[Senate Executive Report 110-22]
[From the U.S. Government Publishing Office]



110th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      110-22

======================================================================



 
   AN AMENDMENT AND THREE PROTOCOLS TO THE 1980 CONVENTIONAL WEAPONS 
                               CONVENTION

                                _______
                                

               September 11, 2008.--Ordered to be printed

                                _______
                                

           Mr. Dodd, from the Committee on Foreign Relations,
                        submitted the following

                                 REPORT

   [To accompany Treaty Docs. 105-1(B), 105-1(C), 109-10(B), and 109-
                                 10(C)]

    The Committee on Foreign Relations, to which was referred 
the Amendment to Article 1 of the Convention on Prohibitions or 
Restrictions on the Use of Certain Conventional Weapons Which 
May be Deemed to be Excessively Injurious or to Have 
Indiscriminate Effects, adopted at Geneva on December 21, 2001 
(the ``Amendment'') (Treaty Doc. 109-10(B)) and three protocols 
to the Convention on Prohibitions or Restrictions on the Use of 
Certain Conventional Weapons Which May be Deemed to be 
Excessively Injurious or to Have Indiscriminate Effects: The 
Protocol on Prohibitions or Restrictions on the Use of 
Incendiary Weapons, adopted at Geneva on October 10, 1980 
(``Protocol III'' or the ``Incendiary Weapons Protocol'') 
(Treaty Doc. 105-1(B)); The Protocol on Blinding Laser Weapons, 
adopted at Vienna on October 13, 1995 (``Protocol IV'' or the 
``Blinding Laser Protocol'') (Treaty Doc. 105-1(C)); and The 
Protocol on Explosive Remnants of War, adopted at Geneva on 
November 28, 2003 (``Protocol V'' or the ``ERW Protocol'') 
(Treaty Doc. 109-10(C)), having considered the same, reports 
favorably thereon with a reservation, understandings, and 
declarations, as indicated in the resolutions of advice and 
consent for each treaty, and recommends that the Senate give 
its advice and consent to ratification thereof, as set forth in 
this report and the accompanying resolutions of advice and 
consent.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................2
 II. Background and Summary...........................................2
III. Incendiary Weapons Protocol (Protocol III).......................3
 IV. Blinding Laser Protocol (Protocol IV)............................4
  V. ERW Protocol (Protocol V)........................................5
 VI. Scope Amendment..................................................8
VII. Entry Into Force.................................................9
VIII.Implementing Legislation.........................................9

 IX. Committee Action.................................................9
  X. Committee Recommendation.........................................9
 XI. Resolutions of Advice and Consent to Ratification...............12
XII. Annex I.--Additional Material Submitted to the Committee........15
XIII.Annex II.--Treaty Hearing of April 15, 2008.....................17


                               I. Purpose

    These four treaties, along with the underlying Convention 
on Prohibitions or Restrictions on the Use of Certain 
Conventional Weapons Which May be Deemed to be Excessively 
Injurious or to Have Indiscriminate Effects (the ``Convention 
on Conventional Weapons'' or the ``Convention'') (Treaty Doc. 
103-25), which the United States ratified in 1995, are designed 
to protect victims of armed conflict from the effect of certain 
weapons.

