Chapter 19 Appendix

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
1131
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
19.2.1 Law of War Treaties to Which the United States Is a Party. Law of war treaties to
which 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
Refer to 1.6.2 (Arms Control).
Refer to List of Abbreviations.
Convention with Russia, Jul. 22, 1854, 10 STAT. 1105.
Refer to 7.12.4.3 (Relief From Taxation in Time of War).
Convention Relative to the Opening of Hostilities, Oct. 18, 1907, 36 STAT. 2259.
Refer to 19.8.2 (Hague IV).
Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18,
1907, 36 STAT. 2310.
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
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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19.2.2 Arms Control Agreements to Which the United States Is a Party That Are of
Direct 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
19.2.3 Examples of Treaties Signed but Not Ratified by the United States. This section is
not 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.).
1135
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
19.2.4 Examples of Treaties That the United States Has Neither Signed Nor Ratified.
This 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).
1136
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
19.2.5 Examples of Treaties or Documents of Mainly Historical Value. This section is

not 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).
1137
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.).
1140
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
19.7.1 1899 Declaration on Expanding Bullets. The 1899 Declaration on Expanding
Bullets 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).
1141
19.7.2 1899 Declaration on Asphyxiating Gases. The 1899 Declaration on Asphyxiating

Gases 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
19.7.3 1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From
Balloons. 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, AustriaHungary, 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,).
1142
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
19.8.1 1899 Hague II. The Hague Convention II with Respect to the Laws and Customs
of 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.
1902.
94
The United States deposited its instrument of ratification to the 1899 Hague II on April 5,
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
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
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
1143
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
19.8.2 Hague IV. States sought to expand upon and clarify provisions of 1899 Hague II
and 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
1909.
98
The United States deposited its instrument of ratification to Hague IV on November 27,
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.).
1144
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
19.8.3 Martens Clause. The Preamble to the 1899 Hague II contains a clause known as
the 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,).
1145
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).
1146
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
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
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
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
1147
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).
1148
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
1149
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
19.13.1 1929 GWS. The United States deposited its instrument of ratification to the 1929
GWS 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.
19.13.2 1929 GPW. The United States deposited its instrument of ratification to the 1929
GPW 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).
1150
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
1151
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
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;).
WHEREAS
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.)).
1152
The 1949 Geneva Conventions followed earlier multilateral treaties that addressed the
same subjects, including the 1864 GWS, the 1907 Hague X, the 1899 and 1907 Hague
Conventions on the Law of Land Warfare, and the 1929 Geneva Conventions. 149
The Commentaries to the 1949 Geneva Conventions, published by the International
Committee of the Red Cross, under the general editorship of Jean S. Pictet, have often been
helpful in understanding the provisions of the 1949 Geneva Conventions and have often been
cited in this manual. As noted by the International Committee of the Red Cross, however, these
Commentaries are not an official interpretation of the 1949 Geneva Conventions, which only
participant States would be qualified to give. 150
19.16.1 Common Provisions in the 1949 Geneva Conventions. The four 1949 Geneva
Conventions contain a number of common provisions, i.e., provisions that are substantively the
same (if not identical in text) among the conventions.
The four Geneva Conventions have this duplication, in part, because each convention is
designed to be effective, even if a State only ratifies that particular convention. 151 For example,
the list of persons entitled to receive POW status in Article 4 of the GPW is repeated in the GWS
and GWS-Sea. 152
148
See SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Report of the
Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 32 (Jun. 27, 1955)
(Our Nation has everything to gain and nothing to lose by being a party to the conventions now before the Senate,
and by encouraging their most widespread adoption. As emphasized in this report, the requirements of the four
conventions to a very great degree reflect the actual policies of the United States in World War II. The practices
which they bind nations to follow impose no burden upon us that we would not voluntarily assume in a future
conflict without the injunctions of formal treaty obligations.).
149
Refer to 19.5 (1864 GWS); 19.9 (1907 Hague X); 19.8 (1899 Hague II and 1907 Hague IV Conventions
and Annexed Regulations Regarding Land Warfare); 19.13 (1929 Geneva Conventions).
150
See, e.g., GWS COMMENTARY Foreword (Although published by the International Committee, the Commentary
is the personal work of its authors. The Committee, moreoever, whenever called upon for an opinion on a provision
of an international Convention, always takes care to emphasize that only the participant States are qualified, through
consultation between themselves, to give an oficial and, as it were, authentic interpretation of an intergovernmental
treaty.).
151
See, e.g., II-B FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 257 (Mr. NAJAR (Israel): ...
We have a number of Conventions here, with different signatories, which constitute distinct legal instruments. It is
not at all surprising that one more of them should contain Articles of a more or less similar character; but one
Convention is distinguished from another by being a self-contained legal instrument, and by its signatories.); id. at
283 (Mr. FILIPPOV (Union of Soviet Socialist Republics): ... In the amendment submitted to us an allusion is made
to Article 20 of the Wounded and Sick Convention. This reference seems to us inadmissible, as the Prisoners of
War Convention is an entirely independent document and the allusions in its Articles to other Conventions, in
particular the Wounded and Sick, might involve difficulties if the Parties to the conflict were not signatories to both
Conventions.).
152
Refer to 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWSSea).
1153
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).
1154
addresses non-international armed conflict. 160 It was the first provision in a multilateral law of
war treaty that addressed humane treatment during non-international armed conflict to gain
widespread ratification by States. 161
Although Common Article 3 only applies by its terms to non-international armed
conflicts, Common Article 3 reflects a minimum yardstick of humane treatment protections that
apply more broadly, including during international armed conflict. 162
19.16.1.4 POW Status and the 1949 Geneva Conventions. Article 4 of the GPW
explains which persons are entitled to receive POW status under the GPW. 163 This provision is
mirrored in the GWS and GWS-Sea, as those conventions are intended to protect persons who
are entitled to POW status under the GPW. 164
The GC excludes from its protection those persons who are entitled to POW status under
the GPW. 165
19.16.1.5 Retained Personnel and the 1949 Geneva Conventions. Retained
personnel are addressed by both the GPW and the GWS.166
19.16.2 GWS. The GWS is often called the first Geneva Convention. 167 The GWS
addresses the following subjects on land: (1) the protection of the wounded, sick, and dead; (2)
the rights, duties, and liabilities of military medical and religious personnel; and (3) the
protection of military medical units, facilities, and transports. 168
19.16.2.1 Relationship Between the GWS and Earlier Conventions. The GWS
replaces the Conventions of August 22, 1864, July 6, 1906, and July 27, 1929, in relations
between the Parties to the GWS. 169
160
GPW COMMENTARY 34 (To borrow the phrase of one of the delegates, Article 3 is like a Convention in
miniature. It applies to non-international conflicts only, and will be the only Article applicable to them until such
time as a special agreement between the Parties has brought into force between them all or part of the other
provisions of the Convention.).
161
Refer to 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).
162
Refer to 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).
163
Refer to 9.3.2 (Persons Entitled to POW Status).
164
Refer to 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWSSea).
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.).
1155
19.16.3 GWS-Sea. The GWS-Sea is often called the second Geneva Convention. 170 The
GWS-Sea addresses the following subjects at sea: (1) the protection of the wounded, sick,
shipwrecked, and dead; (2) the rights, duties, and liabilities of military medical and religious
personnel; and (3) the protection of military medical units, facilities, and transports. 171
19.16.3.1 Relationship Between the 1907 Hague X and the GWS-Sea. The GWSSea replaces the Hague X in relations between the Parties to the GWS-Sea. 172
19.16.4 GPW. The GPW is often called the third Geneva Convention. 173 The GPW
addresses the protection of POWs. 174
19.16.4.1 Relationship Between the GPW and the 1929 GPW. The GPW replaces
the 1929 GPW in relations between the Parties to the GPW. 175
19.16.4.2 Relationship Between the GPW and the 1899 Hague II or 1907 Hague
IV. In the relations between States that are bound by the 1899 Hague II or the 1907 Hague IV,
and that are Parties to the GPW, the GPW shall be complementary to Chapter II of the
Regulations annexed to the 1899 Hague II or the 1907 Hague IV. 176
19.16.5 GC. The GC is often called the fourth Geneva Convention. 177 The GC addresses
the protection of civilians in the hands of a party a conflict, including civilian internees. 178 The
GC also addresses belligerent occupation.
19.16.5.1 Application of Different Parts of the GC. Different parts of the GC
apply to different situations.
170
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea of August 12, 1949, 75 UNTS 85.
171
Refer to 7.1.1 (Interpretation and Application of Provisions Relating to Medical Issues in the GWS, GWS-Sea,
GPW, and GC).
172
GWS-SEA art. 58 (The present Convention replaces the Xth Hague Convention of October 18, 1907, for the
adaptation to Maritime Warfare of the principles of the Geneva Convention of 1906, in relations between the High
Contracting Parties.).
173
Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 75 UNTS 135.
174
Refer to 9.1.2 (Interpretation and Application of the GPW).
175
GPW art. 134 (The present Convention replaces the Convention of July 27, 1929, in relations between the High
Contracting Parties.).
176
GPW art. 135 (In the relations between the Powers which are bound by the Hague Convention respecting the
Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and which are
parties to the present Convention, this last Convention shall be complementary to Chapter II of the Regulations
annexed to the above-mentioned Conventions of the Hague.).
177
Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, 75 UNTS
287.
178
Refer to 10.1.1 (Interpretation and Application of the GC).
1156
In general, the GC uses the concept of protected person to define the individuals who are
entitled to receive its protections. 179 The provisions of Part II of the GC (articles 13-26) are
wider in application; they do not only apply to those persons who are protected persons under the
GC. 180 These provisions cover the whole of the populations of the countries in conflict. 181
Section I (articles 27-34) of Part III of the GC includes provisions that are common to the
home territories of the parties to the conflict and to occupied territories.
Section II (articles 35-46) of Part III of the GC addresses aliens in the home territory of a
party to the conflict.
Section III (articles 47-78) of Part III of the GC addresses occupied territories.
Section IV (articles 79-135) of Part III of the GC provides regulations for the treatment of
internees.
19.16.5.2 Relationship Between the GC and the 1899 Hague II and the 1907
Hague IV Conventions. In the relations between States that are bound by the 1899 Hague II, or
the 1907 Hague IV, and that are Parties to the GC, the GC shall be supplementary to Sections II
(Articles 22-41 Hostilities) and III (Articles 42-56 Military Authority Over the Territory of
the Hostile State) of the Regulations annexed to the 1899 Hague II or the 1907 Hague IV. 182
19.17 1954 HAGUE CULTURAL PROPERTY CONVENTION
The 1954 Hague Cultural Property Convention addresses the protection of cultural
property during international armed conflict. 183 It addresses personnel who are engaged in duties
related to the protection of cultural property. 184 It also has provisions that apply during
occupation. 185 Some provisions of the 1954 Hague Cultural Property Convention apply to noninternational armed conflict. 186
179
Refer to 10.3 (Protected Person Status).
180
Refer to 10.3.3 (Categories of Nationals Specifically Excluded From the Definition of Protected Person Under
the GC).
181
GC art. 13 (The provisions of Part II cover the whole of the populations of the countries in conflict, without any
adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to
alleviate the sufferings caused by war.).
182
GC art. 154 (In the relations between the Powers who are bound by The Hague Conventions respecting the
Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and who are parties
to the present Convention, this last Convention shall be supplementary to Sections II and III of the Regulations
annexed to the above mentioned Conventions of The Hague.).
183
Refer to 5.18 (Protection of Cultural Property).
184
Refer to 4.14 (Personnel Engaged in Duties Related to the Protection of Cultural Property).
185
Refer to 11.19 (Protection of Cultural Property During Occupation).
186
Refer to 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC); 17.11 (Protection of
Cultural Property in NIAC).
1157
The 1954 Hague Cultural Property Convention was adopted at a diplomatic conference
on May 14, 1954. 187 The United States deposited its instrument of ratification to the Hague
Cultural Property Convention on March 13, 2009, and stated four understandings. 188
Two Protocols to the 1954 Hague Cultural Property Convention have been adopted. 189
The United States has neither signed nor ratified either one.
19.17.1 Relationship Between the 1954 Hague Cultural Property Convention and Earlier
Treaties.
19.17.1.1 Relationship Between the 1954 Hague Cultural Property Convention
and Certain 1899 and 1907 Hague Conventions. In the relations between States that are bound
by the Conventions of The Hague concerning the Laws and Customs of War on Land (IV)
(Hague IV) and Concerning Naval Bombardment in Time of War (Hague IX), whether those of
July 29, 1899, or those of October 18, 1907, and that are Parties to the 1954 Hague Cultural
Property Convention, the 1954 Hague Cultural Property Convention shall be supplementary to
the Hague IX Convention and to the Regulations annexed to the Hague IV Convention. 190
19.17.1.2 Relationship Between the 1935 Roerich Pact and the 1954 Hague
Cultural Property Convention. In the relations between States that are bound by the 1935
Roerich Pact and that are Parties to the 1954 Hague Cultural Property Convention, the 1954
Hague Cultural Property Convention shall be supplementary to the Roerich Pact and shall
substitute for the distinguishing flag described in Article III of the Roerich Pact the emblem
defined in Article 16 of the 1954 Hague Cultural Property Conventionin cases in which the
1954 Hague Cultural Property Convention and the Regulations for its execution provide for the
use of this distinctive emblem. 191
187
Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 UNTS
240.
188
2575 UNTS 7 (RATIFICATION (WITH DECLARATIONS) United States of America Deposit of instrument with the
Director-General of the United Nations Educational, Scientific and Cultural Organization: 13 March 2009).
189
Protocol for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 UNTS 358;
Second Protocol to The Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed
Conflict, Mar. 26, 1999, 2253 UNTS 172.
190
1954 HAGUE CULTURAL PROPERTY CONVENTION art. 36(1) (In the relations between Powers which are bound
by the Conventions of The Hague concerning the Laws and Customs of War on Land (IV) and concerning Naval
Bombardment in Time of War (IX), whether those of 29 July, 1899 or those of 18 October, 1907, and which are
Parties to the present Convention, this last Convention shall be supplementary to the aforementioned Convention
(IX) and to the Regulations annexed to the aforementioned Convention (IV) and shall substitute for the emblem
described in Article 5 of the aforementioned Convention (IX) the emblem described in Article 16 of the present
Convention, in cases in which the present Convention and the Regulations for its execution provide for the use of
this distinctive emblem.).
191
1954 HAGUE CULTURAL PROPERTY CONVENTION art. 36(2) (In the relations between Powers which are bound
by the Washington Pact of l 5 April 1935 for the Protection of Artistic and Scientific Institutions and of Historic
Monuments (Roerich Pact) and which are Parties to the present Convention, the latter Convention shall be
supplementary to the Roerich Pact and shall substitute for the distinguishing flag described in Article III of the Pact
the emblem defined in Article 16 of the present Convention, in cases in which the present Convention and the
Regulations for its execution provide for the use of this distinctive emblem.).
1158
19.18 VIENNA CONVENTION ON THE LAW OF TREATIES

