[Senate Executive Report 110-22]
[From the U.S. Government Publishing Office]
110th Congress Exec. Rept.
SENATE
2d Session 110-22
======================================================================
AN AMENDMENT AND THREE PROTOCOLS TO THE 1980 CONVENTIONAL WEAPONS
CONVENTION
_______
September 11, 2008.--Ordered to be printed
_______
Mr. Dodd, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Docs. 105-1(B), 105-1(C), 109-10(B), and 109-
10(C)]
The Committee on Foreign Relations, to which was referred
the Amendment to Article 1 of the Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons Which
May be Deemed to be Excessively Injurious or to Have
Indiscriminate Effects, adopted at Geneva on December 21, 2001
(the ``Amendment'') (Treaty Doc. 109-10(B)) and three protocols
to the Convention on Prohibitions or Restrictions on the Use of
Certain Conventional Weapons Which May be Deemed to be
Excessively Injurious or to Have Indiscriminate Effects: The
Protocol on Prohibitions or Restrictions on the Use of
Incendiary Weapons, adopted at Geneva on October 10, 1980
(``Protocol III'' or the ``Incendiary Weapons Protocol'')
(Treaty Doc. 105-1(B)); The Protocol on Blinding Laser Weapons,
adopted at Vienna on October 13, 1995 (``Protocol IV'' or the
``Blinding Laser Protocol'') (Treaty Doc. 105-1(C)); and The
Protocol on Explosive Remnants of War, adopted at Geneva on
November 28, 2003 (``Protocol V'' or the ``ERW Protocol'')
(Treaty Doc. 109-10(C)), having considered the same, reports
favorably thereon with a reservation, understandings, and
declarations, as indicated in the resolutions of advice and
consent for each treaty, and recommends that the Senate give
its advice and consent to ratification thereof, as set forth in
this report and the accompanying resolutions of advice and
consent.
CONTENTS
Page
I. Purpose..........................................................2
II. Background and Summary...........................................2
III. Incendiary Weapons Protocol (Protocol III).......................3
IV. Blinding Laser Protocol (Protocol IV)............................4
V. ERW Protocol (Protocol V)........................................5
VI. Scope Amendment..................................................8
VII. Entry Into Force.................................................9
VIII.Implementing Legislation.........................................9
IX. Committee Action.................................................9
X. Committee Recommendation.........................................9
XI. Resolutions of Advice and Consent to Ratification...............12
XII. Annex I.--Additional Material Submitted to the Committee........15
XIII.Annex II.--Treaty Hearing of April 15, 2008.....................17
I. Purpose
These four treaties, along with the underlying Convention
on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be Excessively
Injurious or to Have Indiscriminate Effects (the ``Convention
on Conventional Weapons'' or the ``Convention'') (Treaty Doc.
103-25), which the United States ratified in 1995, are designed
to protect victims of armed conflict from the effect of certain
weapons.
II. Background and Summary
The Convention on Conventional Weapons was negotiated in
Geneva from 1978 to 1980 and establishes a framework (the ``CCW
framework'') within which instruments are negotiated to control
the use of conventional weapons in an effort to reduce human
suffering. The Convention, to date, has 105 States Parties and
is accompanied by five individual protocols that regulate
specific categories of weapons and munitions. The terms of the
Convention are very general, while the specific obligations
regarding particular weapons or weapon systems are contained in
the separate protocols to the Convention. This structure makes
it possible for the CCW framework to evolve by adding new
protocols in response to the development of new weapons or
changes in the conduct of warfare.
In 1980, the Convention was concluded with three protocols.
Protocol I prohibits the use of weapons the primary effect of
which is to injure persons through the use of fragments that
are not detectible by X-rays in the human body. Protocol II (or
the ``Mines Protocol'') regulates the use of landmines and
similar devices, and furthermore prohibits certain types of
booby-traps. The Senate approved the Convention and these first
two protocols on March 24, 1995. The Convention, along with
Protocols I and II, entered into force for the United States on
September 24, 1995.
By the early 1990s, however, it became clear that Protocol
II was insufficient to deal with the severe humanitarian crisis
caused by the indiscriminate use of anti-personnel landmines in
various conflicts during the preceding decade. As a result, the
United States and other countries supported a process to amend
the Mines Protocol so that it would impose more rigorous
restrictions on the design and use of mines. The Senate
approved the Amended Mines Protocol on May 20, 1999.
Protocol III controls the use of incendiary weapons.
Protocol III was not sent to the Senate along with the
Convention in 1994 because of a concern that the United States
might ``require the use of air-delivered incendiaries to
eliminate chemical or biological facilities without exposing a
nearby civilian population to the massive release of dangerous
substances.''\1\ After a careful review, however, the executive
branch developed a reservation that resolves these concerns.
The reservation, which the committee recommends including in
the Senate's Resolution of advice and consent, would reserve
the right of the United States to use incendiary weapons,
whether air-delivered or otherwise, against military objectives
located in concentrations of civilians where it is judged that
such use would cause fewer casualties and/or less collateral
damage than alternative weapons.
---------------------------------------------------------------------------
\1\Exec. Rept. 104-1 at p. 5.
---------------------------------------------------------------------------
Since the conclusion of the Convention, two other protocols
have been adopted and the Convention's scope of application has
been broadened. Protocol IV, which prohibits the use of
blinding lasers, was adopted in 1995 and Protocol V, which
provides rules with respect to unexploded and abandoned
munitions remaining on the battlefield after a conflict, was
adopted in 2003. The munitions dealt with in Protocol V might
be artillery shells, bombs, hand grenades, mortars, rockets,
and cluster munitions, but by definition do not include
landmines, which are regulated by the Amended Mines Protocol.
Finally, in 2001, an amendment to the main Convention was
adopted, which extends the scope of application of the
Convention and certain Protocols to non-international armed
conflicts.
The administration has requested that the Senate give
prompt consideration to Protocols III, IV, and V and the scope
amendment to Article 1 of the Convention.\2\ The executive
branch has informed the committee that the U.S. military
already complies in practice with the norms contained in all
four instruments. Moreover, the Department of Defense has
asserted that ratification of these treaties is a national
security priority and would, among other things, serve to
protect U.S. forces in combat. A detailed article-by-article
analysis of each of these four treaties may be found in the two
relevant Letters of Submittal from the Secretary of State to
the President, which are reprinted in full in Treaty Documents
105-1 and 109-10. What follows is a discussion of significant
aspects of all four treaties.
---------------------------------------------------------------------------
\2\In a letter to the Committee on Foreign Relations dated August
15, 2007, Deputy Secretary of State John D. Negroponte and Deputy
Secretary of Defense Gordon England stated that the ``Defense
Department and the State Department strongly support [all four
treaties] and encourage their prompt ratification.'' See Annex I of
this Report.
---------------------------------------------------------------------------
III. Incendiary Weapons Protocol (Protocol III)
Protocol III provides increased protection for civilians
from the potentially harmful effects of incendiary weapons. In
addition, the Protocol confirms the legality and military value
of incendiary weapons for targeting specific types of military
objectives.
An incendiary weapon is defined as ``any weapon or munition
which is primarily designed to set fire to objects or to cause
burn injury to persons through the action of flame, heat, or a
combination thereof, produced by a chemical reaction of a
substance delivered on the target.'' Incendiary weapons include
weapons such as napalm and flame throwers but do not include,
for example, high-explosive munitions and blast or
fragmentation weapons, even though they may have secondary burn
effects on persons exposed or may cause secondary fires.
Similarly, lasers or other directed-energy weapons are not
covered by the Protocol, even if their primary effect is to set
fire to objects or cause burn injuries, because they do not
deliver burning substances on the target. In addition, as noted
by the Department of Defense in response to committee
questions, ``[w]hite phosphorous is not prohibited under
Protocol III because white phosphorous does not fit, and was
not intended to fall within, the definition of incendiary
weapon in the Protocol. There are no circumstances in which
Protocol III regulates or prohibits the use of white
phosphorous against a military objective.''
Article 2 of the Protocol, which is the main operative
provision, provides four basic rules: 1) it is prohibited in
all circumstances to make civilians or civilian objects, as
such, the object of attack by incendiary weapons; 2) it is
prohibited in all circumstances to make any military objective
located within a concentration of civilians the object of
attack by air-delivered incendiary weapons; 3) it is prohibited
to make any military objective located within a concentration
of civilians the object of attack by means of incendiary
weapons other than air-delivered weapons, except when the
objective is clearly separated from the concentration of
civilians and all feasible precautions have been taken with a
view to limiting the incendiary effects to the military
objective and to avoiding or minimizing incidental loss of
civilian life, injury to civilians, and damage to civilian
objects; and 4) it is prohibited to make forests or other kinds
of plant cover the object of attack by incendiary weapons
unless they are being used to conceal combatants or other
military objectives or are themselves military objectives.
The executive branch has recommended a reservation to
Protocol III, which would permit the United States to use
incendiary weapons against military objectives located in
concentrations of civilians where it is judged that such use
would cause fewer casualties and/or less collateral damage than
alternative weapons, while nevertheless taking all feasible
precautions with a view to limiting the incendiary effects to
the military objective and to avoiding, or minimizing,
incidental loss of civilian life, injury to civilians, and
damage to civilian objects. With such a reservation, the United
States can retain its ability to employ incendiaries to achieve
high-priority military targets in a manner consistent with the
principle of proportionality, which governs the use of all
weapons in armed conflict. In response to questions from the
committee, the Department of Defense confirmed that with the
reservation, the Protocol would be entirely ``consistent with
U.S. targeting practices.''
To date, there are 98 parties to Protocol III, which
entered into force on December 2, 1983. This includes all NATO
Member States except Turkey and the United States.
IV. Blinding Laser Protocol (Protocol IV)
Protocol IV was adopted at a conference of States Parties
to the Convention on Conventional Weapons in 1995. The Protocol
prohibits the use on the battlefield of blinding laser weapons
``specifically designed, as their sole combat function or as
one of their combat functions, to cause permanent blindness to
unenhanced vision, that is to the naked eye or to the eye with
corrective eyesight devices.'' ``Permanent blindness'' is
defined in Article 4 of Protocol IV as ``irreversible and
uncorrectable loss of vision which is seriously disabling with
no prospect of recovery. Serious disability is equivalent to
visual acuity of less than 20/200 Snellen measured using both
eyes.'' This definition is consistent with widely accepted
ophthalmological standards and means.
Protocol IV also obligates States Parties to take ``all
feasible precautions'' in the employment of laser systems ``to
avoid the incidence of permanent blindness to unenhanced
vision. Such precautions shall include training of their armed
forces and other practical measures.''
Protocol IV is fully consistent with the Department of
Defense's current policy. In response to questions from the
committee, the Department of Defense stated that it ``does not
have any plans or desire to develop and use blinding laser
weapons.'' Moreover, ``[i]t has been a longstanding DoD policy
that the U.S. Armed Forces will not use lasers specifically
designed to cause permanent blindness of unenhanced vision.''
In fact, it was a Defense Department policy statement that
served as the foundation for the text of Protocol IV.
Although Protocol IV prohibits the use of so-called
blinding laser weapons, Protocol IV does not prohibit the use
of lasers in general on the battlefield, including ``dazzler''
devices, which have been employed by the United States in Iraq
at checkpoints as a warning device to drivers of on-coming
vehicles because ``dazzler'' devices are not specifically
designed to cause permanent blindness to unenhanced vision.
Indeed, lasers are vital to our modern military and the
legitimate use of lasers is acknowledged by the Protocol in
Article 3. Among other things, laser systems are used for
detection, targeting, range-finding, communications, and target
destruction. They also can serve a humanitarian purpose in that
they allow weapon systems to be increasingly discriminate,
thereby reducing collateral damage to civilian lives and
property.
Employment of a laser is only prohibited by Protocol IV if
it meets each of the following four criteria: 1) it is a
weapon; 2) specifically designed;\3\ 3) to cause permanent
blindness; 4) to unenhanced vision. Protocol IV is desirable,
therefore, both because it reduces the potential risks of
proliferation of blinding laser weapons and because it
clarifies the legitimacy of other types of battlefield lasers.
To date, there are 89 parties to Protocol IV, which entered
into force on July 30, 1998. This includes all NATO member
states except the United States.
---------------------------------------------------------------------------
\3\ ``Specifically designed'' is a separate element because, for
example, virtually any laser may cause eye injury, including permanent
blindness, under the right circumstances. The negotiators banned only
this narrow class of lasers, rather than banning any use of lasers that
might cause permanent blindness, so as to avoid subjecting military
personnel to any liability for their use of the many lasers that are
employed in modern warfare.
---------------------------------------------------------------------------
V. ERW Protocol (Protocol V)
Protocol V was adopted at a conference of States Parties to
the Convention on Conventional Weapons in 2003. Protocol V
provides rules with respect to munitions that were intended to
have exploded during an armed conflict but failed to do so
(known as ``explosive remnants of war'' or ``ERW''), in order
to reduce the threat such munitions pose to civilians and to
post-conflict reconstruction. The negotiation of this Protocol
was initiated in part as a result of a report published by the
International Committee for the Red Cross in 2000, which
concluded that a large proportion of the civilian deaths and
injuries from explosive remnants of war during the post-
conflict period in Kosovo had been both predictable and
preventable. Protocol V is the first international agreement
specifically aimed at reducing the humanitarian threat posed by
unexploded and abandoned munitions of all types remaining on
the battlefield after the end of armed conflicts.
Explosive remnants of war, or ERW, are defined in detail in
Article 2 of Protocol V but generally are understood to include
explosive munitions that remain armed after the cessation of
the armed conflict, such as artillery shells, bombs, hand
grenades, mortars, cluster munitions, and rockets. This may
include munitions that did not explode as intended and
munitions that were abandoned. For the purposes of the
Protocol, however, ERW does not include landmines because they
are addressed in the Amended Mines Protocol (Protocol II), to
which the United States is already a party. A summary of key
provisions is set forth below.
Marking and clearing ERW after an armed conflict
Protocol V deals primarily with steps to be taken after
hostilities, not during an armed conflict. The Party in control
of the territory on which ERW are found is responsible for the
clearance, removal, and destruction of such munitions.
Specifically, Article 3 provides that as soon as feasible after
the end of active hostilities, each State Party that was a
party to the armed conflict shall: 1) survey and assess the
threat posed by ERW; 2) assess and prioritize needs and
practicability in terms of marking and clearance, removal, or
destruction of ERW; 3) mark and clear, remove, or destroy ERW;
and 4) take steps to mobilize resources to carry out these
activities.
In response to committee questions, the Department of State
clarified that these Article 3 obligations are ``necessarily to
be implemented based on [a] State Party's assessment of the
relevant circumstances at the time. This is illustrated by the
use of the phrase `as soon as feasible' in paragraphs 2 and 3
of the article, which implies a level of discretion or
judgment'' in the implementation of this provision.
Recording, retaining and transmitting information regarding explosive
ordnance that may become ERW
Protocol V establishes obligations on States Parties
regarding the recording, retention, and transmission of
specific information on the use, or abandonment, of explosive
ordnance, so as to facilitate the rapid marking, clearance,
removal, or destruction of such ordnance by the Party in
control of the territory at the end of active hostilities.
Specifically, Article 4 obligates States Parties ``to the
maximum extent possible and as far as practicable [to] record
and retain information'' on the use or abandonment of explosive
ordnance. Moreover, a State Party that was a party to the armed
conflict and used or abandoned explosive ordnance that may have
become ERW ``shall, without delay after the cessation of active
hostilities and as far as practicable, subject to the parties'
legitimate security interests, make available such information
to the party or parties in control of the affected area . . .
.'' Voluntary best practices with respect to recording,
retaining, and transmitting such information are contained in
the Technical Annex to the Protocol.
Taking precautions to protect civilians and civilian objects from ERW
Protocol V provides that parties to an armed conflict shall
take ``all feasible precautions'' in the territory under their
control that is affected by ERW to protect civilians and
civilian objects from the risks and effects of ERW. Article 5
defines ``feasible precautions'' as those precautions that are
``practicable or practicably possible, taking into account all
circumstances ruling at the time, including humanitarian and
military considerations.'' Such precautions might include
warnings, risk education to the civilian population, marking,
fencing, and monitoring of territory affected by explosive
remnants of war, as set out in Part 2 of the Technical Annex to
the Protocol.
Co-operation and assistance in handling ERW
Article 7 provides that each State Party has the right to
``seek and receive assistance, where appropriate,'' from other
Parties, non-parties, and relevant international organizations
and institutions in dealing with problems posed by ERW. Article
7 further provides that States Parties ``in a position to do
so'' shall provide such assistance ``as necessary and
feasible.'' Article 8 addresses the provision of more general
assistance, information on ERW, and cooperation with
international, regional, national, and non-governmental
organizations regarding ERW. Article 8 similarly provides that
each State Party ``in a position to do so'' shall provide such
assistance.
In response to committee questions, the Department of State
clarified that the phrases ``where feasible'' and ``in a
position to do so'' are ``self-judging and are intended to
reflect the necessity of states making their own evaluation of
relevant factors in implementing these provisions.'' Thus, each
State Party must, for example, determine for itself whether it
is in a ``position to do so.'' This determination, as noted in
the article-by-article analysis attached to the Letter of
Submittal from the Secretary of State, would be based on
national considerations of economic, political, and military
factors.\4\ According to the Department of State, this
understanding was made clear at the negotiations and was not
disputed by other delegations.\5\
---------------------------------------------------------------------------
\4\Treaty Doc. 109-10 at p. 15.
