New Protections for Victims of International Armed Conflicts: The Proposed Ratification of Protocol II by the United States

• Author: by Captain Daniel Smith
• Pages: 03

1. INTRODUCTION

   On January 29, 1987, President Reagan submitted to the Senate for ratification the Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protections of Victims of Non-International Armed Conflicts (Protocol The reasons for seeking ratification were set forth in the President's Message to the Senate transmitting the Protocol

   The United States has traditionally been in the forefront of efforts to codify and improve the international rules of humanitarian law in armed confiict, with the obpetive to giving the greatest possible protection to victims ofsueh con-flicts, consistent with legitimate military requirements. The agreement that I am transmitting today 18, with certain ex-ceptions, a positive step toward this goal Its ratification by the United States will assist us in continuing to exercise leadership in the international community in these mattem2

   Protocol I1 was negotiated at B diplomatic conference convened by the Swiss Government in Geneva, and was signed by the United States and 101 other nations in 1977.3 Protocol I1 1s intended to ex. pand and improve upon the basic humamtanan standards of Common

   -Judge Advocate General'a Corpa, Umted States Army Currently aaalgned ae Tml Defense Counsel, United States Army ?rial Defenae Serrlce. 3d Infantry Division ISchweinfurt Field office) B A lcum iauder, University ai San Rancmco. 1983. J D , UniveraityoiSanFranciseo, 1996,LL M .NewYorkDmuenn), 1967 Graduate 114th Judge Advocau Officer Basic Cavrae 1967 Member afrhe bars offhe States aihnsana and Callforma, the United Stares Caurt of bliliiary .4ppeala, and the United States

   'Pratoool Addrfional tu the Geneva Conventions ai 12 August 1949, and Relaring to the Protectme af Victima of Son-Internat~anal Armed CanAmr opened lor mgnature Dec 12. 1977 riprinled E" 16 I L M 1442 I197il Ihereinaiter Profocal I11

   'Message from the President of the Cnned States ID the Senate Transmmng The Protocol 11 Additmnal to the Geneva Convention8 of August 12, 1949, and Relating To?he Prufecfiun ofViclims oison-Inlernarmal Armed ConRlcts. Concludmg AI Geneva On June 10 1977 January 29, 1987, S Treaty Doc Na 2,lOOih Cong , lsr Sera ,19871

   'As ai January 1, 1986, 48 ataten habe become parries to Protocol I1 Bowman and Hams. Multilateral Treaties, Index and Current S~BIUI,

   3rd Cum Sup 81 (Jan 1 19861 China and France are the onl) major pawera that have adopted Protocol I1

   Renew

   A ~ Y

   COW oim~ltary

   Article 3 of the Geneva Conventions of August 12. 1949 for the Protection of Victims of War,' which governs noninternational armed conflicts This article analyzes the proposed ratification of Protocol I1 by the United States It will briefly review the development of humanitarian law regulating internal conflicts and the United States mtolvement in this process Sext, It will examine whether the rec. ommended application of Protocol I1 1s mnmtent wth the United States goal of granting the greatest posslble protection to victims of war, within the limits of legitimate military requirements.

   11. THE AMERICAN CIVIL WAR

   The United States has long had an Interest in the laws governing nomnternational armed conflict This intereat has Its mots in the American Civil War6 One man particularly devoted to Setting forth rules of conduct during this confiict Dr Francis Lieber ' When the South fired upon Fort Sumter in 1860. Lieber was an established professor of law at what was then Columbia College in iiew York At the outbreak of rhe conflict, many serious queerions arose concerning the laws gorerning cwil wars, and Lieber sought to clanfy these problems The most significant of these concerns was the treatment of captured Southern soldiers The iiorth maintained that the conflict was an inrernal matter and that anyone seeking to dismember the Unmn was a rebel who could be tried for treason This pasition became difficult to maintain when the Confederates captured a large number of Union soldiers and officers in the Battle of Bull Run in 1861 and requested an exchange of pnaaners Polmcal pressure mounted

   'Camentm forrhe 4mel1orsrm of the Condinon ofrhe Wounded and Sick in Armed Forcer in the Field Genera Canvenrlon S o I Aug 12. 1949, 6 L S T 3111. T 1 A S No 3362 75 U N T S 31, Conienfian for the Amelioration af the Condition of the Rounded, Sick, and Shipwrecked Members of Armed Forces at Sea, GeneiaCanrenfion No 118 .4ug 12. 1949. 6 U S 1 3217, T I A S No 3363. 75 C X T E 85. Genera ntmn Relatiie to the Treatment of Pnionerr of War 8Genwa Conientran ho

   ed 1971

   For P general diicuiaion of Dr Lieber and his sorks. see F Freidel Francis Lieber 1Yi:I. R Hartigsn Lieber'r Code and the Law af War, 1983) Garner, General Order 100 Raiairrd. 2: Mil L Rev 1 ,1985, Tis,

