20), the protection of cultural objects and of places of worship (article 20 bis), quarter (article 22), safeguard of an enemy hors de combat (article 22 bis), recognized signs (article 23), and the protection of objects indispensable to the survival of the civilian population (article 27). Article 35 of Protocol I as adopted by Committee III prohibits killing, injuring, or capturing an adversary by resort to perfidy. Perfidy is defined as an act inviting the confidence of an adversary that he is entitled to, or is obliged to accord, protection under international law applicable in armed conflicts with intent to betray that confidence. Examples of perfidy given in the article are: the feigning of an intent to negotiate under a flag of truce or of a surrender; the feigning of an incapacitation by wounds or sickness; the feigning of civilian, noncombatant status; and the feigning of protected status by use of neutral or United Nations signs, emblems, or uniforms. Perfidy is distinguished from ruses of war, which are not prohibited. Ruses involve an intent to mislead an adversary or to induce him to act recklessly but infringe no rule of international law applicable to armed conflicts and are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. Examples of legitimate ruses are the use of camouflage, traps, mock operations, and misinformation. . . . Article 35 does not prohibit perfidy per se, but rather the use of perfidy to kill, injure, or capture an adversary, Additionally, the act must be done with an intent to betray the confidence created. Thus, for example, feigning death merely to save one's life would not be in violation of the article, while feigning death in order to kill an enemy once he turns his back would be. Finally, it should be obvious that protected status is not available under United Nations signs, emblems or uniforms in situations where the United Nations forces are involved as combatants in a conflict. Article 38 of Protocol I and article 22 of Protocol II, both adopted by Committee III at the third session, forbid ordering that there shall be no survivors, threatening an adversary therewith, or conducting hostilities on this basis. Article 38 bis provides that a person who is recognized or under the circumstances should be recognized as hors de combat shall not be made the object of attack. A person is defined to be hors de combat if he abstains from any hostile act, and does not attempt to escape, and either is in the power of the adversary, clearly expresses an intention to surrender, or has been rendered unconscious or is otherwise incapacitated by a wound or sickness and therefore incapable of defending himself. The article as adopted is designed to make clear that what is forbidden is a deliberate attack against persons recognized, or who should be recognized, under the circumstances, to be hors de combat. Another paragraph in article 38 bis, as adopted, provides that when persons entitled to protection as prisoners of war have been captured but cannot be evacuated, they shall be released and all feasible precautions should be taken to ensure their safety. The paragraph applies "during unusual conditions of combat"-for example, the situation of the long distance patrol which is not equipped to detain and evacuate the prisoners. Committee III adopted an identical article (article 22 bis) for Protocol II, except this last paragraph is not included in the Protocol II article. Article 39 prohibits making a person parachuting from an aircraft in distress the object of attack during his descent, unless it is apparent that he will land in territory controlled by the party to which he belongs or by an ally of that party. Upon reaching the ground, such a person must be given an opportunity to surrender before being made the object of attack, unless it is apparent he is engaging in a hostile act. These provisions do not cover airborne troops. The issue of whether to accord protection only to persons descending to the territory of an adverse party was controversial. Some delegations argued that immunity from attack would be unrealistic in a case where it was clear that the descending men would return to their armed forces; others, including the United States, took the position that an airman descending by parachute from an aircraft in distress should be considered temporarily hors de combat for humanitarian reasons. The U.S. Delegation believes the question will be reconsidered at the fourth session of the Conference and hopes that protection will be accorded to all airmen in distress descending by parachute anywhere. Article 40 deals with espionage. Paragraph 1 is designed to state the general rule that, notwithstanding any other provision, a member of the armed forces captured while engaging in espionage has no right to be a prisoner of war and may be treated as a spy, but only if he is captured before he has rejoined the armed forces to which he belongs. However, the article makes clear that a member of the armed forces cannot, under any conditions, be considered a spy if he is acting in the uniform of his armed forces. Finally, the article makes special provision for the treatment to be given members of the armed forces who are residents of occupied territory. Even if such a person gathers or attempts to gather information of military value within that territory, he