The Vienna Convention on the Law of Treaties (VCLT) was adopted on May 23, 1969,
by the U.N. Conference on the Law of Treaties.
The United States signed the VCLT on April 24, 1970. President Nixon transmitted the
VCLT to the Senate for its advice and consent to ratification on November 22, 1971. 192
The United States is not a Party to the VCLT but has viewed many of its provisions as
reflecting customary international law.
19.19 BIOLOGICAL WEAPONS CONVENTION
After negotiations at the Conference of the Committee on Disarmament at Geneva and at
the United Nations, the Biological Weapons Convention was opened for signature on April 10,
1972. 193
The United States deposited its instrument of ratification on March 26, 1975. 194
The Biological Weapons Convention followed the 1925 Geneva Gas and Bacteriological
Protocol. 195
In implementation of the Biological Weapons Convention, Congress enacted legislation
prohibiting development, production, transfer, acquisition, or possession of a biological agent,
toxin, or delivery system for use as a weapon. 196
192
Richard Nixon, Letter of Transmittal, Nov. 22, 1971, MESSAGE FROM THE PRESIDENT TRANSMITTING THE VCLT
III.
193
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological)
and Toxin Weapons and on Their Destruction, 1015 UNTS 164.
194
1015 UNTS 165.
195
196
18 U.S.C. 175 (Prohibitions with respect to biological weapons. (a) In general. -- Whoever knowingly
develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery
system for use as a weapon, or knowingly assists a foreign state or any organization to do so, or attempts, threatens,
or conspires to do the same, shall be fined under this title or imprisoned for life or any term of years, or both. There
is extraterritorial Federal jurisdiction over an offense under this section committed by or against a national of the
United States. (b) Additional offense. -- Whoever knowingly possesses any biological agent, toxin, or delivery
system of a type or in a quantity that, under the circumstances, is not reasonably justified by a prophylactic,
protective, bona fide research, or other peaceful purpose, shall be fined under this title, imprisoned not more than 10
years, or both. In this subsection, the terms biological agent and toxin do not encompass any biological agent or
toxin that is in its naturally occurring environment, if the biological agent or toxin has not been cultivated, collected,
or otherwise extracted from its natural source. (c) Definition. -- For purposes of this section, the term for use as a
weapon includes the development, production, transfer, acquisition, retention, or possession of any biological agent,
toxin, or delivery system for other than prophylactic, protective, bona fide research, or other peaceful purposes.).
1159
19.20 1977 ADDITIONAL PROTOCOLS TO THE 1949 GENEVA CONVENTIONS