\5\Ibid.
---------------------------------------------------------------------------
Preventive measures to minimize the occurrence of ERW
Protocol V encourages States Parties to take generic
preventive measures aimed at minimizing the occurrence of ERW.
Specifically, Article 9 provides that such preventive measures
include, but are not limited to, those listed in part 3 of the
Technical Annex. Each State Party may also, on a voluntary
basis, exchange information related to efforts to promote and
establish best practices in respect of such measures.
Best practices
The Technical Annex to Protocol V provides ``suggested best
practices'' for ERW information management; risk education;
marking and monitoring ERW areas; and munitions manufacturing,
training, and transfer. Compliance with the Annex is voluntary
under the Protocol.
The Department of Defense has assured the committee that
Protocol V is fully consistent with current U.S. practice and
policies with respect to ERW, including cluster munitions, and
is consistent with the administration's current negotiating
position on cluster munitions in particular. To date, there are
44 parties to Protocol V, which entered into force on November
12, 2006.
VI. Scope Amendment
As discussed, the Convention on Conventional Weapons and
its Protocols are part of a legal regime that regulates the use
of particular types of conventional weapons that may be deemed
to pose special risks of having indiscriminate effects or
causing unnecessary suffering. As adopted in 1980, Article 1 of
the Convention on Conventional Weapons did not extend the scope
of application of the Convention to non-international armed
conflicts (otherwise known as ``Article 3 conflicts'' because
Article 3 is the common article in the Geneva Conventions of
1949 that deals with non-international conflicts).
Nevertheless, when the Senate provided its advice and consent
to the Convention in 1995, included in the resolution of advice
and consent was a declaration that the United States would
extend its application of the Convention and Protocols I and II
to non-international conflicts despite the fact that the text
limited the Convention's scope to international armed
conflicts, otherwise known as common ``Article 2 conflicts.''
The declaration stated as follows:
The United States declares, with reference to the scope of
application defined in Article 1 of the Convention, that the
United States will apply the provisions of the Convention,
Protocol I, and Protocol II to all armed conflicts referred to
in Articles 2 and 3 common to the Geneva Conventions for the
Protection of War Victims of August 12, 1949.
At the urging of the United States, on December 21, 2001,
States Parties to the Convention on Conventional Weapons
adopted the Scope Amendment, which amended Article 1 of the
Convention so that the scope of application of the Convention
and certain Protocols were extended to include non-
international armed conflicts. This Amendment is particularly
important now because many of today's armed conflicts are
considered to be non-international in character.
The Amendment makes clear that recognizing the
applicability of the Convention and Protocols to non-state
parties to a conflict does not change the legal status of those
non-state parties and it advances the U.S. national objective
of preserving humanitarian values during all armed conflict.
Finally, the extended scope of application applies not only to
the Convention, but to all of the Protocols adopted before
January 1, 2002, which includes Protocols I, II, III, and IV.
Protocols adopted after January 1, 2002, including Protocol V,
are to make clear the scope of their application in the text of
each protocol. Article 1 of Protocol V provides that Protocol V
applies to common Article 2 and common Article 3 conflicts.
VII. Entry Into Force
In accordance with Article 5 and Article 8 of the
Convention on Conventional Weapons, the Amendment and each of
the Protocols will enter into force for the United States six
months after the date on which the United States deposits its
instrument of ratification.
VIII. Implementing Legislation
No implementing legislation is required for these treaties.
The United States already complies in practice with the norms
contained in all four treaties. In response to the committee's
questions, the Department of Defense additionally noted that if
the United States were to ratify these treaties, existing
Department of Defense and Military Department directives and
publications that refer to treaties to which the United States
is a party would be updated to reflect that the United States
is a party to these treaties, but no new Department of Defense
directives or regulations would be needed.
IX. Committee Action
The committee held a public hearing on these treaties on
April 15, 2008. Testimony was received from Mr. John B.
Bellinger, Legal Adviser at the Department of State; Mr.
Charles A. Allen, Deputy General Counsel for International
Affairs at the Department of Defense; and Brigadier General
Michelle D. Johnson, Deputy Director for the War on Terrorism
and Global Effects, J-5 Strategic Plans and Policy Directorate,
Joint Staff. A transcript of this hearing can be found in Annex
II.
On July 29, 2008, the committee considered these treaties
and ordered them favorably reported, by voice vote, with a
quorum present, and without objection.
X. Committee Recommendation
A. ADVICE AND CONSENT TO RATIFICATION
The Committee on Foreign Relations views U.S. ratification
of these treaties as important to U.S. leadership in developing
the law of armed conflict and in protecting U.S. forces abroad.
The United States played a key role in negotiating each of
these treaties, many of which were done at the prompting of the
United States and on the basis of U.S. delegation drafts. As a
result, none of these treaties requires changes to long-
standing U.S. and Defense Department policies. Joining these
treaties would put the United States in a better position,
however, to persuade other countries to adhere to humanitarian
practices in armed conflict. Moreover, U.S. ratification is
important because the United States loses credibility when it
does not formally become a party to the very treaties it has
championed. U.S. ratification would set an important example
and would make it possible for U.S. officials to participate
fully in relevant international meetings regarding, for
example, the implementation of these treaties. Accordingly, the
committee urges the Senate to act promptly to give its advice
and consent to ratification of these treaties, as set forth in
this report and the accompanying resolution of advice and
consent.
B. RESOLUTIONS
The committee has included in the resolutions of advice and
consent various statements, which are discussed below.
I. CCW Protocol on Incendiary Weapons (Protocol III)
The proposed resolution of advice and consent for Protocol
III includes a reservation, an understanding, and a
declaration.
Reservation
The proposed reservation was recommended by the executive
branch and would permit the United States to use incendiary
weapons against military objectives located in concentrations
of civilians, where it is judged that such use would cause
fewer casualties and/or less collateral damage than alternative
weapons, while nevertheless taking all feasible precautions
with a view to limiting the incendiary effects to the military
objective and to avoiding, and in any event to minimizing,
incidental loss of civilian life, injury to civilians, and
damage to civilian objects. The executive branch explained in
its submission of the Protocol that this reservation is
necessary because incendiaries are the only weapons that can
effectively destroy certain targets such as biological weapons
facilities, for which high heat would be required to eliminate
bio-toxins. To use only high explosives would risk the
widespread release of dangerous contaminants with potentially
disastrous consequences for the civilian population. In
addition, certain flammable military targets are more readily
destroyed by incendiaries. Thus, with this reservation, the
United States can retain its ability to employ incendiaries to
achieve the destruction of high-priority military targets in a
manner consistent with the principle of proportionality, which
governs the use of all weapons in armed conflict.
Understanding
The proposed understanding makes clear that the actions of
U.S. military personnel, for example, can only be assessed in
light of information that was reasonably available at the time.
In other words, U.S. military personnel cannot be judged on the
basis of information that subsequently comes to light.
Declaration
The proposed declaration relates to the self-executing
nature of the Protocol and is included in light of the recent
Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346
(2008), which has highlighted the importance of clarity
regarding the self-executing nature of treaty provisions. A
further discussion of the committee's view on this matter can
be found in Section VIII of Executive Report 110-12. In brief,
the Protocol is self-executing, in the sense that it operates
of its own force as domestically enforceable federal law, but
the Protocol does not confer private rights enforceable in U.S.
courts.
II. CCW Protocol on Blinding Laser Weapons (Protocol IV)
The proposed resolution of advice and consent for Protocol
IV includes an understanding and a declaration.
Understanding
The proposed understanding makes clear that with respect to
Article 2 of the Protocol, the actions of U.S. military
personnel, for example, can only be assessed in light of
information that was reasonably available at the time. In other
words, U.S. military personnel cannot be judged on the basis of
information that subsequently comes to light.
Declaration
The proposed declaration relates to the self-executing
nature of the Protocol and is included in light of the recent
Supreme Court decision, Medellin v. Texas, 128 S. Ct. 1346
(2008), which has highlighted the importance of clarity
regarding the self-executing nature of treaty provisions. A
further discussion of the committee's view on this matter can
be found in Section VIII of Executive Report 110-12. In brief,
the Protocol is self-executing, in the sense that it operates
of its own force as domestically enforceable federal law, but
the Protocol does not confer private rights enforceable in U.S.
courts.
III. CCW Protocol on Explosive Remnants of War (Protocol V)
The proposed resolution of advice and consent for Protocol
V includes an understanding and a declaration.
Understanding
In the article-by-article analysis attached to the Letter
of Submittal from the Secretary of State, it was noted that
during the course of the negotiations, the United States
``raised the need to reconcile this Protocol with other
international agreements or arrangements related to the
settlement of armed conflict, in order to avoid unintended
consequences in connection with peace treaties or similar
arrangements.'' It was further noted that ``[i]n the context of
armed conflict, the parties to the conflict themselves will be
in the best position to determine how the responsibilities for
ERW should fit into an overall settlement.'' The proposed
understanding makes clear that nothing in Article 3, which
generally covers the allocation of responsibilities with
respect to marking, clearing, removing, and destroying
explosive remnants of war, would preclude arrangements in
connection with the settlement of armed conflicts, or
assistance connected thereto, that allocate such
responsibilities in a manner that respects the essential spirit
and purpose of the Protocol.
Declaration
The proposed declaration relates to the self-executing
nature of the Protocol and is included in light of the recent
Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346
(2008), which has highlighted the importance of clarity
regarding the self-executing nature of treaty provisions. A
further discussion of the committee's view on this matter can
be found in Section VIII of Executive Report 110-12. In brief,
with the exception of Articles 7 and 8, which deal with various
forms of co-operation and assistance, the Protocol is self-
executing, in the sense that it operates of its own force as
domestically enforceable federal law, but the Protocol does not
confer private rights enforceable in U.S. courts. In specifying
that Articles 7 and 8 are not self-executing, the committee
intends that the provisions of these articles will be
implemented through existing statutes and authorities providing
for the provision of relevant cooperation and assistance,
including the Foreign Assistance Act of 1961, rather than
through direct application of the Treaty in U.S. law. The
committee understands that these statutes and authorities are
sufficient to allow the United States to implement these
articles.
IV. CCW Amendment to Article 1
The proposed resolution of advice and consent for the
Amendment includes a declaration.
Declaration
The proposed declaration relates to the self-executing
nature of the Amendment and is included in light of the recent
Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346
(2008) has highlighted the importance of clarity regarding the
self-executing nature of treaty provisions. A further
discussion of the committee's view on this matter can be found
in Section VIII of Executive Report 110-12. In brief, the
Amendment is self-executing, in the sense that it operates of
its own force as domestically enforceable federal law, but the
Amendment does not confer private rights enforceable in U.S.
courts.
XI. Resolutions of Advice and Consent to Ratification
CCW PROTOCOL ON INCENDIARY WEAPONS (PROTOCOL III)
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A RESERVATION, AN
UNDERSTANDING, AND A DECLARATION
The Senate advises and consents to the ratification of the
Protocol on Prohibitions or Restrictions on the Use of
Incendiary Weapons to the Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons Which
May be Deemed to be Excessively Injurious or to Have
Indiscriminate Effects (Protocol III), adopted at Geneva on
October 10, 1980 (Treaty Doc. 105-1(B)), subject to the
reservation of section 2, the understanding of section 3, and
the declaration of section 4.
SECTION 2. RESERVATION
The advice and consent of the Senate under section 1 is
subject to the following reservation, which shall be included
in the instrument of ratification:
The United States of America, with reference to
Article 2, paragraphs 2 and 3, reserves the right to
use incendiary weapons against military objectives
located in concentrations of civilians where it is
judged that such use would cause fewer casualties and/
or less collateral damage than alternative weapons, but
in so doing will take all feasible precautions with a
view to limiting the incendiary effects to the military
objective and to avoiding, and in any event to
minimizing, incidental loss of civilian life, injury to
civilians and damage to civilian objects.
SECTION 3. UNDERSTANDING
The advice and consent of the Senate under section 1 is
subject to the following understanding, which shall be included
in the instrument of ratification:
It is the understanding of the United States of
America that any decision by any military commander,
military personnel, or any other person responsible for
planning, authorizing or executing military action
shall only be judged on the basis of that person's
assessment of the information reasonably available to
the person at the time the person planned, authorized,
or executed the action under review, and shall not be
judged on the basis of information that comes to light
after the action under review was taken.
SECTION 4. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Protocol is self-executing. This Protocol does
not confer private rights enforceable in United States
courts.
----------
CCW PROTOCOL ON BLINDING LASER WEAPONS (PROTOCOL IV)
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO AN UNDERSTANDING AND A
DECLARATION
The Senate advises and consents to the ratification of the
Protocol on Blinding Laser Weapons to the Convention on
Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May be Deemed to be Excessively Injurious or to
Have Indiscriminate Effects (Protocol IV), adopted at Vienna on
October 13, 1995 (Treaty Doc. 105-1(C)), subject to the
understanding of section 2 and the declaration of section 3.
SECTION 2. UNDERSTANDING
The advice and consent of the Senate under section 1 is
subject to the following understanding, which shall be included
in the instrument of ratification:
It is the understanding of the United States of
America with respect to Article 2 that any decision by
any military commander, military personnel, or any
other person responsible for planning, authorizing or
executing military action shall only be judged on the
basis of that person's assessment of the information
reasonably available to the person at the time the
person planned, authorized, or executed the action
under review, and shall not be judged on the basis of
information that comes to light after the action under
review was taken.
SECTION 3. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Protocol is self-executing. This Protocol does
not confer private rights enforceable in United States
courts.
----------
CCW PROTOCOL ON EXPLOSIVE REMNANTS OF WAR (PROTOCOL V)
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO AN UNDERSTANDING AND A
DECLARATION
The Senate advises and consents to the ratification of the
Protocol on Explosive Remnants of War to the Convention on
Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May be Deemed to be Excessively Injurious or to
Have Indiscriminate Effects (Protocol V), adopted at Geneva on
November 28, 2003 (Treaty Doc. 109-10(C)), subject to the
understanding of section 2 and the declaration of section 3.
SECTION 2. UNDERSTANDING
The advice and consent of the Senate under section 1 is
subject to the following understanding, which shall be included
in the instrument of ratification:
It is the understanding of the United States of
America that nothing in Protocol V would preclude
future arrangements in connection with the settlement
of armed conflicts, or assistance connected thereto, to
allocate responsibilities under Article 3 in a manner
that respects the essential spirit and purpose of
Protocol V.
SECTION 3. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
With the exception of Articles 7 and 8, this Protocol
is self-executing. This Protocol does not confer
private rights enforceable in United States courts.
----------
CCW AMENDMENT TO ARTICLE 1
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Amendment to Article 1 of the Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons Which
May be Deemed to be Excessively Injurious or to Have
Indiscriminate Effects, adopted at Geneva on December 21, 2001
(Treaty Doc. 109-10(B)), subject to the declaration of section
2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Treaty is self-executing. This Treaty does not
confer private rights enforceable in United States
courts.
Annex I.--Additional Material Submitted to the Committee
Annex II.--Treaty Hearing of April 15, 2008
TREATIES
----------
TUESDAY, APRIL 15, 2008
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 2:33 p.m., in
room SD-419, Dirksen Senate Office Building, Hon. Robert P.
Casey, Jr., presiding.
Present: Senator Casey.
OPENING STATEMENT OF HON. ROBERT P. CASEY, JR., U.S. SENATOR
FROM PENNSYLVANIA
Senator Casey. The hearing of the Committee on Foreign
Relations will now come to order.
Today, the committee meets to consider five law of war
treaties that regulate the application of military force to
ensure innocent civilians are appropriately protected from harm
during an armed conflict.
Four of the five treaties on the committee's docket today
are protocols or amendments to the Convention on Certain
Conventional Weapons, also known as the CCW. The CCW was
originally concluded in 1980, which the United States ratified
in 1995. It establishes a framework to regulate the use of
those conventional weapons at special risk of causing
indiscriminate damage or unnecessary suffering to innocent
civilians. Separate protocols appended to the CCW focus on
specific weapons.
Accordingly, the committee today will consider whether the
Senate should give its advice and consent to U.S. ratification
of three protocols to the CCW that focus on the following
weapons systems and munitions.
The first, Protocol III, relates to prohibitions or
restrictions on the use of incendiary weapons. Incendiary
weapons are those weapons primarily designed to set targets on
fire or cause burn injuries by delivering a substance that
causes a chemical reaction.
The second, Protocol IV, relates to blinding laser weapons.
This protocol would prohibit the use of those weapons on the
battlefield that are specifically designed to cause seriously
disabling and irreversible loss of vision to the unaided eye.
Next, Protocol V, relates to explosive remnants of war,
which are defined as those munitions that remain armed
following the end of a conflict, including artillery shells,
bombs, handgrenades, cluster munitions, and rockets that do not
explode as intended, but were simply abandoned on the
battlefield. We're all too familiar with the tragic stories of
innocent civilians, including children, who pick up these
munitions, only to have them explode in their hands.