is not considered to be engaging in espionage unless he does so through an act of false pretenses or deliberately in a clandestine manner. He may only be treated as a spy if captured while engaging in espionage. Committee III decided to expand ICRC draft article 41 to deal with not only the requirements of organization and discipline of the armed forces, but also to include a definition of armed forces, a definition of those who have a right to be combatants, and a provision concerning the possibility of incorporating police forces into the armed forces. As adopted, the article defines armed forces in an all-inclusive manner to cover both combatants and noncombatants, including all organized armed forces, groups, and units which are under a command responsible to a party to the conflict. Such armed forces must be subject to internal discipline, which must enforce compliance with the rules of international law applicable in armed conflict, including applicable treaties, such as the conventions and the protocol, and all other generally recognized rules of international law. Article 41 further provides that members of the armed forces of a party to the conflict other than medical personnel and chaplains covered by article 33 of the Third Convention have the right to participate directly in hostilities, that is, they are legitimate combatants. Article 42 bis is designed to ensure a minimal level of protection of every person who takes part in hostilities and is captured. The article establishes a presumption that any such person is a prisoner of war if he claims such status, if he appears entitled to it, or if his armed forces claim it for him; should any doubt arise as to his entitlement to such status, he nevertheless retains such status and treatment until a competent tribunal determines he is not entitled to it. As in the case of article 5 of the Third Convention, such a tribunal may be administrative in nature. Article 42 bis also provides that a person who is considered as a prisoner of war and who is to be tried for a criminal offense arising out of the hostilities may assert his entitlement to prisoner of war status and have that question adjudicated anew by a judicial tribunal, i.e., a criminal tribunal offering the normal guarantees of judicial procedure, whether civilian or military. Finally, at a minimum, any person who is not entitled to prisoner of war status and who does not benefit from more favorable treatment in accordance with the Fourth Convention, has the right at all times to the protection accorded by article 65, dealing with fundamental guarantees (not yet adopted). Another article adopted by Committee III concerning the treatment of persons in the power of a party to the conflict, which resulted from a widely co-sponsored proposal is article 64 bis, obliging high contracting parties and parties to the conflict to facilitate in every possible way the reunion of families dispersed as a result of armed conflict. Committee III also adopted six Protocol II articles, of which article 22 and 22 bis have already been discussed above. Articles 20 (prohibition of unnecessary injury), and 23 (recognized signs) are almost identical to their corresponding Protocol I articles (articles 33 and 36 respectively). Committee III adopted article 20 bis, concerning the protection of cultural property, based on a proposal to deal with the subject in a manner along the lines of article 47 bis of Protocol I, which was adopted in 1975. The article conforms in general to the wording of article 47 bis, but without any reference to reprisals. Article 27 of Protocol II, dealing with the protection of objects indispensable to the survival of the civilian population, corresponds to, but differs from, article 48 of Protocol I, which was adopted in 1975. The article forbids attacks, destruction, removal, or the rendering useless of certain designated objects for the purpose of starving civilians in a noninternational armed conflict. Committee III devoted nearly four weeks to the consideration of article 42 (new category of prisoner of war) of Protocol I. The aim of this new provision is to liberalize the conditions that must be met in order to obtain prisoner of war status, currently set forth in paragraph A(2) of article 4 of the Third Convention, in particular, for the benefit of guerrilla forces. During the debates, it was generally accepted that in occupied territory, the guerrilla fighter cannot disclose his combatant status except during military operations. Two issues have thus far eluded resolution: first, at what point during operations prior to an attack must the guerrilla fighter disclose his combatant status; and, second, what is the legal effect of failure to disclose in accordance with that rule. Toward the end of the session, a compromise draft was put before the Committee, but final action on it was deferred to the fourth session at the request of the Eastern European regional group. This proposal is before Committee III for its adoption as its first order of business at the fourth session. This is the most important of the issues remaining before Committee III. An additional issue will be a proposal on mercenaries. . . . Other issues Committee III will have to deal with at the fourth session include articles on the treatment of persons in the power of a party to the conflict