A diplomatic conference between 1974 and 1977 negotiated two protocols to the 1949
Geneva Conventions that addressed international armed conflict (AP I) and non-international
armed conflict (AP II).
Because these treaties were negotiated at the same time, they may provide information on
States views on differences between the rules applicable in international armed conflict and the
rules applicable in non-international armed conflict. 197
19.20.1 AP I. Protocol (I) Additional to the Geneva Conventions, and Relating to the
Protection of Victims of International Armed Conflicts (AP I) contains rules on the conduct of
hostilities during international armed conflict that are intended to supplement the 1949 Geneva
Conventions. 198 For example, AP I provides additional protections for the wounded and sick,
and provides for the establishment of an international humanitarian fact-finding commission. 199
AP I, however, does not apply to the use of nuclear weapons. 200
The United States signed AP I and stated two understandings. 201 As explained below, AP
I is a significant law of war treaty that the United States has decided not to ratify.
On January 28, 1987, President Reagan informed the Senate that AP I would not be
submitted for the Senates advice and consent to ratification because it is fundamentally and
irreconcilably flawed. 202 However, President Reagan noted that the United States would
support the positive provisions of Protocol I that could be of real humanitarian benefit if
generally observed by parties to international armed conflicts. 203
197
Refer to 17.2.2.2 (Considered Absence of a Restriction in NIAC).
198
Protocol (I) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims
of International Armed Conflicts of June 8, 1977.
199
Refer to 7.20 (AP I Provisions on the Wounded, Sick, and Shipwrecked); 18.14.1.1 (AP I International
Humanitarian Fact-Finding Commission (IHFFC)).
200
Refer to 6.18.3 (AP I Provisions and Nuclear Weapons).
201
United States, Statement on Signature of AP I, 1125 UNTS 404, 434 (1. It is the understanding of the United
States of America that the rules established by this Protocol were not intended to have any effect on and do not
regulate or prohibit the use of nuclear weapons. 2. It is the understanding of the United States of America that the
phrase military deployment preceding the launching of an attack in Article 44, paragraph 3, means any movement
towards a place from which an attack is to be launched.).
202
Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II III-IV
(Like all other efforts associated with the International Committee of the Red Cross, this agreement has certain
meritorious elements. But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would
undermine humanitarian law and endanger civilians in war. These problems are so fundamental in character that
they cannot be remedied through reservations, and I therefore have decided not to submit the Protocol to the Senate
in any form, and I would invite an expression of the sense of the Senate that it shares this view. Finally, the Joint
Chiefs of Staff have also concluded that a number of the provisions of the Protocol are militarily unacceptable.).
203
Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II IV
(In this case, for example, we can reject Protocol I as a reference for humanitarian law, and at the same time devise
an alternative reference for the positive provisions of Protocol I that could be of real humanitarian benefit if
1160
This manual references AP I provisions, some of which are consistent with DoD practice.
Unless explicitly noted, no determinations are made about whether any of these AP I provisions
reflect customary international law.
19.20.1.1 Examples of AP I Provisions Incorporated Into Other Treaties That the
United States Has Accepted. Some AP I provisions have been incorporated into later treaties to
which the United States is a Party. For example, AP Is definition of military objective in Article
51(2) is substantially similar to the definition in Article 2(6) of CCW Amended Mines Protocol
and Article 1(3) of CCW Protocol III on Incendiary Weapons. 204 Similarly, requirements under
the Child Soldiers Protocol and U.S. law are comparable to AP Is requirements with respect to
child soldiers. 205
19.20.1.2 Examples of AP I Provisions That Are Consistent With Longstanding
U.S. Practice. Certain provisions of AP I may not reflect customary international law, but may
be consistent with longstanding U.S. practice. For example, AP I requires that Parties to AP I
ensure that legal advisers are available to advise military commanders, and the United States has
long employed legal advisers in this role. 206 Similarly, AP I requires that Parties to AP I
undertake a legal review of, inter alia, new weapons, and the DoD policy and practice of
conducting weapons reviews preceded this provision of AP I. 207
19.20.1.3 Examples of AP I Provisions That the United States Has Supported.
The United States has expressed support for certain AP I provisions. For example, United States
has supported and sought to promote as a matter of national policy fundamental guarantees for
the treatment of persons detained during international armed conflict that are reflected in Article
75 of AP I. 208
19.20.1.4 Examples of AP I Provisions Based on a Principle That the U.S.
Supports, Even Though the Provision Is Not Necessarily Customary International Law Nor
Militarily Acceptable in All Respects. In some cases, the United States has supported a principle
underlying an AP I provision, but the provision may not be customary international law or
militarily acceptable in all respects. For example, the United States has supported the principle
recognized in AP I that journalism is generally to be regarded as a civilian activity. 209
Even where the United States has expressed support for an underlying customary
principle that AP I provisions are based upon, the United States may disagree that the language
of the provision reflects customary international law. For example, with regard to direct
generally observed by parties to international armed conflicts. We are therefore in the process of consulting with
our allies to develop appropriate methods for incorporating these positive provisions into the rules that govern our
military operations, and as customary international law.).
204
Refer to 5.7.3 (Objects That Are Military Objectives).
205
Refer to 4.20.5.1 (U.S. Offense of Recruiting or Using Child Soldiers).
206
Refer to 18.5 (Role of Judge Advocates and Legal Advisers).
207
Refer to 6.2.3 (AP I Requirement for Legal Review of a New Weapon, Means, or Method of Warfare).
208
Refer to 8.1.4.2 (Article 75 of AP I and Relevant AP II Provisions).
209
Refer to 4.24.2 (Other Journalists).
1161
participation in hostilities, the United States has supported the customary principle underlying
Article 51(3) of AP I, but has disagreed that the language of that provision reflects customary
international law. 210 Similarly, the intricacy of the provisions of AP I on objects indispensable to
the survival of the civilian population make it doubtful that such provisions could be
characterized as customary international law, although the United States has supported the
principle that the starvation of civilians not be used as a method of warfare. 211 In addition,
although the United States has supported the principle that civilian civil defense organizations
and their personnel be respected and protected as civilians, a number of military operational
problems have been identified with respect to the system of protection for civil defense
established by AP I. 212
19.20.1.5 Examples of AP I Provisions to Which the United States Has Objected.
The United States has objected to certain provisions of AP I. For example, the United States has
objected to AP I provisions on:
210
national liberation movements; 213
mercenaries; 214
works and installations containing dangerous forces; 215
criteria for lawful combatant status; 216
the obligation of combatants to distinguish themselves; 217
environmental protection; 218
presumptions in favor of civilian status in conducting attacks; 219
prohibiting the use of enemy flags, insignia, or uniforms to shield, favor, protect, or
impede military operations; 220 and
Refer to 5.9.1.2 (AP I, Article 51(3) Provision on Direct Participation in Hostilities).
211
Refer to 5.20.4 (AP I Provision on Objects Indispensable to the Survival of the Civilian Population); 5.20.1
(Starvation Distinction).
212
Refer to 4.22 (AP I Provisions on Civil Defense Personnel).
213
Refer to 3.3.4 (AP I Provision on National Liberation Movements).
214
Refer to 4.21.1 (Treaties on Mercenaries).
215
Refer to 5.13.1 (AP I Provisions on Works and Installations Containing Dangerous Forces).
216
Refer to 4.6.1.2 (AP I and the GPW 4A(2) Conditions).
217
Refer to 5.5.8.2 (AP I Obligation for Combatants to Distinguish Themselves During Attacks or Military
Operations Preparatory to an Attack).
218
Refer to 6.10.3.1 (AP I Provisions on Environmental Protection).
219
Refer to 5.5.3.2 (AP I Presumptions in Favor of Civilian Status in Conducting Attacks).
1162
reprisals. 221
19.20.2 AP II. Protocol (II) Additional to the Geneva Conventions, and Relating to the
Protection of Victims of Non-International Armed Conflict (AP II) addresses certain types of
non-international armed conflicts. 222 AP II reaffirmed, elaborated upon, and supplemented the
protections contained in Common Article 3 of the 1949 Geneva Conventions. 223
19.20.2.1 The United States and AP II. The United States is not a Party to AP II.
The United States signed AP II and stated one understanding on December 12, 1977. 224
President Reagan transmitted AP II to the Senate for its advice and consent to ratification on
January 29, 1987. 225
After the Supreme Courts decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the
Bush Administration moved AP II down on the Executives treaty priority list, indicating that it
did not seek Senate action on the treaty at that time, so that the Administration could study the
treaty in light of the decision. On March 7, 2011, after interagency review, the Obama
Administration urged the Senate to act as soon as practicable on AP II. 226
Although the United States is not a Party to AP II, reviews have concluded that the
provisions of AP II are consistent with U.S. practice, and that any issues could be addressed with
reservations, understandings, and declarations. 227
220
Refer to 5.23.3 (AP I and the Use of Enemy Flags, Insignia, or Uniforms to Shield, Favor, Protect, or Impede
Military Operations).
221
Refer to 18.18.3.4 (AP I Provisions on Reprisals).
222
Protocol (II) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims
of Non-International Armed Conflicts of June 8, 1977.
223
Refer to 19.16.1.3 (Common Article 3 of the 1949 Geneva Conventions).
224
United States, Statement on Signature of AP II, 1125 UNTS 699 (It is the understanding of the United States of
America that the terms used in Part III of this Protocol which are the same as the terms defined in Article 8 of
Protocol I shall so far as relevant be construed in the same sense as those definitions.).
225
Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II III.
226
The White House, Office of the Press Secretary, Fact Sheet: New Actions on Guantnamo and Detainee Policy,
Mar. 7, 2011 (Additional Protocol II, which contains detailed humane treatment standards and fair trial guarantees
that apply in the context of non-international armed conflicts, was originally submitted to the Senate for approval by
President Reagan in 1987. The Administration urges the Senate to act as soon as practicable on this Protocol, to
which 165 States are a party. An extensive interagency review concluded that United States military practice is
already consistent with the Protocols provisions.).
227
George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II VIII
(With the above caveats, the obligations contained in Protocol II are no more than a restatement of the rules of
conduct with which U.S. military forces would almost certainly comply as a matter of national policy, constitutional
and legal protections, and common decency.); Hillary Rodham Clinton, Secretary of State and Robert Gates,
Secretary of Defense, Letter to Senators Kerry and Lugar, Mar. 7, 2011 (We have now completed a comprehensive
interagency review of Protocol II, and, subject to reservations, understandings, and declarations that were submitted
to the Senate in 1987, along with refinements and additions that we will submit, assess it to be consistent with
current military practice and beneficial to our national security and foreign policy interests.).
1163
19.20.2.2 AP IIs Requirements for Its Application. By its terms, AP II does not
apply to all armed conflicts not of an international character. Instead, according to its terms, AP
II only applies to armed conflicts that are not covered by Article 1 of AP I and that take place in
the territory of a Party to AP II between its armed forces and dissident armed forces or other
organized armed groups, which, under responsible command, exercise such control over a part of
its territory as to enable them to carry out sustained and concerted military operations and to
implement AP II. 228
This threshold limits the application of AP II to a subset of armed conflicts that would be
covered by Common Article 3 of the 1949 Geneva Conventions. For example, AP II would only
cover conflicts in which dissident armed forces or other organized armed groups are organized
and disciplined like regular armed forces. 229 In addition, non-State armed groups must be in a
position to implement AP II before it is deemed to apply to all parties to the conflict. 230
Although AP II specifies more strict requirements for its application, President Reagan,
in submitting AP II to the Senate for its advice and consent to ratification, recommended that the
United States take the position that it would apply AP II to all armed conflicts that would be
covered by Common Article 3 of the 1949 Geneva Conventions. 231
19.21 CCW, CCW AMENDED ARTICLE 1, AND CCW PROTOCOLS
19.21.1 CCW. The Convention on Certain Conventional Weapons (CCW) and Protocols
I, II, and III were adopted at Geneva on October 10, 1980. Subsequent conferences adopted: (1)
228
AP II art. 1(1) (This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of
12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are
not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a
High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained
and concerted military operations and to implement this Protocol.).
229
BOTHE, PARTSCH, & SOLF, NEW RULES 626 (AP II art. 1, 2.5) (Regarding the concept of organized armed
groups the ICRC delivered the following statement during the negotiations in Working Group B of Committee I:
The expression does not mean any armed band acting under a leader. Such armed groups must be structured and
possess organs, and must therefore have a system for allocating authority and responsibility: they must also be
subject to rules of internal discipline. Consequently the expression organized armed groups does not imply any
appreciable difference in degree of organization from that of regular armed forces.).
230
ICRC AP COMMENTARY 1353 (4470) (This is the fundamental criterion which justifies the other elements of
the definition: being under responsible command and in control of a part of the territory concerned, the insurgents
must be in a position to implement the Protocol. The threshold for application therefore seems fairly high. Yet,
apart from the fact that it reflects the desire of the Diplomatic Conference, it must be admitted that this threshold has
a degree of realism. The conditions laid down in this paragraph 1, as analysed above, correspond with actual
circumstances in which the parties may reasonably be expected to apply the rules developed in the Protocol, since
they have the minimum infrastructure required therefor.).
231
George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II VIII
(We are therefore recommending that U.S. ratification be subject to an understanding declaring that the United
States will apply the Protocol to all conflicts covered by Article 3 common to the 1949 Conventions ... . This
understanding will also have the effect of treating as non-international these so-called wars of national liberation
described in Article 1(4) of Protocol I which fail to meet the traditional test of an international conflict.).
1164
an amended Protocol II; (2) Protocols IV and V; and (3) an amendment to apply the CCW and
Protocols I, II, III, and IV to non-international armed conflicts.
Protocols to the CCW are subject to ratification or other acceptance by a State before
such protocols enter into force for that State. Additional protocols that have been adopted by a
Conference of States Parties enter into force as provided in paragraphs 3 and 4 of Article 5 of the
CCW.232 Paragraphs 3 and 4 of Article 5 of the CCW provide, inter alia, that each of the
CCWs Protocols may only enter into force for a State after that State has notified its consent to
be bound by it. 233 Thus, a States notification of its consent to be bound by a Protocol is a
prerequisite to the Protocols entry into force for that State.
Similarly, amendments to the CCW or its Protocols are subject to ratification or other
acceptance by a State before such amendments enter into force for that State. Amendments to
the CCW or its Protocols are adopted and enter into force in the same manner as the CCW and
its Protocols. 234 As discussed above, a State must provide notification of its consent to be bound
by a CCW Protocol before that Protocols entry into force for that State. Similarly, the CCW is
subject to ratification or other acceptance by States. 235 And, the CCW only enters into force for
a State after that State has deposited its instrument of ratification or other acceptance. 236 Thus, a
States acceptance of any amendment to the CCW or its Protocols is a prerequisite to that
amendments entry into force for that State.
232
CCW art. 8(2)(b) (Additional protocols to the CCW adopted at a conference convened under Article 8(2) shall
enter into force as provided in paragraphs 3 and 4 of Article 5 of this Convention.); CCW art. 8(2)(b) (Additional
protocols to the CCW adopted at a conference convened under Article 8(3) shall enter into force as provided in
paragraphs 3 and 4 of Article 5 of this Convention.).
233
CCW art. 5 (3. Each of the Protocols annexed to this Convention shall enter into force six months after the date
by which twenty States have notified their consent to be bound by it in accordance with paragraph 3 or 4 of Article 4
of this Convention. 4. For any State which notifies its consent to be bound by a Protocol annexed to this Convention
after the date by which twenty States have notified their consent to be bound by it, the Protocol shall enter into force
six months after the date on which that State has notified its consent so to be bound.). See also CCW art. 4 (3.
Expressions of consent to be bound by any of the Protocols annexed to this Convention shall be optional for each
State, provided that at the time of the deposit of its instrument of ratification, acceptance or approval of this
Convention or of accession thereto, that State shall notify the Depositary of its consent to be bound by any two or
more of these Protocols. 4. At any time after the deposit of its instrument of ratification, acceptance or approval of
this Convention or of accession thereto, a State may notify the Depositary of its consent to be bound by any annexed
Protocol by which it is not already bound.).
234
CCW art. 8(1)(b) (Amendments to the CCW or its protocols adopted at a conference convened under Article 8(1)
shall be adopted and shall enter into force in the same manner as this Convention and the annexed Protocols, .);
CCW art. 8(3)(a) (Amendments to the CCW or its protocols adopted at a conference convened under Article 8(3)
shall be adopted and enter into force in accordance with subparagraph 1 (b) above.)).
235
CCW art. 4 (1. This Convention is subject to ratification, acceptance or approval by the Signatories. Any State
which has not signed this Convention may accede to it.).
236
See CCW art. 5 (1. This Convention shall enter into force six months after the date of deposit of the twentieth
instrument of ratification, acceptance, approval or accession. 2. For any State which deposits its instrument of
ratification, acceptance, approval or accession after the date of the deposit of the twentieth instrument of ratification,
acceptance, approval or accession, this Convention shall enter into force six months after the date on which that
State has deposited its instrument of ratification, acceptance, approval or accession.).
1165
The United States is a Party to the: (1) CCW; (2) CCW Protocol I; (3) CCW Amended
Mines Protocol; (4) CCW Protocol III on Incendiary Weapons; (5) CCW Protocol IV on
Blinding Laser Weapons; and (6) CCW Protocol V on Explosive Remnants of War. The United
States deposited its instrument of ratification to the CCW and accepted Protocols I and II on
March 25, 1995. The United States provided notification of its consent to be bound by the CCW
Amended Mines Protocol on May 24, 1999. The United States deposited its instrument of
ratification to the Amendment to Article 1 of the CCW, and provided notification of its consent
to be bound by Protocols III, IV, and V, on January 21, 2009.
19.21.1.1 CCW Amended Scope of Application. For the United States, the CCW
and its Protocols apply to non-international armed conflict. 237
On December 21, 2001, Parties to the CCW adopted an amendment to Article 1 of the
CCW that modified the application of the CCW and Protocols I, II, III, and IV to apply to noninternational armed conflicts. 238 The CCW Amended Mines Protocol and CCW Protocol V on
Explosive Remnants of War also apply to non-international armed conflicts. 239
The amended scope of the CCW does not prejudice additional protocols to the CCW
adopted after January 1, 2002, which may apply, exclude, or modify the scope of their
application in relation to Article 1 of the CCW. 240
The United States deposited its instrument of ratification to the amendment to Article 1 of
the CCW on January 21, 2009. 241
U.S. policy before the entry into force for the United States of the amendment to Article 1
of the CCW was to apply the CCW, Protocol I, Protocol II, and CCW Protocol IV on Blinding
Laser Weapons to non-international armed conflict. At the time of the deposit of U.S.
instruments of ratification of the CCW, CCW Protocol I, and CCW Protocol II, the United States
declared its intent to apply the provisions of those instruments to all armed conflicts referred to
in Articles 2 and 3 of the GPW, i.e., both international and non-international armed conflicts. 242
237
238
Amendment to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects Overview, 3, MESSAGE FROM
THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVE
REMNANTS OF WAR 9 (By its terms, this paragraph means that the amended scope provision automatically applies
to CCW Protocols I, II, III, and IV.).
239
240
CCW AMENDED art. 1 (The provisions of paragraphs 2 to 6 of this Article shall not prejudice additional
Protocols adopted after January 1, 2002, which may apply, exclude or modify the scope of their application in
relation to this Article.).
241
2562 UNTS 39 (RATIFICATION United States of America Deposit of instrument with the Secretary-General of
the United Nations: 21 January 2009).
242
United States, Statement on Ratification of the CCW, Accepting Protocols I & II, Mar. 24, 1995, 1861 UNTS 482,
482-83 (The United States declares, with reference to the scope of application defined in Article 1 of the
Convention, that the United States will apply the provisions of the Convention, Protocol I, and Protocol II to all
armed conflicts referred to in Articles 2 and 3 common to the Geneva Conventions for the Protection of War
Victims of August 12, 1949.).
1166
Similarly, before the United States ratified the amendment to Article 1 of the CCW, U.S. policy
was to apply the CCW Protocol on Blinding Laser Weapons to all armed conflicts and in
peacetime. 243
19.21.1.2 U.S. Reservation to Article 7(4)(b) of the CCW. The United States took
a reservation to Article 7(4)(b) of the CCW. 244
Article 7(4) of the CCW provides:
This Convention, and the annexed Protocols by which a High Contracting Party is
bound, shall apply with respect to an armed conflict against that High Contracting
Party of the type referred to in Article 1, paragraph 4, of Additional Protocol I to
the Geneva Conventions of 12 August 1949 for the Protection of War Victims:
(b) where the High Contracting Party is not a party to Additional Protocol I and
an authority of the type referred to in subparagraph (a) above accepts and applies
the obligations of the Geneva Conventions and of this Convention and the
relevant annexed Protocols in relation to that conflict. Such an acceptance and
application shall have in relation to that conflict the following effects:
(i) the Geneva Conventions and this Convention and its relevant annexed
Protocols are brought into force for the parties to the conflict with immediate
effect;
(ii) the said authority assumes the same rights and obligations as those
which have been assumed by a High Contracting Party to the Geneva
Conventions, this Convention and its relevant annexed Protocols; and
(iii) the Geneva Conventions, this Convention and its relevant annexed
Protocols are equally binding upon all parties to the conflict.
The High Contracting Party and the authority may also agree to accept and apply
the obligations of Additional Protocol I to the Geneva Conventions on a
reciprocal basis.
243
Article-by-Article Analysis of CCW Protocol IV on Blinding Laser Weapons, 3-4, Enclosure C to Warren
Christopher, Letter of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED
MINES PROTOCOL, PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 4344 (The United States favored an expanded scope of application for the Blinding Laser Weapons Protocol. As a
matter of policy, the United States will refrain from the use of laser weapons prohibited by the Protocol. Therefore,
while the Blinding Laser Weapons Protocol does not legally apply to all armed conflicts, it is U.S. policy to apply
the Protocol to all such conflicts, however, they may be characterized, and in peacetime.).
244
United States, Statement on Ratification of the CCW, Accepting Protocols I & II, Mar. 24, 1995, 1861 UNTS 482
((1) Reservation. Article 7 (4) (b) of the Convention shall not apply with respect to the United States.).
1167
The U.S. reservation to Article 7(4)(b) of the CCW is consistent with the longstanding objections
of the United States to Article 1(4) of AP I regarding national liberation movements. 245
19.21.1.3 CCW and Customary International Law. The restrictions and
prohibitions in the CCW and its Protocols on weapons generally have not been based on the
premise that such restrictions or prohibitions are warranted because the weapons at issue are
calculated to cause superfluous injury or are inherently indiscriminate. 246 Rather, the CCW and
Protocols have been drafted on the basis that they are largely new contractual rules, and not a
restatement of existing customary international law. 247
19.21.2 CCW Protocol I. CCW Protocol I prohibits the use of weapons whose primary
effect is to injure by fragments not detectable by X-rays. 248
CCW Protocol I was adopted by the first CCW Conference in 1980. The United States
accepted CCW Protocol I on March 24, 1995, when it deposited its instrument of ratification to
the CCW. 249
19.21.3 CCW Amended Mines Protocol. The CCW Amended Mines Protocol addresses
landmines, booby-traps, and other devices. 250
CCW Protocol II on Mines, Booby-traps and Other Devices was adopted by the first
CCW Conference in 1980. The United States accepted CCW Protocol II on March 24, 1995,
when it deposited its instrument of ratification to the CCW.251
CCW Protocol II was later substantially amended by the first Review Conference of
CCW States Parties, which concluded its work on May 3, 1996. The CCW Amended Mines
245
Refer to 3.3.4 (AP I Provision on National Liberation Movements).
246
George Aldrich, Ambassador, Chairman of the Delegation, Report of the United States Delegation to the United
Nations Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May be
Deemed to be Excessively Injurious or to have Indiscriminate Effects, Second Session, Geneva, Switzerland,
September 15-October 10, 1980, 16 (Jan. 15, 1981) (Finally, it is significant to note that the Conference ended with
no finding that these restrictions and prohibitions were imposed because of any agreed belief or finding that they
were in fact excessively injurious or had indiscriminate effects. Thus the adoption of this Convention in no way
affects the legality, under the customary and conventional law of war, of past uses of these weapons in the modes to
be restricted or prohibited. The restrictions and prohibitions contained in the Convention were recognized by the
Conference as being primarily new contractual rules which would only bind parties in the future.).
247
United States, Statement on Signature of the CCW, Apr. 8, 1982, 1342 UNTS 255 (As indicated in the
negotiating record of the 1980 Conference, the prohibitions and restrictions contained in the Convention and its
Protocols are of course new contractual rules (with the exception of certain provisions which restate existing
international law) which will only bind States upon their ratification of, or accession to, the Convention and their
consent to be bound by the Protocols in question.).
248
Refer to 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).
249
1861 UNTS 482 (Instrument deposited on: 24 March 1995 UNITED STATES OF AMERICA (With effect from 24
September 1995. Accepting Protocols I and II.)).
250
Refer to 6.12 (Landmines, Booby-Traps, and Other Devices).
251
1861 UNTS 482 (Instrument deposited on: 24 March 1995 UNITED STATES OF AMERICA (With effect from 24
September 1995. Accepting Protocols I and II.)).
1168
Protocol includes more detailed restrictions on the use of mines, booby-traps, and other devices,
and prohibitions on specific types of such devices. The CCW Amended Mines Protocol also
applies to non-international armed conflicts. 252 The CCW Amended Mines Protocol has
provisions that are to be observed at all times, e.g., provisions that are to be implemented in
peace-time. 253
Before the United States accepted the CCW Amended Mines Protocol, U.S. policy was to
observe the requirements of the CCW Amended Mines Protocol to the fullest extent possible. 254
The CCW Amended Mines Protocol entered into force on December 3, 1998. 255 The
United States provided notification of its consent to be bound by the CCW Amended Mines
Protocol with declarations and a reservation on May 24, 1999. 256
19.21.4 CCW Protocol III on Incendiary Weapons. CCW Protocol III on Incendiary
Weapons places certain restrictions on the use of incendiary weapons. 257
CCW Protocol III on Incendiary Weapons was adopted by the first CCW Conference in
1980. The United States provided notification of its consent to be bound by CCW Protocol III
on Incendiary Weapons on January 21, 2009, with a reservation and an understanding. 258
252
253
Article-by-Article Analysis of CCW Amended Mines Protocol, 3-4, Enclosure A to Warren Christopher, Letter of
Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,
PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 3-4 (Finally, it was
understood that certain provisions of the amended Protocol must be observed at all times. A statement to this effect
was made part of the negotiating record by the delegation of Belgium, speaking on behalf of 24 other delegations,
including the U.S. delegation, at the final plenary session of the Review Conference and was not contested by any
other delegation. This conclusion is supported, as well, by the scope of the Convention itself which makes clear that
it and its annexed Protocols shall apply in situations referred to in Article 2 common to the Geneva Conventions of
12 August 1949. Common Article 2 refers specifically to provisions which shall be implemented in peace-time, a
recognition that certain provisions must be observed at all times if they are to be implemented in good faith. Among
the provisions of the amended Protocol that must be so observed are: the provisions regarding the recording,
marking, monitoring and protection of areas containing mines; provisions of Article 8 regarding transfers; and
provisions of Articles 13 and 14 regarding consultations and compliance. A statement to this effect was made part
of the negotiating record by the U.S. Delegation, and was not contested by any other delegation.).
254
Review Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects,
Summary Record of the 14th Meeting (Second Part), Second resumed session, Geneva, Apr. 22 May 3, 1996,
CCW/CONF.I/SR.14/Add.1, May 9, 1996, 6-8 (Mr. MATHESON (United States of America) said that the
revised Protocol II on land-mines was a significant advance that would, if widely observed, result in a substantial
decrease in civilian casualties and be an important first step towards the elimination of such mines. While such a
commitment did not legally bind the United States or prejudice the Senates consideration of the amended Protocol,
it was his countrys policy, pending the entry into force of the Protocol, to observe all of its restrictions to the fullest
extent possible from the time of adoption.).
255
2048 UNTS 93 (Entry into force: 3 December 1998, in accordance with article 2 of the Protocol).
256
2065 UNTS 128 (CONSENT TO BE BOUND (WITH DECLARATIONS AND RESERVATION) United States of America
Notification effected with the Secretary-General of the United Nations: 24 May 1999).
257
Refer to 6.14 (Incendiary Weapons).
1169
19.21.5 CCW Protocol IV on Blinding Laser Weapons. CCW Protocol IV on Blinding

