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ORIGIN L-03
INFO OCT-01 AF-06 ARA-06 EA-07 EUR-12 NEA-10 IO-10 ISO-00
DHA-02 OIC-02 DPW-01 SAJ-01 ACDA-05 CIAE-00 DODE-00
PM-04 H-02 INR-07 NSAE-00 NSC-05 PA-01 PRS-01 SP-02
SS-15 USIA-06 /109 R
DRAFTED BY L/OES:RJBETTAUER:MMP
APPROVED BY L:GHALDRICH
DOD/OSD/ISA:DANDERSON
IO/UNP:WEHEWITT
--------------------- 013072
R 232212Z DEC 75
FM SECSTATE WASHDC
TO AMEMBASSY LONDON
AMEMBASSY BONN
AMEMBASSY OTTAWA
AMEMBASSY PARIS
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E.O. 11652: N/A
TAGS: ICRC, PARM
SUBJECT: INTERNATIONAL HUMANITARIAN LAW
REF: STATE 268285 AND PREVIOUS
DURING NOV 17-18 CONSULTATIONS ON INTERNATIONAL
HUMANITARIAN LAW WE DISCUSSED USG REDRAFT OF ARTICLE 74 BIS
ON REPRISALS. A NUMBER OF COMMENTS WERE MADE ON U.S.
DRAFT, AND WE PROMISED TO REVISE DRAFT IN LIGHT OF COMMENTS.
FOLLOWING TEXT TAKES INTO ACCOUNT COMMENTS AND IS PUT
FORWARD FOR CONSIDERATION BY MEMBERS OF GROUP, BUT AT THIS
POINT DOES NOT RPT NOT REPRESENT FINAL USG POSITION. WE
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WOULD APPRECIATE IT IF YOU WOULD PASS TEXT TO FOLLOWING
PEOPLE, GIVING EXPLANATION AS CONTAINED IN THIS PARAGRAPH:
CANADA - MR. DAVID MILLER; FRG - DR. ANDREAE OR DR. FRICK
AND DR. SCHNEIDER; UK - MR. JOHN FREELAND. WE HAVE ALREADY
GIVEN TEXT TO GENERAL FRICAUD-CHAGNAUD IN WASHINGTON, BUT
REQUEST AMEMBASSY PARIS ALSOTO PROVIDE TEXT TO CHRISTIAN
GIRARD OF QUAI.
BEGIN TEXT: 1. IN ORDER TO INDUCE AN ADVERSE PARTY
TO A CONFLICT TO HALT GRAVE, MANIFEST VIOLATIONS OF THE
CONVENTIONS OR OF THIS PROTOCOL, A PARTY TO A CONFLICT MAY,
SUBJECT TO THE PROVISIONS OF THIS ARTICLE, RESORT TO
CERTAIN MEASURES AGAINST THE ADVERSE PARTY WHICH WOULD
OTHERWISE BE PROHIBITED.
2. THE MEASURES DESCRIBED IN PARAGRAPH 1 OF THIS ARTICLE
MAY ONLY BE TAKEN WHEN THE FOLLOWING CONDITIONS ARE MET:
(A) THE MEASURES MUST BE IN RESPONSE TO GRAVE,
MANIFEST VIOLATIONS OF THE CONVENTIONS OR OF THIS PROTOCOL
BY THE ADVERSE PARTY AND MUST BE INTENDED (SOLELY) TO
INDUCE THAT PARTY TO CEASE SUCH VIOLATIONS;
(B) THE MEASURES MAY BE TAKEN ONLY WHEN OTHER EFFORTS
TO INDUCE THE ADVERSE PARTY TO COMPLY WITH THE LAW HAVE
FAILED OR ARE NOT FEASIBLE;
(C) THE DECISION TO HAVE RECOURSE TO SUCH MEASURES
MUST BE TAKEN AT THE HIGHEST LEVEL OF THE GOVERNMENT OF
THE PARTY ALLEGING THE VIOLATION; AND
(D) THE PARTY RESPONSIBLE FOR THE VIOLATION MUST BE
GIVEN SPECIFIC FORMAL PRIOR WARNING THAT SUCH MEASURES
WILL BE TAKEN IF A PARTICULAR VIOLATION (OCCURS,) IS
CONTINUED, OR IS RENEWED.
3. THE MEANS OF APPLICATION AND THE EXTENT OF THE MEASURE
DESCRIBED IN PARAGRAPH 1 OF THIS ARTICLE SHALL NOT BE
EXCESSIVE IN DEGREE TO THE VIOLATION WHICH THEY ARE
DESIGNED TO END. SUCH MEASURES MUST CEASE, IN ALL EVENTS,
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WHEN THEY HAVE ACHIEVED THEIR OBJECTIVE, NAMELY, CESSATION
OF THE VIOLATIONS WHICH PROMPTED THE MEASURES.
4. THE MEASURES DESCRIBED IN PARAGRAPH 1 OF THIS ARTICLE
MAY NOT BE DIRECTED AGAINST PERSONS WHO ARE (SPECIFICALLY)
PROTECTED FROM SUCH MEASURES BY THE CONVENTIONS OR THIS
PROTOCOL EXCEPT THAT, IF DESPITE THE PROHIBITION IN
PARAGRAPHS 1, 2 AND 3 OF ARTICLE 46 OF THIS PROTOCOL, ONE
PARTY TO THE CONFLICT MAKES THE CIVILIAN POPULATION OR
INDIVIDUAL CIVILIANS OF AN ADVERSE PARTY TO THE CONFLICT
THE OBJECT OF ATTACK, THEN THE PARTY TO THE CONFLICT
WHOSE CIVILIAN POPULATION OR INDIVIDUAL CIVILIANS ARE THE
OBJECT OF SUCH ATTACKS MAY, NOTWITHSTANDING THE PROVISIONS
OF PARAGRAPH 4 OF ARTICLE 46, TAKE MEASURES IN RESPONSE
WHICH WOULD OTHERWISE BE PROHIBITED UNDER THESE PROVISIONS
FOR THE SOLE PURPOSE OF INDUCING CESSATION OF SUCH ATTACKS.
5. THE MEASURES DESCRIBED IN PARAGRAPH 1 OF THIS ARTICLE
MAY NOT BE DIRECTED AGAINST OBJECTS WHICH ARE (SPECIFICALLY)
PROTECTED FROM SUCH MEASURES BY THE CONVENTIONS OR THIS
PROTOCOL EXCEPT THAT, IF DESPITE THE PROHIBITION IN
PARAGRAPHS 1 AND 2 OF ARTICLE 47, ONE PARTY TO THE CONFLICT
MAKES CIVILIAN OBJECTS OF AN ADVERSE PARTY TO THE CONFLICT
THE OBJECT OF ATTACK, THEN THE PARTY TO THE CONFLICT WHOSE
CIVILIAN OBJECTS ARE THE OBJECT OF SUCH ATTACKS MAY,
NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH 1 OF ARTICLE
47, TAKE MEASURES IN RESPONSE WHICH WOULD OTHERWISE BE
PROHIBITED UNDER THESE PROVISIONS FOR THE SOLE PURPOSE OF
INDUCING CESSATION OF SUCH ATTACKS. END TEXT. KISSINGER
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