and fundamental guarantees, as well as a new proposal for an article on the protection of oil installations. Report of the U.S. Delegation to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Dept. of State File L/T. The report also included a summary of the work of the Ad Hoc Committee established by the 1974 session to study the question of the prohibition or restriction of the use of conventional weapons which may cause unnecessary suffering or have indiscriminate effect. The Ad Hoc Committee considered the report of the conference of government experts on the subject which was held in Lugano, Switzerland, Jan. 28-Feb. 26, 1976, and conducted discussions on incendiaries, mines and booby traps, fragmentation weapons, small-calibre projectiles, and future weapons. There was essentially no real negotiation on specific weapons restrictions at the session. Articles adopted at the third session of the Conference which were highlighted in the U.S. Delegation Report are set out below: PROTOCOL I PART V EXECUTION OF THE CONVENTIONS AND OF THE PRESENT PROTOCOL Section II Repression of Breaches of the Conventions and of the Present Protocol *Article 74 Repression of breaches of the present Protocol 1. The provisions of the Conventions relating to the repression of breaches and grave breaches, supplemented by the present section, shall apply to the repression of breaches and grave breaches of this Protocol. 2. Acts described as grave breaches in the Conventions are grave breaches of this Protocol if committed against persons protected by article 42, 42 bis or 64 of this Protocol, or against wounded, sick or shipwrecked persons of the adverse party protected by this Protocol, or against medical or religious personnel, medical units, or medical transports under the control of the adverse party protected by this Protocol. 3. In addition to the grave breaches defined in article 11, the following acts shall be regarded as grave breaches of this Protocol, when committed willfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health: (a) making the civilian population or individual civilians the object of attack; (b) launching an indiscriminate attack affecting the civilian population or civilian objects with the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in article 50 (2) (a) (iii); (c) launching an attack against works or installations containing dangerous forces with the knowledge that such attack will cause excessive loss of life, injury to civilians, or damage to civilian objects, as defined in article 50 (2) (a) (iii); (d) making nondefended localities and demilitarized zones the object of attack; (e) making a person the object of attack with the knowledge that he is hors de combat; (f) the perfidious use of the Red Cross (Red Crescent, Red Lion and Sun) signs and other protective signs recognized by the Conventions or the present Protocol in violation of article 35 of the present Protocol. 4. In addition to the grave breaches defined in the preceding paragraphs of this article and in the Conventions, the following shall be regarded as grave breaches or the Protocol when committed willfully and in violation of the Conventions or the Protocol: (a) the transfer by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside of this territory, in violation of article 49 of the Fourth Convention; (b) unjustifiable delay in repatriation of prisoners of war or civilians; (c) practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination; (d) making clearly recognized historic monuments, places of worship or works of art which constitute the cultural heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse party of article 47 bis(b) and when such historic monuments, places of worship and works of art are not located in the immediate proximity of military objectives; (e) depriving a person protected by the Conventions or by paragraph 2 of this article of the rights of fair and regular trial. 5. Without prejudice to the application of the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes. *Article 76 - Failure to act The high contracting parties [and the parties to the conflict]' shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or the present Protocol, resulting from a failure to act when under a duty to do so. The fact that a breach of the Conventions or of the present Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility as the case may be, if they knew or had information which should have enabled them to conclude in the circumstances at the time that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach. 1 It will be for the drafting committee to decide whether to include the words in square brackets in the first paragraph. Article 10 PART II PROTOCOL II HUMANE TREATMENT OF PERSONS IN THE Penal prosecutions 1. This article applies to the prosecution and punishment of criminal offences relating to the armed conflict. 2. No sentence shall be passed or penalty executed on a person found guilty of an offence except pursuant to a conviction pronounced by a tribunal offering the essential guarantees of independence and impartiality. In particular: (a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence, (b) no one shall be convicted of an offence except on the basis of individual penal responsibility; (c) no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international |