3. Decides that, immediately and concurrently with the cease-fire, negotiations start between the parties concerned under appropriate auspices aimed at establishing a just and durable peace in the Middle East.

For the text of U.N.S.C. Res. 242, see ante, p. 925.

Statute of Limitations

War Crimes

On April 1, 1977, the Embassy of France in the United States submitted a note to the Department of State "on orders of its government" concerning the applicability of statutory limitations to war crimes:

The Embassy . . . has the honor to ask whether American authorities consider the Agreement on the Prosecution and Punishment of Major War Criminals of the European Axis, signed at London on August 8, 1945, with the Charter of the International Military Tribunal annexed, to have bearing on the problem of the nonapplication of statutory limitations to war crimes and crimes. against humanity.

The French Government likewise wishes to know the present status of American legislation regarding statutory limitations on war crimes and crimes against humanity.

Dept. of State File No. P77 0055-418.

In a note dated May 19, 1977, the Department of State responded that the offenses covered in the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis with the Charter of the International Military Tribunal annexed, signed on August 8, 1945 (EAS 472; 59 Stat. 1544; 3 Bevans 1238; 82 UNTS 279; entered into force for the United States August 8, 1945), are not subject to limitation concerning their prosecution and punishment.

It is the view of the United States Government that neither the Agreement on the Prosecution and Punishment of Major War Criminals of the European Axis, signed at London on August 8, 1945, with the Charter of the International Military Tribunal annexed, nor Control Council Law No. 10, enacted to give effect to this London Agreement and Charter, contain any provisions setting a time. limit for prosecution or punishment. The United States further regards Control Law No. 10 as revoking the benefits of any statute of limitation in respect of the period specified; and in light of the absence of any provision to the contrary, the offenses covered in these instruments are considered not to be subject to limitation concerning their prosecution and punishment.

United States Federal law contains no statute of limitations on war crimes and crimes against humanity.

Dept. of State File No. P77 0090–522.

On Dec. 20, 1945, the Control Council for Germany enacted Control Council Law No. 10 which contained the following art. II:

1. Each of the following acts is recognized as a crime :

a) CRIMES AGAINST PEACE. Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggres sion, or a war of violation of international treaties, agreements or assurances. or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

b) WAR CRIMES. Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to murder, ill treatment or deportation to slave labor, or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

c) CRIMES AGAINST HUMANITY. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment. torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.

d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.

2. Any person, without regard to nationality or the capacity in which he acted. is deemed to have committed a crime as defined in paragraph 1 of this Article, if he

a) was a principal or

b) was an accessory to the commission of any such crime or ordered or abetted the same or

c) took a consenting part therein or

d) was connected with plans or enterprises involving its commission or e) was a member of any organization or group connected with the commission of any such crime or

f) with reference to paragraph 1a), if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies. co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country.

3. Any person found guilty of any of the Crimes above mentioned may upon conviction be punished as shall be determined by the tribunal to be just. Such punishment may consist of one or more of the following:

a) Death.

b) Imprisonment for life or a term of years with or without hard labor. c) Fine, and imprisonment with or without hard labor, in lieu thereof. d) Forfeiture of property.

e) Restitution of property wrongfully acquired.

f) Deprivation of some or all civil rights.

Any property declared to be forfeited or the restitution of which is ordered by the Tribunal shall be delivered to the Control Council for Germany, which shall decide on its disposal.

4. a) The official position of any person, whether as Head of State or as a responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment.

b) The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.

5. In any trial or prosecution for a crime herein referred to, the accused shall not be entitled to the benefits of any statute of limitation in respect of the period from 30 January 1933 to 1 July 1945, nor shall any immunity. pardon or amnesty granted under the Nazi regime he admitted as a bar to trial or punishment.

11 Whiteman, Digest of International Law, 895–896.

Prisoners of War

President Jimmy Carter signed on November 3, 1977, Executive Order 12017, which amended the Code of Conduct for Members of the U.S. Armed Forces with respect to prisoners of war. The text of Executive Order 12017 follows:

The Code of Conduct has been an established standard of behavior for all members of the Armed Forces of the United States for more than twenty years. It has helped individuals in captivity to sustain their moral and physical strength and to survive extreme torture and abuse. However, experience indicates that certain words of the Code have, on occasion, caused confusion resulting in training divergencies.

NOW, THEREFORE, by virtue of the authority vested in me as President of the United States of America, and as Commander in Chief of the Armed Forces of the United States, in order to clarify the meaning of certain words, Article V of the Code of Conduct for Members of the Armed Forces of the United States, attached to and made a part of Executive Order No. 10631 of August 17, 1955, is hereby amended to read as follows:

"When questioned, should I become a prisoner of war, I am required to give name, rank, service number and date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or written statements disloyal to my country and its allies or harmful to their cause."