The fourth treaty the committee will consider today, also
relates to the CCW and is known as the Scope amendment. When
the CCW was adopted in 1980, it only applied to traditional
armed conflicts between sovereign states. The drafters of the
CCW failed to appreciate that the nature of armed conflict
would significantly evolve over ensuing decades, such that
today, the majority of armed strife in the world is a result of
noninternational conflicts, such as civil wars, insurgencies,
and ethnic conflict. The Scope amendment would simply extend
the mandate of the CCW and certain protocols to cover these
types of noninternational conflicts, in addition to traditional
conflicts between States. In fact, when the Senate provided its
advice and consent to ratification of the CCW in 1995, it
included a declaration that the United States would extend its
application of the CCW to noninternational conflicts.
The final treaty before the committee today is the Hague
Cultural Property Convention, which is more than 50 years old.
The Hague Convention establishes special protections for
cultural properties during wartime, including a prohibition on
direct attacks upon cultural property, theft and pillage of
cultural property, and reprisals against cultural property.
When we discuss cultural property in the context of the Hague
Convention, we're referring to monuments of architecture,
museums, works of art, sites of historical interest, and other
uniquely important artifacts. The Hague Convention helps ensure
that our common historical and cultural heritage is protected
against wanton and willful destruction.
As the United States considers these five law of war
treaties, it is critical to remember the following points that
these protocols and conventions all share in common.
First, our uniformed military officers strongly support
these treaties and believe they are consistent with U.S.
national security interests. The presence today of Brigadier
General Johnson of the Joint Chiefs of Staff attests to that
support. The Department of Defense, including our combatant
commands, already complies with, and fulfills in practice, the
norms contained in all five of these law of war treaties.
U.S. ratification of these treaties will not change U.S.
military practice in any way, shape, or form. Let me repeat
that. Our military already complies in practice with all five
treaties before this committee today. Formal U.S. ratification
of these treaties would do nothing--nothing to change or alter
our current military practices.
Although the United States already follows these treaties
in practice, formal Senate approval and entry into force by the
United States will set an important example and bolster U.S.
leadership when it comes to promulgating universal adherence to
law of war treaties. It is difficult for the United States to
persuade other nations to adhere to humanitarian and cultural
practices when we refuse to formally join the types of treaties
that are before the committee today.
Formal U.S. ratification will help advance the values our
Nation holds dear, and will allow us to participate fully in
relevant international meetings on the implementation of these
treaties.
These five treaties carry broad support within the United
States, and bridge any partisan divide. Some of these
agreements were submitted by Republican administrations, others
were submitted by Democratic administrations. The current
administration is unified in its support of the five treaties,
with Deputy Secretary of State Negroponte, Deputy Secretary of
Defense England reaffirming the support of the State Department
and the Pentagon in a letter to the committee in August of last
year. Negroponte and England both wrote, ``The Defense
Department and the State Department strongly support all five
of these treaties and encourage their prompt ratification.''
U.S. ratification is also supported by the American Bar
Association, which has long supported ratification of the Hague
Convention, and which, last August, passed a resolution on the
CCW Amendment and Protocol, stating, ``U.S. ratification would
further United States humanitarian objectives without
compromising the appropriate use of important military
technologies.''
The committee is pleased to have a strong panel of
administration witnesses testifying today in support of these
five treaties. First, John Bellinger, the Legal Adviser for the
Department of State and second, Charles A. Allen, the Deputy
General Counsel at the Department of Defense. Also with us
today, but not providing an opening statement, is BG Michelle
D. Johnson, Deputy Director for the War on Terrorism and Global
Effects for the Joint Chiefs of Staff. Brigadier General
Johnson will be available to answer our questions, as
appropriate.
I'd now like to turn to--well, Senator Lugar is not with
us, he may be here later, but, if not, I wanted to thank him
and thank Senator Biden for arranging this hearing.
I also wanted to make sure that we move our agenda forward,
so I think we'll start with Mr. Bellinger.
And the floor is yours.
STATEMENT OF HON. JOHN B. BELLINGER, LEGAL ADVISER, DEPARTMENT
OF STATE, WASHINGTON, DC
Mr. Bellinger. Thank you very much, Mr. Chairman. And we
want to thank you for putting this hearing together for these
important treaties. We appreciate your particular interest in
these, and the committee's interest.
I have to say, having listened to your statement, that I
could not have said it any better. I agree with everything and
all the points that you have made about these treaties in your
opening statement. And we do believe that they are very
important for us and will contribute both to our military and
also to our leadership role on international humanitarian law
in the world.
I have a longer written statement that I would ask be
inserted into the record----
Senator Casey. Without objection.
Mr. Bellinger [continuing]. And a quite short opening
statement to--just to get us started, and then look forward to
answering any questions that you may have.
These five important treaties operate in a field of
international law that regulates the conduct of hostilities
once there is an armed conflict, as do the well-known 1949
Geneva Conventions. The aim of these treaties is to reduce the
suffering caused during armed conflicts and provide protection
to the victims of war, particularly to the civilian population
and civilian objects, in a manner consistent with legitimate
military requirements. The United States has been a
longstanding and historic leader in the law of armed conflict,
and we've played a significant role in shaping the treaties
before you now. At the same time, we subject all treaties
dealing with the law of armed conflict to very close
examination, even after adoption of the texts. And I would note
that in some cases the United States has taken more time than
many of our friends and allies in ratifying these treaties,
because of their particular concern to our military. But, we
believe that such close examination allows us to be sure that
the treaties we propose to ratify are, in fact, in our national
interests.
Now, some may question why it's important to ratify these
treaties now, after they've entered into force for other
nations long ago. The answer, in part, is that over time we've
seen how these treaties operate, and we're confident that they
would promote U.S. national interests and are consistent with
U.S. practice. And I'll--I will just add something there that
I'm occasionally asked in hearings about treaties, just to be
clear. We in the State and the Defense Departments, and the
administration overall, don't enter into treaties to be nice to
other countries because we want to be part of an international
club. We do it because they are in our national security
interests, and we believe that they will benefit the United
States. And I think you mentioned, Senator, in the beginning,
some of the reasons that these particular treaties are of
importance to us.
An important reason is that ratification of these treaties
would promote U.S. international security interests in
vigorously supporting both the rule of law and the appropriate
development of international humanitarian law. Additionally,
when the United States ratifies a treaty, other nations are
more likely to ratify, as well, which ultimately helps us to
protect our forces.
Moreover, after ratification, the United States will be
able to participate fully in meetings of States Parties to the
treaties aimed at implementation of the treaties, and thereby
more directly affect how the practice under these treaties
develops. Becoming a party to these treaties also will
significantly strengthen our negotiating leverage and our
credibility in our work on other law of war treaties, to the
extent that other States ask why they should cede to U.S.
positions if we do not ratify those treaties after they do so.
Now, as you've said, the five treaties before us are the
1954 Hague Convention for the Protection of Cultural Property
in the Event of an Armed Conflict, which was transmitted to the
Senate on January 6, 1999; three protocols to the Convention on
Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May be Deemed to be Excessively Injurious or to
Have Indiscriminate Effects, which we call, for understandable
reasons, by the shorthand, CCW--Protocol III of the CCW on
Incendiary Weapons, which was adopted in 1980 and transmitted
to the Senate on January 7, 1997; Protocol IV to the CCW on
Blinding Laser Weapons, which was adopted in 1995 and
transmitted to the Senate on January 7, 1997; and Protocol V on
Explosive Remnants of War, which was adopted in 2003 and
transmitted to the Senate on June 20, 2006; and an amendment to
this convention which was adopted in 2001 and transmitted to
the Senate on June 20, 2006.
All of these instruments have already entered into force
for those States that have ratified them.
Now, the Cultural Property Convention prohibits direct
attacks upon cultural property, theft and pillage of cultural
property, and reprisals against cultural property. While there
were some initial U.S. concerns related to the convention after
it was adopted, and, for that reason, it was not transmitted to
the Senate until 1999, now, after some 50 years of experience
and detailed interagency review, we've concluded that U.S.
practice is entirely consistent with this convention, and that
ratifying it will cause no problems for the United States or
for the conduct of U.S. military operations.
Because of some minor concerns that relate to ambiguities
in the language of the treaty, however, we propose four
understandings that are set out in Treaty Document 106-1, which
you have. These are entirely consistent with the goals of the
convention, and they serve to clarify a number of important
points.
The Convention on Certain Conventional Weapons, or CCW, is
a framework instrument. It was adopted after extensive
multilateral negotiations between 1974 and 1980, with
significant U.S. involvement and participation, and it was
approved by the Senate and ratified by President Clinton in
1995. The CCW establishes scope and procedural provisions that
apply to a number of annexed protocols, each of which deals
with a particular type of conventional weapon that may be
deemed to pose special risks of having indiscriminate effects
or causing unnecessary suffering, or a problem common to
certain weapons.
We believe that the CCW is a particularly valuable
framework, because it is designed to balance humanitarian and
military considerations. The four CCW instruments under
consideration today are consistent with U.S. military
requirements and existing military practices. Each one advances
the U.S. national objective of preserving humanitarian values
in times of armed conflict. And ratification will permit the
United States to participate fully in relevant meetings of
States Parties to these instruments and to insist that other
States Parties follow the norms that each instrument creates.
All the major military powers are parties to the CCW and
participate in meetings convened under its framework, and all
decisions are made by consensus. It's because of the
involvement of all the major military powers in the CCW that
the United States supported the initiation of, and has actively
participated in, two rounds of negotiations on the issue of
cluster munitions within the CCW framework. While this step is
important, it's also critical that we ratify the existing CCW
instruments, particularly the Protocol on Explosive Remnants of
War, Protocol V, which will have a direct impact on mitigating
the humanitarian effects of cluster munitions by focusing on
concrete actions to be taken in the post-conflict period by the
State in control of the affected territory, as well as the
users of such munitions. While these measures are already
consistent with U.S. practice, our ratification will encourage
other States to adopt similar practices through their
ratification.
United States ratification of the treaties before you today
is in our military and security interests, and would promote
the rule of law and the development of international law. These
treaties are widely supported, and, we believe, are not
contentious. This administration, including the State and
Defense Departments, strongly supports these treaties, and, as
you noted, Senator, the American Bar Association has also urged
their ratification. They promote our cultural and humanitarian
values, while not interfering with legitimate military
objectives, as you will shortly hear from my colleagues from
the Defense Department.
Mr. Chairman, I urge that the committee give prompt and
favorable consideration to these treaties.
Thank you.
[The prepared statement of Mr. Bellinger follows:]
Prepared Statement of Hon. John B. Bellinger, Legal Adviser,
Department of State, Washington, DC
Mr. Chairman, I am pleased to testify, along with my colleagues
from the Department of Defense, before the committee today to express
the strong support of the State Department and the administration for
the Senate's prompt provision of advice and consent to ratification of
five important treaties that deal with the law of armed conflict. One
of the treaties concerns the protection of cultural property and the
other four concern certain conventional weapons.
In its February 2007 letter to Chairman Biden setting out its
treaty priorities for the 110th Congress, the administration supported
Senate action on each of these treaties. In August of last year, in a
letter to this committee, the Deputy Secretaries of State and Defense
reaffirmed their support for all five treaties. Ratification of these
treaties will promote the cultural and humanitarian values of the
United States, while being fully consistent with our military needs.
These treaties operate in a field of international law that
regulates the conduct of hostilities once there is an armed conflict,
as do the 1949 Geneva Conventions. This area of law is referred to as
the law of war, the law of armed conflict, or international
humanitarian law. The aim of these treaties is to reduce the suffering
caused during armed conflicts and provide protection to the victims of
war, particularly to the civilian population and civilian objects, in a
manner consistent with legitimate military requirements.
The United States has been a longstanding and historic leader in
the law of armed conflict, and we played a significant role in shaping
the treaties before you now. At the same time, due to the complexity of
the law in this field and the involvement of our military forces in
armed conflict, we subject all treaties dealing with the law of armed
conflict to close examination, even after adoption of the texts. I
would note that in some cases the United States has taken more time
than many of our friends and allies in ratifying the treaties we
initiate, negotiate, support and with which we generally comply, even
where we have not formally become a party. But we believe that such
close examination is necessary, and allows us to be sure that the
treaties we propose to ratify are in our national interests.
Some may question why it is important to ratify these treaties now
after they have entered into force for other nations long ago. The
answer, in part, is that over time we have seen how these treaties
operate and we are confident that they promote U.S. national interests
and are consistent with U.S. practice. Another reason for the United
States to ratify these treaties is that ratification would promote U.S.
international security interests in vigorously supporting, along with
our friends and allies, both the rule of law and the appropriate
development of international humanitarian law. Additionally, when the
United States ratifies a treaty, other nations are more likely to
ratify as well, with the result that overall implementation of and
compliance with these norms will improve over time, which ultimately
helps to protect our forces.
Ratification will also specifically enhance U.S. leadership in
international humanitarian law and increase our ability to work with
other states to promote effective implementation of these treaties in
at least two ways. First, after ratification, the United States will be
able to participate fully in meetings of States Parties aimed at
implementation of these treaties and, thereby, more directly affect how
the practice under these treaties develops. Second, becoming a party to
these treaties will significantly strengthen our negotiating leverage
and credibility in our work on other law of war treaties, to the extent
other states ask why they should cede to U.S. positions if we do not
ratify those treaties after they do so. We hope to change that
situation with the ratification of the five instruments under
consideration today.
We believe that these treaties are not contentious. Some have been
transmitted to the Senate for advice and consent to ratification by
Democratic administrations and some by Republican administrations. The
American Bar Association has urged the ratification of all five
treaties.
The five treaties before you are the 1954 Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict, which
was transmitted to the Senate on January 6, 1999; three protocols to
the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May Be Deemed to Be Excessively Injurious or
to Have Indiscriminate Effects, or ``CCW'': Protocol III on Incendiary
Weapons, which was adopted in 1980 and transmitted to the Senate on
January 7, 1997; Protocol IV on Blinding Laser Weapons, which was
adopted in 1995 and transmitted to the Senate on January 7, 1997; and
Protocol V on Explosive Remnants of War, which was adopted in 2003 and
transmitted to the Senate on June 20, 2006; and an amendment to this
convention, which was adopted in 2001 and was transmitted to the Senate
on June 20, 2006. All of these instruments have already entered into
force for those states that have ratified them.
hague cultural property convention
I would like to address the Cultural Property Convention first. It
prohibits direct attacks upon cultural property, theft and pillage of
cultural property, and reprisals against cultural property. While the
United States helped negotiate this convention after World War II to
address problems encountered during that war--indeed, the convention is
based in large measure on practices of U.S. military forces during
World War II--we have seen in much more recent conflicts how important
it is to take measures to protect cultural property. While there were
some initial U.S. concerns related to the convention after it was
adopted, and for that reason it was not transmitted to the Senate until
1999, now, after some 50 years of experience and detailed interagency
review, we have concluded that U.S. practice is entirely consistent
with this convention and that ratifying it will cause no problems for
the United States or for the conduct of U.S. military operations.
Because of some minor concerns that relate to ambiguities in language,
however, we propose four understandings that are set out in Treaty
Document 106-1. These are entirely consistent with the goals of the
convention and serve to clarify a number of important points.
The American Bar Association Report accompanying its resolution
recommending ratification of this convention stated that ``[b]y
ratifying the 1954 Hague Convention, the United States would
demonstrate . . . the importance the United States places on the
protection of the cultural heritage of humanity.''
Let me note that there are two protocols to this convention, one
adopted in 1954--on preventing the exportation of cultural property and
providing for restitution of illegally exported objects--and one in
1999--on establishing an enhanced system of protection for specifically
designated cultural property. Both protocols require further review,
but the convention itself stands on its own, and the administration
urges that the committee take action now on the convention itself.
convention on certain conventional weapons
The Convention on Certain Conventional Weapons (``CCW'') is a
framework instrument. It was adopted after extensive multilateral
negotiations between 1974 and 1980, with significant U.S. involvement
and participation, and was approved by the Senate and ratified by
President Clinton in 1995. The CCW establishes scope and procedural
provisions that apply to a number of annexed protocols, each of which
deals with a particular type of conventional weapon that may be deemed
to pose special risks of having indiscriminate effects or causing
unnecessary suffering, or a problem common to certain weapons. We
believe that the CCW is a particularly valuable framework for
considering such questions because it is designed to balance
humanitarian and military considerations.
The framework instrument and the protocols are separate treaties
each requiring advice and consent to ratification. With Senate advice
and consent, the United States ratified the framework instrument and
the first two protocols, on nondetectable fragments and landmines, in
1995. We ratified an amended version of the landmines protocol in 1999.
The four instruments under consideration today--a 2001 amendment to
article 1 of the convention itself, the 1980 Protocol III on incendiary
weapons, the 1995 Protocol IV on blinding laser weapons, and the 2003
Protocol V on explosive remnants of war--are consistent with U.S.
military requirements and existing military practices. Each one
advances the U.S. national objective of preserving humanitarian values
in times of armed conflict, and ratification will permit the United
States to participate fully in relevant meetings of States Parties to
these instruments and to insist that other States Parties follow the
norms that each instrument creates.