Laser Weapons prohibits the use of blinding laser weapons and requires that feasible precautions
be taken in the employment of laser systems to avoid causing permanent blindness. 259
States Parties to the CCW adopted CCW Protocol IV on Blinding Laser Weapons at the
first Review Conference of CCW States Parties, which concluded its work on May 3, 1996. 260
This Protocol was consistent with DoD policy on blinding lasers before the Protocol was
adopted. 261
The United States provided notification of its consent to be bound by CCW Protocol IV
on Blinding Laser Weapons on January 21, 2009, with an understanding. 262
U.S. legal reviews before CCW Protocol IV was adopted concluded that the use of a laser
for the purpose of blinding an enemy combatant would not constitute unnecessary suffering
under the law of war. 263 Similarly, the restrictions in CCW Protocol IV on Blinding Laser
Weapons may be characterized as arms control obligations in that these restrictions do not
establish that the use of lasers as anti-personnel weapons, including for the purpose of blinding,
258
United States, Statement on Consent to Be Bound by CCW Protocol III on Incendiary Weapons, Jan. 21, 2009,
2562 UNTS 36, 37 (It is the understanding of the United States of America that any decision by any military
commander, military personnel, or any other person responsible for planning, authorizing or executing military
action shall only be judged on the basis of that persons assessment of the information reasonably available to the
person at the time the person planned, authorized, or executed the action under review, and shall not be judged on
the basis of information that comes to light after the action under review was taken.). Refer to 6.14.3.2 (U.S.
Reservation to CCW Protocol III on Incendiary Weapons).
259
Refer to 6.15 (Laser Weapons).
260
Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol IV, entitled
Protocol on Blinding Laser Weapons), Oct. 13, 1995, 2024 UNTS 163.
261
William J. Perry, Secretary of Defense, DOD Policy on Blinding Lasers, Jan. 17, 1997 (amending policy
statement of Aug. 29, 1995) (The Department of Defense prohibits the use of lasers specifically designed to cause
permanent blindness and supports negotiations to prohibit the use of such weapons. However, laser systems are
absolutely vital to our modern military. Among other things, they are currently used for detection, targeting, rangefinding, communications and target destruction. They provide a critical technological edge to U.S. forces and allow
our forces to fight, win and survive on an increasingly lethal battlefield. In addition, lasers provide significant
humanitarian benefits. They allow weapon systems to be increasingly discriminate, thereby reducing collateral
damage to civilian lives and property. The Department of Defense recognizes that accidental or incidental eye
injuries may occur on the battlefield as the result of the use of lasers not specifically designed to cause permanent
blindness. Therefore, we continue to strive, through training and doctrine, to minimize these injuries.).
262
United States, Statement on Consent to Be Bound to CCW Protocol IV on Blinding Laser Weapons, Jan. 21,
2009, 2562 UNTS 38 (It is the understanding of the United States of America with respect to Article 2 that any
decision by any military commander, military personnel, or any other person responsible for planning, authorizing
or executing military action shall only be judged on the basis of that persons assessment of the information
reasonably available to the person at the time the person planned, authorized or executed the action under review,
and shall not be judged on the basis of information that comes to light after the action under review was taken.).
263
Major General Hugh R. Overholt, The Judge Advocate General, Army, Memorandum of Law: Use of Lasers as
Antipersonnel Weapons, 7, Sept. 29, 1988, reprinted in THE ARMY LAWYER 3, 4 (Nov. 1988) (The fundamental
issue with which this review is concerned is whether the use of a laser for the purpose of blinding an enemy soldier
would constitute unnecessary suffering. The conclusion is that it would not.).
1170
is prohibited by the rule against weapons calculated to cause unnecessary suffering nor otherwise
prohibited by the customary law of war. 264
19.21.6 CCW Protocol V on Explosive Remnants of War. CCW Protocol V on
Explosive Remnants of War addresses explosive ordnance and explosive remnants of war. 265
CCW Protocol V on Explosive Remnants of War contains no restrictions or prohibitions on the
use of these weapons; rather, it addresses what must be done with respect to unexploded
munitions that threaten civilians and post-conflict reconstruction. 266 CCW Protocol V on
Explosive Remnants of War addresses primarily the steps to be taken before or after hostilities,
not during them, and it includes a Technical Annex of suggested best practices for greater
munitions reliability. 267
CCW Protocol V on Explosive Remnants of War was adopted on November 28, 2003. 268
The United States provided notification of its consent to be bound by CCW Protocol V
on Explosive Remnants of War on January 21, 2009. 269 The United States expressed its
understanding relating to future arrangements in connection with the settlement of armed
conflicts. 270
264
W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters,
Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in
THE ARMY LAWYER 33, 36 (Jun. 1997) (As the delegate from Sweden observed in the fourth and final meeting of
the Laser Working Group on 6 October 1995, Protocol IV is a unique step in combining law of war and arms control
mechanisms. The first sentence of Article 1 follows arms control lines by creating a national obligation to forego
the use on the battlefield of a laser weapon of the type described in the balance of the sentence, rather than
establishing that an antipersonnel laser weapon is inconsistent with the law of war prohibition on unnecessary
suffering. Neither the prohibition in Article 1 nor anything else in Protocol IV establishes, nor was it intended to
establish, that an individual, intentional act of blinding by a laser constitutes unnecessary suffering or is otherwise a
violation of the law of war, for several reasons.).
265
Refer to 6.19 (Explosive Ordnance); 6.20 (Explosive Remnants of War).
266
Overview and Article-by-Article Analysis of CCW Protocol V on Explosive Remnants of War 1-2, MESSAGE FROM
REMNANTS OF WAR 11-12 (Protocol V is the first international agreement specifically aimed at reducing the
humanitarian threat posed by unexploded and abandoned munitions of all types remaining on the battlefield after the
end of armed conflicts. Protocol V contains no restrictions or prohibitions on the use of these weapons; rather, it
addresses what must be done with respect to unexploded munitions that threaten civilians and post-conflict
reconstruction.).
267
Overview and Article-by-Article Analysis of CCW Protocol V on Explosive Remnants of War 1-2, MESSAGE FROM
REMNANTS OF WAR 11-12 (The Protocol deals primarily with steps to be taken before or after hostilities, not during
them. Protocol V also includes a Technical Annex of suggested best practices that states Parties to the Protocol are
encouraged to follow on a voluntary basis in order to achieve greater munitions reliability.).
268
Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects
(Protocol V), Nov. 28, 2003, 2399 UNTS 100-177.
269
2562 UNTS 39, 40 (Receipt of notification by the Secretary-General of the United Nations: 21 January 2009).
270
Refer to 6.20.5 (Obligations Under the CCW Protocol V on Explosive Remnants of War That Are Triggered by
the Cessation of Active Hostilities).
1171
19.22 CHEMICAL WEAPONS CONVENTION

