Foreign Relations of the United States, 1969–1976, Volume E–3, Documents on Global Issues, 1973–1976

235. Executive Summary of a Classified Report of the U.S. Delegation to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts¹ ²

Washington, June 10, 1974

I. SWITZERLAND AND THE CONFERENCE ARRANGEMENTS

The Swiss Government, which convened the Diplomatic Conference, seemed ill prepared for the politicization of the Conference, which manifested itself from the very outset.

The tone of the Conference was set by the opening address of Mr. Ould Dada, the President of Mauritania, who had sought an invitation to speak, which the Swiss Government reluctantly extended, in view of his presence in Geneva for other reasons. He reproached “the Zionists who wanted to throw the Arabs into the Sea”; praised the Palestine Liberation Organization and those fighting against the colonialist regimes in the Portuguese colonies and in Rhodesia and South Africa; and reproached the United States and the Republic of Vietnam for their activities in Cambodia and in Vietnam.

The Swiss Government had apparently not been aware that the division of the spoils of Conference offices would be dictated by the United Nations pattern, and its preliminary soundings and proposed list came to naught. It is improbable that the Swiss could have done anything to keep a storm from brewing over the question of representation of national liberation movements, Guinea-Bissau, and the Provisional Revolutionary Government in Vietnam, but the President of the Conference, M. Graber, showed a certain maladroitness in promoting and carrying through compromise arrangements through consultations in regional groups, inter-regional contacts and negotiations outside the conference hall. The rules of procedure that had been drafted by the Swiss Government had to be laboriously gone over and modified. And the President of the Conference and his Bureau were not as energetic or adroit as they might have been in moving the Conference into its substantive work. All of these problems reflect the unfamiliarity of the Swiss Government with the rough and tumble of United Nations politics.

The politicization of the Conference and the hard-fought battles over representation have undoubtedly caused the Swiss Government and the International Committee of the Red Cross—which for all of their juridical independence are often associated in people’s minds—to think further about their humanitarian role, particularly in less developed countries. Fears were expressed, for example, that the role of the ICRC in Vietnam would be handicapped by the withdrawal of Hanoi from the Conference and the loss of the vote to admit the PRG. The Swiss Government and the ICRC seem anxious to preserve what ties they have with the Third World and were concerned lest some of the smoke of the political battling rub off on them.

II. THE REPRESENTATION ISSUE

The issue of representation, particularly that of the PRG, was hard fought. The excuse of wide participation in a conference on international humanitarian law was used as a cover for a campaign to enhance the international standing of the PRG and to provide it with a forum at the Conference.

The U.S. Delegation worked hard to prevent an invitation to the PRG. A political officer, Mr. William H. Marsh, was brought from the Embassy in Paris, demarches were made by the Department in a number of capitals, and the Delegation made every effort to assure the presence of as many delegations as possible that might be expected to vote with the United States on the PRG issue. It did not go unnoticed that the departure of Hanoi from the Conference and the vote of San Marino were sufficient to tile the balance against an invitation to the PRG. Mr. Marsh was a highly effective lobbyist and deserves particular praise for his activity among the Conference delegations.

A key element in the tactics of the United States Delegation was to separate the PRG issue from Guinea-Bissau and the national liberation movements and to conciliate the African and Arab delegations by accepting the invitation of liberation movements without a vote (merely stating our reservations for the record). This tactic succeeded, as most of these delegations abstained on or were absent for the vote on the PRG.

Unexpected setbacks in our efforts to keep the PRG out were the decision by Indonesian Foreign Minister Malik to instruct his delegation to vote in favor of an invitation to the PRG and a last-minute decision by the Italian representative, Ambassador di Bernardo, to abstain, despite instructions from Rome to vote against the PRG. (He apparently did not want to be on the losing side, and he thought the PRG would be invited).

III. WARS OF NATIONAL LIBERATION AND NATIONAL LIBERATION MOVEMENTS.

The first session of the Conference was dominated by the issue of the representative of the national liberation movements and the application of the Protocol on International Armed Conflicts and the Geneva Conventions of 1949 to wars of national liberation. The developing countries, with support from the Soviet bloc, voted as a solid block, according to the pattern that has become increasingly common at conferences. They commanded over two-thirds of the votes, which is the requisite majority for the adoption of proposals in the plenary of the Conference. They appeared to have the votes, for example, to force through the text of Article 1, applying Protocol I to wars of national liberation. Our success on the PRG issue and our active lobbying in capitals may have sufficiently weakened their confidence, however, to allow avoidance of the vote.

While Egypt was a co-sponsor and a strong supporter of the proposal concerning wars of national liberation, the Egyptian Delegation showed itself to be conciliatory and conscious of the danger of pushing the matter too far and too fast. The United States Delegation had excellent relations with the Egyptian Delegation, and the latter on more than one occasion was helpful in getting other states in the same camp off their more extreme positions.

In the face of the voting block of the developing countries and the Soviet bloc, the Western European Group and others did not show the unity that it should have. The Delegations of the United Kingdom, the Federal Republic of Germany, Belgium, the Netherlands, and France, with which the United States Delegation had excellent relations, were helpful and held firm. Canada proved to be less firm and more inclined to pursue a conciliatory role than it had in the previous Conferences of Government Experts. Norway was predictably the closest friend of the national liberation movements and had cultivated this field intensively before the Conference. Nordic unity did not show itself strongly. The intensity of Norway’s concern with national liberation movements was not shared by Sweden and Finland (two countries that often did work together although Finland voted with Norway while Sweden abstained) or by Denmark, which normally cooperated with its NATO allies.

