Digest of United States Practice in International Law

(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.

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.

While a literal reading of paragraphs 4 and 5 of the resolution would inevitably pose problems for any government in terms of effectively controlling activities of its citizens outside its territorial jurisdiction, the United States will make every effort to ensure that its laws on the subject are complied with strictly so as to discourage American citizens from becoming involved in any type of unlawful mercenary activity.

Press Release USUN-21 (77), Apr. 14, 1977.

An excerpt taken from Res. 405, including pars. 4 and 5, follows:
The Security Council,

2. Strongly condemns the act of armed aggression perpetrated against the People's Republic of Benin on January 16, 1977;

3. Reaffirms its Resolution 239 (1967) which, inter alia, condemns any State which persists in permitting or tolerating the recruitment of mercenaries and the provision of facilities to them, with the objective of overthrowing the Governments of States Members of the United Nations;

4. Calls upon all States to exercise the utmost vigilance against the danger posed by international mercenaries and to ensure that their territory and other territories under their control, as well as their nationals, are not used for the planning of subversion and recruitment, training and transit of mercenaries designed to overthrow the Government of any Member State of the United Nations;

5. Further calls upon all States to consider taking necessary measures to prohibit, under their respective domestic laws, the recruitment, training and transit of mercenaries on their territory and other territories under their control;

6. Condemns all forms of external interference in the internal affairs of Member States, including the use of international mercenaries to destabilize States and/or to violate the territorial integrity, sovereignty and independence of States;

For further information concerning U.S. law with respect to the use of mercenaries, see the 1975 Digest, Ch. 14, § 4, pp. 816-817; also the 1976 Digest, Ch. 2, § 1, pp. 12-13; Ch. 14, § 2, pp. 692-696; Ch. 14, § 3, pp. 713-716.

United Nations and Regional Peacekeeping

United Nations Peacekeeping Forces

U.N. Disengagement Force (UNDOF)

On May 26, 1977, the U.N. Security Council adopted Resolution 408, which, inter alia, renewed the mandate of the United Nations Disengagement Force (UNDOF) in the Middle East until November 30, 1977. The United States joined in the 12 votes in favor of the resolution. None opposed it. Benin, the People's Republic of China, and Libya did not participate.

Ambassador James F. Leonard, Acting U.S. Permanent Representative to the United Nations, made a statement in support of this Seventh Extension of the UNDOF in which he noted that "[t]here have been no serious incidents, nor has the area of disengagement been

a source of significant military tension between the armed forces of Israel and Syria." He attributed this "unqualified success" of the UNDOF to the actions of the parties and to the forces of Austria, Iran, Canada, and Poland which have contributed to UNDOF. He also emphasized the U.S. commitment to finding "the just and durable peace that is the wish of all."

Press Release USUN-29 (77), May 26, 1977. U.N. Doc. S/Res/408 (1977), May 26, 1977.

U.N. Force in Cyprus (UNFICYP)

On June 15, 1977, the U.N. Security Council adopted unanimously Resolution 410, which extended the U.N. Peacekeeping Force in Cyprus (UNFICYP) until December 15, 1977. Resolution 410 reaffirmed previous resolutions concerning Cyprus, urged "negotiations for a just and peaceful solution" of the Cyprus problem, and requested a report from the Secretary-General. Paragraphs 4 and 6 of the resolution appear below:

4. Extend once more the stationing in Cyprus of the United Nations Peacekeeping Force, established under Security Council Resolution 186 (1964). for a further period ending December 15, 1977, in the expectation that by then sufficient progress towards a final solution will make possible a withdrawal or substantial reduction of the Force;

6. Requests the Secretary-General to continue the mission of good offices entrusted to him by paragraph 6 of Resolution 367 (1975), to keep the Security Council informed of the progress made and to submit a report on the implementation of this resolution by November 30, 1977.

In his statement concerning the extension of UNFICYP on the day following the adoption of Resolution 410, Ambassador James F. Leonard, U.S. Deputy Permanent Representative to the United Nations, indicated that the United States was "encouraged that there was a resumption this spring of the intercommunal negotiations" in Cyprus but expressed concern over "the growing financial difficulty for the U.N. in maintaining UNFICYP." He indicated "that the UNFICYP deficit has grown to over $54 million" which "means that the U.N. has been unable to pay the reimbursement claims of troop contributing countries beyond the second half of 1973." Ambassador Leonard expressed the hope that "the governments to whom the Secretary-General has made a special appeal for their assistance will respond generously."

