customs of War on Land
of October 18, 1907 (Hague IV), and annexed Regulations (Hague IV
Regulations).97
The United States deposited its instrument of ratification to
Hague IV on November 27, 1909.98
19.8.2.1 Hague IV and Customary International Law. Provisions of
Hague IV and Hague IV Regulations have been found to reflect
customary international law.99
For example, Article 42 of the Hague IV Regulations, which
provides a standard for when the law of belligerent occupation
applies, is regarded as customary international law.100
Convention the ratifications of the said Convention were
deposited at the Hague on the 5th Day of April, 1902, by the
Plenipotentiary of the Government of the United States of
America:). 95 Refer to 19.8.2.2 (Relationship Between the 1907
Hague IV and the 1899 Hague II). 96 ADAM ROBERTS & RICHARD
GUELFF, DOCUMENTS ON THE LAWS OF WAR 68-70 (3rd ed., 2000) ([The
1907 Hague Convention] was intended to replace 1899 Hague
Convention II as between states parties to both agreements.
However, of the forty-six states which had become parties to the
1899 Convention, eighteen did not become parties to the 1907
Convention . They or their successor states remained formally bound
by the 1899 Convention.). 97 Convention (IV) Respecting the Laws
and Customs of War on Land, Oct. 18, 1907, 36 STAT. 2277, 2279 (The
Contracting Parties [h]ave deemed it necessary to complete and
explain in certain particulars the work of the First Peace
Conference, which, following on the Brussels Conference of 1874,
and inspired by the ideas dictated by a wise and generous
forethought, adopted provisions intended to define and govern the
usages of war on land.). 98 William H. Taft, Proclamation Regarding
the Hague IV, Feb. 28, 1907, 36 STAT. 2277, 2309 (And whereas the
said Convention has been duly ratified by the Government of the
United States of America, by and with the advice and consent of the
Senate thereof, and by the Governments of Austria-Hungary, Bolivia,
Denmark, Germany, Great Britain, Mexico, the Netherlands, Russia,
Salvador, and Sweden, and the ratifications of the said Governments
were, under the provisions of Article 5 of the said Convention,
deposited by their respective plenipotentiaries with the
Netherlands Government on November 27, 1909;). 99 See, e.g., United
States, et al. v. Gring, et al., Judgment, I TRIAL OF THE MAJOR WAR
CRIMINALS BEFORE THE IMT 253-54 (concluding that by 1939 these
rules laid down in [Hague IV] were recognized by all civilized
nations, and were regarded as being declaratory of the laws and
customs of war); United States v. Krupp et al., IX TRIALS OF WAR
CRIMINALS BEFORE THE NMT 1340 (concurring in judgment that the
Hague Convention No. IV of 1907 to which Germany was a party had,
by 1939, become customary law and was, therefore, binding on
Germany not only as treaty law but also as customary law.); United
States v. von Leeb, et al. (The High Command Case), XI TRIALS OF
WAR CRIMINALS BEFORE THE NMT 535-38 (concluding that provisions of
Hague IV Reg and 1929 GPW reflected customary international law
relating to the treatment of prisoners of war); United States, et
al. v. Araki, et al., Majority Judgment, International Military
Tribunal for the Far East, 48,491, reprinted in NEIL BOISTER &
ROBERT CRYER, DOCUMENTS ON THE TOKYO INTERNATIONAL MILITARY
TRIBUNAL: CHARTER, INDICTMENT AND JUDGMENTS 102 (2008) (explaining
that although certain treaties, such as Hague IV and Hague V, might
not be applicable by their terms, the Convention remains as good
evidence of the customary law of nations, to be considered by the
Tribunal along with all other available evidence in determining the
customary law to be applied in any given situation.).
