Organization for Battle: The Judge advocate's Responsability Under Article 82 Of Protocol I do The Genoba Convention

• Author: by Major Levator Norsworthy, Jr.
• Pages: 01

The Geneva Conventions of 1949 concerning protection for the victims of war have been expanded by two Protocols completed in 1977. Protocol I focuses on victims of tntenational anned eon-fliets, and Article BE thereof requires states parties to the Protocol to provide legal advisors to their military commandera. Major Norsworthy discusses the zmplications of Article 81 forjudge advocates in the United States A m e d Forces.

Under Arttele 82. judge advocates are required to advise commanders concerning the requirements of the law of w w , and eaneerning dissemination of infonation to the troops about those re. quirements. While these are not completely new duties fovAmerican judge advocates, they wdl have to be perfoned in a mom explzcit and affirmative manner than before, mith mom and better prepared instructors

'The opinions and eonelusions erpreaaed m this article me those of the author and do not neeesssniy represent the viewe of The Judge Advocate General's School, the Department d t h e Army, 01 my other governmental agency.

Thia article IS based upon B paper wnwen by the author m putid satisfaction of the requirements of the 28th Judge Advocate OMeer Graduate (Advanced) Course, given sf The Judge Advocate Genersl'a Sehoai, Chwiottewilie. Virginia, during academic year 1979.1960

**JAGC, U S. Army. Government Trial Attorney before the Armed Services Board of Confraet Appenia, assigned to the Contract Appeals Divinon, U.S. Army Legal Ssrvicee Agency. Fail8 Church, Va., 1981 to present. Served BP Deputy Staff Judge Advocate, Id Infantry Division, Camp Cnsey, Karen, and 8s Stdl Judge Advocate, Combined Fieid Army (ROWUS), Korea, 1960.1981. Action am-cer in the Lifigntion Division, Office of The Judge Advocate General, The Pentagon. Washington, D.C., 1976-1979 B.S., 1970, University of Dayton, Dayton,Ohio; J.D., 1973, Univetsity af Cinclnnsri, Cincinnati, Ohio Completed Judge Advocate Officer Basic Course, TJAGSA. 1973, Judge Advocate Officer Graduate Course, TJAGSA, 1960. Member offhe Bnra af Ohio and the Dirfriet af Columbia.

YILIT.4RY LAW REVIEW [YOL. 93

The Cnited States has stgned both Protocols but has rot yet ratified them Hou,ever, the Protocols have been Tatzfied by, and are

in force among, an inereaszng number of states, and are therefore part of the lax, of iocr. Mopr Xorsworthy recommends that the CRited States Armed Forces prepare for Ameri~~n rotttieation no&' bv making arailable the manpower and ~ ~ S O U I C ~ S

necessory to satisfy the requirements of Article 82.

I. PROTOCOL I: AN OVERVIEW

The protocols to the Geneva Conventions of 1949 are the culmination of a decade of international negotiation. They represent a direct outgrowth of the reco&nition by the world community of the need to reaffum and expand the humanitarian principles of the 1949 Conventions in the face of numemu8 wars of insurgency and signifi-cant changes in battlefield technology.' Protocol I supplements the 1949 Geneva Conventions relating to the protection of the victims of

W W . ~ An exam~le of the added Drotections afforded bv Protocol I

s A 1963 United Nations General Aaaembly Remiution wad pmed requesting

that the Seeretary.Genera1 examine the

need for additional humsniterran intarnationai convention% or oi possible revision of existing convention6 to ''ensure the better p m e e t m ai wii-lane Iandl priminem [of urn1 . in all m e d eodiefa '

Resolution XXIII Fmi Act oi Lhe International Canierence on Human Rights, UY Doe AICONF 32141, at 18 (1968).

