5cjxburmr

Moreover, the United States has not accepted this provision in the context of the CCW. 41 TheUnited States has expressed the view that it would not be appropriate to treat this provision ofAP I as customary international law. 423.4 WHEN JUS IN BELLO RULES APPLYJus in bello treaties often provide that they apply in cases of “declared war or of anyother armed conflict,” even if the state of war is not recognized by them. 43 This standard hasalso been understood to result in the application of the customary law of war. 44A case of “declared war or any other armed conflict” for the purpose of determiningwhether parties must comply with jus in bello rules may be understood as arising in two ways:(1) when a party intends to conduct hostilities; or (2) when parties are actually conductinghostilities.“War,” “hostilities,” and “armed conflict” may be defined differently for other legalpurposes. 45 It must be emphasized that the discussion in this section is for the purpose ofassessing whether jus in bello restrictions apply and not necessarily for other purposes. Forexample, the fact that jus in bello restrictions apply is not determinative of whether a State’sactions are lawful under jus ad bellum. 46 Similarly, the fact that jus in bello restrictions apply isscope of the Protocol: … (2) the so-called wars of ‘national liberation’ defined as international armed conflicts byArticle 1(4) of Protocol I Additional to the 1949 Geneva Conventions; … However, the exclusion of the second andthird categories is inappropriate. The second category--so-called ‘liberation wars’ defined in Protocol I--are often infact non-international conflicts, and are distinguished by Protocol I from other non-international conflicts only onthe basis of highly politicized and undesirable criteria which detract from the integrity of international humanitarianlaw; the United States should therefore reject this distinction.”).41 Refer to § 19.21.1.2 (U.S. Reservation to Article 7(4)(b) of the CCW).42 Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVE DIGESTOF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3441 (“The new provisions on wars ofnational liberation and prisoners of war in Protocol I clearly do not reflect the practice of states. Indeed, they wereadopted precisely because states did not accord prisoner-of-war status in such conflicts. It is most unlikely thatstates will in the future choose to accord prisoner-of-war status in conflicts described as wars of national liberation.Accordingly, it is the view of the United States that it would be inappropriate to treat these provisions as part ofcustomary international law under any circumstances.”).43 See, e.g., GWS art. 2 (The convention applies “to all cases of declared war or of any other armed conflict whichmay arise between two or more of the High Contracting Parties, even if the state of war is not recognized bythem.”); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 HAGUE CULTURAL PROPERTYCONVENTION art. 18 (“the present Convention shall apply in the event of declared war or of any other armed conflictwhich may arise between two or more of the High Contracting Parties, even if the state of war is not recognized byone or more of them.”); CCW art. 1 (“This Convention and its annexed Protocols shall apply in the situationsreferred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims,”).44 1956 FM 27-10 (Change No. 1 1976) 8b (“The customary law of war applies to all cases of declared war or anyother armed conflict which may arise between the United States and other nations, even if the state of war is notrecognized by one of them. The customary law is also applicable to all cases of occupation of foreign territory bythe exercise of armed force, even if the occupation meets with no armed resistance.”).45 Refer to § 1.5.2 (Different Definitions of “War” for Different Legal Purposes).46 Refer to § 3.5.2 (Jus in Bello and Jus ad Bellum Generally Operate Independently of One Another).78