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19.8.2.2 Relationship Between the 1907 Hague IV and the 1899
Hague II. The Hague IV, duly ratified, shall as between its Parties
be substituted for the 1899 Hague II. The 1899 Hague II remains in
force as between its Parties that do not also ratify Hague
IV.101
Martens Clause. The Preamble to the 1899 Hague II contains a
clause known as 19.8.3the Martens Clause because of its association
with a delegate to the Hague Peace Conference, F.F. de
Martens:102
Until a more complete code of the laws of war is issued, the
High Contracting Parties think it right to declare that in cases
not included in the Regulations adopted by them, populations and
belligerents remain under the protection and empire of the
principles of international law, as they result from the usages
established between civilized nations, from the laws of humanity,
and the requirements of the public conscience.103
A similar formulation was included in subsequent treaties, such
as the Hague IV, the 1949 Geneva Conventions, and the CCW.104
The Martens Clause was a compromise following difficult and
unresolved debates at the 1899 Hague Peace Conference about the
status of resistance fighters in occupied territory.105
100 Refer to 11.2.2 (Standard for Determining When Territory Is
Considered Occupied). 101 HAGUE IV art. 4 (The present Convention,
duly ratified, shall as between the Contracting Powers, be
substituted for the Convention of the 29th July, 1899, respecting
the Laws and Customs of War on Land. The Convention of 1899 remains
in force as between the Powers which signed it, and which do not
also ratify the present Convention.). 102 Theodor Meron, The
Martens Clause, Principles of Humanity, and Dictates of Public
Conscience, 94 AJIL 78, 79 (2000) (Proposed by the Russian delegate
to the Hague Peace Conference, the eminent jurist F.F. de Martens,
the clause has ancient antecedents rooted in natural law and
chivalry.). 103 1899 HAGUE II preamble (Until a more complete code
of the laws of war is issued, the High Contracting Parties think it
right to declare that in cases not included in the Regulations
adopted by them, populations and belligerents remain under the
protection and empire of the principles of international law, as
they result from the usages established between civilized nations,
from the laws of humanity, and the requirements of the public
conscience). 104 See, e.g., HAGUE IV preamble (Until a more
complete code of the laws of war has been issued, the High
Contracting Parties deem it expedient to declare that in cases not
included in the Regulations adopted by them, the inhabitants and
the belligerents remain under the protection and the rule of the
principles of the law of nations, as they result from the usages
established among civilized peoples, from the laws of humanity, and
the dictates of the public conscience.); GWS art. 63 (providing
that denunciation of the Convention shall in no way impair the
obligations which Parties to the conflict shall remain bound to
fulfil by virtue of the principles of the law of nations, as they
result from the usages established among civilized peoples, from
the laws of humanity and the dictates of public conscience.);
GWS-SEA art. 62 (same); GPW art. 142 (same); GC art. 158 (same);
CCW preamble (in cases not covered by this Convention and its
annexed Protocols or by other international agreements, the
civilian population and the combatants shall at all times remain
under the protection and authority of the principles of
international law derived from established custom, from the
principles of humanity and from the dictates of public
conscience,). Consider AP I art. 1(2) (In cases not covered by this
Protocol or by other international agreements, civilians and
combatants remain under the protection and authority of the
principles of international law derived from established custom,
from the principles of humanity and from the dictates of public
conscience.); AP II preamble (Recalling that, in cases not covered
by the law in force, the human person remains under the protection
of the principles of humanity and the dictates of the public
conscience,).