Australia gave outright support of the application of Protocol I to wars of national liberation. The instructions for this change of position came from Canberra.

On wars of national liberation, the Soviet Union and other members of the Soviet bloc were with the less developed countries. On other Issues, they were relatively open in their views, willing to propose or to accept compromises, and even co-sponsors some proposals with the United States.

It is quite clear that many issues that will arise in the second session of the Conference will, as in the case of the first session, be seen in the light of their bearing on wars of national liberation. This will be true of the definition of prisoners of war, the obligations of a Detaining Power, means and methods of combat, and weapons. If a particular weapon or technique has been used by militarily advanced powers against a national liberation movement, it will be charged that the weapon causes unnecessary suffering or is indiscriminate in its effects.

IV. OTHER ISSUES

There is widespread ignorance among the participants in the Conference of both war and humanitarianism as an “art of the possible.” Delegations would not infrequently call for sweeping prohibitions of activity, such as propaganda or anything that in fact causes terror in the civilian population, on the ground that it is “inhumane.” They were insensitive to the compromises that the law must make and to the complexities of a body of international humanitarian law which is the product of more than a century of growth. Many of the less developed countries seemed unable to cope with the distinction between “unavoidable suffering” and “unnecessary suffering” in warfare.

The Swedish initiative on weapons did not seem to build up as much momentum as might have been expected. Ignorance and the lack of any position were probably the causes of the silence of others. Sweden came very well prepared, with detailed statements about the characteristics of various weapons that it would like to see banned, but often after the statement of the Swedish Delegation and words of support from Mexico, there was only desultory discussion or none at all. There will have to be a long period of study and discussion about these issues. Naturally, states will assess these issues in terms of how prohibition or restriction of a particular weapon would affect their security interests. The search for consensus will be long and difficult.

V. THE LONGER TERM PROSPECT AND WHAT NEEDS TO BE DONE.

The first session of the Diplomatic Conference raised the question of how many states are really serious about drawing up new humanitarian law and in becoming parties to the resulting treaties. There is reason to suppose that a number, perhaps even a majority, of the states present at the Conference and participating in its work, may see the Conference primarily in terms of the opportunity it provides to advance certain political causes—such as the end to colonial regimes in sub-Saharan Africa. Once the Conference is over and the points have been made, it may well be that they will show a diminished enthusiasm about becoming parties to the instruments. One cannot be sure whether the flexibility shown, for example, by the Soviet bloc is genuine or indicates disinterest in any new protocols on the law of war.

It will be necessary for the United States to consider what advantages and disadvantages may lie in participation in the second session of the Conference and whether it would wish to become a party to the Protocols which, according to Present indications, are likely to emerge from the Conference. In particular, the following issues must be addressed:

1. Will it be possible for the United States to live with the formula on wars of national liberation adopted for Article 1 of Protocol I? The sponsors have indicated that the wording adopted in Committee may be subject to some adjustment. Consideration must be given to whether there is some way of separating out the issue of wars of national liberation so that individual countries may become parties to Protocol without necessarily accepting that obligation. It will also be necessary to think what impact the concept of wars of national liberation may have on other articles of Protocol I and of the Geneva Conventions of 1949 in general, and to avoid any formulation which Permits unequal application of the Protocols and the Convention to different Parties to a conflict.

2. There is a tendency in the Conference to adopt rather generalized prohibitions on certain methods and means of combat and to extend these to warfare at sea and to attacks against aircraft. These may prove to be unacceptable to the United States, and more rational alternatives must be sought.

3. Coupled with the foregoing problem is the matter of individual criminal responsibility for violations of the Protocols. If various prohibitions are to be absolute, and without reference to intent or fault, and if criminal responsibility is to be retained for violation of the law of war, then there is the possibility of using the law as a means of denying humane treatment to prisoners, as happened to American prisoners of war in Vietnam. Many delegations objected to any reference to “intent” or to the predictability of consequences in the use of a weapon. If prohibitions are to be made absolute, then steps must be taken to assure that foundation is not laid for the oppression of prisoners. We must give particular attention to these questions of individual responsibility before the second session.

4. In preparation for the Conference of Government experts on Weapons and the second session of the Conference, the United States Government will be conducting a survey of possible legal restraints on the use or possession of weapons pursuant to NSSM 194. That study will provide a solid basis for determining the positions that the United States will take on weapons issues at the second session of the Conference.

There will be a need for further consultations within the western European Group and others before the second session of the Conference, but it is not to be expected that these will produce unity of position on all or a strong majority of issues. Probably more urgent are bilateral consultations with a number of Latin American and other developing countries as part of a process of educating them. The message must also be brought home, to our allies and to those with whom we disagree, that it would be a tragedy if the divisiveness shown at the Conference should endanger the fragile fabric of the existing humanitarian law and that the pushing of extreme positions, not generally acceptable, would not advance the humanitarian protection of war victims. These points are not easily made. However, if communication fails, the United States must be ready to say that its accession to the Protocols that may be drawn up at Geneva should not be taken for granted.

1. Source: National Archives, RG 59, Central Foreign Policy Files, P740100–0478. Confidential. The minutes have been omitted. It was transmitted to Kissinger by Aldrich. NSSM 194, Review of Certain Conventional Weapons, February 15, is in the National Archives, Nixon Presidential Materials, NSC Files, NSC Institutional Files (H-Files), Box H–202, NSSM 194.
2. The report summarized the results of the conference and suggested future courses of action.