The Chemical Weapons Convention creates extensive obligations for States with respect
to the use and possession of chemical weapons. 271
Article 22 of the Chemical Weapons Convention prohibits reservations to the Convention
and prohibits reservations to the Conventions Annexes incompatible with its object and
purpose. 272
During the negotiation of the Chemical Weapons Convention, President George H.W.
Bush on May 13, 1991, announced that the United States was formally forswearing the use of
chemical weapons for any reason, including retaliation, against any State, effective when the
Convention entered into force. 273
The United States signed the Chemical Weapons Convention on January 13, 1993, and
President Clinton submitted it to the Senate for its advice and consent to ratification on
November 23, 1993. 274 In transmitting the Chemical Weapons Convention to the Senate for its
advice and consent to ratification, President Clinton notified the Senate that the administration
was reviewing the effect of the Conventions prohibition on the use of riot control agents as a
method of warfare on Executive Order No. 11850, which specified the current policy of the
United States with regard to the use of riot control agents in war, and would submit the results of
that review separately to the Senate. 275 The review concluded that under then-current
interpretations of the Chemical Weapons Convention, certain uses of riot control agents
authorized under Executive Order 11850 would no longer be permissible and that a new
Executive Order on riot control agents would be issued. 276 The Senate, as a condition of its
271
Refer to 6.8.3 (Chemical Weapons).
272
CHEMICAL WEAPONS CONVENTION art. 22 (The Articles of this Convention shall not be subject to reservations.
The Annexes of this Convention shall not be subject to reservations incompatible with its object and purpose.).
273
George H. W. Bush, Statement on Chemical Weapons, May 13, 1991, 1991-I PUBLIC PAPERS OF THE PRESIDENTS
503 (To demonstrate the United States commitment to banning chemical weapons, we are formally forswearing the
use of chemical weapons for any reason, including retaliation, against any state, effective when the convention
enters into force, and will propose that all states follow suit.).
274
William J. Clinton, Letter of Transmittal, Nov. 23, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE
CHEMICAL WEAPONS CONVENTION III (The Convention was opened for signature and was signed by the United
States at Paris on January 13, 1993.).
275
William J. Clinton, Letter of Transmittal, Nov. 23, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE
CHEMICAL WEAPONS CONVENTION V (The Administration is reviewing the impact of the Conventions prohibition
on the use of riot control agents as a method of warfare on Executive Order No. 11850, which specifies the current
policy of the United States with regard to the use of riot control agents in war. The results of the review will be
submitted separately to the Senate.).
276
William J. Clinton, Message to the Senate on the Impact of the Chemical Weapons Convention on the Use of Riot
Control Agents, Jun. 23, 1994, 1994-I PUBLIC PAPERS OF THE PRESIDENTS 1127, 1128 (The CWC does prohibit
the use of RCAs solely against combatants. In addition, according to the current international understanding, the
CWC's prohibition on the use of RCAs as a method of warfare also precludes the use of RCAs even for
humanitarian purposes in situations where combatants and noncombatants are intermingled, such as the rescue of
downed air crews, passengers, and escaping prisoners and situations where civilians are being used to mask or
screen attacks. However, were the international understanding of this issue to change, the United States would not
consider itself bound by this position. Upon receiving the advice and consent of the Senate to ratification of the
1172
advice and consent to ratification, required that the President certify to Congress that the United
States is not restricted by the Chemical Weapons Convention in its use of riot control agents in
certain cases and that Executive Order 11850 would not be modified. 277 President Clinton
provided this certification on April 25, 1997. 278
The United States ratified the Chemical Weapons Convention on April 25, 1997, with
one condition that relates to the Annex on Implementation and Verification. 279 The treaty
requires that sixty-five nations become Party to it before it enters into force, which occurred on
April 29, 1997. 280
Chemical Weapons Convention, a new Executive order outlining U.S. policy on the use of RCAs under the
Convention will be issued.).
277
Senate, Conditions to Ratification of the Chemical Weapons Convention, Senate Resolution 75, 105th Congress,
143 CONGRESSIONAL RECORD S3651, S3657 (1997) ((26) Riot control agents: (A) Permitted uses. Prior to the
deposit of the United States instrument of ratification, the President shall certify to Congress that the United States is
not restricted by the Convention in its use of riot control agents, including the use against combatants who are
parties to a conflict, in any of the following cases: (i) UNITED STATES NOT A PARTY. The conduct of peacetime
military operations within an area of ongoing armed conflict when the United States is not a party to the conflict
(such as recent use of the United States Armed Forces in Somalia, Bosnia, and Rwanda). (ii) CONSENSUAL
PEACEKEEPING. Consensual peacekeeping operations when the use of force is authorized by the receiving state,
including operations pursuant to Chapter VI of the United Nations Charter. (iii) CHAPTER VII PEACEKEEPING.
Peacekeeping operations when force is authorized by the Security Council under Chapter VII of the United Nations
Charter. (B) Implementation. The President shall take no measure, and prescribe no rule or regulation, which
would alter or eliminate Executive Order 11850 of April 8, 1975. (C) Definition. In this paragraph, the term riot
control agent has the meaning given the term in Article II(7) of the Convention.).
278
William J. Clinton, Message to the Congress on the Chemical Weapons Convention, Apr. 25, 1997, 1997-I
PUBLIC PAPERS OF THE PRESIDENTS 495, 495-97 (In accordance with the resolution of advice and consent to
ratification of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical
Weapons and on Their Destruction, adopted by the Senate of the United States on April 24, 1997, I hereby certify
that: ... In connection with Condition (26), Riot Control Agents, the United States is not restricted by the Convention
in its use of riot control agents, including the use against combatants who are parties to a conflict, in any of the
following cases: (i) the conduct of peacetime military operations within an area of ongoing armed conflict when the
United States is not a party to the conflict (such as recent use of the United States Armed Forces in Somalia, Bosnia,
and Rwanda); (ii) consensual peacekeeping operations when the use of force is authorized by the receiving state,
including operations pursuant to Chapter VI of the United Nations Charter; and (iii) peacekeeping operations when
force is authorized by the Security Council under Chapter VII of the United Nations Charter. In accordance with
Condition (26) on Riot Control Agents, I have certified that the United States is not restricted by the Convention in
its use of riot control agents in various peacetime and peacekeeping operations. These are situations in which the
United States is not engaged in a use of force of a scope, duration and intensity that would trigger the laws of war
with respect to U.S. forces.).
279
United States, Declaration Made on Ratification of the Chemical Weapons Convention, Apr. 29, 1997, 1975
UNTS 475 (Subject to the condition which relates to the Annex on Implementation and Verification, that no
sample collected in the United States pursuant to the Convention will be transferred for analysis to any laboratory
outside the territory of the United States.).
280
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and
on Their Destruction, Jan. 13, 1993, 1974 UNTS 317 footnote 1 (Came into force on 29 April 1997, in accordance
with article XXI:). See also CHEMICAL WEAPONS CONVENTION art. 21 (This Convention shall enter into force
180 days after the date of the deposit of the 65th instrument of ratification, but in no case earlier than two years after
its opening for signature.).
1173
In implementation of the Chemical Weapons Convention, Congress enacted laws