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However, the language of the clause is not limited to that
specific context, and the Martens Clause has been cited in many
other contexts.106
The Martens clause reflects the idea that when no specific rule
applies, the principles of the law of war form the general guide
for conduct during war.107
19.9 1907 HAGUE X
On November 27, 1909, the United States deposited its instrument
of ratification to the 1907 Hague Convention (X) for the Adaption
to Maritime Warfare of the Principles of the Geneva Convention of
October 18, 1907.108
This treaty was followed by the GWS-Sea, which replaced it in
relations between Parties to the GWS-Sea.109
19.10 1922 WASHINGTON TREATY ON SUBMARINES AND NOXIOUS GASES
The United States signed the Treaty Relating to the Use of
Submarines and Noxious Gases in Warfare on February 6, 1922.110
Article 6 of the treaty provided that the treaty shall
105 See ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS
OF WAR 9 (3rd ed., 2000) (The wording of the Martens Clause was
agreed at the 1899 Hague Peace Conference for a specific reason: it
was a compromise following difficult and unresolved debates about
whether or not the inhabitants of occupied territory had a right of
resistance.); United States v. Krupp, et al., IX TRIALS OF WAR
CRIMINALS BEFORE THE NMT 1340-41 (It must also be pointed out that
in the preamble to the Hague Convention No. IV, it is made
abundantly clear that in cases not included in the Regulations, the
inhabitants and the belligerents remain under the protection and
the rule of the principles of the law of nations, as they result
from the usages established among civilized peoples, from the laws
of humanity and dictates of the public conscience. As the records
of the Hague Peace Conferences of 1899 which enacted the Hague
Regulations show, great emphasis was placed by the participants on
the protection of invaded territories and the preamble just cited,
also known as the Mertens Clause, was inserted at the request of
the Belgian delegate, Mertens, who was, as were others, not
satisfied with the protection specifically guaranteed to
belligerently occupied territory. Hence, not only the wording
(which specifically mentions the inhabitants before it mentions the
belligerents) but also the discussions which took place at the time
make it clear that it refers specifically to belligerently occupied
country.). 106 See, e.g., Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (78) (The Court
would likewise refer, in relation to these principles, to the
Martens Clause, which was first included in the Hague Convention II
with Respect to the Laws and Customs of War on Land of 1899 and
which has proved to be an effective means of addressing the rapid
evolution of military technology.). 107 Refer to 2.1.2.2 (Law of
War Principles as a General Guide). 108 William H. Taft,
Proclamation Regarding the Hague X, Feb. 28, 1910, 36 STAT. 2371,
2395 (And whereas the said Convention has been duly ratified by the
Government of the United States of America, by and with the advice
and consent of the Senate thereof, and by the Governments of
Germany, Austria-Hungary, China, Denmark, Mexico, the Netherlands,
Russia, Bolivia, and Salvador, and the ratifications of the said
Governments were, under the provisions of Article 23 of the said
Convention, deposited by their respective plenipotentiaries with
the Netherlands Government on November 27, 1909.). 109 Refer to
19.16.3.1 (Relationship Between the 1907 Hague X and the GWS-Sea).
110 Treaty in Relation to the Use of Submarines and Noxious Gases
in Warfare, Feb. 6, 1922, reprinted in 16 AJIL SUPPLEMENT: OFFICIAL
DOCUMENTS 57, 60 (1922).
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take effect on the deposit of all the ratifications.111 France
did not ratify the treaty, and it did not enter into force.112
The language of Article 5 of the 1922 Washington Treaty dealing
with gas warfare corresponds to language in the 1925 Protocol for
the Prohibition of the Use in War of Asphyxiating, Poisonous or
Other Gases, and of Bacteriological Methods of Warfare signed at
Geneva, June 17, 1925.113 The 1925 Geneva Gas and Bacteriological
Protocol, however, also prohibits bacteriological methods of
warfare.114
19.11 1923 HAGUE AIR AND RADIO RULES
In 1922, the Conference on the Limitation of Armament at
Washington adopted a resolution for the appointment of a Commission
representing the United States of America, the British Empire,
France, Italy, and Japan, and later, the Netherlands, to consider
the application of the existing law of war rules to new agencies of
warfare and whether changes should be adopted.115 It was agreed
that the program of the Commission would be limited to the
preparation of rules relating to aerial warfare, and to rules
relating to the use of radio in time of war.116 With John Bassett
Moore as a U.S. Delegate and the President of the Commission, the
Commission prepared a set of rules for the control of radio in time
of war, as well as a set of rules for aerial warfare.117
111 Treaty in Relation to the Use of Submarines and Noxious
Gases in Warfare, art. 6, Feb. 6, 1922, reprinted in 16 AJIL