                       II. Background and Summary

    The Convention on Conventional Weapons was negotiated in 
Geneva from 1978 to 1980 and establishes a framework (the ``CCW 
framework'') within which instruments are negotiated to control 
the use of conventional weapons in an effort to reduce human 
suffering. The Convention, to date, has 105 States Parties and 
is accompanied by five individual protocols that regulate 
specific categories of weapons and munitions. The terms of the 
Convention are very general, while the specific obligations 
regarding particular weapons or weapon systems are contained in 
the separate protocols to the Convention. This structure makes 
it possible for the CCW framework to evolve by adding new 
protocols in response to the development of new weapons or 
changes in the conduct of warfare.
    In 1980, the Convention was concluded with three protocols. 
Protocol I prohibits the use of weapons the primary effect of 
which is to injure persons through the use of fragments that 
are not detectible by X-rays in the human body. Protocol II (or 
the ``Mines Protocol'') regulates the use of landmines and 
similar devices, and furthermore prohibits certain types of 
booby-traps. The Senate approved the Convention and these first 
two protocols on March 24, 1995. The Convention, along with 
Protocols I and II, entered into force for the United States on 
September 24, 1995.
    By the early 1990s, however, it became clear that Protocol 
II was insufficient to deal with the severe humanitarian crisis 
caused by the indiscriminate use of anti-personnel landmines in 
various conflicts during the preceding decade. As a result, the 
United States and other countries supported a process to amend 
the Mines Protocol so that it would impose more rigorous 
restrictions on the design and use of mines. The Senate 
approved the Amended Mines Protocol on May 20, 1999.
    Protocol III controls the use of incendiary weapons. 
Protocol III was not sent to the Senate along with the 
Convention in 1994 because of a concern that the United States 
might ``require the use of air-delivered incendiaries to 
eliminate chemical or biological facilities without exposing a 
nearby civilian population to the massive release of dangerous 
substances.''\1\ After a careful review, however, the executive 
branch developed a reservation that resolves these concerns. 
The reservation, which the committee recommends including in 
the Senate's Resolution of advice and consent, would reserve 
the right of the United States to use incendiary weapons, 
whether air-delivered or otherwise, against military objectives 
located in concentrations of civilians where it is judged that 
such use would cause fewer casualties and/or less collateral 
damage than alternative weapons.
---------------------------------------------------------------------------
    \1\Exec. Rept. 104-1 at p. 5.
---------------------------------------------------------------------------
    Since the conclusion of the Convention, two other protocols 
have been adopted and the Convention's scope of application has 
been broadened. Protocol IV, which prohibits the use of 
blinding lasers, was adopted in 1995 and Protocol V, which 
provides rules with respect to unexploded and abandoned 
munitions remaining on the battlefield after a conflict, was 
adopted in 2003. The munitions dealt with in Protocol V might 
be artillery shells, bombs, hand grenades, mortars, rockets, 
and cluster munitions, but by definition do not include 
landmines, which are regulated by the Amended Mines Protocol. 
Finally, in 2001, an amendment to the main Convention was 
adopted, which extends the scope of application of the 
Convention and certain Protocols to non-international armed 
conflicts.
    The administration has requested that the Senate give 
prompt consideration to Protocols III, IV, and V and the scope 
amendment to Article 1 of the Convention.\2\ The executive 
branch has informed the committee that the U.S. military 
already complies in practice with the norms contained in all 
four instruments. Moreover, the Department of Defense has 
asserted that ratification of these treaties is a national 
security priority and would, among other things, serve to 
protect U.S. forces in combat. A detailed article-by-article 
analysis of each of these four treaties may be found in the two 
relevant Letters of Submittal from the Secretary of State to 
the President, which are reprinted in full in Treaty Documents 
105-1 and 109-10. What follows is a discussion of significant 
aspects of all four treaties.
---------------------------------------------------------------------------
    \2\In a letter to the Committee on Foreign Relations dated August 
15, 2007, Deputy Secretary of State John D. Negroponte and Deputy 
Secretary of Defense Gordon England stated that the ``Defense 
Department and the State Department strongly support [all four 
treaties] and encourage their prompt ratification.'' See Annex I of 
this Report.
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            III. Incendiary Weapons Protocol (Protocol III)

