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XIX Documentary Appendix Notes on Treaties and Other Relevant Documents

Chapter Contents

19.1 Introduction 19.2 Lists of Treaties and Other Documents 19.3 Lieber Code 19.4 1856 Paris Declaration Respecting Maritime Law 19.5 1864 GWS 19.6 1868 St. Petersburg Declaration 19.7 1899 and 1907 Hague Declarations on Weapons 19.8 1899 Hague II and 1907 Hague IV Conventions and Annexed Regulations

Regarding Land Warfare 19.9 1907 Hague X 19.10 1922 Washington Treaty on Submarines and Noxious Gases 19.11 1923 Hague Air and Radio Rules 19.12 1925 Geneva Gas and Bacteriological Protocol 19.13 1929 Geneva Conventions 19.14 1930 London Treaty for the Limitation and Reduction of Naval Armament

and 1936 London Protocol 19.15 1935 Roerich Pact 19.16 1949 Geneva Conventions 19.17 1954 Hague Cultural Property Convention 19.18 Vienna Convention on the Law of Treaties 19.19 Biological Weapons Convention 19.20 1977 Additional Protocols to the 1949 Geneva Conventions 19.21 CCW, CCW Amended Article 1, and CCW Protocols 19.22 Chemical Weapons Convention 19.23 Rome Statute of the International Criminal Court 19.24 1999 U.N. Secretary Generals Bulletin for U.N. Forces 19.25 2005 ICRC Study on Customary International Humanitarian Law 19.26 AP III

19.1 INTRODUCTION

This appendix provides background information about certain treaties and other documents.

This appendix is intended to describe DoD views and practice relating to those documents as of the date of publication of this manual.

19.2 LISTS OF TREATIES AND OTHER DOCUMENTS

This section lists: (1) law of war treaties to which the United States is a Party; (2) arms control agreements to which the United States is a Party that are of direct relevance to the law of war; (3) examples of treaties signed but not ratified by the United States; (4) examples of treaties

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that the United States has neither signed nor ratified; and (5) examples of treaties or documents of mainly historical value.

The categorization of a treaty as a law of war treaty or an arms control treaty is intended to help practitioners understand the context in which the treaty was concluded and its purposes. For example, a law of war treaty generally focuses on restrictions on the use of weapons during armed conflict, while an arms control treaty generally focuses on restricting development and acquisition of weapons.1 Some treaties that are characterized below as law of war treaties have elements of arms control, and some treaties that are characterized below as arms control treaties have elements of the law of war.

Bold type within this section indicates an abbreviation used in this manual; a full list of abbreviations is provided at the beginning of the manual.2

Law of War Treaties to Which the United States Is a Party. Law of war treaties to 19.2.1which the United States is a Party include:

Washington Convention Regarding the Rights of Neutrals at Sea of October 31, 1854.3

Hague Convention for the Exemption of Hospital Ships, in Time of War, from the Payment of all Dues and Taxes Imposed for the Benefit of the State of December 21, 1904.4

Hague Convention III of October 18, 1907, Relative to the Opening of Hostilities.5

Hague Convention IV of October 18, 1907, Respecting the Laws and Customs of War on Land (Hague IV), and the Annex thereto, entitled Regulations Respecting the Laws and Customs of War on Land (Hague IV Regulations).6

Hague Convention V of October 18, 1907, Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague V).7

Hague Convention VIII of October 18, 1907, Relative to the Laying of Automatic Submarine Contact Mines (Hague VIII).8

1 Refer to 1.6.2 (Arms Control). 2 Refer to List of Abbreviations. 3 Convention with Russia, Jul. 22, 1854, 10 STAT. 1105. 4 Refer to 7.12.4.3 (Relief From Taxation in Time of War). 5 Convention Relative to the Opening of Hostilities, Oct. 18, 1907, 36 STAT. 2259. 6 Refer to 19.8.2 (Hague IV). 7 Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907, 36 STAT. 2310. 8 Refer to 13.11 (Naval Mines); 13.12 (Torpedoes).

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Hague Convention IX of October 18, 1907, Concerning Bombardment by Naval Forces in Time of War (Hague IX).9

Hague Convention XI of October 18, 1907, Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War (Hague XI).10

Hague Convention XIII of October 18, 1907, Concerning the Rights and Duties of Neutral Powers in Naval War (Hague XIII).11

1928 Pan American Maritime Neutrality Convention.12

1930 London Treaty for the Limitation and Reduction of Naval Armament.13

Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments of April 15, 1935 (Roerich Pact).14

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

1949 Geneva Conventions,16 including the

o Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 (GWS);17

o Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949 (GWS-Sea);18

o Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (GPW);19 and

o Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (GC).20

9 Convention Concerning Bombardment by Naval Forces in Time of War, Oct. 18, 1907, 36 STAT. 2351. 10 Convention Relative to Certain Restrictions With Regard to the Exercise of the Right of Capture in Naval War, Oct. 18, 1907, 36 STAT. 2396. 11 Convention Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 STAT. 2415. 12 Pan American Maritime Neutrality Convention, Feb. 20, 1928, 47 STAT. 1989. 13 Refer to 19.14 (1930 London Treaty for the Limitation and Reduction of Naval Armament and 1936 London Protocol). 14 Refer to 19.15 (1935 Roerich Pact). 15 Refer to 1.11.2 (U.N. Charter Framework and the U.N. Security Council). 16 Refer to 19.16 (1949 Geneva Conventions). 17 Refer to 19.16.2 (GWS). 18 Refer to 19.16.3 (GWS-Sea). 19 Refer to 19.16.4 (GPW).

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Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of May 14, 1954 (1954 Hague Cultural Property Convention).21

Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects of October 10, 1980, its Protocols I, II, III, IV, and V, its Amended Protocol II, and its Amended Article 1 (CCW);22

o CCW Amended Article 1;23

o Protocol on Non-Detectable Fragments (Protocol I). Geneva, October 10, 1980 (CCW Protocol I);24

o Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on May 3, 1996 (Protocol II to the 1980 CCW Convention as amended on May 3, 1996) (CCW Amended Mines Protocol);25

o Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III). Geneva, October 10, 1980 (CCW Protocol III on Incendiary Weapons);26

o Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention), October 13, 1995 (CCW Protocol IV on Blinding Laser Weapons);27 and

o Protocol on Explosives Remnants of War (Protocol V to the 1980 Convention), November 28, 2004 (CCW Protocol V on Explosive Remnants of War).28

Optional Protocol to the Convention on the Rights of the Child on the involvement of Children in Armed Conflict, May 25, 2000 (Child Soldiers Protocol).29

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (Protocol III), December 8, 2005 (AP III).30

20 Refer to 19.16.5 (GC). 21 Refer to 19.17 (1954 Hague Cultural Property Convention). 22 Refer to 19.21 (CCW, CCW Amended Article 1, and CCW Protocols). 23 Refer to 19.21.1.1 (CCW Amended Scope of Application). 24 Refer to 19.21.2 (CCW Protocol I). 25 Refer to 19.21.3 (CCW Amended Mines Protocol). 26 Refer to 19.21.4 (CCW Protocol III on Incendiary Weapons). 27 Refer to 19.21.5 (CCW Protocol IV on Blinding Laser Weapons). 28 Refer to 19.21.6 (CCW Protocol V on Explosive Remnants of War). 29 Refer to 4.20.5.2 (Child Soldiers Protocol).

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Arms Control Agreements to Which the United States Is a Party That Are of 19.2.2Direct Relevance to the Law of War. The United States is a Party to the following treaties that contain restrictions on the use of weapons during armed conflict:

Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare of June 17, 1925 (1925 Geneva Gas and Bacteriological Protocol).31

Convention on the Prohibition of Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction of April 10, 1972 (Biological Weapons Convention).32

Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques of May 18, 1977 (ENMOD Convention).33

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction of January 13, 1993 (Chemical Weapons Convention).34

Examples of Treaties Signed but Not Ratified by the United States. This section is 19.2.3not comprehensive. It lists examples of treaties that the United States has signed, but not ratified.