   Francri Lwber-His Life and Works 5

   J 1 L e i 1911'F Fieidel dupia note iat 320

   19881 PROTOCOL I1

   for an exchange, but officials in Washington feared that such an exchange would amount to recognition of the Southern Confederacy? Lieber researched international law and came up with a solution He found that, even in times of rebellion, customary rules of warfare and treatment of prisoners should be observed for humanitarian reasons.10 This adherance to humanitarian norms did not involve recognition ofthe Southern Confederacy, nor did it preclude the North from trying the rebels for treason after the war Lieber's opinion was expressed in an open letter to US. Attorney General Edward Bates that was published in the New York papers in August 1861. Because the opinion was based soundly upon international law and provided a solution to a pressing issue, It became official policy.''

   Lieber was not satisifed that the laws governing war would be applied to this cruel armed conflict. He believed more codification of rules was imperative. On November 13,1862 Lieber made a historical request to his friend General Halleck, the General-m.Chief of the Union Armies:

   My dear General, Ever since the beginning of our present War, It has ap.

   peared clearer and clearer to me, that the Preaident ought to issue a set of rules and definitions providing for the most urgent mmes occunng under the Law and usages of War, and on which our Articles of War are silent. The last phases of our war, and the things which have come to light by the recent inquiries into the conduct of certain officers, have at length induced me to write to you on the subject. I address you as the JUKlst, no less than as the soldier.

   My idea 18-1 give it a8 a suggestion to you-that the President as Commander in Chief, through the Secretary of War, ought to appoint a committee, say of three, to draw upa code, If you choose to call it so, in which certain acts and offenses (under the Law of War) ought to be defvled and, where necessary, the punishment be stated.12After making this proposal, Lieber emphasized the absence of any

   I do not know that any such thing as I design exists in any other country, and in all other countries the Law of War is

   such code in other countries

   'Id

   'OR Hartigan. supra note 7. at 9"See W B Hesseltme, Civil War Pribons A Study m War Psychology (1930)121rtter from F Lieber. Yew Yark. to General Halleck, W-aimgtan (13 h'av 18621 [heremafter Hslleck letter]. m Lieber Papers. Hvnrington Library. Sen Marmo, Cal-ifornia For B eolleenon af selected correspondence between Dr Lieber and General Hallei during the American Civil War, 8ee R Hartigan. supm note 7

   much more reduced to naked Force or Might than we are especially now. perhaps, in this Civil War, much more thorough organization in those

   countnee: nor o single wars extend there over such distances as here.'j

   General Halleck did not accept this proposal immediately. but Lieber persisted and a committee was officially established on December 17. 1862 The result of this committee was the landmark code published by the War Department in April 1863 as General Order No 100, Instructions for the Government of the Armies of the United States in the Field l4 The document comprised ten sections wth I57 articles The order 1s commonly referred to as the Lieher Code

   Although the Lieber Code gained official recopition a8 General Order KO.

   100, Umon officers did not immediately accept it The Confederacy considered the code to be propaganda and criticized It for 'allomng too much latitude to Union troops ~n occupied Southern terntory"'a Despite these problems, "the standards set by the code deem to hare been generally observed by both sides during the Civil War Captured enemy soldiers were generally treated as ''prisoners of war" in accordance with Lieber's code The great lose of life that occurred in both northern and southern prisons has been attributed to disease. cold weather, and inadequate food. rather than international mistreatment.18 Property nghts were also generally protected during and after the Civil War At the end of the war. the United States seems to hare observed the provisions afthe Lieber Code dealing with war crimes These proviamns ivere applied against Captain Henq \Vntz. rho was tried and executed for brutal treatment of Union pnsaners at Andersonville, a Confederate prison '@The North chose not to prosecute any Confederate leader for treason. an option permitted under Lieher's Code Some recorded acts of the Civil War seem inconsistent with Lieber's Code,'O but on the whole. the parties conformed to the law of war 88 then understood.

   -aHslleck letter supra note 12

   'General Order I\o 100 18 reprinted in The Laws of Armed Conflict 3 ,D

   Schindler

   The ahronarmn of the law oiuar hy the Uorth and South LI anabred in iYrighf supra note 6 et 34-74

   ,61d at 61l~id at 73-LThe most confm~eiiial humanifanan i i i u e ~ aime ~n ronnecrion with General Sherman's marth through Georgia and the bombardment aicmea especiall? Arlanra These acts iiere analvzed under Lieber's Code ~n Kriphf. supra note 6 at 64-65

   ' Letier irom F Lieber to General Halleck Nai 29, 1663, ~n Lieher's Paper; Hun tingron Lihrari. San Manno, Callfarma...