SUPPLEMENT: OFFICIAL DOCUMENTS 57, 59 (1922) (The present Treaty
shall be ratified as soon as possible in accordance with the
constitutional methods of the Signatory Powers and shall take
effect on the deposit of all the ratifications, which shall take
place at Washington.). 112 SCHINDER & TOMAN, THE LAWS OF ARMED
CONFLICTS 877 (1988) (The Washington Conference of 1922 on the
Limitation of Armaments, in which five of the victorious Powers of
World War I took part, adopted the present Treaty, which due to the
failure of France to ratify it, did not enter into force.). 113
Refer to 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All
Analogous Liquids, Materials, or Devices). 114 Refer to 19.12 (1925
Geneva Gas and Bacteriological Protocol). 115 Commission of Jurists
to Consider and Report upon the Revision of the Rules of Warfare,
General Report, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT:
OFFICIAL DOCUMENTS 1 (1938) (The Conference on the Limitation of
Armament at Washington adopted at its sixth plenary session on the
4th February, 1922, a resolution for the appointment of a
Commission representing the United States of America, the British
Empire, France, Italy and Japan to consider the following
questions: (a) Do existing rules of international law adequately
cover new methods of attack or defence resulting from the
introduction or development, since The Hague Conference of 1907, of
new agencies of warfare? (b) If not so, what changes in the
existing rules ought to be adopted in consequence thereof as a part
of the law of nations? With the unanimous concurrence of the Powers
mentioned in the first of the above resolutions an invitation to
participate in the work of the Commission was extended to and
accepted by the Netherlands Government.). 116 Commission of Jurists
to Consider and Report upon the Revision of the Rules of Warfare,
General Report, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT:
OFFICIAL DOCUMENTS 1 (1938) (It was also agreed that the programme
of the Commission should be limited to the preparation of rules
relating to aerial warfare, and to rules relating to the use of
radio in time of war.). 117 Commission of Jurists to Consider and
Report upon the Revision of the Rules of Warfare, General Report,
Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS
1-2 (1938) (The United States Government proposed that the
Commission should meet on the 11th December, 1922, at The Hague,
and the representatives of the six Powers mentioned above assembled
on that date in the Palace of Peace. At the second meeting of
the
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1148
The 1923 Hague Air Rules were not, however, subsequently adopted
as a treaty by the United States.
Some provisions in the 1923 Hague Air Rules may reflect
customary international law. For example, the 1923 Hague Air Rules
recognize the permissibility of using tracer, incendiary, or
explosive projectiles by or against aircraft, including by States
that are Parties to the 1868 Declaration of St. Petersburg.118
Many of the other provisions in the 1923 Hague Air Rules,
however, do not reflect customary international law. For example,
the 1923 Hague Air Rules provide that the crew of military aircraft
must be exclusively military.119 The 1949 Geneva Conventions,
however, contemplate that crews of military aircraft may include
civilian members.120 As another example, certain efforts in the
1923 Hague Air Rules to limit the effects of attacks also do not
reflect customary international law.121
19.12 1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOL
The Geneva Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous or Other Gases, and of Bacteriological
Methods of Warfare, of June 17, 1925, prohibits the use of
asphyxiating, poisonous, or other gases, and all analogous liquids,
materials, or devices, and the use of bacteriological methods of
warfare.122
Commission the Honorable John Bassett Moore, First Delegate of
the United States, was elected President of the Commission. The
Commission has prepared a set of rules for the control of radio in
time of war, which are contained in Part I of this report, and a
set of rules for arial warfare, which are contained in Part II of
this report.). 118 Refer to 6.5.4.3 (Exploding Bullets); 19.6 (1868
St. Petersburg Declaration). 119 Commission of Jurists to Consider
and Report Upon the Revision of the Rules of Warfare, General
Report, Part II: Rules of Arial Warfare, art. 14, Feb. 19, 1923,
reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 12, 18 (1938)
(A military aircraft shall be under the command of a person duly
commissioned or enlisted in the military service of the state; the
crew must be exclusively military.). 120 Refer to 14.3.3.3
(Military Aircraft Command and Crew). 121 J. Fred Buzhardt, DoD
General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972,
reprinted in 67 AJIL 122, 123 (1973) (In the application of the
laws of war, it is important that there be a general understanding
in the world community as to what shall be legitimate military
objectives which may be attacked by air bombardment under the
limitations imposed by treaty or by customary international law.