A State that has signed a treaty is obliged to refrain from acts that would defeat the object and purpose of a treaty, until it shall have made its intention clear not to become a Party to the treaty.35

Procs-Verbal Relating to the Rules of Submarine Warfare set forth in Part IV of the Treaty of London of April 22, 1930 (1936 London Protocol).36

30 Refer to 19.26 (AP III). 31 Refer to 19.12 (1925 Geneva Gas and Bacteriological Protocol). 32 Refer to 19.19 (Biological Weapons Convention). 33 Refer to 6.10 (Certain Environmental Modification Techniques). 34 Refer to 19.22 (Chemical Weapons Convention). 35 Consider VCLT art. 18 (A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.). See also William P. Rogers, Letter of Submittal, Oct. 18, 1971, MESSAGE FROM THE PRESIDENT TRANSMITTING THE VCLT 2 (Article 18 sets forth rules governing the obligation of States not to defeat the object and purpose of a treaty prior to its entry into force. That obligation is limited to (a) States that have signed a treaty or exchanged ad referendum instruments constituting a treaty, until such time as they make clear their intention not to become a party, and (b) States that have expressed consent to be bound, pending entry into force and provided such entry into force is not unduly delayed. This rule is widely recognized in customary international law.).

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

Protocol (I) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts of June 8, 1977 (AP I).38

Protocol (II) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of June 8, 1977 (AP II).39

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

Rome Statute of the International Criminal Court of July 17, 1998 (Rome Statute).41

Examples of Treaties That the United States Has Neither Signed Nor Ratified. 19.2.4This section is not comprehensive. It lists examples of law of war and arms control treaties that the United States has neither signed nor ratified:

Declaration respecting maritime law signed by the Plenipotentiaries of Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris, April 16, 1856.42

Hague Declaration on Expanding Bullets of July 29, 1899.43

Hague Convention VI Relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities of October 18, 1907.

Hague Convention VII Relating to the Conversion of Merchant Ships into Warships of October 18, 1907.

First Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict of May 14, 1954.

Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction of September 18, 1997.44

36 Refer to 19.14 (1930 London Treaty for the Limitation and Reduction of Naval Armament and 1936 London Protocol). 37 Refer to 19.18 (Vienna Convention on the Law of Treaties). 38 Refer to 19.20.1 (AP I). 39 Refer to 19.20.2 (AP II). 40 Refer to 13.1.2 (The United States and the LOS Convention). 41 Refer to 19.23 (Rome Statute of the International Criminal Court). 42 Refer to 19.4 (1856 Paris Declaration Respecting Maritime Law). 43 Refer to 19.7.1 (1899 Declaration on Expanding Bullets). 44 Refer to 6.12.14 (Ottawa Convention on Anti-Personnel Landmines).

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Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict of March 26, 1999.

Convention on Cluster Munitions of May 30, 2008.45

Examples of Treaties or Documents of Mainly Historical Value. This section is 19.2.5not comprehensive. It lists examples of treaties and documents that are regarded as having mainly historical value:

General Order No. 100, Instructions for the Government of Armies of the United States in the Field, 1863 (Lieber Code).46

Geneva Convention for the Amelioration of the Wounded in Armies in the Field of August 22, 1864 (1864 GWS).47

St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grams Weight of December 11, 1868 (1868 St. Petersburg Declaration).48

Hague Declaration (IV, 1) to Prohibit for the Term of Five Years the Launching of Projectiles and Explosives from Balloons, and Other Methods of a Similar Nature of July 29, 1899.49

Hague Declaration on Asphyxiating Gases of July 29, 1899.50

Hague Convention II with Respect to the Laws and Customs of War on Land, with Annex of Regulations of July 29, 1899 (1899 Hague II).51

Hague Convention X for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of October 18, 1907 (Hague X).52

Hague Declaration XIV Prohibiting the Discharge of Projectiles and Explosives from Balloons of October 18, 1907.53

Washington Treaty Relating to the Use of Submarines and Noxious Gases in Warfare of February 6, 1922.54

45 Refer to 6.13.4 (Convention on Cluster Munitions). 46 Refer to 19.3 (Lieber Code). 47 Refer to 19.5 (1864 GWS). 48 Refer to 19.6 (1868 St. Petersburg Declaration). 49 Refer to 19.7.3 (1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From Balloons). 50 Refer to 19.7.2 (1899 Declaration on Asphyxiating Gases). 51 Refer to 19.8.1 (1899 Hague II). 52 Refer to 19.9 (1907 Hague X). 53 Refer to 19.7.3 (1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From Balloons).

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General Report of the Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare, Feb. 19, 1923 (1923 Hague Air and Radio Rules).55

Geneva Convention Amelioration of the Condition of the Wounded and Sick of Armies in the Field of July 27, 1929 (1929 GWS).56

Geneva Convention Relative to the Treatment of Prisoners of War of July 27, 1929 (1929 GPW).57

19.3 LIEBER CODE

General Order No. 100, Instructions for the Government of Armies of the United States in the Field, 1863, issued on April 24, 1863, is often called the Lieber Code because it was prepared by Francis Lieber.58 It is an early example of the law of war being implemented through military instructions or regulations.59

The Lieber Code was the first comprehensive publication on the law of war for U.S. armed forces and is regarded as an important work of historical significance in the law of war.60

The Lieber Code established rules governing martial law, military jurisdiction, the treatment of spies and deserters, and the treatment of POWs. Many key law of war principles, such as the principle of military necessity, were codified in the Lieber Code.61 However, parts of 54 Refer to 19.10 (1922 Washington Treaty on Submarines and Noxious Gases). 55 Refer to 19.11 (1923 Hague Air and Radio Rules). 56 Refer to 19.13.1 (1929 GWS). 57 Refer to 19.13.2 (1929 GPW). 58 E. D. Townsend, Assistant Adjutant General, General Orders No. 100, Instructions for the Government of Armies of the United States in the Field, Apr. 24, 1863, reprinted in INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD, 2 (Government Printing Office, 1898) (The following Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, L.L.D., and revised by a Board of Officers, of which Major General E.A. Hitchcock is president, having been approved by the President of the United States, he commands that they be published for the information of all concerned.). 59 Refer to 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War). 60 See, e.g., Kononov v. Latvia, European Court of Human Rights, App. No. 36376/04, 63 (May 17, 2010) (The Lieber Code 1863 is regarded as the first attempt to codify the laws and customs of war. Although only applicable to American forces, it represented a summary of the laws and customs of war existing at the time and was influential in later codifications.); Elihu Root, Francis Lieber, 7 AJIL 453, 457 (1913) (In the Brussels Conference of 1874, convened at the instance of the Emperor of Russia for the purpose of codifying the laws and customs of war, the Russian delegate, Baron Jomini, as president of the conference, declared that the project of an international convention then presented had its origin in the rules of President Lincoln. The convention agreed upon at Brussels was not ratified, but in 1880 the Institute of International Law made the work of the Brussels Conference and the work of Lieber, which so far as it was of general application was incorporated in that convention, the basis of a manual of the laws of war upon land; and finally, in The Hague Conferences of 1899 and 1907, the conventions with respect to the laws and customs of war on land gave the adherence of the whole civilized world in substance and effect to those international rules which President Lincoln made binding upon the American armies fifty years ago.). 61 Refer to 2.2 (Military Necessity).

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the Lieber Code reflect 19th century understandings of the law of war that have been modified by treaties that the United States has ratified or by subsequent customary international law. For example, the Lieber Code permitted the denial of quarter in certain circumstances.62 However, denying quarter in those circumstances is no longer acceptable.63

The Lieber Code was prepared during the Civil War. The Confederate forces agreed with some provisions of the Lieber Code, but disagreed with others.64

The Lieber Code reflected rules for regular war or what today would be classified as international armed conflict. Such rules were applied to the Confederate forces for humanitarian reasons, even though the United States did not recognize the Confederacy as a legitimate government or State.65 In this way, the Lieber Code is an example of the application of the doctrine of recognition of belligerency.66

19.4 1856 PARIS DECLARATION RESPECTING MARITIME LAW

The 1856 Paris Declaration respecting Maritime Law is an early multilateral law of war treaty that was intended to be open to accession by all States, including States that did not participate in its negotiation.67 This treaty illustrates how law of war treaties may be written with a view towards being able to be accepted and applied by all States.