prohibiting, inter alia, development, production, acquisition, transfer directly or indirectly,
receipt, stockpiling, retention, possession, use, or threat of use of any chemical weapon. 281
19.23 ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
The Rome Statute of the International Criminal Court (Rome Statute) establishes the
International Criminal Court (ICC) at The Hague, Netherlands. 282 Under the Rome Statute,
the ICC may investigate and prosecute certain international crimes (e.g., genocide, war crimes)
in certain situations. 283
The United States signed the Rome Statute on December 31, 2000, but President Clinton
did not submit the treaty to the Senate for its advice and consent to ratification. Because of
significant flaws, President Clinton recommended that his successor not submit the Rome
Statute to the Senate until the United States fundamental concerns with the treaty were
addressed. 284 In particular, the United States has expressed concern that the ICC would claim
jurisdiction over personnel of States that have not ratified the Rome Statute. 285 In addition, for
example, concerns have been raised that the ICC would not provide U.S. persons accused of war
crimes with the procedural protections that they are afforded under U.S. domestic law. 286
On May 6, 2002, the United States filed a letter with the U.N. Secretary General, the
depositary for the Rome Statute, indicating that it does not intend to become a party to the
treaty, and that [a]ccordingly, the United States has no legal obligations arising from its
signature on December 31, 2000. 287 The United States participated as an observer in the Rome
Statutes first Review conference in Kampala, Uganda, May 30-June 11, 2010, and has
281
18 U.S.C.S. 229 ((a) Unlawful conduct. Except as provided in subsection (b), it shall be unlawful for any
person knowingly (1) to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile,
retain, own, possess, or use, or threaten to use, any chemical weapon; or (2) to assist or induce, in any way, any
person to violate paragraph (1), or to attempt or conspire to violate paragraph (1). (b) Exempted agencies and
persons. (1) In general. Subsection (a) does not apply to the retention, ownership, possession, transfer, or receipt of
a chemical weapon by a department, agency, or other entity of the United States, or by a person described in
paragraph (2), pending destruction of the weapon. (2) Exempted persons. A person referred to in paragraph (1) is
(A) any person, including a member of the Armed Forces of the United States, who is authorized by law or by an
appropriate officer of the United States to retain, own, possess, transfer, or receive the chemical weapon; or (B) in an
emergency situation, any otherwise nonculpable person if the person is attempting to destroy or seize the weapon.).
282
Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187 UNTS 90.
283
Refer to 18.20.3 (The International Criminal Court (ICC) Created by the Rome Statute).
284
William J. Clinton, Statement on the Rome Treaty on the International Criminal Court, Dec. 31, 2000, 2000-III
PUBLIC PAPERS OF THE PRESIDENTS 2816.
285
Refer to 18.20.3.1 (Attempt to Assert Jurisdiction With Respect to Nationals of Non-Party States).
286
See, e.g., 22 U.S.C. 7421 (Congress makes the following findings: (7) Any American prosecuted by the
International Criminal Court will, under the Rome Statute, be denied procedural protections to which all Americans
are entitled under the Bill of Rights to the United States Constitution, such as the right to trial by jury.).
287
John Bolton, Letter to Kofi Anan, U.N. Treaty Collection Depository Notification, C.N.434.2002, May 6, 2002.
1174
supported ICC efforts in certain cases. 288 The Department of State Legal Adviser has noted that
U.S. policy is explicitly not to frustrate the object and purpose of the Rome Statute. 289
19.24 1999 U.N. SECRETARY GENERALS BULLETIN FOR U.N. FORCES
The U.N. Secretary General has promulgated a bulletin for the purpose of setting out
fundamental principles and rules of international humanitarian law applicable to United Nations
forces conducting operations under United Nations command. 290 The bulletin is not a legally
binding instrument, although, in many cases, the rules reflected in the bulletin reflect law of war
rules that are binding upon the United States as a matter of treaty or customary international law.
The bulletin has been the subject of criticism by States. 291
19.25 2005 ICRC STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN LAW
There is no list of treaty provisions (or other codification) that the United States has
agreed reflects the entirety of the customary international law of war. 292
In 2005, the International Committee of the Red Cross published a study on customary
international humanitarian law (ICRC CIHL Study), which has been criticized for its
methodology and formulation of certain specific rules. 293 The United States likewise has
expressed serious concerns about the methodology used in the ICRC CIHL Study and has stated
288
Refer to 18.20.3.3 (U.S. Law and Policy on Support to the ICC).
289
Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international criminal justice at the Vera
Institute of Justice in New York and at Leiden University, Campus The Hague, 2012 DIGEST OF UNITED STATES
PRACTICE IN INTERNATIONAL LAW 61, 68 (Putting all of this together, as I made clear more than two years ago in a
speech at New York University, What you quite explicitly do not see from this Administration is U.S. hostility
towards the Court. You do not see what international lawyers might call a concerted effort to frustrate the object
and purpose of the Rome Statute. That is explicitly not the policy of this administration. Because although the
United States is not a party to the Rome Statute, we share with the States parties a deep and abiding interest in
seeing the Court successfully complete the important prosecutions it has already begun.).
290
U.N. SECRETARIAT, Secretary-Generals Bulletin: Observance by United Nations Forces of International