42 Fed. Reg. 57941 (1977).

E.O. 12017 amended the following portion of E.O. 10631 :

When questioned, should I become a prisoner of war, I am bound to give only name, rank, service number, and date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or written statements disloyal to my country and its allies or harmful to their cause.

In his September 8, 1977, report to the Secretary of State regarding the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, George H. Aldrich, Chairman of the U.S. Delegation, described in part as follows the work of the Conference in drafting the Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the protection of victims of noninternational armed conflicts (Protocol II), adopted by the Conference on June 8, 1977:

Protocol II is clearly a useful instrument to which the United States should become a party, but it remains to be seen how successful it will be in practice. It develops the very slim body of law presently

applicable to non-international armed conflicts (today essentially limited to common article 3 of the 1949 Geneva Convention), bat its achilles heel is found in article 1, the scope of application of the Protocol. For the Protocol to apply, this article requires that dissident armed forces or groups exercise sufficient control over part of the territory of the state "to enable them to carry out sustained and concerted military operations and to implement this Protocol." The article also states that the Protocol does not apply to "situations of internal disturbances and tensions, such as riots, insolated and sporadic acts of violence and other acts of a similar nature. . . . Given all of these qualifications, it will be a dull and unimaginative government that will be unable to find an excuse not to apply the Protocol to its own internal armed conflict.

Given the easy availability of "outs" under article 1, the Protocol nevertheless accomplishes much in developing the law-which is really more a matter of human rights than of the laws of war. In particular, article 4 on fundamental guarantees, article 5 on persons whose liberty has been restricted, and article 6 on guarantees during penal prosecutions provide an important safety net of basic protection for all victims of civil wars.

With respect to conventional weapons the Conference did relatively little, but it did succeed in laying a basis for one or more agreements on the prohibition or restriction of use of certain conventional weapons, particularly, incendiary weapons, land mines, booby traps, and weapons using fragments not detectable by x-ray. This work will clearly be pursued through some type of international conference, and it is not unreasonable to hope that it will result in agreements acceptable to most countries. This may be less than many states hoped for on this subject, but it strikes the United States Delegation as a decent accomplishment in a field that had not had its way prepared and in many respects raise. novel problems. Report of the U.S. Delegation to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts-Fourth Session-March 17-June 10, 1977, submitted to the Secretary of State by George Aldrich, Chairman of the Delegation, on Sept. 8, 1977, 32-33. For the text of Protocol II, see 16 International Legal Materials 1442–1449 (Nov. 1977).

For information concerning Protocol I, additional to the Geneva Conventions of Aug. 12, 1949, relating to the protection of victims of international armed conflicts, see ante, Ch. 14, § 2, pp. 917–920.

The common art. 3 of the four 1949 Geneva Conventions reads as follows:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be found to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour. religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation. cruel treatment and torture;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

On Dec. 10, 1977, Warren Christopher, Acting Secretary of State, invested Marvin L. Warner, U.S. Ambassador to the Swiss Confederation, or Ambassador George H. Aldrich to sign Protocol II on behalf of the United States. It was signed on Dec. 12, 1977, subject to the following understandings:

B. Protocol II

It is the understanding of the United States of America that the terms used in Part III of this Protocol which are the same as the terms defined in article 8 of Protocol I shall so far as relevant be construed in the same sense of those definitions.

Dept. of State telegram 295654, Jan. 4, 1978.

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Neutrality and Nonbelligerency

Mercenaries

On April 14, 1977, the Security Council adopted by consensus Resolution 405 condemning, inter alia, "the act of armed aggression . against the People's Republic of Benin" on January 16, 1977, and "any State which persists in permitting or tolerating the recruitment of mercenaries. . . ." The resolution called upon "all States to consider taking necessary measures to prohibit . . . the recruitment, training and transit of mercenaries. . . .”

In explanation of the U.S. vote in support of this resolution, Ambassador Albert W. Sherer, Jr., U.S. Deputy Representative on the Security Council, gave a statement expressing concern for the territorial integrity of Benin and describing U.S. law in opposition to the use of mercenaries. An excerpt of his statement follows:

Under United States law it is a criminal offense for any person to recruit an American citizen in the United States for service as a soldier in foreign armed forces or for any American citizen to enlist in the United States for such service. In the event that there is evidence of such activity taking place in the United States, my Government will move vigorously to investigate, and where sufficient evidence is available, to prosecute. We are opposed to the use of mercenaries to intervene in the internal affairs of other countries and are committed to the enforcement of our laws concerning the recruitment of American citizens as mercenaries.