ISSUE 76 : May/Jun - 1989 - Australian Defence Force Journal

24 DEFENCE FORCE JOURNAL No. 76 May/June 89any change in the Australian stance.' 6 Resultsfrom the latest conference are as yetunavailable.At this stage Headquarters AustralianDefence Force (HQADF) have not identifiedany particular problems of interoperability arisingout of the fact Australia will be a signatoryof the Protocol and the U.S. will not. Regardinghowever the emphasis the United Statesplaces on defence and alliances, this situationcannot be taken too lightly. The followingquestions are posed to outline the potential forongoing conflict over this issue:1. Could the U.S. use this disagreement as anexcuse not to provide military assistance toAustralia in future times of need regardlessof current U.S./Australian defenceagreements?2. How far will the U.S. go to pressureAustralian conformity on the Protocol? and3. Could division over Protocol 1 have repercussionson1) future alliance agreements,2) U.S. trade and2) U.S. bases in Australia?Legal Ramification of Protocol IProtocol I, if ratified, would become law forthe operation of Australian forces and as suchwould prevail over the existing body of rulesand regulations. Two articles in Protocol I setdisturbing scenarios which pose potential problemsfor the future operation of this legalcode.Firstly, Article 16(1) provides that:"Persons engaged in medical activities shallnot be compelled to perform acts or to carryout work contrary to the rules of medicalethics or to other medical rules designed forthe benefit of the wounded and sick . . ."'Roberts argues that if ratified by the U.S.this Protocol would overrule in part the case ofthe United States v Levy. 38 This Protocol ensuresthe defence of "medical ethics" would remaina suitable defence during armed conflict.This being the case the employment and taskingof medical resources would be ultimatelygoverned, not by the operational requirement,but by medical ethics, which lies outside thecontrol of military commanders. This conflictof interest, and its ramifications could affectAustralian services in a similar manner, and isworthy of further clarification.Secondly, Paragraph 2(b) of Article 57 requiresan attack to be broken off if:"it becomes apparent that .... the attackmay be expected to cause incidental loss ofcivilian life .... which would be excessive inrelation to the concrete and direct advantageanticipated" 3 *This article allows a situation whereby asoldier could refuse to obey an order (duringexecution) if he believes that civilian casualtiesare or may be "excessive" in relation to themilitary advantages gained. For example CaptainMike Heck refused to participate in a B-52strike over North Vietnam because he believedexcessive collateral damage would result. 40 Thevague relationship between obeying a superiorofficer's commands and implementing the Protocolstandard remains unclarified. Due to thepotential impact this type of situation may haveon the operation of Australian forces, warrantsfurther investigation prior to full ratification bythe Australian Government.Finally, enforcement of such a Protocolwould prove a difficult task. No effective procedurehas been outlined for bringing warcriminals to justice, and there has been no practicalframework devised for the universal applicationof Protocol standards to all parties ofa conflic. These are serious exclusions from adocument devised to reaffirm and developmilitary law relating to international armedconflict. As Roberts argues, "the Protocol doesnot improve the international mechanisms forensuring compliance with the law of war. 41Such deficiencies must be addressed prior tofull implementation of the Protocol.ConclusionProtocol 1 is a serious attempt at reaffirmingand developing existing humanitarian law as itapplies to international armed conflicts. Anumber of advances have been made regardingprotection afforded to medical units, personneland transport, prisoners of war and civilians.Such advances are long overdue and necessaryin order to maintain the rules of war at pacewith developing tactics and technology ofmodern warfare.Prior to full Governmental ratificationhowever, the Protocols' ambiguity and the problemsassociated with reprisals, interoperabilityand legal ramifications must be further investigated.These problems, if not resolved, will