Humanitarian Law, U.N. Doc. ST/SGB/1999/13 (Aug. 6, 1999) (The Secretary-General, for the purpose of setting
out fundamental principles and rules of international humanitarian law applicable to United Nations forces
conducting operations under United Nations command and control, promulgates the following:).
291
Report of the Special Committee on Peacekeeping Operations, Comprehensive review of the whole question of
peacekeeping operations in all their aspects, U.N. Doc. A/54/839 82 (Mar. 20, 2000) (The Special Committee
notes the Secretary-Generals comments on the guidelines on compliance with international humanitarian law by
United Nations peacekeepers. The Committee expresses concern about the lack of consultation with Member States
by the Secretariat before finalizing Secretary-Generals Bulletin ST/SGB/1999/13. It requests further clarification
on the Bulletins legal status, and stresses that it must accurately reflect the terms of international humanitarian law.
It requests the Secretary-General to carry out consultations on the Bulletin with the Special Committee.).
292
Refer to 1.8 (Customary International Law).
293
See, e.g., Daniel Bethlehem, The Methodological framework of the Study, ELIZABETH WILMSHURST & SUSAN
BREAU, PERSPECTIVES ON THE ICRC STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 4 (2007)
(Without detracting from this genuine appreciation, it is necessary and appropriate to draw attention to some
important misgivings about the Study, as regards both methodology and the formulation of certain specific Rules.).
1175
that it is not in a position to accept without further analysis the Studys conclusions that certain
rules related to the law of war in fact reflect customary international law. 294
19.26 AP III
A third additional protocol to the 1949 Geneva Conventions was adopted on December 8,
2005. 295 AP III recognizes a red crystal as an additional distinctive emblem for the same
purposes as the distinctive emblems of the Geneva Conventions. 296
The United States deposited its instrument of ratification to AP III on March 8, 2007,
without making any statements of reservation, declaration, or understanding. 297
294
U.S. RESPONSE TO ICRC CIHL STUDY 514 (Given the Studys large scope, we have not yet been able to
complete a detailed review of its conclusions. We recognize that a significant number of the rules set forth in the
Study are applicable in international armed conflict because they have achieved universal status, either as a matter of
treaty law or as with many provisions derived from the Hague Regulations of 1907 customary law. Nonetheless,
it is important to make clear both to you and to the greater international community that, based upon our review
thus far, we are concerned about the methodology used to ascertain rules and about whether the authors have
proffered sufficient facts and evidence to support those rules. Accordingly, the United States is not in a position to
accept without further analysis the Studys conclusions that particular rules related to the laws and customs of war in
fact reflect customary international law.).
295
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional
Distinctive Emblem (Protocol III), Dec. 8, 2005, 2404 UNTS 1.
296
Refer to 7.15.1.3 (Red Crystal).
297
2444 UNTS 287 (RATIFICATION United States of America Deposit of instrument with the Government of
Switzerland: 8 March 2007).
1176