Attempts to limit the effects of attacks in an unrealistic manner,
by definition or otherwise, solely to the essential war making
potential of enemy States have not been successful. For example,
such attempts as the 1923 Hague Rules of Air Warfare, proposed by
an International Commission of Jurists, and the 1956 ICRC Draft
Rules for the Limitation of the Dangers Incurred by the Civilian
Population in Time of War were not accepted by States and therefore
do not reflect the laws of war either as customary international
law or as adopted by treaty.). 122 Refer to 6.8.2 (Asphyxiating,
Poisonous, or Other Gases, and All Analogous Liquids, Materials, or
Devices); 6.9.1 (Biological Weapons Prohibition on Use as a Method
of Warfare).
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This treaty followed the 1899 Declaration on Asphyxiating Gases
and the 1922 Washington Treaty on Submarines and Noxious Gases.123
This treaty also followed widespread use of chemical weapons in
World War I.
On November 25, 1969, President Nixon announced the intention of
the administration to seek Senate advice and consent to
ratification of the 1925 Geneva Gas and Bacteriological Protocol as
part of U.S. policies relating to chemical and biological
weapons.124 The United States deposited its instrument of
ratification to the 1925 Geneva Gas and Bacteriological Protocol on
April 10, 1975.125
The United States took a reservation that the Protocol shall
cease to be binding on the government of the United States with
respect to the use in war of asphyxiating, poisonous or other
gases, and of all analogous liquids, materials, or devices, in
regard to an enemy state if such state or any of its allies fails
to respect the prohibitions laid down in this Protocol.126 This
reservation would permit use by the United States of chemical
weapons and agents in response, but would not limit in any way the
Protocols prohibition with respect to biological weapons.127 Other
States, including France, Belgium, Canada, the USSR (now Russia),
and the United Kingdom issued similar statements upon
ratification.128
123 Refer to 19.7.2 (1899 Declaration on Asphyxiating Gases);
19.10 (1922 Washington Treaty on Submarines and Noxious Gases). 124
Richard Nixon, Statement on Chemical and Biological Defense
Policies and Programs, Nov. 25, 1969, 1969 PUBLIC PAPERS OF THE
PRESIDENTS 968 (As to our chemical warfare program, the United
States: Reaffirms its oft-repeated renunciation of the first use of
lethal chemical weapons. Extends this renunciation to the first use
of incapacitating chemicals. Consonant with these decisions, the
administration will submit to the Senate, for its advice and
consent to ratification, the Geneva Protocol of 1925 which
prohibits the first use in war of asphyxiating, poisonous or other
Gases and of Bacteriological Methods of Warfare. The United States
has long supported the principles and objectives of this Protocol.