The American Bar Association Report accompanying its resolution
urging ratification of this amendment and these protocols concluded
that ``U.S. ratification would further the United States humanitarian
objectives without compromising the appropriate use of important
military technologies.''
All the major military powers are parties to the CCW and
participate in meetings convened under its framework, and all decisions
are made by consensus. It is because of the involvement of all the
major military powers in the CCW that the United States supported the
initiation of and has actively participated in two rounds of
negotiations on the issue of cluster munitions within the CCW
framework. While this step is important, it is also critical that we
ratify the existing CCW instruments--particularly the protocol on
explosive remnants of war, which will have a direct impact on
mitigating the humanitarian effects of cluster munitions by focusing on
concrete actions to be taken in the post-conflict period by the state
in control of the affected territory as well as the users of such
munitions. While these measures are already consistent with U.S.
practice, our ratification will encourage other states to adopt similar
practices through their ratification.
Let me briefly describe the four CCW instruments under
consideration.
Amendment to Article 1
Article 1 of the convention as adopted in 1980 limited the scope of
application of the convention to international armed conflicts between
states and to wars of national liberation. As we informed the Senate,
the United States declared, when we deposited the instruments of
ratification, that the provision in article 1 concerning wars of
national liberation would have no effect because it injected subjective
and politically controversial standards into international humanitarian
law and undermined the important traditional distinction between
international and noninternational armed conflicts. We also informed
the Senate that the United States will apply the provisions of the CCW
to all armed conflicts, whatever their nature--international or
noninternational--and that we intended to support an amendment to the
CCW formally extending the scope of application to all armed conflicts.
The amendment to article 1 before you today does just that. The
United States proposed this amendment, which conforms the convention to
U.S. practice and extends the convention's and protocol's existing
rules to noninternational as well as international armed conflicts. For
instance, it would lead to increased protection of the civilian
population from the effects of hostilities during civil war by
requiring adherence by the State Party involved to the restrictions
contained in any of the first four protocols it had ratified. The
amendment was adopted in 2001 and was transmitted to the Senate in
2006, along with Protocol V.
As of the date of this hearing, 59 states are bound by the
amendment to article 1 of the convention, including most of our NATO
allies, Japan, South Korea, Russia, and China.
Protocol III (incendiary weapons)
Protocol III, which was adopted in 1980 along with the CCW and the
first two protocols, provides increased protection for civilians from
the potentially harmful effects of incendiary weapons, while
reconfirming the legality and military value of incendiary weapons for
targeting specific types of military objectives. Incendiary weapons are
weapons or munitions that are primarily designed to set fire to objects
or to cause burn injury to persons through the action of flame, heat,
or a combination thereof, produced by a chemical reaction of a
substance delivered on the target. They do not include tracer or smoke
munitions, such as white phosphorus munitions.
This protocol was not transmitted to the Senate in 1994 along with
the CCW and the first two protocols because of concerns raised at that
time relating to the possible need to use air-delivered incendiaries in
certain situations. It was subsequently transmitted to the Senate in
1997 with a proposed condition that would make the protocol acceptable
from a broader national security perspective. The precise wording of
this condition, however, continued to undergo military review, in order
to ensure that the United States was able to retain its ability to
employ incendiaries against high-priority military targets.
We are now in a position to state that U.S. ratification of this
protocol, subject to a reservation that I will describe, would further
humanitarian purposes as well as provide even clearer legal support for
U.S. practice, particularly given past controversies surrounding the
use of incendiary weapons. Based on the military review, we can say
that U.S. military doctrine and practice are consistent with Protocol
III, except for the two paragraphs for which we have proposed the
reservation--which is permitted under the CCW--in the interest of
reducing risk to innocent civilians and collateral damage to civilian
objects.
The protocol would prohibit the employment of incendiary weapons
against military objectives within a ``concentration of civilians.''
This is usually the right rule, but there could be particular combat
situations in which it would cause fewer civilian injuries and less
damage to use an incendiary, even where a concentration of civilians is
present. Therefore, the administration recommends that the United
States, when ratifying Protocol III, reserve the right to use
incendiary weapons against military objectives located in
concentrations of civilians where it is judged that such use would
cause fewer casualties and less collateral damage than alternative
weapons, such as high-explosive bombs or artillery.
There are currently 99 States Parties to Protocol III, including
all NATO Member States except Turkey and the United States.
Protocol IV (blinding laser weapons)
The negotiation of Protocol IV, which began in 1994, had as its
impetus the possibility that countries would develop weapons with the
capability to disable enemy forces through mass blinding, although such
weapons had not actually been developed at the time. As adopted in
1995, the protocol prohibits the use, against any individual enemy
combatant, of blinding laser weapons ``specifically designed, as their
sole combat function or as one of their combat functions, to cause
permanent blindness to unenhanced vision, that is to the naked eye or
to the eye with corrective eyesight devices.'' This prohibition is
fully consistent with DOD policy, which served as the principal basis
for the Protocol IV text.
Protocol IV also obligates States Parties to take ``all feasible
precautions'' in using laser systems, ``to avoid the incidence of
permanent blindness to unenhanced vision. Such precautions shall
include training of their armed forces and other practical measures.''
This is also fully consistent with DOD policy. Such lasers include
those used for range-finding, target discrimination, and
communications.
There are currently 89 States Parties to Protocol IV, including
all other NATO Member States and Israel. Protocol IV was transmitted to
the Senate on January 7, 1997, together with Protocol III.
Protocol V (explosive remnants of war)
The negotiation of Protocol V was begun in 2002, based on concerns
that a large proportion of civilian deaths and injuries from explosive
remnants of war during post-conflict periods are both predictable and
preventable. The situation in Kosovo had been cited as an example of
the problems caused by explosive remnants of war. Protocol V, which was
adopted in November 2003, is the first international agreement
specifically aimed at reducing the humanitarian threat posed by
unexploded and abandoned munitions of all types that remain on the
battlefield after the end of armed conflicts (together known as
``ERW''). ERW have existed since the earliest use of explosive devices
in armed conflict. The protocol contains no restrictions or
prohibitions on the use of weapons as such but provides rules for what
must be done with respect to ERW, in order to reduce the threat such
ordnance poses to civilians and post-conflict reconstruction.
The primary focus of Protocol V is on the post-conflict period. The
protocol provides that, after entry into force, the party in control of
the territory on which the munitions are found is responsible for the
clearance, removal, and destruction of the ERW.
The party that used the munitions--if the munitions are not located
on its territory--is obligated to assist ``to the extent feasible.''
The users of munitions are obligated to record and retain information
on the use of munitions and on the abandonment of munitions ``to the
maximum extent possible and as far as practicable.'' They are also to
transmit such information to the party in control of the territory. The
protocol contains voluntary ``best practices'' on recording, storage,
and release of information on ERW, as well as on warning and risk
education for ERW-affected areas.
The protocol also includes a technical annex that encourages states
to take steps to achieve the greatest reliability of munitions and to
prevent munitions from becoming ``duds.''
There are currently 42 States Parties to Protocol V, including 14
NATO Member States, with a number of the remaining NATO Member States
close to ratifying. Israel is not a party to Protocol V but it took
part in the negotiations and supported the final text. A large number
of states have indicated that they expect to join this protocol in the
near future. Protocol V was transmitted to the Senate on June 20, 2006,
along with amended Article I and Protocol III to the 1949 Geneva
Convention, following extensive interagency review. Priority for Senate
action was given to Protocol III to the 1949 Geneva Convention, given
its relative importance, and that protocol entered into force for the
United States on March 8, 2007.
conclusion
United States ratification of the treaties before you today is in
our military and security interest and would promote the rule of law
and the development of international law. These treaties are widely
supported and are not contentious in our view. This administration,
including the State and Defense Departments, strongly supports these
treaties. They promote our cultural and humanitarian values while not
interfering with legitimate military operations, as you will shortly
hear from my colleagues from the Defense Department. The United States
has traditionally been at the forefront of efforts to improve the legal
regime dealing with the conduct of armed conflict, in order to protect
our own forces, to reduce the suffering caused by armed conflicts and
to provide protection to the victims of war, in a manner consistent
with legitimate military requirements. Our ratification of these
instruments will therefore serve our interests in these areas.
Mr. Chairman, I urge that the committee give prompt and favorable
consideration to these treaties.
Senator Casey. Thank you.
Mr. Allen.
STATEMENT OF CHARLES A. ALLEN, DEPUTY GENERAL COUNSEL,
INTERNATIONAL AFFAIRS, DEPARTMENT OF DEFENSE, WASHINGTON, DC
Mr. Allen. Thank you very much, Mr. Chairman.
I'd like to begin by echoing Mr. Bellinger's comments, and
not only his specific comments regarding these treaties, but
also in thanking you for your very thoughtful statement
regarding these treaties.
The Department of Defense believes that--and this includes
the military departments and the combatant commands--these
treaties are consistent with U.S. national security interests
and overall U.S. interests. The U.S. Armed Forces already
comply with the norms contained in these treaties, as you
indicated.
Four of these treaties relate to the Convention on
Conventional Weapons: An amendment to that convention, and
three protocols to it. The fifth is the separate 1954 Hague
Convention on the Protection of Cultural Property, which,
although codifying protections for cultural property,
specifically authorizes military commanders to do what is
necessary to accomplish their missions. The convention does not
restrict legitimate military actions that may be taken even if
collateral damage is caused to cultural property. Importantly,
it prohibits the use of cultural property in armed conflict for
purposes likely to expose it to destruction or damage. The
Department of Defense has carefully studied the convention and
its effect on military practice and operations, and believes
the convention to be fully consistent with good military
doctrine and practice, as conducted by the U.S. Armed Forces.
We recommend that ratification of the convention be subject
to the four understandings that Mr. Bellinger mentioned that
are set out in the treaty document submitted to the Senate.
Among other things, these understandings reflect key law of
war principles that are consistent with the convention:
Prohibiting use of cultural property to shield legitimate
targets from attack, and recognizing that property may be
attacked using lawful and proportional means if required by
military necessity.
The CCW and its protocols are part of a legal regime that
takes into account both humanitarian considerations and
military necessity in regulating the use of particular types of
conventional weapons that may pose risks to civilian
populations within the vicinity of military operations.
The first of the four CCW instruments under consideration
is the amendment to article 1, which extends the scope of the
application of the convention in Protocols I, II, and III to
noninternational armed conflicts. The amendment is important,
because many of the conflicts that occur today are
noninternational in character. Ratifying this amendment will
result in no changes to longstanding U.S. and Department of
Defense policy, as reflected in the U.S. declaration upon
becoming a party to the CCW and two protocols to CCW in 1995.
Additionally, the amendment applies the rules contained in
the convention and protocols to both State and non-State
belligerents. The amendment recognizes that the applicability
of the CCW and protocols to non-State Parties to a conflict
does not change the legal status of those non-State Parties,
and it advances U.S. national objectives of preserving
humanitarian values during armed conflict.
Now, Protocol III codifies increased protection for
civilians from the potentially harmful effects of incendiary
weapons. It reconfirms the legality of military use of
incendiary weapons for targeting specific types of military
objectives. Ratification of this protocol would further
humanitarian purposes, as well as provide clearer support for
U.S. practice, given past controversies surrounding incendiary
weapon use. U.S. military doctrine and practice are consistent
with Protocol III, subject to the proposed reservation in the
interest of reducing risk to innocent civilians and collateral
damage to civilian objects. In this reservation, we would
reserve the right to use incendiary weapons against military
objectives, but only where it is judged that such use would
actually reduce the risk of civilian and friendly force
casualties and collateral damage than alternative weapons, such
as high-explosive bombs or artillery.
Protocol IV to CCW prohibits the use of blinding laser
weapons, ``specifically designed, as their sole combat function
or as one of their combat functions, to cause permanent
blindness to unenhanced vision, that is to the naked eye or to
the eye with corrective eyesight devices.'' This prohibition is
fully consistent with DOD policy, which was established prior
to, and was the principal basis for, the Protocol IV text.
Protocol V to the CCW provides rules for what must be done
with respect to unexploded munitions and abandoned munitions,
together known as explosive remnants of war, or ERW, remaining
on the battlefield after a conflict. These munitions may be
artillery shells, bombs, handgrenades, mortars, rockets, and,
in fact, also cluster munitions; but, by definition, do not
include land mines, which are regulated by Protocol II, the
Amended Mines Protocol to the CCW. In the view of the United
States and other major military powers, many of the reported
problems concerning the use of cluster munitions can be
addressed through the effective implementation of Protocol V,
including the voluntary best practices stated in the technical
annex to the protocol.
The United States delegation stated its understandings
regarding a number of Protocol V provisions during the
negotiations and upon the adoption of the final text, and these
understandings were not disputed. These understandings are
found in the administration's article-by-article analysis, and
we believe Protocol V rules and best practices are completely
consistent with U.S. military doctrine and policy.
Because the Department of Defense views these treaties as
being consistent with United States national security interests
and overall U.S. interests, and because being party to these
treaties, as Mr. Bellinger said, will reinforce existing
military norms and practices and enhance our stature in the
international community with regard to the law of war, I urge
you to act favorably on all five of these treaties.
Thank you.
[The prepared statement of Mr. Allen follows:]
Prepared Statement of Charles A. Allen, Deputy General Counsel,
International Affairs, Department of Defense, Washington, DC
Mr. Chairman and members of the committee, thank you for the
opportunity to testify today on the ratification of five Law of Armed
Conflict treaties. As Mr. Bellinger has indicated, ratification of
these treaties is fully supported by both the Departments of State and
Defense. Mr. Bellinger provided reasons why the treaties are important
to us. I will discuss the content of the treaties in more detail.
On February 7, 2007, the State Department transmitted to the Senate
Foreign Relations Committee the administration's Treaty Priority List
for the 110th Congress. This list includes six treaties dealing with
the law of armed conflict currently on the committee's calendar. Senate
action on the five treaties summarized as follows is proposed at this
time.
Action on these treaties now, as proposed in Treaty Docs. 105-1,
106-1, and 109-10, is important because:
These treaties promote the humanitarian and cultural values
of the United States;
They promote the rule of law and international law;
They are widely supported, including by the Departments of
State and Defense, and we do not believe they pose contentious
issues; some have been sent to the Senate by Republican
administrations and some by Democratic administrations;
The Department of Defense believes these treaties are
consistent with U.S. national security interests and overall
U.S. interests. The Department of Defense, including the
Military Departments and Combatant Commands, already comply
with the norms contained in them;
By becoming party to the treaties, the United States will be
in a stronger position to urge treaty partners to comply with
them;
Ratification will allow us to participate fully in relevant
meetings of states party to the treaties;
Ratification will increase U.S. negotiating leverage and
credibility as we seek to negotiate other treaties generally
and instruments concerning the law of armed conflict in
particular.
In addition, this year a key element in our effort to deal with the
issues posed by cluster munitions is ratification of Protocol V to the
Convention on Conventional Weapons (CCW), on explosive remnants of war.
Our ratifying this protocol would strengthen U.S. efforts to show that
we are serious about dealing with cluster munitions in the CCW
framework. The CCW framework is advantageous to the United States
because it balances humanitarian and military interests; the
alternative to CCW is an effort by some other countries to achieve a
ban on the use, production, and transfer of these weapons without
recognizing their military utility in some circumstances.
the 1954 hague convention for the protection of cultural property in
the event of armed conflict
The Hague Convention for the Protection of Cultural Property, among
other things, prohibits direct attacks upon cultural property, theft,
and pillage of cultural property, and reprisals against cultural
property. It also prohibits the use of cultural property in armed
conflict for purposes likely to expose it to destruction or damage.
The definition of cultural property includes monuments of
architecture, art or history, archeological sites, groups of buildings
of historical or artistic interest, works of art, manuscripts, books
and other objects of artistic, historical, or archeological interest,
as well as scientific collections and important collections of books or
archives.
The convention was negotiated following World War II with the
purpose of avoiding problems encountered during and following World War
II. U.S. military practice in World War II was a point of reference in
drafting the treaty. The convention was concluded in 1954 and entered
into force in 1956. The United States was one of the original
signatories.
It was initially believed that implementation of the treaty could
cause operational problems for U.S. military forces. The convention was
not sent to the Senate for advice and consent immediately following
U.S. signature. The U.S. military's conduct of operations over the last
50 years has been entirely consistent with the convention's provisions.
After almost 50 years of practice, initial concerns did not
materialize. Following the experience of Operation Desert Storm, the
Department of Defense informed the Department of State in 1992 of its
support for U.S. ratification. The convention and its first protocol
were submitted to the Senate in 1999.
The convention does not prevent military commanders from doing what
is necessary to accomplish their missions. Legitimate military actions
may be taken even if collateral damage is caused to cultural property.
Protection from direct attack may be lost if a cultural object is put
to military use. The Department of Defense has carefully studied the
convention and its impact on military practice and operations. The
Department believes the convention to be fully consistent with good
military doctrine and practice as conducted by U.S. forces.
We have recommended that ratification of the 1954 convention be
subject to the following four understandings:
1. The ``special protection'' as defined in Chapter II of the
Convention prohibits the use of cultural property to shield any
legitimate targets from attack, and allows all property to be attacked
using lawful and proportionate means if required by military necessity.