'Geneva Convenrion for the Pioteetion of War Victims (Armed Farces in the Fieid). Aug 12, 1949, 3 U.S T 3114. T.1 A.S No. 3362, 75 U.NT.8 31; Geneva Conventions for the Prateerion of War Vietimi (Armed Forces at Sea), Aug. 12, 1949, 3 u S.T. 3217. T.I.A.S NO a363 75 U.N.T.S 85, &new conventm for the Protection of War Victim8 (tisoners of War). Aug. 12, 1949. 3 U S.T. 3Si6, T 1.A.S No. 33M, 75 U N T.S. 135; Geneva Convention for the Protection of War V~etim%

(Civibnn Persons). Aue 12, 1949, 8 U.S T. 3516, TI A.S 3365, 75 U N T.5 287

The text of the t ~ o

1977 Plof~coII may be iound ln Department of Army Pamphlet No 27-1-1. Protoeols to the Geneva Canventlons ai 12 Augvst 1949 (1 Sep 1979) [henmnher abed 88 DA Pam 27-1-11 Roloeol i concern8 "the Roteetion of Vietrms of internations1 Armed Cofliefn'' DA Pam 27-1-1, at 3 Procoeol 11. P

much shorter document, deals with "the Proteetian af Viefrmr of Non-International Armed Connteta " DA Pam 27-1-1, sf 89 Both Protocols enter Into iaree for ratifying or nccedmg states 811 months sner deposit affhe stafes'ins~rumenf~ of ratification or accession Art. 96, Profoeal I,

DA Pam 27-1-1, at 7 0 Art 28, Protocol 11, DA Pam 21-1-1, at 99

19811 ORGANIZPlTlON FOR BATTLE

can be seen in Article 82, entitled Legal Advisors. That article requires legal advisors to be avaiiable ta advise militaw commanders on the application of the Conventions and the Protocol and on the instruction to be given to members of the armed forces. This article discusses the impact of Article 82 upon the role of the judge advocate in providing legal advice and service to the command on law-of-war matters. .

Article 82 to Protocol I represents a novel approach to the prablem of assuring that members of military units consider the applicability of the Conventions and the Protocols during the conduct of tactical operations. Article 82 accomplishes this by providing the commander with a legal advisor whose purpose is to advise him of the Conventions and Protocol as they relate to a particular operation and bv reauirine that the advisor ororide aovrooriate advice on

.. .

the instruction to be given ta members of the command on the law of war Specifically, Article 82 provides that:

The High Contracting Parties at all times, and the Parties to the conflict in time of armed contlict, shall ensure that legal advisers are available, when necessary, to advise miiitary commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the anned forces on this subject,

The drafters of Article 82 determined that inclusion of this provision would promote the observance of the Conventions and the Protocols by the military cornm~nity.~

The philosophical basis for its in- The two Protoeoia were negotiated sf B Dipiamsiie Canfsrenee held I" Geneva,

Switzerland, between 1914 and 1977 The Conference adopted the P~O~OCOIJ on 10

June 1977 and opened them for ~lgnsfure on 12 December 1911. DA Pam 27-1-1, at foreword. The United States signed the Protocols on 12 December 1977, mbjeet to three understandings See DA Pam 27-1-1, at 138-59. The United States Senate baa not yet given Its advice and consent to latifieation of the Protocols. A8 of the beginning of 1981, seventeen state8 had ratified Protoed 1, and iixreen had ratified Protocol 11 Int'l Rev. of the Red Crass, So.

220, at i9 (Jan.-Feb. 18811

.The origlnai draft of Protocol I was prepared by the International Committee of the Red Cross with the aid of two canferenees af international government ex-perts held during 1971 and 1972. Artiele 82 nppenrod therein BB Article 71 bis, and in relevant part provided:

clusion within the Protocol can be discerned from the wrds of Mr. Martin of the International Committee of the Red Cross, who stated that:

There could be no doubt that many violations of humanitarian law arose from unfamiliarity with the rules involved. Many experts considered that the Geneva Conventions and draft Protocols would be better applied if the commanders of military units were accompanied by legal advisors whose main task would be to ensure that the armed forces received appropriate instruction and to answer any questions put to them.'

Thus for the first time international law will specifically require that the commander be provided with a legal advisor who will be available to advise him of law-of-war implications during the planning and execution of tactical operations. Further, the commander's judge advocate will be available to assist in instructing the members of the command on the Canventions and the Protocols. AI-tide 82 thus provides clear guidance ta the commander which, if implemented, should result in heightened...