69–115 

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 

R E P O R T 

[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. 

2 

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. 

3 

1 Exec. Rept. 104–1 at p. 5. 

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. 

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. 

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. 

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 

4 

napalm and flame throwers but do not include, for example, highexplosive 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, 

5 

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. 

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. 

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 

6 

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 

7 

4Treaty Doc. 109–10 at p. 15. 

5 Ibid. 

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

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. 

8 

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. 

9 

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. 

10 

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, Medellı ́n 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. 

11 

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, Medellı ́n 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, Medellı ́n 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 ArtiVerDate Aug 31 2005 15:51 Sep 15, 2008 Jkt 000000 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 H:\DOCS\EXEC~1.REP\EX110-22.TXT sfrela2 PsN: MIKEB
12 

cles 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, Medellı ́n 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. 

13 

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. 

14 

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 selfexecuting. 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. 

15 

ANNEX I.—ADDITIONAL MATERIAL SUBMITTED TO THE COMMITTEE


jdn.eps
17 

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. 

18 

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 

19 

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 

20 

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 

21 

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 

22 

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 

23 

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 valVerDate Aug 31 2005 15:51 Sep 15, 2008 Jkt 000000 PO 00000 Frm 00023 Fmt 6602 Sfmt 6621 H:\DOCS\EXEC~1.REP\EX110-22.TXT sfrela2 PsN: MIKEB
24 

ues 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, 

25 

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, 

26 

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. 

27 

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. 

28 

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 

29 

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 parVerDate Aug 31 2005 15:51 Sep 15, 2008 Jkt 000000 PO 00000 Frm 00029 Fmt 6602 Sfmt 6621 H:\DOCS\EXEC~1.REP\EX110-22.TXT sfrela2 PsN: MIKEB
30 

ties, 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’eˆtre 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 lastminute 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 

31 

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 interVerDate Aug 31 2005 15:51 Sep 15, 2008 Jkt 000000 PO 00000 Frm 00031 Fmt 6602 Sfmt 6621 H:\DOCS\EXEC~1.REP\EX110-22.TXT sfrela2 PsN: MIKEB
32 

ests 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 

33 

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 

34 

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 

35 

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? 

36 

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 

37 

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, 

38 

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 

39 

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. ScutVerDate Aug 31 2005 15:51 Sep 15, 2008 Jkt 000000 PO 00000 Frm 00039 Fmt 6602 Sfmt 6621 H:\DOCS\EXEC~1.REP\EX110-22.TXT sfrela2 PsN: MIKEB
40 

tling 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 obVerDate Aug 31 2005 15:51 Sep 15, 2008 Jkt 000000 PO 00000 Frm 00040 Fmt 6602 Sfmt 6621 H:\DOCS\EXEC~1.REP\EX110-22.TXT sfrela2 PsN: MIKEB
41 

1See, 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. 

jects, 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. 

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 

42 

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 

43 

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 objecVerDate Aug 31 2005 15:51 Sep 15, 2008 Jkt 000000 PO 00000 Frm 00043 Fmt 6602 Sfmt 6621 H:\DOCS\EXEC~1.REP\EX110-22.TXT sfrela2 PsN: MIKEB
44 

tives 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 

45 

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. 

46 

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. 

47 

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. 

48 

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. 

49 

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, 

50 

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. 

Æ