    Protocol III provides increased protection for civilians 
from the potentially harmful effects of incendiary weapons. In 
addition, the Protocol confirms the legality and military value 
of incendiary weapons for targeting specific types of military 
objectives.
    An incendiary weapon is defined as ``any weapon or munition 
which is primarily designed to set fire to objects or to cause 
burn injury to persons through the action of flame, heat, or a 
combination thereof, produced by a chemical reaction of a 
substance delivered on the target.'' Incendiary weapons include 
weapons such as napalm and flame throwers but do not include, 
for example, high-explosive munitions and blast or 
fragmentation weapons, even though they may have secondary burn 
effects on persons exposed or may cause secondary fires. 
Similarly, lasers or other directed-energy weapons are not 
covered by the Protocol, even if their primary effect is to set 
fire to objects or cause burn injuries, because they do not 
deliver burning substances on the target. In addition, as noted 
by the Department of Defense in response to committee 
questions, ``[w]hite phosphorous is not prohibited under 
Protocol III because white phosphorous does not fit, and was 
not intended to fall within, the definition of incendiary 
weapon in the Protocol. There are no circumstances in which 
Protocol III regulates or prohibits the use of white 
phosphorous against a military objective.''
    Article 2 of the Protocol, which is the main operative 
provision, provides four basic rules: 1) it is prohibited in 
all circumstances to make civilians or civilian objects, as 
such, the object of attack by incendiary weapons; 2) it is 
prohibited in all circumstances to make any military objective 
located within a concentration of civilians the object of 
attack by air-delivered incendiary weapons; 3) it is prohibited 
to make any military objective located within a concentration 
of civilians the object of attack by means of incendiary 
weapons other than air-delivered weapons, except when the 
objective is clearly separated from the concentration of 
civilians and all feasible precautions have been taken with a 
view to limiting the incendiary effects to the military 
objective and to avoiding or minimizing incidental loss of 
civilian life, injury to civilians, and damage to civilian 
objects; and 4) it is prohibited to make forests or other kinds 
of plant cover the object of attack by incendiary weapons 
unless they are being used to conceal combatants or other 
military objectives or are themselves military objectives.
    The executive branch has recommended a reservation to 
Protocol III, which would permit the United States to use 
incendiary weapons against military objectives located in 
concentrations of civilians where it is judged that such use 
would cause fewer casualties and/or less collateral damage than 
alternative weapons, while nevertheless taking all feasible 
precautions with a view to limiting the incendiary effects to 
the military objective and to avoiding, or minimizing, 
incidental loss of civilian life, injury to civilians, and 
damage to civilian objects. With such a reservation, the United 
States can retain its ability to employ incendiaries to achieve 
high-priority military targets in a manner consistent with the 
principle of proportionality, which governs the use of all 
weapons in armed conflict. In response to questions from the 
committee, the Department of Defense confirmed that with the 
reservation, the Protocol would be entirely ``consistent with 
U.S. targeting practices.''
    To date, there are 98 parties to Protocol III, which 
entered into force on December 2, 1983. This includes all NATO 
Member States except Turkey and the United States.

               IV. Blinding Laser Protocol (Protocol IV)

    Protocol IV was adopted at a conference of States Parties 
to the Convention on Conventional Weapons in 1995. The Protocol 
prohibits the use on the battlefield of blinding laser weapons 
``specifically designed, as their sole combat function or as 
one of their combat functions, to cause permanent blindness to 
unenhanced vision, that is to the naked eye or to the eye with 
corrective eyesight devices.'' ``Permanent blindness'' is 
defined in Article 4 of Protocol IV as ``irreversible and 
uncorrectable loss of vision which is seriously disabling with 
no prospect of recovery. Serious disability is equivalent to 
visual acuity of less than 20/200 Snellen measured using both 
eyes.'' This definition is consistent with widely accepted 
ophthalmological standards and means.
    Protocol IV also obligates States Parties to take ``all 
feasible precautions'' in the employment of laser systems ``to 
avoid the incidence of permanent blindness to unenhanced 
vision. Such precautions shall include training of their armed 
forces and other practical measures.''
    Protocol IV is fully consistent with the Department of 
Defense's current policy. In response to questions from the 
committee, the Department of Defense stated that it ``does not 
have any plans or desire to develop and use blinding laser 
weapons.'' Moreover, ``[i]t has been a longstanding DoD policy 
that the U.S. Armed Forces will not use lasers specifically 
designed to cause permanent blindness of unenhanced vision.'' 
In fact, it was a Defense Department policy statement that 
served as the foundation for the text of Protocol IV.
    Although Protocol IV prohibits the use of so-called 
blinding laser weapons, Protocol IV does not prohibit the use 
of lasers in general on the battlefield, including ``dazzler'' 
devices, which have been employed by the United States in Iraq 
at checkpoints as a warning device to drivers of on-coming 
vehicles because ``dazzler'' devices are not specifically 
designed to cause permanent blindness to unenhanced vision. 
Indeed, lasers are vital to our modern military and the 
legitimate use of lasers is acknowledged by the Protocol in 
Article 3. Among other things, laser systems are used for 
detection, targeting, range-finding, communications, and target 
destruction. They also can serve a humanitarian purpose in that 
they allow weapon systems to be increasingly discriminate, 
thereby reducing collateral damage to civilian lives and 
property.
    Employment of a laser is only prohibited by Protocol IV if 
it meets each of the following four criteria: 1) it is a 
weapon; 2) specifically designed;\3\ 3) to cause permanent 
blindness; 4) to unenhanced vision. Protocol IV is desirable, 
therefore, both because it reduces the potential risks of 
proliferation of blinding laser weapons and because it 
clarifies the legitimacy of other types of battlefield lasers. 
To date, there are 89 parties to Protocol IV, which entered 
into force on July 30, 1998. This includes all NATO member 
states except the United States.
---------------------------------------------------------------------------
    \3\ ``Specifically designed'' is a separate element because, for 
example, virtually any laser may cause eye injury, including permanent 
blindness, under the right circumstances. The negotiators banned only 
this narrow class of lasers, rather than banning any use of lasers that 
might cause permanent blindness, so as to avoid subjecting military 
personnel to any liability for their use of the many lasers that are 
employed in modern warfare.
---------------------------------------------------------------------------