2. Decisions by military commanders and others responsible for
planning and executing attacks can only be judged on the basis of the
information reasonably available to them at the relevant time.
3. The rules established by the convention apply only to
conventional weapons.
4. The primary responsibility for the protection of cultural
objects rests with the party controlling the property.
amendment to article 1 of the convention on conventional weapons
(``ccw'')
The CCW entered into force on December 2, 1983, for those states
that had ratified it. The CCW and its protocols are part of a legal
regime that regulates the use of particular types of conventional
weapons that may pose risks to civilian populations within the vicinity
of military objectives. As adopted in 1980, Article 1 of the CCW did
not extend the scope of application of the convention to
noninternational armed conflicts. On December 21, 2001, States Parties
to CCW adopted an amended article 1 that extended the scope of
application of the convention and Protocols I, II, and III to
noninternational armed conflicts as well.
At the time it ratified the CCW, the United States made a
declaration stating that the United States would apply the convention
and the first two protocols to conflicts referred to in Common Article
3 of the Geneva Conventions--that is, noninternational armed conflicts.
Additionally, in 1996 the United States successfully led the initiative
to amend CCW Protocol II (regulating mines, booby traps, and other
devices) to apply in both international and noninternational armed
conflicts. The United States ratified the amended CCW Protocol II on
May 24, 1999, with one reservation and nine understandings. In view of
this success, and of U.S. humanitarian goals, the United States urged
CCW States Parties to build on the success of the Protocol II amendment
by amending Article 1 of the CCW to achieve the same effect for the
convention and Protocols I and III. This amendment is important because
many of the conflicts that occur today are noninternational in
character. Ratifying this amendment will result in no changes to
longstanding U.S. and Department of Defense policy.
The amendment to article 1 makes clear that the rules contained in
the convention and protocols will apply to both state and nonstate
belligerents. The amendment provides that recognizing the applicability
of the CCW and protocols to nonstate parties to a conflict does not
change the legal status of those nonstate parties, and it advances the
U.S. national objective of preserving humanitarian values during armed
conflict.
CCW States Parties negotiating future protocols will decide on a
case-by-case basis whether the new protocols should apply in
noninternational armed conflicts.
Fifty-nine states currently are parties to amended Article 1 to the
CCW, including most of our NATO allies, Japan, South Korea, Russia, and
China.
protocol iii (``incendiary weapons'')
Protocol III to the Convention on Conventional Weapons (CCW)
provides increased protection for civilians from the potentially
harmful effects of incendiary weapons, and it reconfirms the legality
and military value of incendiary weapons for targeting specific types
of military objectives. Accordingly, U.S. ratification of this protocol
would further humanitarian purposes as well as provide clearer support
for U.S. practice given past controversies surrounding the use of
incendiary weapons. U.S. military doctrine and practice are consistent
with Protocol III other than the two paragraphs to which the United
States intends to reserve, in the interest of reducing risk to innocent
civilians and collateral damage to civilian objects.
Protocol III was the product of hard-fought negotiations in 1978-
1980 and for many delegations it was the raison d'etre for the CCW.
Widespread use of incendiary weapons by axis and allied forces in WWII
and by the United States in Vietnam was widely criticized. The
provisions of Protocol III were the result of a last-minute compromise
on the part of both proponents (Sweden and Mexico) and opponents
(United States, the Soviet Union and its Warsaw Pact members, and other
governments). The U.S. delegation agreed to the language ad referendum
in order to reach a successful conclusion of the debate.
The compromise centered on retaining the use of incendiaries for
recognized and legitimate military purposes. Even with that compromise,
however, the United States cannot accept the protocol's prohibition on
the employment of incendiary weapons--of any mode of delivery--against
military objectives within a ``concentration of civilians.'' A
``concentration of civilians'' is undefined and could encourage enemy
forces to use innocent civilians as human shields around military
objectives to avoid attack. Nonetheless, the United States carries out
all military operations with a view to taking feasible precautions to
protect the civilian population and individual civilians not taking a
direct part in hostilities.
The administration therefore recommends that the United States,
when ratifying Protocol III, reserve the right to use incendiary
weapons against military objectives located in concentrations of
civilians where it is judged that such use would cause fewer civilian
and friendly force casualties and less collateral damage than
alternative weapons, such as high-explosive bombs or artillery. In
addition, incendiary weapons are the only weapons that can effectively
destroy certain counterproliferation targets such as biological weapons
facilities, which require high heat to eliminate biotoxins.
In 2005 a foreign news report alleged that U.S. employment of white
phosphorous munitions in Iraq constituted the illegal use of an
incendiary weapon or a chemical weapon. This report was incorrect.
White phosphorous does not fit the definition of incendiary weapon in
the protocol. Nor does white phosphorous meet the definition of
``chemical weapon'' in the Chemical Weapons Convention. White
phosphorous is a lawful weapon used for target marking and limited
antipersonnel purposes against military objectives and enemy
combatants. In any case, U.S. and coalition forces take measures to
protect civilians and select weapons to minimize risk to civilians and
civilian property, notwithstanding efforts by insurgents to use
civilians and civilian objects as shields from attack.
There are currently 99 states party to Protocol III, which entered
into force on December 2, 1983. This includes all NATO Member States
except Turkey and the United States.
protocol iv (``blinding laser weapons'')
Protocol IV to the Convention on Conventional Weapons prohibits the
use of blinding laser weapons ``specifically designed, as their sole
combat function or as one of their combat functions, to cause permanent
blindness to unenhanced vision, that is to the naked eye or to the eye
with corrective eyesight devices.'' This prohibition is fully
consistent with DOD policy, which preceded and was the principal basis
for the Protocol IV text.
Protocol IV also obligates State Parties to take ``all feasible
precautions,'' in the employment of laser systems, ``to avoid the
incidence of permanent blindness to unenhanced vision. Such precautions
shall include training of their armed forces and other practical
measures.'' This is also fully consistent with DOD policy. To date, no
individual has suffered permanent blindness, as that term is defined in
the protocol, from battlefield laser use. Such lasers include those
used for range-finding, target discrimination, and communications.
Military personnel fighting in Afghanistan and Iraq, as in previous
armed conflicts, have suffered blindness from blast and fragmentation
weapons.
The definition of permanent blindness is consistent with widely
accepted ophthalmological standards and means ``irreversible and
uncorrectable loss of vision which is seriously disabling with no
prospect of recovery. Serious disability is equivalent to visual acuity
of less than 20/200 Snellen measured in both eyes.''
The United States has employed ``dazzler'' laser devices in Iraq at
checkpoints and elsewhere as a warning device to drivers of oncoming
vehicles to avoid resort to deadly force. Although not a laser weapon,
each dazzler has undergone a legal review as required by DOD directives
to ensure its consistency with our law of war obligations and Protocol
IV.
There are currently 89 states party to Protocol IV, which entered
into force on July 30, 1998, including all other NATO Member States and
Israel.
protocol v (``explosive remnants of war'')
Protocol V to the Convention on Conventional Weapons provides rules
for what must be done with respect to unexploded munitions and
abandoned munitions (together known as ``ERW'') remaining on the
battlefield after a conflict. These munitions may be artillery shells,
bombs, handgrenades, mortars, rockets, and cluster munitions, but by
definition do not include landmines, which are regulated by amended
Protocol II.
In the view of the United States and other major military powers,
many of the reported problems concerning the use of cluster munitions
can be addressed through the effective implementation of Protocol V.
The primary focus of Protocol V is on the post-conflict period. The
party in control of the territory on which the munitions are found is
responsible for the clearance, removal, and destruction of the ERW. In
the case of ERW located in Iraq, this would mean that Iraq is
responsible for the clearance, removal, and destruction, although other
states could assist Iraq--financially or otherwise--in carrying out
those activities.
The party that used the munitions--if the munitions are not located
on its territory--is obligated to assist ``to the extent feasible.''
This obligation does not apply to a state that sold or transferred the
munitions to the user.
The users of munitions are obligated to record and retain
information on the use of munitions and on the abandonment of munitions
``to the maximum extent possible and as far as practicable.'' They are
also to transmit such information to the party in control of the
territory. The protocol contains voluntary best practices on recording,
storage, and release of information on ERW, as well as on warning and
risk education for ERW-affected areas.
The parties to an armed conflict are obligated to take ``all
feasible precautions'' in the territory under their control to protect
civilians and civilian objects from ERW. They are also to protect
humanitarian missions and organizations from ERW ``as far as
feasible.''
Protocol V also contains voluntary best practices to prevent
munitions from becoming ``duds.''
All obligations concerning clearance, removal, and assistance apply
only to ERW that were created after entry into force of the protocol
for the party on whose territory the ERW are located. That being said,
a party has the right to seek and receive assistance, ``where
appropriate,'' for ERW that existed in its territory prior to entry
into force of the protocol, and other parties may provide assistance on
a discretionary basis.
The protocol is not intended to preclude future arrangements or
assistance connected with the settlement of armed conflicts that may
set different divisions of responsibilities for parties to a conflict.
The United States delegation stated its understandings with regard
to a number of provisions during the negotiations and on the adoption
of the final text, and these understandings were not disputed. We do
not believe that there is a need to repeat those understandings--which
are found in the administration's article-by-article analysis--in the
Senate resolution of advice and consent.
There are currently 42 states party to Protocol V, which entered
into force on November 12, 2006, including 14 NATO Member States.
Israel is not a party to Protocol V but took part in the negotiations
and supported the final text.
Thank you for your consideration of these treaties. Because the
Department of Defense views these treaties as being consistent with
U.S. national security interests and overall U.S. interests, and
because the Department already complies with the norms within these
treaties, I urge you to act favorably on these five important treaties.
Senator Casey. Thank you very much.
I'll have some questions for each witness, and I'll start
with Mr. Bellinger.
For those who are here and those who may be listening, and,
I think, even for Senators like me, can you talk a little bit
about the CCW process? Just walk through that for us. I know
you touch on it a couple of times, but please walk us through
the process and the relevance of that process to our national
security and our standing in the world.
Mr. Bellinger. Certainly. Thank you.
The--as I mentioned, the CCW process--it's got a long
title, but the CCW generally refers to Certain Conventional
Weapons--is a framework agreement that takes into account both
humanitarian considerations--because of the particular impact
that certain kinds of weapons can have on civilians and others,
and the combatants in war--and military considerations in the
process of reaching agreements. Essentially, if we are going to
go to war with one another, the idea is to agree to certain
limits on certain particularly destructive weapons. They need
to be consistent with our military objectives, but, at the same
time, our military recognizes that there are certain things
that the military themselves will not use, or that they will
use in a--only in a particular way, in order to limit civilian
harm. And hence, there's the framework agreement and a process
that brings the players together. I gather we might want to
talk about this later on, but that's the process that we're
using right now in Geneva to talk about cluster munitions. But,
already we have reached agreement on protocols on certain types
of weapons, like blinding lasers, which our military does not
plan to use, incendiary devices, which would only be used under
certain circumstances, and then the protocol on explosive
remnants of war. So, it's an important process that we continue
to place a lot of faith in to try to make war as minimally
destructive as possible for civilians and for combatants.
Senator Casey. And, if you would, take it forward from the
point at which ratification takes place. What happens after
that, in terms of implementation?
Mr. Bellinger. It operates by consensus; and so, there are
periodic reviews, both in the overall framework of CCW, which
reviews past protocols, and then look to negotiate new ones.
So, the group meets together, and it is very important that,
unlike some other groups, that the major military powers are
represented to look at how well the past instruments are
working or to look at additional instruments. And then, there
are subgroups of--that will focus, in particular, on the
particular protocols, so there's a working group, for example,
on Protocol V on Explosive Remnants of War. All of these
negotiate by consensus.
Senator Casey. I wanted to get your sense of understanding
of the attitude of other countries toward the United States at
the conferences. Have we been able to effectively influence
negotiations over these treaties in these forums? What's the
sense that you have of the attitude of these other nations as
it pertains to the United States?
Mr. Bellinger. Well, thank you. It's a good question, and I
am proud to answer. I would certainly ask my colleagues here to
add on.
The United States, for decades and decades, if not 100
years, has been a leader in developing law of war treaties. We
are a major military power, so there is recognition and
pressure on us to limit our own use of military forces, and
sometimes constrain ourselves in ways that we're not
comfortable with, but, at the same time, there is great respect
for our negotiators, for our lawyers, and for our values, as a
people, to do the right thing. So, even when other countries
don't agree with us--and sometimes we will have countries who
never have to go to war, and so, for them, these are academic
questions and are putting great pressure on the United States
to limit the use of certain weapons--there is great respect for
us as a leader in the laws of war. And many of the people
sitting behind the witnesses at the table are the men and women
who negotiate, and have for years, in these processes. And I
can tell you, as the Legal Adviser at the State Department, how
much respect there is for the people who do this, even if
there's not agreement with every position the United States
takes.
Senator Casey. We appreciate their service. It's terribly
complex assignments they have, and we appreciate that.
I wanted to move to, Mr. Bellinger--before we get to our
other witnesses--to the question of cluster munitions. As it
stands now, the Norwegian Government launched separate
negotiations, is that correct? And they, of course, fall
outside of the CCW process. And, I guess, their agreement would
ban most, if not all, cluster munitions. Is that correct?
Mr. Bellinger. Generally right, sir. Yes, sir.
Senator Casey. And the United States is boycotting those
negotiations.
Mr. Bellinger. Well, we are not participating.
Senator Casey. OK. Fair enough.
I want to ask you a direct question about why the
administration is opposing an agreement that would not just
regulate the use and disposition of cluster munitions, but
would go one step beyond and ban, in fact, their production.
Mr. Bellinger. No; it's a good question, and I will tell
you we looked very hard at this, between the State and Defense
Departments, as to whether we wanted to participate in the Oslo
process. For the reasons that I laid out, we are a leader in
the laws of war, and in their humanitarian aspects, but, at the
same time, we do use cluster munitions. We have a large number
of them in our inventory, and, at least for right now, until a
review conducted by the Defense Department about their possible
future uses, and under what terms, is finished, we could not
agree to a total ban on use of cluster munitions. There are
legitimate military uses for cluster munitions, that my defense
colleagues can go into.
So, what we chose to do, because of the absolute ban on
clusters that the Oslo process would--is pursuing, we are
looking to agree to a binding instrument within the CCW process
that would address cluster munitions. We're fully aware of the
humanitarian considerations involved when cluster munitions are
used. The CCW process involves all of the major military
players--and I think that's one of the most important things I
want to emphasize--at Oslo, it's a group that does not include
the major military players--Russia, China, Pakistan, India. So,
it's not going to have a lot of effect if you don't have the
countries in the world that have cluster munitions, or might
use them. In the CCW process, we have those players
represented. We think we could reach an agreement, and we've
just, over the weekend, gotten back from a second round of
negotiations for a protocol on cluster munitions, and we think
that's a better approach, to be working with the countries that
actually have got the cluster munitions.
Senator Casey. So, it's currently--I guess you're saying
it's currently under review.
Mr. Bellinger. Well, two things. Our Defense Department
procedures and policies for use of cluster munitions in our
military are under review. The review is close to ending. My
Defense Department colleagues may be able to say a little bit
more about it as to what--how we would use them. But, we have
already agreed that we would--are interested in entering into
what would essentially become a Protocol VI to the CCW on
Cluster Munitions, that, at a very minimum, would address the
law applicable to use of cluster munitions, best practices for
their use, and for cleanup after a conflict.
Senator Casey. Let me direct my question both to you and to
Mr. Allen; one or both can answer.
The results of the review, would they be made available to
this committee?
Mr. Allen. Senator, I'm sure that we'll be in a position to
brief the committee on that review. And I'm sure there'll be
correspondence to the committees following the review that go
into detail with respect to it.
Senator Casey. Do you have any sense of timing on that?
Mr. Allen. I think we're, as Mr. Bellinger indicated, very
close to it. It has had a full review through the combatant
commands and the military departments, and currently it's being
dealt with by the Defense Department leadership.
Senator Casey. In terms of time, are we talking weeks or
months?
Mr. Allen. I think, weeks.
Senator Casey. Weeks; OK.
Mr. Allen. Yes, sir.
Senator Casey. I wanted to move on, because I know we have
a lot to cover.
Mr. Bellinger, one more question. With regard to Senate
legislation 594, which would prohibit the export of cluster
munitions to other nations with a less than 95-percent success
rate, do you know the administration's position on that bill?
Mr. Bellinger. I do, sir. And we do have concerns about
that bill. We certainly understand the--and I can tell you
personally, I understand the concerns that motivate it, because
of the humanitarian impact of cluster munitions. But, to have
legislation that would impose what appears to be an absolute
ban on their use--I think it would actually require a 99-
percent reliability rate--and the cluster munitions currently
in our military arsenal, while some of them have that
reliability, many of them do not, at this point--would hamper
the flexibility of our military commanders to say that there
would be an absolute ban. Frankly, this legislation could be
contrary to humanitarian purposes, because there really could
be some cases where, rather than having a single weapon after
single weapon after single weapon lobbed into a particular
site, it actually would be more humanitarian to use a cluster
munition. So, with respect to the second part of the
prohibition, that says ``could never be used when civilians are
present,'' that actually could be contrary to humanitarian
purposes.