The United States is not a Party to the 1856 Paris Declaration. The 1856 Paris Declarations provision that blockades must be effective in order to be binding reflects customary international law.68

62 LIEBER CODE art. 61 (All troops of the enemy known or discovered to give no quarter in general, or to any portion of the army, receive none.). 63 Refer to 5.5.7 (Prohibition Against Declaring That No Quarter Be Given). 64 James A. Seddon, Letter to Robert Ould, Jun. 24, 1863, reprinted in FRED C. AINSWORTH & JOSEPH W. KIRKLEY, VI THE WAR OF THE REBELLION: A COMPILATION OF THE OFFICIAL RECORDS OF THE UNION AND CONFEDERATE ARMIES, SERIES II, 41 (1899) (Order No. 100 is a confused, unassorted, and undiscriminating compilation from the opinion of the publicists of the last two centuries, some of which are obsolete, others repudiated; and a military commander under this code may pursue a line of conduct in accordance with principles of justice, faith, and honor, or he may justify conduct correspondent with the warfare of the barbarous hordes who overran the Roman Empire, or who, in the Middle Ages, devastated the continent of Asia and menaced the civilization of Europe.). 65 Refer to 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict). 66 Refer to 3.3.3.2 (Assertion of War Powers by a State Engaged in Hostilities Against a Non-State Armed Group). 67 Declaration respecting maritime law signed by the Plenipotentiaries of Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris, Apr. 16, 1856, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 89 (1907) (The Governments of the undersigned Plenipotentiaries engage to bring the present Declaration to the knowledge of the states which have not taken part in the Congress of Paris, and to invite them to accede to it. Convinced that the maxims which they now proclaim cannot but be received with gratitude by the whole world, the undersigned Plenipotentiaries doubt not that the efforts of their governments to obtain the general adoption thereof will be crowned with full success.). 68 Refer to 13.10.2.3 (Effectiveness of the Blockade).

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19.5 1864 GWS

The Geneva Convention for the Amelioration of the Wounded in Armies in the Field of August 22, 1864 (1864 GWS) was one of the earliest multilateral law of war treaties.69

The 1864 GWS provided for the use of the red cross as a distinctive emblem to help identify medical personnel.70 It also provided for wounded and sick combatants to be collected and cared for regardless of the nation of their armed forces.71

The United States acceded to the 1864 GWS on March 1, 1882.72 The 1864 GWS was replaced by the GWS in relations between the Parties to the GWS.73

19.6 1868 ST. PETERSBURG DECLARATION

The Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Weighing Under 400 Grams Weight (1868 St. Petersburg Declaration) was promulgated by an international conference held in St. Petersburg, Russia on December 11, 1868. The 1868 St. Petersburg Declaration prohibits Parties from, in case of war among themselves, the employment, by their military or naval forces, of any projectile of less weight than four hundred grammes, which is explosive, or is charged with fulminating or inflammable substances.74

The United States is not a Party to the 1868 St. Petersburg Declaration.

The language in the Preamble of the 1868 St. Petersburg Declaration that notes that the employment of arms which uselessly aggravate the sufferings of disabled men would be contrary to the laws of humanity is an early statement of the prohibition against weapons

69 Convention for the Amelioration of the Wounded in Armies in the Field, Aug. 22, 1864, 22 STAT. 940. 70 Refer to 7.15.1.1 (Red Cross). 71 Refer to 7.5.2.2 (Affirmative Obligation to Provide Adequate Care). 72 Chester A. Arthur, Proclamation Regarding the 1864 GWS, Jul. 26, 1882, 22 STAT. 940, 950-51 (And whereas the President of the United States of America, by and with the advice and consent of the Senate, did, on the first day of March, one thousand eight hundred and eighty-two, declare that the United States accede to the said Convention of the 22d of August, 1864, and also accede to the said Convention of October 20, 1868; And whereas on the ninth day of June, one thousand eight hundred and eighty-two, the Federal Council of the Swiss Confederation, in virtue of the final provision of a certain minute of the exchange of the ratifications of the said Convention at Berne, December 22, 1864, did, by a formal declaration, accept the said adhesion of the United States of America, as well in the name of the Swiss Confederation as in that of the other contracting States; And whereas, furthermore, the government of the Swiss Confederation has informed the Government of the United States that the exchange of the ratifications of the aforesaid additional articles of 20th October, 1868, to which the United States of America have in like manner adhered as aforesaid, has not yet taken place between the contracting parties, and that these articles cannot be regarded as a treaty in full force and effect:). 73 Refer to 19.16.2.1 (Relationship Between the GWS and Earlier Conventions). 74 The Declaration of St. Petersburg, 1868, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 95, 96 (1907) (The contracting parties engage, mutually, to renounce, in case of war among themselves, the employment, by their military or naval forces, of any projectile of less weight than four hundred grammes, which is explosive, or is charged with fulminating or inflammable substances.).

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calculated to cause unnecessary suffering, which is a principle that is found in treaties to which the United States is a Party and in customary international law.75

The prohibition in the Declaration against any projectile of less weight than four hundred grammes, which is explosive, or is charged with fulminating or inflammable substances does not reflect customary international law.76 For example, for many decades without legal controversy, States have used, and continue to use, tracer ammunition, grenades, explosive bullets, or other projectiles of less weight than four hundred grams with a burning or explosive capability.77

19.7 1899 AND 1907 HAGUE DECLARATIONS ON WEAPONS

1899 Declaration on Expanding Bullets. The 1899 Declaration on Expanding 19.7.1Bullets prohibits Parties from using bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions. 78 The Declaration only creates obligations for Parties to the Declaration in international armed conflicts in which all the parties to the conflict are also Parties to the Declaration.79

The United States is not a Party to the 1899 Declaration on Expanding Bullets and does not regard the 1899 Declaration on Expanding Bullets as customary international law applicable in either international or non-international armed conflicts.80

75 Refer to 6.6 (Weapons Calculated to Cause Superfluous Injury). 76 U.S. RESPONSE TO ICRC CIHL STUDY 524 (Since the St. Petersburg Declaration, there has been considerable State practice involving the anti-personnel use of exploding bullets, despite the ICRCs statement that governments have adhered to the Declaration. Two participants in the ICRC-hosted 1974 Lucerne Meeting of Experts on certain weapons conventional weapons concluded: At present it is widely held that in view of the development in weapons technology and state practice the St. Petersburg Declaration cannot be interpreted literally, or in any case that it has not as such become declaratory of customary international law.... [T]he prohibition contained in it serves to illustrate the principle prohibiting the causing of unnecessary suffering, at least as it was contemplated in 1868. U.S. legal reviews have detailed State practice contrary to the ICRCs statement and consistent with the conclusion contained in the above quotation.) (amendments to internal quote shown in U.S. Response to ICRC CIHL Study). 77 Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General Report, Part II: Rules of Arial Warfare, art. 18, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 12, 21 (1938) (The use of tracer, incendiary or explosive projectiles by or against an aircraft is not prohibited. This provision applies equally to states which are parties to the Declaration of St. Petersburg, 1868, and to those which are not.). Refer to 6.5.4.3 (Exploding Bullets). 78 Declaration to Abstain From the Use of Bullets Which Expand or Flatten Easily in the Human Body, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 155, 155-56 (1907) (The Contracting Parties agree to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core, or is pierced with incisions.). 79 Declaration to Abstain From the Use of Bullets Which Expand or Flatten Easily in the Human Body, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 155, 156 (1907) (The present Declaration is only binding for the Contracting Powers in the case of a war between two or more of them. It shall cease to be binding from the time when, in a war between the Contracting Powers, one of the belligerents is joined by a non-Contracting Power.). 80 Refer to 6.5.4.4 (Expanding Bullets).

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1899 Declaration on Asphyxiating Gases. The 1899 Declaration on Asphyxiating 19.7.2Gases was concluded at The Hague on July 29, 1899.81 This 1899 Declaration prohibits the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases.82

The United States did not ratify this declaration.