We take this step toward formal ratification to reinforce our
continuing advocacy of international constraints on the use of
these weapons.). 125 1925 Geneva Gas and Bacteriological Protocol,
Apr. 10, 1975, 1541 UNTS 484 (RATIFICATIONS Instruments deposited
with the Government of France on: 10 April 1975 UNITED STATES OF
AMERICA (With effect from 10 April 1975.)). 126 United States,
Statement on Ratification of the 1925 Geneva Gas and
Bacteriological Protocol, Apr. 10, 1975, 1541 UNTS 484 (That the
said Protocol shall cease to be binding on the Government of the
United States with respect to the use in war of asphyxiating,
poisonous or other gases, and of all analogous liquids, materials,
or devices, in regard to an enemy State if such State or any of its
allies fails to respect the prohibitions laid down in the
Protocol.). 127 William P. Rogers, Letter of Submittal, Aug. 11,
1970, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1925 GENEVA GAS
AND BACTERIOLOGICAL PROTOCOL VI (This reservation would permit the
retaliatory use by the United States of chemical weapons and
agents, but would not limit in any way the Protocols prohibition
with respect to biological weapons.). 128 France, Statement on
Ratification of the 1925 Geneva Gas and Bacteriological Protocol,
May 9, 1926, 94 LNTS 67 (The said Protocol shall ipso facto cease
to be binding on the Government of the French Republic in regard to
any enemy State whose armed forces or whose Allies fail to respect
the prohibitions laid down in the Protocol.); Belgium, Statement on
Ratification of the 1925 Geneva Gas and Bacteriological Protocol,
Dec. 4, 1928, 94 LNTS 67 ((2) The said Protocol shall ipso facto
cease to be binding on the Belgian Government in regard to any
enemy State whose armed forces or whose Allies fail to respect the
prohibitions laid down in the Protocol.); Canada, Statement on
Ratification of the 1925 Geneva Gas and Bacteriological Protocol,
May 6, 1930, 94 LNTS 71 (The said Protocol shall cease to be
binding on His Britannic Majesty towards any State at enmity with
Him whose armed
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This treaty was followed by the Chemical Weapons Convention and
Biological Weapons Convention, which, inter alia, place
restrictions on the use, development, production, and possession of
weapons addressed by the 1925 Geneva Gas and Bacteriological
Protocol.129
19.13 1929 GENEVA CONVENTIONS
1929 GWS. The United States deposited its instrument of
ratification to the 1929 19.13.1GWS on February 4, 1932.130
The 1929 GWS was replaced by the GWS in relations between
Parties to the GWS.131 All the Parties to the 1929 GWS have become
Parties to the GWS.
1929 GPW. The United States deposited its instrument of
ratification to the 1929 19.13.2GPW on February 4, 1932.132
The 1929 GPW was replaced by the GPW in relations between
Parties to the GPW.133 All the Parties to the 1929 GPW have become
Parties to the GPW.
Provisions of the 1929 GPW were found to reflect customary
international law by war crimes tribunals after World War II.134
The 1929 GPW may be relevant to understanding provisions of the
1949 GPW because some provisions of the 1949 GPW were drawn from
the 1929 GPW or reflect an effort to improve upon the 1929 GPW.
forces, or whose allies de jure or in fact fail to respect the
prohibitions laid down in the Protocol.); Union of Soviet Socialist
Republics, Statement on Accession to the 1925 Geneva Gas and
Bacteriological Protocol, Apr. 5, 1928, 94 LNTS 71 ((2) The said
Protocol shall cease to be binding on the Government of the Union
of Soviet Socialist Republics in regard to all enemy States whose
armed forces or whose Allies de jure or in fact do not respect the
restrictions which are the object of this Protocol.); British
Empire, Statement on Ratification of the 1925 Geneva Gas and
Bacteriological Protocol, Apr. 9, 1930, 94 LNTS 69 (The said
Protocol shall cease to be binding on His Britannic Majesty towards
any Power at enmity with Him whose armed forces, or the armed
forces of whose allies, fail to respect the prohibitions laid down
in the Protocol.). 129 Refer to 19.22 (Chemical Weapons
Convention); 19.19 (Biological Weapons Convention). 130 Herbert
Hoover, Proclamation Regarding the 1929 GPW, Aug. 4, 1932, 47 STAT.
2021, 2073 (And whereas, the said Convention has been duly ratified
on the part of the United States of America and the instrument of
ratification of the United States of America was deposited with the
Government of Switzerland on February 4, 1932; And whereas, in
accordance with Article 92 thereof, the said Convention became
effective in respect of the United States of America six months
after the deposit of its instrument of ratification, namely, on
August 4, 1932;). 131 Refer to 19.16.2.1 (Relationship Between the
GWS and Earlier Conventions). 132 Herbert Hoover, Proclamation
Regarding the 1929 GWS, Aug. 4, 1932, 47 STAT. 2074, 2101 (And
whereas, the said Convention has been duly ratified on the part of
the United States of America and the instrument of ratification of
the United States of America was deposited with the Government of
Switzerland on February 4, 1932: And whereas, in accordance with
Article 33 thereof, the said Convention became effective in respect
of the United States of America six months after the deposit of its
instrument of ratification, namely, on August 4, 1932;). 133 Refer
to 19.16.4.1 (Relationship Between the GPW and the 1929 GPW). 134
Refer to 9.1.1 (Brief History of POW Law).