Senator Casey. Now, to your knowledge, is the approach
taken by this administration different than, or in conflict
with, either the prior administration--Clinton or President
Bush's administration prior to President Clinton?
Mr. Bellinger. I would have to ask my Defense and military
colleagues what they recall previously, but my understanding,
sir, is, because cluster munitions have been in our arsenal for
a long time, and have been a staple of our arsenal, while we've
been trying to increase the reliability, I think no
administration would be prepared--has been or would be prepared
to immediately foreswear their use, even as we try to move
forward to address the humanitarian considerations.
Mr. Allen. I can confirm that, Senator, that the usefulness
of cluster munitions is well established. Having said that, we
always apply the law of war, in terms of discrimination, only
going after military targets, and proportionality in the use of
all of our weapons, including cluster munitions. But, there has
been no change in this administration over past
administrations.
Senator Casey. Thank you.
Mr. Allen, I wanted to ask you a couple of questions. One
was about the DOD implementation of these treaties now. Could
you tell us--what, if anything, would change if the United
States joined the treaties? What's the before and after?
Mr. Allen. Well, I think, as you rightly pointed out--in
large measure, not very much would change, because we have
implemented these treaties in our doctrine and in our training.
They're in our culture of training our Armed Forces, preparing
them for the different operations that they're involved in, you
know, as we speak. And there--there obviously would be some
changes. We have--obviously, we tune in to these matters, and
at our various legal schoolhouses and training commands, they
will tune in to the fact that we are now party to these
treaties. And that will--that will be reflected in the
training. But, again, sir, as you rightly pointed out in your
statement, in regard to all five of these matters, there's
really not a lot that would change, except for what we think is
an increase in our stature in being able to assume and continue
our lead role in the law of war, internationally.
Senator Casey. So, it would be, in terms of the mechanics
of it, mostly internal, in terms of training and----
Mr. Allen. Right. Exactly.
Senator Casey. And with regard to implementation and
resources spent, will more resources be devoted to
implementation and training associated with these treaties if
we join?
Mr. Bellinger. I think the resources would--added resources
would be negligible, in terms of implementing the treaties, in
getting the word out to the Armed Forces as to the fact that
we're party to the treaty instead of just applying these norms
that are contained in the treaty as a part of the doctrine that
soldiers, sailors, airmen, and marines have been oriented in
all along. I think, truly, there's not much of a training
expense at all.
Senator Casey. And finally, with regard to just the time
that's passed--these have been on the Senate calendar for quite
a while now--and some of this is by way of reiteration, but if
you could explain why it's important that we act on these
treaties now, in light of the passage of time and in light of
the significance of these treaties.
Mr. Allen. I think it does matter that we're party to the
treaties. I think we have--in particular, in the CCW forum, we
have, as Mr. Bellinger indicated, an extraordinary positive
example of interagency work for the best interests of the
country, the way our Defense Department and State Department
colleagues work together in CCW. And we have high hopes for
this instrument, which may end up being a Protocol VI, dealing
responsibly with cluster munitions. And our stature and our
ability to carry that forward would be enhanced by becoming
party to the CCW treaties.
Senator Casey. Thank you.
And, General, I wanted to get to questions for you. And I
appreciate your patience in waiting.
First of all, thank you for your service, as well. We're
grateful for your service and your participation here in this
hearing.
I wanted to ask you--often when Americans hear about
treaties, as I think Mr. Bellinger mentioned, they think of it
in a different context than warfare or combat. And I think it's
important that we bring them together. I know some of the
previous testimony did just that. But, just from the vantage
point of combatant commanders, can you tell us why these
treaties are important, from a combatant commander's vantage
point?
STATEMENT OF BG MICHELLE D. JOHNSON, DEPUTY DIRECTOR FOR THE
WAR ON TERRORISM AND GLOBAL EFFECTS, J-5 STRATEGIC PLANS AND
POLICY DIRECTORATE, JOINT STAFF, WASHINGTON, DC
General Johnson. Yes, Mr. Chairman, thank you very much.
And thank you for the opportunity to represent the men and
women of the Armed Forces today. And thank you for your and the
committee's support for them every day. We appreciate that.
Thank you very much.
As has been said before, our operations are already
consistent with the content of these treaties, and it's a part
of our normal approach to targeting and munitions selection as
we go along. And we've had a--the opportunity for full review
and concurrence, both on the Joint Staff, as well as in the
combatant commands, and in the services.
Again, as has been said before, as well, anything that
other countries can do in signing up to adhere to these
treaties would be a benefit to our servicemembers, because it
would protect them from excessive injury. And by ratifying it
ourselves, we set the example of what responsible militaries
do, that we follow these rules.
And finally, several of our allies already are in
compliance with these treaties, and for us to be able to fully
operate with them and to participate will actually help our
military operations, because some of--much of what we do is
done with coalition partners.
Senator Casey. Do you have any--and this, I guess, is a
question that a lot of people would ask that aren't intimately
familiar with the necessity and the rationale behind these
treaties--but do these treaties in any way limit the
flexibility of our military?
General Johnson. No; actually it does not provide an
adverse effect on our operations; again, because we operate in
compliance with them already, and also because of what's been
cited by my colleagues, in terms of our ability to respond to
military necessity in any situation, we can apply and balance
the military utility with the humanitarian considerations, as
well.
Senator Casey. So, you can strike that balance.
General Johnson. Absolutely.
Senator Casey. And I know that our military already
implements these treaties, as previous testimony told us, just
in terms of a matter of practical policy, even though we're not
yet a party. Can you give us examples of how we've done this--
in other words, how we've been able to implement them, as
policy, without--or prior to ratification----
General Johnson. On any given----
Senator Casey [continuing]. Just by way of examples.
General Johnson. Right. Well, at any given day--and whether
it's in the coalition air operations center or in the ground
counterparts, during the targeting cycle and munitions
selection there is a whole team, from legal experts to
munitions experts, that select targets and take into account
military utility for a particular target for the desired
military effect. And there's a balance given to collateral
damage and the impact of--on others in the munitions selection.
It's a matter of course. That's the common practice. And so,
because of the care given to that, we feel like that's become
common and hopefully, again, sets the example for others.
Senator Casey. And by way of amplification--that whole
theme that we've talked about, each of us in our own ways
today--setting an example for the world and for countries
around the world, would you give us a sense of what that means
from the perspective of your work, as a part of our military.
This is just to give people a sense of what that means, in
terms of setting that example around the world.
General Johnson. America stands for something. And when we
wear our uniform, we represent that every day. And so, people
in uniform take that responsibility very seriously to, not just
execute policy, but do it in the way that America does:
Responsibly and with due attention to the humanitarian
considerations of our actions in the leadership role that we've
assumed, as we discussed earlier, in all the venues that we
participate in.
Senator Casey. And, Mr. Allen or Mr. Bellinger, do you want
to add anything to that?
Mr. Allen. I would add that I think that these treaties--
starting with your statement, sir, and I think throughout our
statements, as well, these treaties reflect the balance of
military necessity and humanity that are the underlying
principles of the law of war. So, when we develop our doctrine
with respect to adhering to the law of war in our military
operations, we get to the same result as these treaties; even
though we haven't been party, we practice and we imbue, in our
doctrine and in our operations, respect for these same
principles.
Another anecdote is that, with respect to the blinding
lasers protocol, it was a Defense Department policy that was
adopted in the 1990s during the Clinton administration that
actually became the foundation for that protocol. Credit goes
to our colleagues and their predecessors who have persevered
doggedly at the CCW meetings, extensive meetings where there is
no time off, to deal with these issues with--on into the night,
bilateral, as well as the plenary meetings, and then going back
and working on the papers for the next day. Our hats are off to
them for, over the years, really taking on a leadership role in
that forum.
Senator Casey. Thank you.
Mr. Bellinger. And, Senator, thank you, I will add
something to that--and I think the General said it very well,
which is that we not only do set an example for the world, but
we do stand for something in the world when it comes to
international humanitarian law. Countries really do listen to
us. As someone who spends a good deal of my time on the road in
negotiations with other countries, as do my colleagues around
me, on many, many treaties, but particularly because we have
been in conflicts over the last 7 years on law of war treaties,
I know that there is--you know, despite the controversies that
all of us are aware of going on right now, there is respect for
the United States legal positions--they know that we're
experts, they know that we mean the right thing, they listen--
other countries listen to what we have to say.
In answer to your question of, sort of, ``Why now?''--and I
hear this sometimes from others who are skeptical about
treaties, ``Well, if we're complying, and it's already
incorporated in our military doctrine, and everybody else has
signed up and a party, you know, why should we become a party
and bind ourselves if we're already getting the benefit?'' And
the answer is, we go into these negotiations, people listen to
us, they change their positions in response to the United
States because they think we're doing the right thing. But, if
we then never ratify, ourselves, they sort of feel we've pulled
the football away and it does mean that, the next go-round,
they are going to be less likely to compromise. And all of us
have heard that in negotiations, where we say, ``Would you
please change the language in this provision?'' and they'll
say, ``Well, we think you're right, it makes sense to me, but,
you know, last time you asked us to change something, you said,
if we change that, then you would become a party, but then you
don't.'' So, the credibility that comes to the United States
not only with doing a good job in the negotiations, but then,
essentially keeping our faith with the expectations, is very
important for us to go forward with these treaties in order to
maintain that leadership position in the world.
Senator Casey. Well, thank you for that explanation.
I'm out of questions. But, before we conclude, I do want to
submit, for the record, the statement of Senator Lugar--of
course, this committee's ranking member--his statement from
today will be made part of the record.
Senator Casey. But, I do want to reiterate our thanks for
our three witnesses and for your service, and for those who are
sitting or standing behind you, figuratively and literally. We
appreciate your service to the country and sometimes
painstaking work it takes just to produce the information upon
which these treaties are based, and also the work that goes
into just bringing everyone here together today.
Thank you very much.
Meeting adjourned.
[Whereupon, at 3:25 p.m., the hearing was adjourned.]
----------
Additional Material Submitted for the Record
Prepared Statement of Hon. Richard G. Lugar, U.S. Senator From Indiana
I join the chairman in welcoming our distinguished witnesses. The
``Law of War Treaties'' that we will examine today seek to restrict or
outlaw specific types of heinous weapons used in combat.
In 1980, 51 governments negotiated the Convention on Conventional
Weapons (CCW). The primary purposes of this treaty are to prevent the
use of certain types of weapons judged to be inhumane and to prevent
noncombatants from being injured. The treaty entered into force in 1983
and was focused on incendiary weapons, mines, booby traps, and weapons
utilizing small fragmentation to injure or maim.
Currently, 106 governments participate in the CCW. Recently, the
parties--including the United States--negotiated several protocols and
one amendment to the existing CCW text. Today, the Foreign Relations
Committee will have an opportunity to examine these ``Law of War
Treaties'' in detail, as well as the Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict.
I look forward to our discussion of all the agreements before us
today, but I would like to highlight two that I consider to be of
particular importance in strengthening U.S. leadership in conventional
arms control. The first is the Amendment to Article 1 of the Convention
on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May be Deemed to be Excessively Injurious or to have
Indiscriminate Effects--commonly called ``the CCW Amendment.'' The
second is the CCW Protocol on Explosive Remnants of War--also known as
``CCW Protocol V (Five).'' Both were submitted to the Senate for
consent to ratification in June 2006.
The CCW Amendment was adopted at Geneva on December 21, 2001. It
applies the ban on the use of certain excessively injurious
conventional weapons to civil wars. Currently, the ban applies only to
international conflicts. It is important to note that the legal status
of rebel or insurgent groups is not changed. They are not protected
under the agreement as privileged belligerents or lawful combatants.
CCW Protocol V was adopted at Geneva on November 28, 2003. It
establishes rules governing the post-conflict disposition of
conventional munitions such as mortar shells, grenades, artillery
rounds, cluster munitions, and bombs that did not explode as intended
or that were abandoned. The protocol provides for the marking,
clearance, removal, and destruction of such remnants by the party in
control of the territory in which the munitions are located.
The goal is to reduce the threat such munitions pose to civilians
and to post-conflict reconstruction. Protocol V is the first
international agreement specifically aimed at reducing humanitarian
threats that remain after hostilities have ended.
It is critical that the Senate ratify the CCW Amendment and
Protocol V now. Absent Senate action, we will not be able to
participate in relevant meetings in which important decisions are being
made on treaty implementation. The U.S. has already missed one such
meeting--the June 2007 preparatory meeting on Protocol V. Continued
absence could lead to changes that do not serve our national security
interests.
Some members of the international community have proposed
addressing issues related to cluster munitions and other weapons
outside the Convention on Conventional Weapons. Some have suggested
creating new forums or treaty organizations. This administration and
its predecessors have made important progress in constructing the CCW.
It strikes the right balance in addressing important deficiencies in
international law, while preserving critical U.S. national security
interests. Scuttling all of this hard work and starting anew is
unlikely to prove beneficial to U.S. interests. In fact, if
negotiations were to commence on a new agreement or structure, the U.S.
position would be to advocate something identical to the CCW.
The first step in solidifying our political and diplomatic
investments in the CCW and preventing potential backsliding of
commitments by other nations is for the Senate to act on the CCW
Amendment and Protocol V.
I thank the chairman and look forward to hearing from our
witnesses.
______
Prepared Statement Submitted by Patty Gerstenblith, President, Lawyers'
Committee for Cultural Heritage Preservation, Professor, DePaul
University College of Law
Senator Casey and members of the committee, thank you for the
opportunity to submit this written statement in support of the
ratification of the 1954 Hague Convention on the Protection of Cultural
Property in the Event of Armed Conflict. Ratification is a crucial step
toward improving our foreign relations by sending a strong signal to
all nations that the United States values their cultural heritage. It
would also help in assuring the preservation of the world's cultural
heritage for the benefit of future generations. We urge that the
committee recommend Senate ratification of the 1954 Hague Convention.
The 1954 Hague Convention was adopted in the wake of the cultural
destruction inflicted on Europe by the German Nazi regime during World
War II. It was based on earlier documents, including the Lieber Code
instructions issued for the regulation of conduct by the United States
Army during the Civil War, the Hague Conventions of 1899 and 1907, the
Roerich Pact of 1935, and a draft convention prepared in the 1930s. The
destruction, theft, and pillage of cultural sites, monuments, and works
of art perpetrated by Germany during World War II demonstrated all too
graphically the need for a new international instrument dedicated
specifically to the protection of cultural property during armed
conflict.
The actions of the United States Monuments, Fine Arts and Archives
teams and the regulations issued by General Eisenhower to ensure
respect for cultural heritage set the United States apart in its
efforts to protect cultural sites and to return looted art works to
their proper owners. The 1954 Hague Convention was, to a large extent,
based on General Eisenhower's instructions. The United States was one
of the first nations to sign the convention, indicating its intention
to ratify it. Subsequent conflicts, including those in the Balkans in
the 1990s and today in Iraq, have demonstrated the ongoing need for
such a convention to protect the cultural and historical record of
humankind.
Under the terms of the convention, States Parties are to protect
the cultural property situated within their own territory and to avoid
acts of hostility directed against cultural property, defined broadly
to include historic structures and monuments, archaeological sites, and
repositories of collections of artistic, scientific, and historical
interest. There are now 118 States Parties to the convention, a number
that includes most of our allies. Further, the United Kingdom has
announced its intention to ratify the convention.
The convention lays out the basic principles for protecting
cultural property. It begins with a preamble, which sets out the
reasons for the adoption of the convention. It is worth noting two of
the introductory paragraphs in particular:
Being convinced that damage to cultural property belonging to
any people whatsoever means damage to the cultural heritage of
all mankind, since each people makes its contribution to the
culture of the world;
Considering that the preservation of the cultural heritage is
of great importance for all peoples of the world and that it is
important that this heritage should receive international
protection . . .
These phrases are part of a tradition of nations freely joining
together to care for the cultural property located within their borders
and to respect their adversaries' cultural property during warfare.
Article 1 of the Hague Convention offers a broad definition of
cultural property as ``movable or immovable property of great
importance to the cultural heritage of every people.'' There follows a
list of examples of cultural property, which is clearly intended not to
be exhaustive, but includes ``monuments of architecture, art or
history, whether religious or secular; archaeological sites; groups of
buildings which, as a whole, are of historical or artistic interest;
works of art; manuscripts, books and other objects of artistic,
historical, or archaeological interest; as well as scientific
collections and important collections of books or archives . . .''. In
addition to movable and immovable property, cultural property also
includes repositories of cultural objects, such as museums, libraries,
and archives, as well as refuges created specifically to shelter
cultural property during hostilities.
Article 2 defines the ``protection of cultural property'' as
consisting of two components: ``The safeguarding of and respect for
such property.'' Safeguarding refers to the actions a nation is
expected to take during peacetime to protect its own cultural property.
This is embodied in article 3, which elaborates that nations are
obligated to safeguard cultural property located within their territory
during peacetime from ``the foreseeable effects of an armed conflict.''
Respect refers to the actions that a nation must take during
hostilities to protect both its own cultural property and the cultural
property of another nation. This obligation is embodied in the two main
substantive provisions of the convention: Article 4, which regulates
conduct of parties during hostilities, and article 5, which regulates
the conduct of occupation.