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XIX Documentary Appendix Notes on Treaties and Other Relevant Documents

Refer to 1.6.2 (Arms Control).

Refer to List of Abbreviations.

Convention with Russia, Jul. 22, 1854, 10 STAT. 1105.

Refer to 7.12.4.3 (Relief From Taxation in Time of War).

Refer to 19.8.2 (Hague IV).

Refer to 13.11 (Naval Mines); 13.12 (Torpedoes).

Hague Convention IX of October 18, 1907, Concerning Bombardment by Naval Forces

1928 Pan American Maritime Neutrality Convention. 12

Charter of the United Nations (U.N. Charter). 15

1949 Geneva Conventions, 16 including the

Refer to 19.15 (1935 Roerich Pact).

Refer to 19.16 (1949 Geneva Conventions).

Refer to 19.16.2 (GWS).

Refer to 19.16.3 (GWS-Sea).

Refer to 19.16.4 (GPW).

Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons

Refer to 19.16.5 (GC).

Refer to 19.17 (1954 Hague Cultural Property Convention).

Refer to 19.21 (CCW, CCW Amended Article 1, and CCW Protocols).

Refer to 19.21.1.1 (CCW Amended Scope of Application).

Refer to 19.21.2 (CCW Protocol I).

Refer to 19.21.3 (CCW Amended Mines Protocol).

Refer to 19.21.4 (CCW Protocol III on Incendiary Weapons).

Refer to 19.21.5 (CCW Protocol IV on Blinding Laser Weapons).

Refer to 19.21.6 (CCW Protocol V on Explosive Remnants of War).

Refer to 4.20.5.2 (Child Soldiers Protocol).

Convention on the Prohibition of Development, Production and Stockpiling of

Convention on the Prohibition of Military or Any Other Hostile Use of Environmental

Convention on the Prohibition of the Development, Production, Stockpiling and Use of

Refer to 19.26 (AP III).

Refer to 19.12 (1925 Geneva Gas and Bacteriological Protocol).

Refer to 19.19 (Biological Weapons Convention).

Refer to 6.10 (Certain Environmental Modification Techniques).

Refer to 19.22 (Chemical Weapons Convention).

Vienna Convention on the Law of Treaties (VCLT). 37

U.N. Convention on the Law of the Sea (LOS Convention). 40

Declaration respecting maritime law signed by the Plenipotentiaries of Great Britain,

Hague Declaration on Expanding Bullets of July 29, 1899. 43

Refer to 19.18 (Vienna Convention on the Law of Treaties).

Refer to 19.20.1 (AP I).

Refer to 19.20.2 (AP II).

Refer to 13.1.2 (The United States and the LOS Convention).

Refer to 19.23 (Rome Statute of the International Criminal Court).

Refer to 19.4 (1856 Paris Declaration Respecting Maritime Law).

Refer to 19.7.1 (1899 Declaration on Expanding Bullets).

Refer to 6.12.14 (Ottawa Convention on Anti-Personnel Landmines).

Convention on Cluster Munitions of May 30, 2008. 45

19.2.5 Examples of Treaties or Documents of Mainly Historical Value. This section is

Hague Declaration on Asphyxiating Gases of July 29, 1899. 50

Refer to 6.13.4 (Convention on Cluster Munitions).

Refer to 19.3 (Lieber Code).

Refer to 19.5 (1864 GWS).

Refer to 19.6 (1868 St. Petersburg Declaration).

Refer to 19.7.2 (1899 Declaration on Asphyxiating Gases).

Refer to 19.8.1 (1899 Hague II).

Refer to 19.9 (1907 Hague X).

19.3 LIEBER CODE

Refer to 19.10 (1922 Washington Treaty on Submarines and Noxious Gases).

Refer to 19.11 (1923 Hague Air and Radio Rules).

Refer to 19.13.1 (1929 GWS).

Refer to 19.13.2 (1929 GPW).

Refer to 2.2 (Military Necessity).