This declaration was followed by the 1922 Washington Treaty on Submarines and Noxious Gases, and the 1925 Geneva Gas and Bacteriological Protocol.83 The United States is a Party to the 1925 Geneva Gas and Bacteriological Protocol and applies the broader prohibition in it on the use of asphyxiating, poisonous, or other gases, and all analogous liquids, materials, or devices.84

1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From 19.7.3Balloons. In the 1899 Hague (IV, 1), Parties agreed to prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods of similar nature.85 The United States deposited its instrument of ratification to the 1899 Hague Declaration (IV, 1) on September 4, 1900.86

The 1907 Hague Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons sought to renew the expired 1899 Hague Declaration (IV, 1).87 The United States deposited its instrument of ratification to the 1907 Hague Declaration (XIV) on

81 Declaration to Abstain From the Use of Projectiles the Object of Which Is the Diffusion of Asphyxiating or Deleterious Gases, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 157, 158 (1907). 82 Declaration to Abstain From the Use of Projectiles the Object of Which Is the Diffusion of Asphyxiating or Deleterious Gases, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 157 (1907) (The Contracting Powers agree to abstain from the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases.). 83 Refer to 19.10 (1922 Washington Treaty on Submarines and Noxious Gases); 19.12 (1925 Geneva Gas and Bacteriological Protocol). 84 Refer to 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or Devices). 85 Declaration Prohibiting for a Term of Five Years the Launching of Projectiles or Explosives from Balloons, or By Any Other New Methods of Similar Nature, Jul. 29, 1899, 32 STAT. 1839 (The Contracting Powers agree to prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods of similar nature.). 86 Theodore Roosevelt, Proclamation Regarding the 1899 Declaration Prohibiting the Launching of Projectiles or Explosives from Balloons, Nov. 1, 1901, 32 STAT. 1839, 1842 (And Whereas, the said Declaration was duly ratified by the Government of the United States of America, by and with the advice and consent of the Senate thereof, and by the Governments of the other Powers aforesaid, with the exception of those of China and Turkey; And Whereas, in pursuance of a stipulation of the said Declaration, the ratifications thereof were deposited at the Hague on the 4th day of September, 1900, by the Plenipotentiaries of the Governments of the United States of America, Austria-Hungary, Belgium, Denmark, Spain, France, Italy, the Netherlands, Persia, Portugal, Roumania, Russia, Siam, Sweden and Norway, and Bulgaria .). 87 Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907, 36 STAT. 2439 (The Undersigned, Plenipotentiaries of the Powers invited to the Second International Peace Conference at The Hague, duly authorized to that effect by their Governments, inspired by the sentiments which found expression in the Declaration of St. Petersburg of the 29th November (11th December), 1868, and being desirous of renewing the declaration of The Hague of the 29th July, 1899, which was now expired,).

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November 27, 1909.88 This treaty was intended to have effect until the end of the Third Hague Peace Conference.89 The Third Hague Peace Conference never met due to the outbreak of World War I.90 The application of the 1907 Hague Declaration (XIV) is limited, inter alia, due to its general participation clause providing that it only applies if all the parties to the conflict are also Parties to the Declaration.91 During World War II, the War Department took the position that the 1907 Hague Declaration (XIV) is not binding and will not be observed.92

19.8 1899 HAGUE II AND 1907 HAGUE IV CONVENTIONS AND ANNEXED REGULATIONS REGARDING LAND WARFARE

1899 Hague II. The Hague Convention II with Respect to the Laws and Customs 19.8.1of War on Land of July 29, 1899 (1899 Hague II), with its annexed Regulations, was an early multilateral law of war treaty that contains provisions that were incorporated into later law of war treaties.

Article 1 of the 1899 Hague II Regulations addressed the criteria for militia and volunteer corps to qualify as lawful belligerents and for their members to be entitled to POW status if captured; these criteria are repeated in Article 4 of the GPW.93 In addition, Articles 4-20 of the 1899 Hague II Regulations provide basic rules for the care and protection of POWs.

The United States deposited its instrument of ratification to the 1899 Hague II on April 5, 1902.94

88 William H. Taft, Proclamation Regarding the 1907 Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons, Feb. 28, 1910, 36 STAT. 2439, 2442-43 (And whereas the said Declaration has been duly ratified by the Government of the United States of America, by and with the advice and consent of the Senate thereof, and by the Governments of China, Great Britain, the Netherlands, Bolivia, and Salvador, and the ratifications of the said Governments were, as provided for by the said Declaration, deposited by their respective plenipotentiaries with the Netherlands Government on November 27, 1909.). 89 Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907, 36 STAT. 2439 (The Contracting Powers agree to prohibit, for a period extending to the close of the Third Peace Conference, the discharge of projectiles and explosives from balloons or by other new methods of a similar nature.). 90 SCHINDLER & TOMAN, THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 309 (2004) (The Declaration of 1907 was to remain in force until the projected Third Peace Conference. This Conference never having met, the Declaration of 1907 is still formally in force today.). 91 Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907, 36 STAT. 2439, 2440 (The present Declaration is only binding on the Contracting Powers in a case of war between two or more of them. It shall cease to be binding from the time when, in a war between the Contracting Powers, one of the belligerents is joined by a non-Contracting Power.). 92 WAR DEPARTMENT CIRCULAR NO. 136, 1 (May 7, 1942) (The Hague Declaration Number XIV, October 18, 1907, prohibiting the discharge of projectiles and explosives from balloons (H.D. XIV), is not binding and will not be observed.). 93 Refer to 4.6.1 (GPW 4A(2) Conditions in General). 94 Theodore Roosevelt, Proclamation Regarding the 1899 Hague II, Apr. 11, 1902, 32 STAT. 1803, 1825 (And whereas the said Convention was duly ratified by the Government of the United States of America, by and with the advice and consent of the Senate thereof, and by the Governments of the other Powers aforesaid with the exception of Sweden and Norway and Turkey; And whereas, in pursuance of the stipulations of Article III of the said

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The 1899 Hague II was followed by Hague IV, which replaces the 1899 Hague II as between Parties to Hague IV.95 Not all the States that ratified the 1899 Hague II have also ratified Hague IV.96

Hague IV. States sought to expand upon and clarify provisions of 1899 Hague II 19.8.2and the 1899 Hague II Regulations through the Hague Convention IV Respecting the Laws and Customs of War on Land of October 18, 1907 (Hague IV), and annexed Regulations (Hague IV Regulations).97

The United States deposited its instrument of ratification to Hague IV on November 27, 1909.98

19.8.2.1 Hague IV and Customary International Law. Provisions of Hague IV and Hague IV Regulations have been found to reflect customary international law.99

For example, Article 42 of the Hague IV Regulations, which provides a standard for when the law of belligerent occupation applies, is regarded as customary international law.100

Convention the ratifications of the said Convention were deposited at the Hague on the 5th Day of April, 1902, by the Plenipotentiary of the Government of the United States of America:). 95 Refer to 19.8.2.2 (Relationship Between the 1907 Hague IV and the 1899 Hague II). 96 ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 68-70 (3rd ed., 2000) ([The 1907 Hague Convention] was intended to replace 1899 Hague Convention II as between states parties to both agreements. However, of the forty-six states which had become parties to the 1899 Convention, eighteen did not become parties to the 1907 Convention . They or their successor states remained formally bound by the 1899 Convention.). 97 Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 STAT. 2277, 2279 (The Contracting Parties [h]ave deemed it necessary to complete and explain in certain particulars the work of the First Peace Conference, which, following on the Brussels Conference of 1874, and inspired by the ideas dictated by a wise and generous forethought, adopted provisions intended to define and govern the usages of war on land.). 98 William H. Taft, Proclamation Regarding the Hague IV, Feb. 28, 1907, 36 STAT. 2277, 2309 (And whereas the said Convention has been duly ratified by the Government of the United States of America, by and with the advice and consent of the Senate thereof, and by the Governments of Austria-Hungary, Bolivia, Denmark, Germany, Great Britain, Mexico, the Netherlands, Russia, Salvador, and Sweden, and the ratifications of the said Governments were, under the provisions of Article 5 of the said Convention, deposited by their respective plenipotentiaries with the Netherlands Government on November 27, 1909;). 99 See, e.g., United States, et al. v. Gring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 253-54 (concluding that by 1939 these rules laid down in [Hague IV] were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war); United States v. Krupp et al., IX TRIALS OF WAR CRIMINALS BEFORE THE NMT 1340 (concurring in judgment that the Hague Convention No. IV of 1907 to which Germany was a party had, by 1939, become customary law and was, therefore, binding on Germany not only as treaty law but also as customary law.); United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 535-38 (concluding that provisions of Hague IV Reg and 1929 GPW reflected customary international law relating to the treatment of prisoners of war); United States, et al. v. Araki, et al., Majority Judgment, International Military Tribunal for the Far East, 48,491, reprinted in NEIL BOISTER & ROBERT CRYER, DOCUMENTS ON THE TOKYO INTERNATIONAL MILITARY TRIBUNAL: CHARTER, INDICTMENT AND JUDGMENTS 102 (2008) (explaining that although certain treaties, such as Hague IV and Hague V, might not be applicable by their terms, the Convention remains as good evidence of the customary law of nations, to be considered by the Tribunal along with all other available evidence in determining the customary law to be applied in any given situation.).

