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Article

Abstract

This article asserts that Captain David Graham, writing in this issue of the Washington and Lee Law Review, savages amended Article 1 of draft Protocol I to the 1949 Geneva Conventions. Specifically, he attacks the Article on the following grounds: (1) it is politically motivated by third-worlders determined to remake international law according to their own preferences; (2) it is poorly drafted and therefore cannot be implemented effectively; and (3) it would legitimize wars of national liberation and lead to discriminatory treatment of combatants. These are serious charges, raised by a serious scholar, whose closeness to the subject and to several members of the United States delegation to the Geneva Conference strongly suggest that his views reflect those of his government; and they merit an equally serious answer. Dean Bond details his answer in the following pages. Briefly summarized, it is this. The political motivation behind Article 1 is irrelevant in assessing its wisdom. Its drafting defects, while egregious, are not irremediable. Moreover, fears that Article 1 will compromise the effectiveness of the law of war are exaggerated: adoption of the amended Article will neither legitimize wars of national liberation nor lead to discriminatory treatment of combatants. Article 1, for all its weaknesses, represents a positive development in the- evolution of the law of war from a body of law applicable only to international armed conflict to a cohesive legal regime regulating serious armed conflict of all kinds.

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