The central premise of these articles is that parties to the
convention are to show respect for cultural property by protecting
cultural property situated in their own territory and by avoiding harm
to similar resources situated in the territory of another State Party.
Under article 4(1), nations are to avoid jeopardizing cultural property
located in their territory by refraining from using such property in a
way that might expose it to harm during hostilities. This means that
nations should not use cultural property as the location of strategic
or military equipment nor should such equipment be housed in proximity
to cultural property. Also under article 4(1), a belligerent nation
should not target the cultural property of another nation. Article 4(2)
provides that the obligations of the first paragraph ``may be waived
only in cases where military necessity imperatively requires such a
waiver.''
Article 4(3) sets out the obligation ``to prohibit, prevent and, if
necessary, put a stop to any form of theft, pillage, or
misappropriation of, and any acts of vandalism directed against,
cultural property . . .''. Paragraph 3 also prohibits the
requisitioning of movable cultural property located in the territory of
another party to the convention. Paragraph 4 of this article prohibits
carrying out acts of reprisal against cultural property. Paragraph 5
states that if one State Party has failed to comply with article 3 by
not preparing to safeguard its cultural property during peacetime, this
failure does not mean that another State Party can evade its
obligations under article 4.
Article 5 sets out the obligations of a State Party during
occupation, emphasizing that the primary responsibility for securing
cultural property lies with the competent national authority of the
state that is being occupied. Thus the first obligation imposed on the
occupying power is to support these national authorities as far as
possible. The obligation of the occupying power to care for and
preserve the cultural property of the occupied territory is very
limited and applies only when the national authorities of the occupied
territory are unable to do so, only when the cultural property has been
``damaged by military operations'' and only ``as far as possible.''
Article 6, permitting the distinctive marking of cultural property
by a special emblem, the Blue Shield, and article 7, requiring that
States Parties undertake to educate their military and introduce
regulations concerning observance of the convention, complete the
general substantive provisions of the convention. Articles 8 to 14 are
concerned with the conditions of special protection, which may be
accorded to certain categories of cultural property under specific
conditions. The remaining articles address such topics as personnel
(article 15), the distinctive emblem of the Blue Shield (articles 16-
17), the scope of the convention's applicability (article 18-19), and
procedural matters (articles 20-40).
In conclusion, the policies and practices of the U.S. military are
already consistent with numerous of the principles of the 1954 Hague
Convention under the 1907 Hague Convention (IV) respecting the Laws and
Customs of War on Land and its Annex (of which the United States is a
party) and as a matter of customary international law.\1\ During both
gulf wars, the United States military took considerable care to gather
information on the locations of cultural sites in Iraq and avoided
targeting them. Even so, ratification would codify the obligations of
the United States military, assure our allies that we all observe the
same rules, and encourage marking of cultural sites.
---------------------------------------------------------------------------
\1\See, e.g., Department of Defense, January 1993 Report of
Department of Defense, United States of America, to Congress on
International Policies and procedures regarding the Protection of
Natural and Cultural Resources during Times of War.
---------------------------------------------------------------------------
We urge the committee to recommend that the Senate ratify the 1954
Hague Convention.
Testimony submitted on behalf of the:
Archaeological Institute of America (AIA), Lawyers' Committee for
Cultural Heritage Preservation, United States Committee of the Blue
Shield (USCBS), American Anthropological Association, American
Association of Museums (AAM), American Institute for Conservation of
Historic & Artistic Works (AIC), American Schools of Oriental Research
(ASOR), Association of Moving Image Archivists (AMIA), College Art
Association (CAA), National Trust for Historic Preservation, Society of
American Archivists (SAA), Society for American Archaeology (SAA),
Society for Historical Archaeology (SHA), United States Committee of
the International Council on Monuments and Sites (US/ICOMOS), and World
Monuments Fund (WMF).
______
Responses of Legal Adviser John Bellinger and Deputy General Counsel
Charles Allen to Questions Submitted for the Record by Senator Casey
oslo process to restrict use and production of cluster munitions
Question. Negotiations are proceeding in the Oslo process, a
negotiating forum outside the CCW framework, to regulate the use and
production of cluster munitions. At the same time, States Parties to
the CCW are considering a proposed Protocol VI to the CCW to go beyond
the terms of Protocol V and focus on cluster munitions as a specific
weapons system.
Please assess the likely practical implications if both a treaty
resulting from the Oslo process and a Protocol VI to the CCW were to
enter into force. What would the experience over the past nearly 10
years with the Ottawa Convention and Protocol II to the CCW teach us in
this regard?
Answer. The problem with the Oslo process is not that it will in
some way interfere with the operation of a potential Protocol VI to the
CCW on cluster munitions, but that it would jeopardize military
interoperability between State Parties and non-State Parties to a
convention resulting from the Oslo process. In principle, it would be
possible for the Oslo process to reach an agreement that would have no
negative impact on countries that decide not to participate, but the
current draft of the Oslo text would significantly complicate
cooperation between the militaries of State Parties and non-State
Parties in missions in which the use of cluster munitions may be
effective and appropriate.
Regardless of the outcome of the Oslo process, the CCW is better
positioned to take effective steps to address the humanitarian concerns
associated with the use of cluster munitions in a context that
recognizes their military value. Unlike the Oslo process, the CCW
includes all the major users and producers of cluster munitions, and
therefore a potential Protocol VI would have a more substantial impact
on the humanitarian issues it seeks to address.
An Oslo process convention would pose some of the same problems as
the Ottawa Convention, including those related to the storage of
weapons in allied or partner countries, moving weapons in and out of
such countries, and hiring workers to help in such storage or movement.
In terms of military interoperability, however, an Oslo-type convention
would present much greater difficulties. Cluster munitions may be very
important munitions in any given military mission, and prohibitions in
the current draft Oslo text would preclude cooperation with allies or
partners that are parties to a convention resulting from the Oslo
process. In addition,
the Oslo process risks creating unnecessary and redundant humanitarian
relief mechanisms, resulting in added costs and diverting resources
from more important activities.
protocol v to the ccw
Question. Article 3 of Protocol V calls upon a State Party that
used munitions on territory not under its control to provide technical,
financial, material, or human resources assistance to facilitate the
marking, clearance, removal and/or destruction of these explosive
remnants ``where feasible.''
If the United States ratifies Protocol V, what would be the cost
implications of meeting this obligation should the U.S. military again
use cluster munitions in a manner and quantity similar to its pattern
of use in Operation Desert Storm? (According to a report issued by the
Government Accountability Office, millions of cluster sub munitions
were dropped and at least 118,000 dud cluster sub munitions littered
Iraqi territory at the end of the war in 1991.) Who determines what is
feasible, and could that issue be brought before an international
tribunal in the event of a dispute similar to that which occurred
between Panama and the United States regarding unexploded chemical
weapons on Panamanian soil?
Answer. Under Protocol V, it falls to each State Party to determine
what is feasible with respect to the provision of assistance to clean
up ERW after a conflict. This feasibility assessment is not necessarily
tied to the financial ability to provide assistance, and other factors
may be taken into account. There is no provision for questioning a
State's feasibility determination, for example, by bringing the issue
before an international tribunal. In addition, the primary
responsibility for clearance, marking, and other activities to protect
civilians and assist victims is that of the State in control of the
territory and not the State that used the munitions. This was
consciously and explicitly written into the Protocol V provisions to
ensure that cleanup after hostilities cease would be done as quickly as
possible.
Question. Article 4 of the Protocol relates to the sharing of data
concerning the use and/or abandonment of ERW following the cessation of
hostilities to facilitate the clearance of said ERW. Given that many
cluster munitions systems have no guidance software, how useful is the
sharing of mapping information in identifying the likely locations of
unexploded cluster sub munitions?
Answer. Nonprecision-guided weapons still follow a predictable
course when they are fired, dropped, or launched. Even if, in some
cases, the mapping information that can be provided under Article 4 of
Protocol V does not provide pinpoint accuracy in locating ERW, it
remains an extremely helpful procedure for assisting the country on
whose territory the cluster munitions were used in cleaning up any ERW.
Question. Please describe the ``legitimate security interests''
referenced in Article 4 that would justify a State Party not turning
over strike data once a conflict has ended.
Answer. We would expect that refusal to turn over strike data on
the basis of legitimate security interests after the cessation of
hostilities would be rare. However, it is possible that there could be
a situation where turning over strike data would reveal classified
information about a particular weapons system's capability, for
example, or about targeting procedures. In such cases a State Party
might justifiably invoke this provision.
______
Responses of Legal Adviser John Bellinger to Questions Submitted for
the Record by Senator Biden
Question. What do you hope will be the impact of U.S. ratification
of Protocol V to the CCW on the CCW process on cluster munitions?
Answer. We have played an active role in the CCW process on cluster
munitions and will continue to work very hard to achieve a meaningful
result in that forum. One of the issues in these negotiations is the
question of how to deal with unexploded cluster munitions that may
remain on the battlefield after the end of a conflict. The U.S.
delegation to the CCW negotiations has taken the position that Protocol
V already provides most of the international framework necessary to
address this issue. It is not the international community's intent to
duplicate these structures in a new instrument. Furthermore, both with
respect to victims' assistance and cleanup of unexploded remnants of
war, it would not make sense to have special rules for cluster
munitions that differ from the rules that apply to other types of
weapons. In this context it would be particularly useful to be able to
ratify Protocol V in advance of the critical July negotiating session
in the CCW as it would confirm our commitment to the regime established
by Protocol V.
Question. In the treaty transmittal packages (105-1, 106-1, and
109-10), a reservation and several understandings were recommended for
inclusion in the Senate's resolution of advice and consent to
ratification. Please review the recommendations made in the transmittal
packages and confirm whether there are any changes or additions you
would like to propose.
Answer. As previously discussed with committee staff, we have
proposed two changes to the understandings and reservation recommended
in the treaty transmittal packages for these five treaties.
First, we have proposed to alter the second understanding to the
Hague Convention to read as follows:
(2) It is the understanding of the United States of America
that decisions by military commanders and others responsible
for planning, deciding upon, and executing activities covered
by this Convention can only be judged on the basis of their
assessment of the information reasonably available to them at
the relevant time.
Second, we have proposed to slightly alter the proposed reservation
to article 2 of the Incendiary Weapons Protocol as follows:
The United States of America, with reference to Article 2,
paragraphs 2 and 3, reserves the right to use incendiary
weapons against military objectives located in concentrations
of civilians where it is judged that such use would cause fewer
casualties and/or less collateral damage than alternative
weapons, but in so doing will take all feasible precautions
with a view to limiting the incendiary effects to the military
objective and to avoiding, and in any event to minimizing,
incidental loss of civilian life, injury to civilians and
damage to civilian objects.
Question. Article 3 of Protocol V to the CCW requires States
Parties to take certain steps with respect to explosive remnants of war
in territory under its control. Is it the executive branch view that
decisions on taking actions called for in Article 3 are to be made by a
State Party based on its assessment of relevant circumstances at the
time? If so, please explain the basis for this view.
Answer. Yes. Under Article 3, each State Party has certain
obligations with respect to explosive remnants of war in territory
under its control after the cessation of active hostilities. These
obligations are necessarily to be implemented based on that State
Party's assessment of the relevant circumstances at the time. This is
illustrated by the use of the phrase ``as soon as feasible'' in
paragraphs 2 and 3 of the article, which implies a level of discretion
or judgment in how to implement these obligations. This was clearly
understood during the negotiations.
Question. Is it the executive branch view that feasibility
standards and formulations that appear in Protocol V such as ``in a
position to do so'' are self-judging and are intended to reflect a
State Party's need to make its own evaluation of relevant factors in
implementing Protocol V's provisions?
Answer. Yes. All the provisions in Protocol V that use the
expressions ``where feasible'' and ``in a position to do so'' are self-
judging and are intended to reflect the necessity of States making
their own evaluation of relevant factors in implementing these
provisions. This was clearly understood during the negotiations. There
is no mechanism in the Protocol for any kind of outside judgment about
the adequacy of a country's compliance with these types of provision.
Question. Article 8(4) of Protocol V states that Parties ``shall
have the right to participate in the fullest exchange of equipment,
material and scientific and technical information other than weapons-
related technology, necessary for the implementation of this
Protocol.'' Would this provision prevent the United States from
exercising its discretion to restrict or deny exports of items to other
States Parties for national security reasons? If not, please explain
why not.
Answer. No. The sentence that immediately follows the sentence
quoted above specifies that ``High Contracting Parties undertake to
facilitate such exchanges in accordance with national legislation and
shall not impose undue restrictions on the provision of clearance
equipment and related technological information for humanitarian
purposes.'' The reference to national legislation clearly includes U.S.
export control requirements. In addition, the reference to ``undue''
restrictions would certainly not include those based on national
security reasons.
Question. Article 4(3) of the Convention for the Protection of
Cultural Property in the Event of Armed Conflict (the ``Hague
Convention'') requires Parties to `` . . . prohibit, prevent and, if
necessary, put a stop to any form of theft, pillage or misappropriation
of, and any acts of vandalism directed against, cultural property.''
Please explain how far this obligation extends. In other words, to what
lengths is it necessary for a party to go in protecting cultural
property within its own territory? In addition, does this provision
obligate States Parties with respect to cultural property in territory
that a party is occupying?
Answer. The obligation in Article 4(3) requires each State Party to
take reasonable steps to protect cultural property within its own
territory, consistent with its assessment of the relevant circumstances
at the time. With respect to the application of this provision to
occupied territory, Article 5 makes clear that an occupying power is to
support the competent national authorities.
Question. In 2003 the Iraq National Museum in Baghdad was looted.
Had the United States been a party to the Hague Convention, would the
United States have been required to prevent the looting of that museum?
Would the United States have done anything differently as a party to
the Hague Convention?
Answer. The United States would not have been required to do
anything differently nor would have done anything differently if we had
been a party to the Hague Convention at the time of this unfortunate
incident. U.S. policy has been entirely consistent with the provisions
of the Convention for many years.
Question. Is the universe of ``cultural property'' an expansive
one, or is it limited in practice to a small number of objects and
sites? Specifically, Article 1 of the Hague Convention defines cultural
property for purposes of the Convention and provides in part that it is
``movable or immovable property of great importance to the cultural
heritage of every people. . . .'' Is it fair to say, given the
definition provided in Article 1, that cultural property refers only to
a limited class of property that is of widely recognized importance, as
in the case of historic monuments referred to in Article 7(1)(i) of the
Amended Mines Protocol? Or does the inclusion in that definition of
``works of art; manuscripts, books and other objects of artistic,
historical or archaeological interest; as well as scientific
collections'' mean that a wide range of property, ``irrespective of
origin or ownership,'' may be covered?
Answer. Cultural property is generally defined under Article 1 of
the Hague Convention to include a broad range of monuments, buildings,
works of art, books, etc. The Convention establishes a general
obligation to respect and protect such property. However, there is also
a more limited class of cultural property which, when registered, is
placed under special protection as provided for in Article 9. Neither
of these two provisions should be equated with Article 7, paragraph
1(i) of the Amended Mines Protocol, which refers to historic monuments,
works of art or places of worship which ``constitute the cultural or
spiritual heritage of peoples.''
Question. The Hague Convention provides that a limited number of
(1) refuges intended to shelter movable cultural property in the event
of an armed conflict; (2) centers containing monuments; and (3) other
immovable cultural property of very great importance, may be placed
under ``special protection.'' Special protection is granted to such
cultural property by its entry in the International Register of
Cultural Property under Special Protection. Is this list available to
the public? Please provide to the committee a list of what is currently
listed on this International Register.
Answer. The regulations to the Hague Convention provide that the
register is provided to the parties to the Convention. However, as a
practical matter, very little has been registered as special property
to date. For instance, the Vatican is one of the few actually
registered.
Question. Should the United States become a party to the Hague
Convention, would the United States be likely to apply for entry of any
particular cultural property in the United States on the International
Register of Cultural Property under Special Protection?
Answer. At this time, we do not anticipate applying for this
special protection.
Question. Have the regulations to the Hague Convention been amended
since the treaty was submitted to the Senate in January 1999?
Answer. No.
______
Responses of Deputy General Counsel Charles Allen to Questions
Submitted for the Record by Senator Biden
assessment of potential costs associated with the five law of war
treaties
Question. Please provide an assessment of the costs associated with
implementing each of these five treaties: (1) The Protocol on Explosive
Remnants of War (Protocol V) to the Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons Which May Be
Deemed To Be Excessively Injurious or To Have Indiscriminate Effects;
(2) the Amendment of Article 1 of the Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons Which May Be
Deemed To Be Excessively Injurious or To Have Indiscriminate Effects;
(3) the Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict; (4) the Protocol on Prohibitions or
Restrictions on the Use of Incendiary Weapons (Protocol III) Additional
to the Convention of October 10, 1980, on Prohibitions or Restrictions
on the Use of Certain Conventional Weapons Which May Be Deemed To Be
Excessively Injurious or To Have Indiscriminate Effects; and (5) the
Protocol on Blinding Laser Weapons (Protocol IV) Additional to the
Convention on October 10, 1980, on Prohibitions or Restrictions on the
Use of Certain Conventional Weapons Which May Be Deemed To Be
Excessively Injurious or To Have Indiscriminate Effects.