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19.8.2.2 Relationship Between the 1907 Hague IV and the 1899 Hague II. The Hague IV, duly ratified, shall as between its Parties be substituted for the 1899 Hague II. The 1899 Hague II remains in force as between its Parties that do not also ratify Hague IV.101

Martens Clause. The Preamble to the 1899 Hague II contains a clause known as 19.8.3the Martens Clause because of its association with a delegate to the Hague Peace Conference, F.F. de Martens:102

Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.103

A similar formulation was included in subsequent treaties, such as the Hague IV, the 1949 Geneva Conventions, and the CCW.104

The Martens Clause was a compromise following difficult and unresolved debates at the 1899 Hague Peace Conference about the status of resistance fighters in occupied territory.105

100 Refer to 11.2.2 (Standard for Determining When Territory Is Considered Occupied). 101 HAGUE IV art. 4 (The present Convention, duly ratified, shall as between the Contracting Powers, be substituted for the Convention of the 29th July, 1899, respecting the Laws and Customs of War on Land. The Convention of 1899 remains in force as between the Powers which signed it, and which do not also ratify the present Convention.). 102 Theodor Meron, The Martens Clause, Principles of Humanity, and Dictates of Public Conscience, 94 AJIL 78, 79 (2000) (Proposed by the Russian delegate to the Hague Peace Conference, the eminent jurist F.F. de Martens, the clause has ancient antecedents rooted in natural law and chivalry.). 103 1899 HAGUE II preamble (Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience). 104 See, e.g., HAGUE IV preamble (Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.); GWS art. 63 (providing that denunciation of the Convention shall in no way impair the obligations which Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of public conscience.); GWS-SEA art. 62 (same); GPW art. 142 (same); GC art. 158 (same); CCW preamble (in cases not covered by this Convention and its annexed Protocols or by other international agreements, the civilian population and the combatants shall at all times remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience,). Consider AP I art. 1(2) (In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.); AP II preamble (Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience,).

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However, the language of the clause is not limited to that specific context, and the Martens Clause has been cited in many other contexts.106

The Martens clause reflects the idea that when no specific rule applies, the principles of the law of war form the general guide for conduct during war.107

19.9 1907 HAGUE X

On November 27, 1909, the United States deposited its instrument of ratification to the 1907 Hague Convention (X) for the Adaption to Maritime Warfare of the Principles of the Geneva Convention of October 18, 1907.108

This treaty was followed by the GWS-Sea, which replaced it in relations between Parties to the GWS-Sea.109

19.10 1922 WASHINGTON TREATY ON SUBMARINES AND NOXIOUS GASES

The United States signed the Treaty Relating to the Use of Submarines and Noxious Gases in Warfare on February 6, 1922.110 Article 6 of the treaty provided that the treaty shall

105 See ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 9 (3rd ed., 2000) (The wording of the Martens Clause was agreed at the 1899 Hague Peace Conference for a specific reason: it was a compromise following difficult and unresolved debates about whether or not the inhabitants of occupied territory had a right of resistance.); United States v. Krupp, et al., IX TRIALS OF WAR CRIMINALS BEFORE THE NMT 1340-41 (It must also be pointed out that in the preamble to the Hague Convention No. IV, it is made abundantly clear that in cases not included in the Regulations, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and dictates of the public conscience. As the records of the Hague Peace Conferences of 1899 which enacted the Hague Regulations show, great emphasis was placed by the participants on the protection of invaded territories and the preamble just cited, also known as the Mertens Clause, was inserted at the request of the Belgian delegate, Mertens, who was, as were others, not satisfied with the protection specifically guaranteed to belligerently occupied territory. Hence, not only the wording (which specifically mentions the inhabitants before it mentions the belligerents) but also the discussions which took place at the time make it clear that it refers specifically to belligerently occupied country.). 106 See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (78) (The Court would likewise refer, in relation to these principles, to the Martens Clause, which was first included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology.). 107 Refer to 2.1.2.2 (Law of War Principles as a General Guide). 108 William H. Taft, Proclamation Regarding the Hague X, Feb. 28, 1910, 36 STAT. 2371, 2395 (And whereas the said Convention has been duly ratified by the Government of the United States of America, by and with the advice and consent of the Senate thereof, and by the Governments of Germany, Austria-Hungary, China, Denmark, Mexico, the Netherlands, Russia, Bolivia, and Salvador, and the ratifications of the said Governments were, under the provisions of Article 23 of the said Convention, deposited by their respective plenipotentiaries with the Netherlands Government on November 27, 1909.). 109 Refer to 19.16.3.1 (Relationship Between the 1907 Hague X and the GWS-Sea). 110 Treaty in Relation to the Use of Submarines and Noxious Gases in Warfare, Feb. 6, 1922, reprinted in 16 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 57, 60 (1922).

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take effect on the deposit of all the ratifications.111 France did not ratify the treaty, and it did not enter into force.112

The language of Article 5 of the 1922 Washington Treaty dealing with gas warfare corresponds to language in the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare signed at Geneva, June 17, 1925.113 The 1925 Geneva Gas and Bacteriological Protocol, however, also prohibits bacteriological methods of warfare.114

19.11 1923 HAGUE AIR AND RADIO RULES

In 1922, the Conference on the Limitation of Armament at Washington adopted a resolution for the appointment of a Commission representing the United States of America, the British Empire, France, Italy, and Japan, and later, the Netherlands, to consider the application of the existing law of war rules to new agencies of warfare and whether changes should be adopted.115 It was agreed that the program of the Commission would be limited to the preparation of rules relating to aerial warfare, and to rules relating to the use of radio in time of war.116 With John Bassett Moore as a U.S. Delegate and the President of the Commission, the Commission prepared a set of rules for the control of radio in time of war, as well as a set of rules for aerial warfare.117

111 Treaty in Relation to the Use of Submarines and Noxious Gases in Warfare, art. 6, Feb. 6, 1922, reprinted in 16 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 57, 59 (1922) (The present Treaty shall be ratified as soon as possible in accordance with the constitutional methods of the Signatory Powers and shall take effect on the deposit of all the ratifications, which shall take place at Washington.). 112 SCHINDER & TOMAN, THE LAWS OF ARMED CONFLICTS 877 (1988) (The Washington Conference of 1922 on the Limitation of Armaments, in which five of the victorious Powers of World War I took part, adopted the present Treaty, which due to the failure of France to ratify it, did not enter into force.). 113 Refer to 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or Devices). 114 Refer to 19.12 (1925 Geneva Gas and Bacteriological Protocol). 115 Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare, General Report, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 1 (1938) (The Conference on the Limitation of Armament at Washington adopted at its sixth plenary session on the 4th February, 1922, a resolution for the appointment of a Commission representing the United States of America, the British Empire, France, Italy and Japan to consider the following questions: (a) Do existing rules of international law adequately cover new methods of attack or defence resulting from the introduction or development, since The Hague Conference of 1907, of new agencies of warfare? (b) If not so, what changes in the existing rules ought to be adopted in consequence thereof as a part of the law of nations? With the unanimous concurrence of the Powers mentioned in the first of the above resolutions an invitation to participate in the work of the Commission was extended to and accepted by the Netherlands Government.). 116 Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare, General Report, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 1 (1938) (It was also agreed that the programme of the Commission should be limited to the preparation of rules relating to aerial warfare, and to rules relating to the use of radio in time of war.). 117 Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare, General Report, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 1-2 (1938) (The United States Government proposed that the Commission should meet on the 11th December, 1922, at The Hague, and the representatives of the six Powers mentioned above assembled on that date in the Palace of Peace. At the second meeting of the

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The 1923 Hague Air Rules were not, however, subsequently adopted as a treaty by the United States.