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19.14 1930 LONDON TREATY FOR THE LIMITATION AND REDUCTION OF
NAVAL ARMAMENT AND 1936 LONDON PROTOCOL
Article 22 of the 1930 London Treaty for the Limitation and
Reduction of Naval Armament (1930 London Treaty) and the 1936
London Protocol set forth identical rules regarding submarine
warfare, and the obligations of surface warships and submarines
with respect to the sinking of merchant vessels, including the
obligation to put merchant vessels passengers and crew in a place
of safety.135
The United States deposited its instrument of ratification to
the 1930 London Treaty on October 27, 1930.136 Although other
aspects of the treaty expired on December 31, 1936, Article 22
remains in force.137 Signatories to the 1930 London Treaty desired
that as many States as possible accept the rules in Article 22;
thus, they concluded the 1936 London Protocol with the same
language as that in Article 22 and invited other States to accede
to the 1936 London Protocol.138 The United States signed the 1936
Protocol on November 6, 1936.139
19.15 1935 ROERICH PACT
The 1935 Roerich Pact was concluded in Washington on April 15,
1935.140 It provides for the respect and protection of historic
monuments, museums, scientific, artistic, educational and cultural
institutions and their personnel in time of peace as well as in
war.141 Such
135 Refer to 13.7.1 (General Principle Same Rules Applicable to
Both Submarine and Surface Warships); 13.5.2 (Attack of Enemy
Merchant Vessels); 15.15.3 (Destruction of Neutral Prizes). 136
Herbert Hoover, Proclamation Regarding the 1930 Treaty for the
Limitation and Reduction of Naval Armament, Jan. 1, 1931, 46 STAT.
2858, 2885 (AND WHEREAS the ratification by the United States of
America, subject to the understandings, set forth therein,
deposited at London on the 27th day of October, one thousand nine
hundred and thirty,). 137 Treaty for the Limitation and Reduction
of Naval Armament art. 23, Apr. 22, 1930, 46 STAT. 2858, 2882 (The
present Treaty shall remain in force until the 31st December, 1936,
subject to the following exceptions: (1) Part IV shall remain in
force without limit of time; (2) the provisions of Articles 3, 4
and 5, and of Article 11 and Annex II to Part II so far as they
relate to aircraft carriers, shall remain in force for the same
period as the Washington Treaty.). 138 Procs-Verbal Relating to the
Rules of Submarine Warfare Set Forth in Part IV of the Treaty of
London of April 22, 1930, preamble, Nov. 6, 1936, 173 LNTS 353, 355
(And whereas all the signatories of the said Treaty desire that as
great a number of Powers as possible should accept the rules
contained in the said Part IV as established rules of international
law; The undersigned, representatives of their respective
Governments, bearing in mind the said Article 22 of the Treaty,
hereby request the Government of the United Kingdom of Great
Britain and Northern Ireland forthwith to communicate the said
rules, as annexed hereto, to the Governments of all Powers which
are not signatories of the said Treaty, with an invitation to
accede thereto definitely and without limit of time.). 139
Procs-Verbal Relating to the Rules of Submarine Warfare Set Forth
in Part IV of the Treaty of London of April 22, 1930, Nov. 6, 1936,
173 LNTS 353, 357 (Signed in London, the 6th day of November,
nineteen hundred and thirty-six. For the Government of the United
States of America: Robert Worth BINGHAM.). 140 Pan American Treaty
on the Protection of Artistic and Scientific Institutions and
Historic Monuments, Apr. 15, 1935, 49 STAT. 3267. 141 ROERICH PACT
art. 1 (The historic monuments, museums, scientific, artistic,
educational and cultural institutions shall be considered as
neutral and as such respected and protected by belligerents. The
same respect and protection shall be due to the personnel of the
institutions mentioned above. The same respect and protection shall
be accorded
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institutions and personnel receive protection as cultural