Press Release USUN-50 (77), June 16, 1977.

South Africa

Military Sanctions

Arms Embargo

On November 4, 1977, the U.N. Security Council voted unanimously in Resolution 418 to impose a mandatory arms embargo against South Africa under Chapter VII of the U.N. Charter. The vote was 15 in favor, none against, and no abstentions. Ambassador Andrew Young, U.S. Permanent Representative to the United Nations, made a statement in the Security Council during the session in which the resolution was adopted pointing out the precedent established by this resolution and the actions the South African Government could take to remove the stigma attached to it.

Portions of Ambassador Young's statement follow:

This is the first time that Chapter VII sanctions have been adopted against a member of this Organization. We have just sent a very clear message to the Government of South Africa that the measures which were announced on October 19 have created a new situation in South Africa's relationship with the rest of the world. There should be no further doubt in Pretoria today that the continuation of the course on which the Government of South Africa is now embarked can only lead to further strains on ties between South Africa and the other members of the international community.

At the same time, however, we must stress the other side of the picture and make clear to the Government of South Africa our desire for reconciliation provided South Africa is willing to begin progress toward the end of apartheid and full participation for all South Africans in the political and economic life of their country.

As far as the United States is concerned, we look forward to the day when progress in South Africa will make it possible for this Council to remove the stigma which this resolution places on South Africa. We look forward to early South African adherence to the Nuclear Non-Proliferation Treaty and a decision to put all its facilities under international safeguards. . . .

Press Release USUN-101 (77), Nov. 4, 1977.

Portions of the text of U.N.S.C. Res. 418 read as follows:

The Security Council,

Recalling its Resolution 392 (1976) strongly condemning the South African Government for its resort to massive violence against and killings of the African people, including schoolchildren and students and others opposing racial discrimination, and calling upon that Government urgently to end violence against the African people and take urgent steps to eliminate apartheid and racial discrimination,

Recognizing that the military buildup and persistent acts of aggression by South Africa against the neighboring States seriously disturb the security of those States,

Further recognizing that the existing arms embargo must be strengthened and universally applied, without any reservations or qualifications whatsoever, in order to prevent a further aggravation of the grave situation in South Africa,

Taking note of the Lagos Declaration for Action against Apartheid (S/12426),

Gravely concerned that South Africa is at the threshold of producing nuclear weapons,

Strongly condemning the South African Government for its acts of repression, its defiant continuance of the system of apartheid and its attacks against neighboring independent States,

Considering that the policies and acts of the South African Government are fraught with danger to international peace and security,

Recalling its Resolution 181 (1963) and other resolutions concerning a voluntary arms embargo against South Africa,

Convinced that a mandatory arms embargo needs to be universally applied against South Africa in the first instance,

Acting therefore under Chapter VII of the Charter of the United Nations, 1. Determines, having regard to the policies and acts of the South African Government, that the acquisition by South Africa of arms and related materiel constitutes a threat to the maintenance of international peace and security; 2. Decides that all States shall cease forthwith any provision to South Africa of arms and related materiel of all types, including the sale or transfer of weapons and ammunition, military vehicles and equipment, paramilitary police equipment, and spare parts for the aforementioned, and shall cease as well the provision of all types of equipment and supplies, and grants of licensing arrangements, for the manufacture or maintenance of the aforementioned;

3. Calls on all States to review, having regard to the objectives of this resolution. all existing contractual arrangements with and licenses granted to South Africa relating to the manufacture and maintenance of arms, ammunition of all types and military equipment and vehicles, with a view to terminating them;

4. Further decides that all States shall refrain from any cooperation with South Africa in the manufacture and development of nuclear weapons;

5. Calls upon all States, including States non-members of the United Nations, to act strictly in accordance with the provisions of this resolution;

U.N. Doc. S/Res/418 (1977), Nov. 4, 1977.

During his news conference of November 2, 1977, Secretary Vance outlined U.S. policy with respect to South Africa in view of the U.N. mandatory arms embargo in part as follows:

.. [A]t the United Nations we have supported a mandatory arms embargo to reflect the international consensus that the supply of arms threatens the peace. Consistent with this, we will prohibit all export of items for police and military in South Africa. In addition, there will be no more exports of spares and maintenance shipments for items whose exports would be prohibited. In addition, we are withdrawing our naval attaché from Pretoria, and in addition. to that we are recalling the commercial officer in Johannesburg. The latter recall is being done in connection with our review of our economic relationships with South Africa.

77 Dept. of State Bulletin 716 (1977).

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