Some provisions in the 1923 Hague Air Rules may reflect customary international law. For example, the 1923 Hague Air Rules recognize the permissibility of using tracer, incendiary, or explosive projectiles by or against aircraft, including by States that are Parties to the 1868 Declaration of St. Petersburg.118

Many of the other provisions in the 1923 Hague Air Rules, however, do not reflect customary international law. For example, the 1923 Hague Air Rules provide that the crew of military aircraft must be exclusively military.119 The 1949 Geneva Conventions, however, contemplate that crews of military aircraft may include civilian members.120 As another example, certain efforts in the 1923 Hague Air Rules to limit the effects of attacks also do not reflect customary international law.121

19.12 1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOL

The Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, of June 17, 1925, prohibits the use of asphyxiating, poisonous, or other gases, and all analogous liquids, materials, or devices, and the use of bacteriological methods of warfare.122

Commission the Honorable John Bassett Moore, First Delegate of the United States, was elected President of the Commission. The Commission has prepared a set of rules for the control of radio in time of war, which are contained in Part I of this report, and a set of rules for arial warfare, which are contained in Part II of this report.). 118 Refer to 6.5.4.3 (Exploding Bullets); 19.6 (1868 St. Petersburg Declaration). 119 Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General Report, Part II: Rules of Arial Warfare, art. 14, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 12, 18 (1938) (A military aircraft shall be under the command of a person duly commissioned or enlisted in the military service of the state; the crew must be exclusively military.). 120 Refer to 14.3.3.3 (Military Aircraft Command and Crew). 121 J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67 AJIL 122, 123 (1973) (In the application of the laws of war, it is important that there be a general understanding in the world community as to what shall be legitimate military objectives which may be attacked by air bombardment under the limitations imposed by treaty or by customary international law. Attempts to limit the effects of attacks in an unrealistic manner, by definition or otherwise, solely to the essential war making potential of enemy States have not been successful. For example, such attempts as the 1923 Hague Rules of Air Warfare, proposed by an International Commission of Jurists, and the 1956 ICRC Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War were not accepted by States and therefore do not reflect the laws of war either as customary international law or as adopted by treaty.). 122 Refer to 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or Devices); 6.9.1 (Biological Weapons Prohibition on Use as a Method of Warfare).

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This treaty followed the 1899 Declaration on Asphyxiating Gases and the 1922 Washington Treaty on Submarines and Noxious Gases.123 This treaty also followed widespread use of chemical weapons in World War I.

On November 25, 1969, President Nixon announced the intention of the administration to seek Senate advice and consent to ratification of the 1925 Geneva Gas and Bacteriological Protocol as part of U.S. policies relating to chemical and biological weapons.124 The United States deposited its instrument of ratification to the 1925 Geneva Gas and Bacteriological Protocol on April 10, 1975.125

The United States took a reservation that the Protocol shall cease to be binding on the government of the United States with respect to the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials, or devices, in regard to an enemy state if such state or any of its allies fails to respect the prohibitions laid down in this Protocol.126 This reservation would permit use by the United States of chemical weapons and agents in response, but would not limit in any way the Protocols prohibition with respect to biological weapons.127 Other States, including France, Belgium, Canada, the USSR (now Russia), and the United Kingdom issued similar statements upon ratification.128

123 Refer to 19.7.2 (1899 Declaration on Asphyxiating Gases); 19.10 (1922 Washington Treaty on Submarines and Noxious Gases). 124 Richard Nixon, Statement on Chemical and Biological Defense Policies and Programs, Nov. 25, 1969, 1969 PUBLIC PAPERS OF THE PRESIDENTS 968 (As to our chemical warfare program, the United States: Reaffirms its oft-repeated renunciation of the first use of lethal chemical weapons. Extends this renunciation to the first use of incapacitating chemicals. Consonant with these decisions, the administration will submit to the Senate, for its advice and consent to ratification, the Geneva Protocol of 1925 which prohibits the first use in war of asphyxiating, poisonous or other Gases and of Bacteriological Methods of Warfare. The United States has long supported the principles and objectives of this Protocol. We take this step toward formal ratification to reinforce our continuing advocacy of international constraints on the use of these weapons.). 125 1925 Geneva Gas and Bacteriological Protocol, Apr. 10, 1975, 1541 UNTS 484 (RATIFICATIONS Instruments deposited with the Government of France on: 10 April 1975 UNITED STATES OF AMERICA (With effect from 10 April 1975.)). 126 United States, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, Apr. 10, 1975, 1541 UNTS 484 (That the said Protocol shall cease to be binding on the Government of the United States with respect to the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials, or devices, in regard to an enemy State if such State or any of its allies fails to respect the prohibitions laid down in the Protocol.). 127 William P. Rogers, Letter of Submittal, Aug. 11, 1970, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOL VI (This reservation would permit the retaliatory use by the United States of chemical weapons and agents, but would not limit in any way the Protocols prohibition with respect to biological weapons.). 128 France, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, May 9, 1926, 94 LNTS 67 (The said Protocol shall ipso facto cease to be binding on the Government of the French Republic in regard to any enemy State whose armed forces or whose Allies fail to respect the prohibitions laid down in the Protocol.); Belgium, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, Dec. 4, 1928, 94 LNTS 67 ((2) The said Protocol shall ipso facto cease to be binding on the Belgian Government in regard to any enemy State whose armed forces or whose Allies fail to respect the prohibitions laid down in the Protocol.); Canada, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, May 6, 1930, 94 LNTS 71 (The said Protocol shall cease to be binding on His Britannic Majesty towards any State at enmity with Him whose armed

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This treaty was followed by the Chemical Weapons Convention and Biological Weapons Convention, which, inter alia, place restrictions on the use, development, production, and possession of weapons addressed by the 1925 Geneva Gas and Bacteriological Protocol.129

19.13 1929 GENEVA CONVENTIONS

1929 GWS. The United States deposited its instrument of ratification to the 1929 19.13.1GWS on February 4, 1932.130

The 1929 GWS was replaced by the GWS in relations between Parties to the GWS.131 All the Parties to the 1929 GWS have become Parties to the GWS.

1929 GPW. The United States deposited its instrument of ratification to the 1929 19.13.2GPW on February 4, 1932.132

The 1929 GPW was replaced by the GPW in relations between Parties to the GPW.133 All the Parties to the 1929 GPW have become Parties to the GPW.

Provisions of the 1929 GPW were found to reflect customary international law by war crimes tribunals after World War II.134 The 1929 GPW may be relevant to understanding provisions of the 1949 GPW because some provisions of the 1949 GPW were drawn from the 1929 GPW or reflect an effort to improve upon the 1929 GPW.

forces, or whose allies de jure or in fact fail to respect the prohibitions laid down in the Protocol.); Union of Soviet Socialist Republics, Statement on Accession to the 1925 Geneva Gas and Bacteriological Protocol, Apr. 5, 1928, 94 LNTS 71 ((2) The said Protocol shall cease to be binding on the Government of the Union of Soviet Socialist Republics in regard to all enemy States whose armed forces or whose Allies de jure or in fact do not respect the restrictions which are the object of this Protocol.); British Empire, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, Apr. 9, 1930, 94 LNTS 69 (The said Protocol shall cease to be binding on His Britannic Majesty towards any Power at enmity with Him whose armed forces, or the armed forces of whose allies, fail to respect the prohibitions laid down in the Protocol.). 129 Refer to 19.22 (Chemical Weapons Convention); 19.19 (Biological Weapons Convention). 130 Herbert Hoover, Proclamation Regarding the 1929 GPW, Aug. 4, 1932, 47 STAT. 2021, 2073 (And whereas, the said Convention has been duly ratified on the part of the United States of America and the instrument of ratification of the United States of America was deposited with the Government of Switzerland on February 4, 1932; And whereas, in accordance with Article 92 thereof, the said Convention became effective in respect of the United States of America six months after the deposit of its instrument of ratification, namely, on August 4, 1932;). 131 Refer to 19.16.2.1 (Relationship Between the GWS and Earlier Conventions). 132 Herbert Hoover, Proclamation Regarding the 1929 GWS, Aug. 4, 1932, 47 STAT. 2074, 2101 (And whereas, the said Convention has been duly ratified on the part of the United States of America and the instrument of ratification of the United States of America was deposited with the Government of Switzerland on February 4, 1932: And whereas, in accordance with Article 33 thereof, the said Convention became effective in respect of the United States of America six months after the deposit of its instrument of ratification, namely, on August 4, 1932;). 133 Refer to 19.16.4.1 (Relationship Between the GPW and the 1929 GPW). 134 Refer to 9.1.1 (Brief History of POW Law).