Answer. No additional costs associated with implementing the five
listed treaties are expected.
explanation of u.s. national security interests involved in the five
law of war treaties
Question. Please explain why it is in our national security
interest to ratify each of these five law of war treaties.
Answer. Ratification of each of the five listed treaties is in our
national security interest. Ratification promotes U.S. international
security interests in vigorously supporting the rule of law and the
appropriate development of international humanitarian law. U.S.
ratification encourages other nations to ratify these treaties, which
ultimately helps protect U.S. forces. When the United States becomes a
party to these treaties, the United States will be able to participate
fully in discussions with State Parties regarding the implementation of
these treaties, enabling the United States to influence directly how
practice under these treaties develops. Furthermore, by ratifying these
treaties, the United States gains significant negotiating leverage and
credibility in our work on other law of war treaties.
further legislation, regulations, or dodds the treaties may require
Question. Is it correct that no implementing legislation is
required for any of these five treaties? If these five treaties are
approved by the Senate and ratified, would it be necessary to
promulgate new regulations or Department of Defense Directives in order
to implement any of them? Are there existing regulations or directives
that would be relied upon to implement any of these treaties? If so,
please provide citations to such regulations and explain which of the
treaties they would implement.
Answer. No implementing legislation is required for the five listed
treaties. No new DOD directives or regulations would be needed. If
ratified, DOD and Military Department directives and publications that
refer to treaties to which the United States is a party would be
updated to reflect that the United States is a party to these treaties.
An example is Department of Defense Directive 2311.01E (May 9, 2006),
Subject: DOD Law of War Program, a primary document in implementation
of U.S. law of war obligations within the Department of Defense.
blinding laser weapons
Question. Does the Department of Defense have any plans or desire
to develop blinding laser weapons? If not, why not?
Answer. The Department of Defense does not have any plans or desire
to develop and use blinding laser weapons. It has been a longstanding
DOD policy that the U.S. Armed Forces will not use lasers specifically
designed to cause permanent blindness of unenhanced vision.
Significantly, a 1995 DOD policy statement provided the foundation for
the text of the Blinding Laser Protocol.
legitimate military employment of lasers in protocol iv, article 3
Question. Is it important, in your view, that Protocol IV
recognizes the legitimate military employment of lasers in Article 3?
If so, why?
Answer. Protocol IV recognizes the legitimate military employment
of lasers in that it only bans the use of a very limited category--
blinding laser weapons ``specifically designed, as their sole combat
function or as one of their combat functions, to cause permanent
blindness to unenhanced vision, that is, to the naked eye or to the eye
with corrective eyesight devices.'' DOD policy, which preceded and was
the principal basis for the Protocol IV text, acknowledged
international humanitarian concerns with the use of blinding laser
weapons. DOD policy also acknowledges, consistent with Protocol IV,
that lasers can be used effectively for lawful military purposes, such
as range-finding, target discrimination, and communications.
dazzler devices and protocol iv
Question. Are ``dazzler'' devices, or the deployment of such
devices, prohibited by Protocol IV in any way? If not, please explain
the legal reasoning for that conclusion.
Answer. ``Dazzler'' devices are not prohibited under Protocol IV.
They do not meet Protocol IV's definition of a blinding laser weapon;
that is, they are not specifically designed to cause permanent
blindness to unenhanced vision. The United States has employed
``dazzler'' laser devices in Iraq at checkpoints as a warning device to
drivers of on-coming vehicles to avoid resort to deadly force when
possible.
use of white phosphorus and protocol iii
Question. In 2005 there were various foreign news reports alleging
that the United States used white phosphorus munitions in Iraq and that
doing so was a violation of Protocol III to the CCW (article in the
U.K. Guardian: ``Behind the Phosphorus Clouds are War Crimes Within War
Crimes,'' November 22, 2005). Are there any circumstances in which
Protocol III prohibits States Parties from using white phosphorus? Or
is the use of White Phosphorus permitted because White Phosphorus is
not ``primarily designed . . . to cause burn injury through the action
of flame, heat, or a combination thereof, produced by a chemical
reaction of a substance delivered on the target,'' even if, in a given
case, White Phosphorus is used with the intent, as well as the effect,
of causing such injury?
Answer. White phosphorous is not prohibited under Protocol III
because white phosphorous does not fit, and was not intended to fall
within, the definition of incendiary weapon in the Protocol. There are
no circumstances in which Protocol III regulates or prohibits the use
of white phosphorous against a military objective.
use of incendiary weapons and protocol iii
Question. In your testimony before the committee, you noted that
``incendiary weapons are the only weapons that can effectively destroy
certain counterproliferation targets such as biological weapons
facilities, which require high heat to eliminate biotoxins.'' This
statement makes it clear that under certain circumstances, it is
important that the United States be able to use incendiary weapons.
Under what circumstances, if any, would Protocol III, if ratified by
the United States with the reservation below, purport to prohibit the
United States from employing incendiary weapons against a legitimate
military objective? For example, would the United States be prohibited
from using any mode of delivery of an incendiary weapon? Would Protocol
III prohibit the United States from employing incendiary weapons in any
situation in which it would now (with the United States not having
joined Protocol III) employ such an incendiary weapon?
Answer. If the United States ratified Protocol III without the
stated reservation, U.S. forces might be prohibited from employing
incendiary weapons against a legitimate military objective located
within a concentration of civilians in situations where it is judged
that employment of an alternative weapon ``would cause fewer casualties
and/or less collateral damage.'' As is the case with any treaty, good
faith implementation is essential. This reservation provides for a
greater protection of the civilian population and is consistent with
the U.S. targeting practices.
legal impact of reservation on right to use incendiary weapons on
military targets
Question. The reservation would be as follows: The United States of
America, with reference to Article 2, paragraphs 2 and 3, reserves the
right to use incendiary weapons against military objectives located in
concentrations of civilians where it is judged that such use would
cause fewer casualties and/or less collateral damage than alternative
weapons, but in so doing, consistent with paragraph 3, will take all
feasible precautions with a view to limiting the incendiary effects to
the military objective and to avoiding, and in any event to minimizing,
incidental loss of civilian life, injury to civilians and damage to
civilian objects. What would be the legal impact of the above proposed
reservation if the United States were a party and used incendiary
weapons in an otherwise banned manner, because it judged that such use
would cause fewer casualties and/or less collateral damage than
alternative weapons? (a) If an individual were to accuse the United
States of violating Protocol III, could that person bring suit against
the United States in a U.S. court? (b) If a country were to accuse the
United States of violating Protocol III and wished to pursue a legal
case against the United States, what would be the impact of the
reservation as a matter of international law?
Answer. It is always possible that an individual or other
government could bring suit in U.S. court even in a case where U.S.
forces chose to exercise the right to use incendiaries in a manner
consistent with the reservation. We believe, however, that use of an
incendiary weapon in a manner consistent with the reservation could be
justified and successfully defended in U.S. courts. We anticipate that,
in applying applicable law, a court would conclude that Protocol III
with the U.S. reservation precludes a decision for a plaintiff in such
a case.
u.s. military consistence with hague convention
Question. In your testimony before the committee, you noted that
the ``U.S. military's conduct of operations over the last 50 years has
been entirely consistent with the [Hague Cultural Property]
Convention's provisions.'' Can you describe how this policy has been
implemented in practice? Is the military, for example, trained to
comply with the Hague Convention? Has compliance with the Convention
ever been a problem for the military? Is it difficult for the military
to identify whether a target is, or contains, cultural property? If
not, why not?
Answer. United States military practice in World War II was a point
of reference in drafting the treaty. The U.S. Armed Forces' conduct of
operations over the past 50 years has been consistent with the
Convention's provisions. Military personnel are trained to observe its
rules. The convention does not prevent a military commander from doing
what is necessary to accomplish the mission. Balancing compliance and
mission accomplishment has not been a problem. Major cultural property
or landmarks are identified and taken into consideration in planning
attacks. Personnel are trained not to target them unless they are being
used by an enemy for military purposes, such as to shield personnel and
equipment from attack. In such a case, the decision to treat the
cultural object as a military objective is one taken at higher command
levels.
Responses of Deputy General Counsel Charles Allen to Questions
Submitted for the Record by Senator Biden
assessment of potential costs associated with the five law of war
treaties
Question. Please provide an assessment of the costs associated with
implementing each of these five treaties: (1) The Protocol on Explosive
Remnants of War (Protocol V) to the Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons Which May Be
Deemed To Be Excessively Injurious or To Have Indiscriminate Effects;
(2) the Amendment of Article 1 of the Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons Which May Be
Deemed To Be Excessively Injurious or To Have Indiscriminate Effects;
(3) the Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict; (4) the Protocol on Prohibitions or
Restrictions on the Use of Incendiary Weapons (Protocol III) Additional
to the Convention of October 10, 1980, on Prohibitions or Restrictions
on the Use of Certain Conventional Weapons Which May Be Deemed To Be
Excessively Injurious or To Have Indiscriminate Effects; and (5) the
Protocol on Blinding Laser Weapons (Protocol IV) Additional to the
Convention on October 10, 1980, on Prohibitions or Restrictions on the
Use of Certain Conventional Weapons Which May Be Deemed To Be
Excessively Injurious or To Have Indiscriminate Effects.
Answer. No additional costs associated with implementing the five
listed treaties are expected.
explanation of u.s. national security interests involved in the five
law of war treaties
Question. Please explain why it is in our national security
interest to ratify each of these five law of war treaties.
Answer. Ratification of each of the five listed treaties is in our
national security interest. Ratification promotes U.S. international
security interests in vigorously supporting the rule of law and the
appropriate development of international humanitarian law. U.S.
ratification encourages other nations to ratify these treaties, which
ultimately helps protect U.S. forces. When the United States becomes a
party to these treaties, the United States will be able to participate
fully in discussions with State Parties regarding the implementation of
these treaties, enabling the United States to influence directly how
practice under these treaties develops. Furthermore, by ratifying these
treaties, the United States gains significant negotiating leverage and
credibility in our work on other law of war treaties.
further legislation, regulations, or dodds the treaties may require
Question. Is it correct that no implementing legislation is
required for any of these five treaties? If these five treaties are
approved by the Senate and ratified, would it be necessary to
promulgate new regulations or Department of Defense Directives in order
to implement any of them? Are there existing regulations or directives
that would be relied upon to implement any of these treaties? If so,
please provide citations to such regulations and explain which of the
treaties they would implement.
Answer. No implementing legislation is required for the five listed
treaties. No new DOD directives or regulations would be needed. If
ratified, DOD and Military Department directives and publications that
refer to treaties to which the United States is a party would be
updated to reflect that the United States is a party to these treaties.
An example is Department of Defense Directive 2311.01E (May 9, 2006),
Subject: DOD Law of War Program, a primary document in implementation
of U.S. law of war obligations within the Department of Defense.
blinding laser weapons
Question. Does the Department of Defense have any plans or desire
to develop blinding laser weapons? If not, why not?
Answer. The Department of Defense does not have any plans or desire
to develop and use blinding laser weapons. It has been a longstanding
DOD policy that the U.S. Armed Forces will not use lasers specifically
designed to cause permanent blindness of unenhanced vision.
Significantly, a 1995 DOD policy statement provided the foundation for
the text of the Blinding Laser Protocol.
legitimate military employment of lasers in protocol iv, article 3
Question. Is it important, in your view, that Protocol IV
recognizes the legitimate military employment of lasers in Article 3?
If so, why?
Answer. Protocol IV recognizes the legitimate military employment
of lasers in that it only bans the use of a very limited category--
blinding laser weapons ``specifically designed, as their sole combat
function or as one of their combat functions, to cause permanent
blindness to unenhanced vision, that is, to the naked eye or to the eye
with corrective eyesight devices.'' DOD policy, which preceded and was
the principal basis for the Protocol IV text, acknowledged
international humanitarian concerns with the use of blinding laser
weapons. DOD policy also acknowledges, consistent with Protocol IV,
that lasers can be used effectively for lawful military purposes, such
as range-finding, target discrimination, and communications.
dazzler devices and protocol iv
Question. Are ``dazzler'' devices, or the deployment of such
devices, prohibited by Protocol IV in any way? If not, please explain
the legal reasoning for that conclusion.
Answer. ``Dazzler'' devices are not prohibited under Protocol IV.
They do not meet Protocol IV's definition of a blinding laser weapon;
that is, they are not specifically designed to cause permanent
blindness to unenhanced vision. The United States has employed
``dazzler'' laser devices in Iraq at checkpoints as a warning device to
drivers of on-coming vehicles to avoid resort to deadly force when
possible.
use of white phosphorus and protocol iii
Question. In 2005 there were various foreign news reports alleging
that the United States used white phosphorus munitions in Iraq and that
doing so was a violation of Protocol III to the CCW (article in the
U.K. Guardian: ``Behind the Phosphorus Clouds are War Crimes Within War
Crimes,'' November 22, 2005). Are there any circumstances in which
Protocol III prohibits States Parties from using white phosphorus? Or
is the use of White Phosphorus permitted because White Phosphorus is
not ``primarily designed . . . to cause burn injury through the action
of flame, heat, or a combination thereof, produced by a chemical
reaction of a substance delivered on the target,'' even if, in a given
case, White Phosphorus is used with the intent, as well as the effect,
of causing such injury?
Answer. White phosphorous is not prohibited under Protocol III
because white phosphorous does not fit, and was not intended to fall
within, the definition of incendiary weapon in the Protocol. There are
no circumstances in which Protocol III regulates or prohibits the use
of white phosphorous against a military objective.
use of incendiary weapons and protocol iii
Question. In your testimony before the committee, you noted that
``incendiary weapons are the only weapons that can effectively destroy
certain counterproliferation targets such as biological weapons
facilities, which require high heat to eliminate biotoxins.'' This
statement makes it clear that under certain circumstances, it is
important that the United States be able to use incendiary weapons.
Under what circumstances, if any, would Protocol III, if ratified by
the United States with the reservation below, purport to prohibit the
United States from employing incendiary weapons against a legitimate
military objective? For example, would the United States be prohibited
from using any mode of delivery of an incendiary weapon? Would Protocol
III prohibit the United States from employing incendiary weapons in any
situation in which it would now (with the United States not having
joined Protocol III) employ such an incendiary weapon?
Answer. If the United States ratified Protocol III without the
stated reservation, U.S. forces might be prohibited from employing
incendiary weapons against a legitimate military objective located
within a concentration of civilians in situations where it is judged
that employment of an alternative weapon ``would cause fewer casualties
and/or less collateral damage.'' As is the case with any treaty, good
faith implementation is essential. This reservation provides for a
greater protection of the civilian population and is consistent with
the U.S. targeting practices.
legal impact of reservation on right to use incendiary weapons on
military targets
Question. The reservation would be as follows: The United States of
America, with reference to Article 2, paragraphs 2 and 3, reserves the
right to use incendiary weapons against military objectives located in
concentrations of civilians where it is judged that such use would
cause fewer casualties and/or less collateral damage than alternative
weapons, but in so doing, consistent with paragraph 3, will take all
feasible precautions with a view to limiting the incendiary effects to
the military objective and to avoiding, and in any event to minimizing,
incidental loss of civilian life, injury to civilians and damage to
civilian objects. What would be the legal impact of the above proposed
reservation if the United States were a party and used incendiary
weapons in an otherwise banned manner, because it judged that such use
would cause fewer casualties and/or less collateral damage than
alternative weapons? (a) If an individual were to accuse the United
States of violating Protocol III, could that person bring suit against
the United States in a U.S. court? (b) If a country were to accuse the
United States of violating Protocol III and wished to pursue a legal
case against the United States, what would be the impact of the
reservation as a matter of international law?
Answer. It is always possible that an individual or other
government could bring suit in U.S. court even in a case where U.S.
forces chose to exercise the right to use incendiaries in a manner
consistent with the reservation. We believe, however, that use of an
incendiary weapon in a manner consistent with the reservation could be
justified and successfully defended in U.S. courts. We anticipate that,
in applying applicable law, a court would conclude that Protocol III
with the U.S. reservation precludes a decision for a plaintiff in such
a case.
u.s. military consistence with hague convention
Question. In your testimony before the committee, you noted that
the ``U.S. military's conduct of operations over the last 50 years has
been entirely consistent with the [Hague Cultural Property]
Convention's provisions.'' Can you describe how this policy has been
implemented in practice? Is the military, for example, trained to
comply with the Hague Convention? Has compliance with the Convention
ever been a problem for the military? Is it difficult for the military
to identify whether a target is, or contains, cultural property? If
not, why not?
Answer. United States military practice in World War II was a point
of reference in drafting the treaty. The U.S. Armed Forces' conduct of
operations over the past 50 years has been consistent with the
Convention's provisions. Military personnel are trained to observe its
rules. The convention does not prevent a military commander from doing
what is necessary to accomplish the mission. Balancing compliance and
mission accomplishment has not been a problem. Major cultural property
or landmarks are identified and taken into consideration in planning
attacks. Personnel are trained not to target them unless they are being
used by an enemy for military purposes, such as to shield personnel and
equipment from attack. In such a case, the decision to treat the
cultural object as a military objective is one taken at higher command
levels.