property under the 1954 Hague Cultural Property or the general
protection afforded civilian objects and persons.142
The United States deposited its instrument of ratification to
the 1935 Roerich Pact on July 13, 1935.143
This treaty was followed by the 1954 Hague Cultural Property
Convention.144 All Parties to the Roerich Pact are Parties to the
1954 Hague Cultural Property Convention.
The 1954 Hague Cultural Property Convention is supplementary to
the Roerich Pact, but the distinctive emblem of the 1954 Hague
Cultural Property Convention is to be used instead of the
distinguishing flag described in Article III of the 1935 Roerich
Pact, in situations where the 1954 Hague Cultural Property
Convention and the Regulations for its execution provide for the
use of this distinctive emblem.145
19.16 1949 GENEVA CONVENTIONS
The four 1949 Geneva Conventions were adopted at a Diplomatic
Conference at Geneva on August 12, 1949. More than 193 States have
ratified the 1949 Geneva Conventions.146
The United States signed each of the 1949 Geneva Conventions on
August 12, 1949. The United States deposited its instrument of
ratification to each convention on August 2, 1955.147
The United States has viewed many of the protections embodied in
the 1949 Geneva Conventions as reflecting appropriate U.S. practice
in armed conflict regardless of formal treaty obligations.148
to the historic monuments, museums, scientific, artistic,
educational and cultural institutions in time of peace as well as
in war.). Refer to 5.18.1.1 (Definition of Cultural Property Notes
on Terminology). 142 Refer to 5.18 (Protection of Cultural Property
During Hostilities); 5.6 (Discrimination in Conducting Attacks).
143 Franklin D. Roosevelt, Proclamation Regarding the Roerich Pact,
Oct. 25, 1935, 49 STAT. 3267, 3274 (AND WHEREAS the said Treaty has
been duly ratified by the United States of America, whose
instrument of ratification was deposited with the Pan American
Union on July 13, 1935;). 144 Refer to 19.17 (1954 Hague Cultural
Property Convention). 145 Refer to 19.17.1.2 (Relationship Between
the 1935 Roerich Pact and the 1954 Hague Cultural Property
Convention). 146 See DEPARTMENT OF STATE, Treaties in Force: A List
of Treaties and Other International Agreements of the United States
in Force on January 1, 2013, 465-66 (2013). 147 213 UNTS 378 (GWS
Ratification, Instrument deposited with the Swiss Federal Council
on: 2 August 1955 UNITED STATES OF AMERICA (To take effect on 2
February 1956.)); 213 UNTS 382 (GWS-Sea Ratification, Instrument
deposited with the Swiss Federal Council on: 2 August 1955 UNITED
STATES OF AMERICA (To take effect on 2 February 1956.)); 213 UNTS
383 (GPW Ratification, Instrument deposited with the Swiss Federal
Council on: 2 August 1955 UNITED STATES OF AMERICA (To take effect
on 2 February 1956.)); 213 UNTS 384 (GC Ratification, Instrument
deposited with the Swiss Federal Council on: 2 August 1955 UNITED
STATES OF AMERICA (To take effect on 2 February 1956.)).
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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
Common Provisions in the 1949 Geneva Conventions. The four 1949
Geneva 19.16.1Conventions 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
GWS. The GWS is often called the first Geneva Convention.167 The
GWS 19.16.2addresses 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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GWS-Sea. The GWS-Sea is often called the second Geneva
Convention.170 The 19.16.3GWS-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
GPW. The GPW is often called the third Geneva Convention.173 The
GPW 19.16.4addresses 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
GC. The GC is often called the fourth Geneva Convention.177 The
GC addresses 19.16.5the 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