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19.14 1930 LONDON TREATY FOR THE LIMITATION AND REDUCTION OF NAVAL ARMAMENT AND 1936 LONDON PROTOCOL

Article 22 of the 1930 London Treaty for the Limitation and Reduction of Naval Armament (1930 London Treaty) and the 1936 London Protocol set forth identical rules regarding submarine warfare, and the obligations of surface warships and submarines with respect to the sinking of merchant vessels, including the obligation to put merchant vessels passengers and crew in a place of safety.135

The United States deposited its instrument of ratification to the 1930 London Treaty on October 27, 1930.136 Although other aspects of the treaty expired on December 31, 1936, Article 22 remains in force.137 Signatories to the 1930 London Treaty desired that as many States as possible accept the rules in Article 22; thus, they concluded the 1936 London Protocol with the same language as that in Article 22 and invited other States to accede to the 1936 London Protocol.138 The United States signed the 1936 Protocol on November 6, 1936.139

19.15 1935 ROERICH PACT

The 1935 Roerich Pact was concluded in Washington on April 15, 1935.140 It provides for the respect and protection of historic monuments, museums, scientific, artistic, educational and cultural institutions and their personnel in time of peace as well as in war.141 Such

135 Refer to 13.7.1 (General Principle Same Rules Applicable to Both Submarine and Surface Warships); 13.5.2 (Attack of Enemy Merchant Vessels); 15.15.3 (Destruction of Neutral Prizes). 136 Herbert Hoover, Proclamation Regarding the 1930 Treaty for the Limitation and Reduction of Naval Armament, Jan. 1, 1931, 46 STAT. 2858, 2885 (AND WHEREAS the ratification by the United States of America, subject to the understandings, set forth therein, deposited at London on the 27th day of October, one thousand nine hundred and thirty,). 137 Treaty for the Limitation and Reduction of Naval Armament art. 23, Apr. 22, 1930, 46 STAT. 2858, 2882 (The present Treaty shall remain in force until the 31st December, 1936, subject to the following exceptions: (1) Part IV shall remain in force without limit of time; (2) the provisions of Articles 3, 4 and 5, and of Article 11 and Annex II to Part II so far as they relate to aircraft carriers, shall remain in force for the same period as the Washington Treaty.). 138 Procs-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April 22, 1930, preamble, Nov. 6, 1936, 173 LNTS 353, 355 (And whereas all the signatories of the said Treaty desire that as great a number of Powers as possible should accept the rules contained in the said Part IV as established rules of international law; The undersigned, representatives of their respective Governments, bearing in mind the said Article 22 of the Treaty, hereby request the Government of the United Kingdom of Great Britain and Northern Ireland forthwith to communicate the said rules, as annexed hereto, to the Governments of all Powers which are not signatories of the said Treaty, with an invitation to accede thereto definitely and without limit of time.). 139 Procs-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April 22, 1930, Nov. 6, 1936, 173 LNTS 353, 357 (Signed in London, the 6th day of November, nineteen hundred and thirty-six. For the Government of the United States of America: Robert Worth BINGHAM.). 140 Pan American Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, Apr. 15, 1935, 49 STAT. 3267. 141 ROERICH PACT art. 1 (The historic monuments, museums, scientific, artistic, educational and cultural institutions shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded

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institutions and personnel receive protection as cultural property under the 1954 Hague Cultural Property or the general protection afforded civilian objects and persons.142

The United States deposited its instrument of ratification to the 1935 Roerich Pact on July 13, 1935.143

This treaty was followed by the 1954 Hague Cultural Property Convention.144 All Parties to the Roerich Pact are Parties to the 1954 Hague Cultural Property Convention.

The 1954 Hague Cultural Property Convention is supplementary to the Roerich Pact, but the distinctive emblem of the 1954 Hague Cultural Property Convention is to be used instead of the distinguishing flag described in Article III of the 1935 Roerich Pact, in situations where the 1954 Hague Cultural Property Convention and the Regulations for its execution provide for the use of this distinctive emblem.145

19.16 1949 GENEVA CONVENTIONS

The four 1949 Geneva Conventions were adopted at a Diplomatic Conference at Geneva on August 12, 1949. More than 193 States have ratified the 1949 Geneva Conventions.146

The United States signed each of the 1949 Geneva Conventions on August 12, 1949. The United States deposited its instrument of ratification to each convention on August 2, 1955.147

The United States has viewed many of the protections embodied in the 1949 Geneva Conventions as reflecting appropriate U.S. practice in armed conflict regardless of formal treaty obligations.148

to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as well as in war.). Refer to 5.18.1.1 (Definition of Cultural Property Notes on Terminology). 142 Refer to 5.18 (Protection of Cultural Property During Hostilities); 5.6 (Discrimination in Conducting Attacks). 143 Franklin D. Roosevelt, Proclamation Regarding the Roerich Pact, Oct. 25, 1935, 49 STAT. 3267, 3274 (AND WHEREAS the said Treaty has been duly ratified by the United States of America, whose instrument of ratification was deposited with the Pan American Union on July 13, 1935;). 144 Refer to 19.17 (1954 Hague Cultural Property Convention). 145 Refer to 19.17.1.2 (Relationship Between the 1935 Roerich Pact and the 1954 Hague Cultural Property Convention). 146 See DEPARTMENT OF STATE, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2013, 465-66 (2013). 147 213 UNTS 378 (GWS Ratification, Instrument deposited with the Swiss Federal Council on: 2 August 1955 UNITED STATES OF AMERICA (To take effect on 2 February 1956.)); 213 UNTS 382 (GWS-Sea Ratification, Instrument deposited with the Swiss Federal Council on: 2 August 1955 UNITED STATES OF AMERICA (To take effect on 2 February 1956.)); 213 UNTS 383 (GPW Ratification, Instrument deposited with the Swiss Federal Council on: 2 August 1955 UNITED STATES OF AMERICA (To take effect on 2 February 1956.)); 213 UNTS 384 (GC Ratification, Instrument deposited with the Swiss Federal Council on: 2 August 1955 UNITED STATES OF AMERICA (To take effect on 2 February 1956.)).

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The 1949 Geneva Conventions followed earlier multilateral treaties that addressed the same subjects, including the 1864 GWS, the 1907 Hague X, the 1899 and 1907 Hague Conventions on the Law of Land Warfare, and the 1929 Geneva Conventions.149

The Commentaries to the 1949 Geneva Conventions, published by the International Committee of the Red Cross, under the general editorship of Jean S. Pictet, have often been helpful in understanding the provisions of the 1949 Geneva Conventions and have often been cited in this manual. As noted by the International Committee of the Red Cross, however, these Commentaries are not an official interpretation of the 1949 Geneva Conventions, which only participant States would be qualified to give.150

Common Provisions in the 1949 Geneva Conventions. The four 1949 Geneva 19.16.1Conventions contain a number of common provisions, i.e., provisions that are substantively the same (if not identical in text) among the conventions.

The four Geneva Conventions have this duplication, in part, because each convention is designed to be effective, even if a State only ratifies that particular convention.151 For example, the list of persons entitled to receive POW status in Article 4 of the GPW is repeated in the GWS and GWS-Sea.152

148 See SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Report of the Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 32 (Jun. 27, 1955) (Our Nation has everything to gain and nothing to lose by being a party to the conventions now before the Senate, and by encouraging their most widespread adoption. As emphasized in this report, the requirements of the four conventions to a very great degree reflect the actual policies of the United States in World War II. The practices which they bind nations to follow impose no burden upon us that we would not voluntarily assume in a future conflict without the injunctions of formal treaty obligations.). 149 Refer to 19.5 (1864 GWS); 19.9 (1907 Hague X); 19.8 (1899 Hague II and 1907 Hague IV Conventions and Annexed Regulations Regarding Land Warfare); 19.13 (1929 Geneva Conventions). 150 See, e.g., GWS COMMENTARY Foreword (Although published by the International Committee, the Commentary is the personal work of its authors. The Committee, moreoever, whenever called upon for an opinion on a provision of an international Convention, always takes care to emphasize that only the participant States are qualified, through consultation between themselves, to give an oficial and, as it were, authentic interpretation of an intergovernmental treaty.). 151 See, e.g., II-B FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 257 (Mr. NAJAR (Israel): ... We have a number of Conventions here, with different signatories, which constitute distinct legal instruments. It is not at all surprising that one more of them should contain Articles of a more or less similar character; but one Convention is distinguished from another by being a self-contained legal instrument, and by its signatories.); id. at 283 (Mr. FILIPPOV (Union of Soviet Socialist Republics): ... In the amendment submitted to us an allusion is made to Article 20 of the Wounded and Sick Convention. This reference seems to us inadmissible, as the Prisoners of War Convention is an entirely independent document and the allusions in its Articles to other Conventions, in particular the Wounded and Sick, might involve difficulties if the Parties to the conflict were not signatories to both Conventions.). 152 Refer to 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWS-Sea).

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19.16.1.1 Common Terms in the 1949 Geneva Conventions Notes on Terminology. In the 1949 Geneva Conventions, Power generally refers to a State.153

In the 1949 Geneva Conventions, the Detaining Power refers to the State that holds the POW or internee.154

In the 1949 Geneva Conventions, the Protecting Power refers to a neutral State that helps implement the Conventions.155

19.16.1.2 Common Article 2 of the 1949 Geneva Conventions. Common Article 2 of the four 1949 Geneva Conventions declares that the provisions of each convention apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.156 This language is used to help explain when the law of war applies.157

Common Article 2 also provides that each convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.158 Common Article 2, thus, helps explain that the law of belligerent occupation is applicable, even if the occupying forces are not opposed by force.159

The 1954 Hague Cultural Property Convention repeats language used in Common Article 2, and the CCW incorporates language from Common Article 2 by reference.

19.16.1.3 Common Article 3 of the 1949 Geneva Conventions. Common Article 3 to the 1949 Geneva Conventions has been described as a Convention in miniature that

153 Jack L. Goldsmith III, Assistant Attorney General, Protected Person Status in Occupied Iraq Under the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 39 (Finally, al Qaeda is not a Power[] in conflict that can accept[] and appl[y] GC4 within the meaning of article 2(3). See, e.g., G.I.A.D. Draper, The Red Cross Conventions 16 (1958) (arguing that in the context of Article 2, para. 3, Powers means States capable then and there of becoming Contracting Parties to these Conventions either by ratification or by accession); 2B Final Record of the Diplomatic Conference of Geneva of 1949, at 108 (explaining that article 2(3) would impose an obligation to recognize that the Convention be applied to the non-Contracting adverse State, in so far as the latter accepted and applied the provisions thereof) (emphasis added) (Final Record); supra note 4, at 23 (using non-Contracting State interchangeably with non-Contracting Power and non-Contracting Party).). 154 Refer to 9.1.2.1 (GPW Notes on Terminology); 10.1.1.1 (GC Notes on Terminology). 155 Refer to 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions). 156 GWS art. 2 (In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same). 157 Refer to 3.4 (When Jus in Bello Rules Apply). 158 GWS art. 2 (The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same). 159 Refer to 11.2.2.3 (Of the Hostile Army Belligerent Occupation Applies to Enemy Territory).

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addresses non-international armed conflict.160 It was the first provision in a multilateral law of war treaty that addressed humane treatment during non-international armed conflict to gain widespread ratification by States.161

Although Common Article 3 only applies by its terms to non-international armed conflicts, Common Article 3 reflects a minimum yardstick of humane treatment protections that apply more broadly, including during international armed conflict.162

19.16.1.4 POW Status and the 1949 Geneva Conventions. Article 4 of the GPW explains which persons are entitled to receive POW status under the GPW.163 This provision is mirrored in the GWS and GWS-Sea, as those conventions are intended to protect persons who are entitled to POW status under the GPW.164

The GC excludes from its protection those persons who are entitled to POW status under the GPW.165

19.16.1.5 Retained Personnel and the 1949 Geneva Conventions. Retained personnel are addressed by both the GPW and the GWS.166

GWS. The GWS is often called the first Geneva Convention.167 The GWS 19.16.2addresses the following subjects on land: (1) the protection of the wounded, sick, and dead; (2) the rights, duties, and liabilities of military medical and religious personnel; and (3) the protection of military medical units, facilities, and transports.168

19.16.2.1 Relationship Between the GWS and Earlier Conventions. The GWS replaces the Conventions of August 22, 1864, July 6, 1906, and July 27, 1929, in relations between the Parties to the GWS.169

160 GPW COMMENTARY 34 (To borrow the phrase of one of the delegates, Article 3 is like a Convention in miniature. It applies to non-international conflicts only, and will be the only Article applicable to them until such time as a special agreement between the Parties has brought into force between them all or part of the other provisions of the Convention.). 161 Refer to 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC). 162 Refer to 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions). 163 Refer to 9.3.2 (Persons Entitled to POW Status). 164 Refer to 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWS-Sea). 165 Refer to 10.3.2.3 (Not Protected by the GWS, GWS-Sea, or the GPW). 166 Refer to 7.9.1.2 (Medical and Religious Personnel Who May Be Retained). 167 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, 75 UNTS 31. 168 Refer to 7.1.1 (Interpretation and Application of Provisions Relating to Medical Issues in the GWS, GWS-Sea, GPW, and GC). 169 GWS art. 59 (The present Convention replaces the Conventions of 22 August 1864, 6 July 1906, and 27 July 1929, in relations between the High Contracting Parties.).

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GWS-Sea. The GWS-Sea is often called the second Geneva Convention.170 The 19.16.3GWS-Sea addresses the following subjects at sea: (1) the protection of the wounded, sick, shipwrecked, and dead; (2) the rights, duties, and liabilities of military medical and religious personnel; and (3) the protection of military medical units, facilities, and transports.171

19.16.3.1 Relationship Between the 1907 Hague X and the GWS-Sea. The GWS-Sea replaces the Hague X in relations between the Parties to the GWS-Sea.172

GPW. The GPW is often called the third Geneva Convention.173 The GPW 19.16.4addresses the protection of POWs.174

19.16.4.1 Relationship Between the GPW and the 1929 GPW. The GPW replaces the 1929 GPW in relations between the Parties to the GPW.175

19.16.4.2 Relationship Between the GPW and the 1899 Hague II or 1907 Hague IV. In the relations between States that are bound by the 1899 Hague II or the 1907 Hague IV, and that are Parties to the GPW, the GPW shall be complementary to Chapter II of the Regulations annexed to the 1899 Hague II or the 1907 Hague IV.176

GC. The GC is often called the fourth Geneva Convention.177 The GC addresses 19.16.5the protection of civilians in the hands of a party a conflict, including civilian internees.178 The GC also addresses belligerent occupation.

19.16.5.1 Application of Different Parts of the GC. Different parts of the GC apply to different situations.

170 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, 75 UNTS 85. 171 Refer to 7.1.1 (Interpretation and Application of Provisions Relating to Medical Issues in the GWS, GWS-Sea, GPW, and GC). 172 GWS-SEA art. 58 (The present Convention replaces the Xth Hague Convention of October 18, 1907, for the adaptation to Maritime Warfare of the principles of the Geneva Convention of 1906, in relations between the High Contracting Parties.). 173 Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 75 UNTS 135. 174 Refer to 9.1.2 (Interpretation and Application of the GPW). 175 GPW art. 134 (The present Convention replaces the Convention of July 27, 1929, in relations between the High Contracting Parties.). 176 GPW art. 135 (In the relations between the Powers which are bound by the Hague Convention respecting the Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and which are parties to the present Convention, this last Convention shall be complementary to Chapter II of the Regulations annexed to the above-mentioned Conventions of the Hague.). 177 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, 75 UNTS 287. 178 Refer to 10.1.1 (Interpretation and Application of the GC).

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In general, the GC uses the concept of protected person to define the individuals who are entitled to receive its protections.179 The provisions of Part II of the GC (articles 13-26) are wider in application; they do not only apply to those persons who are protected persons under the GC.180 These provisions cover the whole of the populations of the countries in conflict.181

Section I (articles 27-34) of Part III of the GC includes provisions that are common to the home territories of the parties to the conflict and to occupied territories.

Section II (articles 35-46) of Part III of the GC addresses aliens in the home territory of a party to the conflict.

Section III (articles 47-78) of Part III of the GC addresses occupied territories.

Section IV (articles 79-135) of Part III of the GC provides regulations for the treatment of internees.

19.16.5.2 Relationship Between the GC and the 1899 Hague II and the 1907 Hague IV Conventions. In the relations between States that are bound by the 1899 Hague II, or the 1907 Hague IV, and that are Parties to the GC, the GC shall be supplementary to Sections II