                      V. ERW Protocol (Protocol V)

    Protocol V was adopted at a conference of States Parties to 
the Convention on Conventional Weapons in 2003. Protocol V 
provides rules with respect to munitions that were intended to 
have exploded during an armed conflict but failed to do so 
(known as ``explosive remnants of war'' or ``ERW''), in order 
to reduce the threat such munitions pose to civilians and to 
post-conflict reconstruction. The negotiation of this Protocol 
was initiated in part as a result of a report published by the 
International Committee for the Red Cross in 2000, which 
concluded that a large proportion of the civilian deaths and 
injuries from explosive remnants of war during the post-
conflict period in Kosovo had been both predictable and 
preventable. Protocol V is the first international agreement 
specifically aimed at reducing the humanitarian threat posed by 
unexploded and abandoned munitions of all types remaining on 
the battlefield after the end of armed conflicts.
    Explosive remnants of war, or ERW, are defined in detail in 
Article 2 of Protocol V but generally are understood to include 
explosive munitions that remain armed after the cessation of 
the armed conflict, such as artillery shells, bombs, hand 
grenades, mortars, cluster munitions, and rockets. This may 
include munitions that did not explode as intended and 
munitions that were abandoned. For the purposes of the 
Protocol, however, ERW does not include landmines because they 
are addressed in the Amended Mines Protocol (Protocol II), to 
which the United States is already a party. A summary of key 
provisions is set forth below.

Marking and clearing ERW after an armed conflict

    Protocol V deals primarily with steps to be taken after 
hostilities, not during an armed conflict. The Party in control 
of the territory on which ERW are found is responsible for the 
clearance, removal, and destruction of such munitions. 
Specifically, Article 3 provides that as soon as feasible after 
the end of active hostilities, each State Party that was a 
party to the armed conflict shall: 1) survey and assess the 
threat posed by ERW; 2) assess and prioritize needs and 
practicability in terms of marking and clearance, removal, or 
destruction of ERW; 3) mark and clear, remove, or destroy ERW; 
and 4) take steps to mobilize resources to carry out these 
activities.
    In response to committee questions, the Department of State 
clarified that these Article 3 obligations are ``necessarily to 
be implemented based on [a] State Party's assessment of the 
relevant circumstances at the time. This is illustrated by the 
use of the phrase `as soon as feasible' in paragraphs 2 and 3 
of the article, which implies a level of discretion or 
judgment'' in the implementation of this provision.

Recording, retaining and transmitting information regarding explosive 
        ordnance that may become ERW

    Protocol V establishes obligations on States Parties 
regarding the recording, retention, and transmission of 
specific information on the use, or abandonment, of explosive 
ordnance, so as to facilitate the rapid marking, clearance, 
removal, or destruction of such ordnance by the Party in 
control of the territory at the end of active hostilities. 
Specifically, Article 4 obligates States Parties ``to the 
maximum extent possible and as far as practicable [to] record 
and retain information'' on the use or abandonment of explosive 
ordnance. Moreover, a State Party that was a party to the armed 
conflict and used or abandoned explosive ordnance that may have 
become ERW ``shall, without delay after the cessation of active 
hostilities and as far as practicable, subject to the parties' 
legitimate security interests, make available such information 
to the party or parties in control of the affected area . . . 
.'' Voluntary best practices with respect to recording, 
retaining, and transmitting such information are contained in 
the Technical Annex to the Protocol.

Taking precautions to protect civilians and civilian objects from ERW

    Protocol V provides that parties to an armed conflict shall 
take ``all feasible precautions'' in the territory under their 
control that is affected by ERW to protect civilians and 
civilian objects from the risks and effects of ERW. Article 5 
defines ``feasible precautions'' as those precautions that are 
``practicable or practicably possible, taking into account all 
circumstances ruling at the time, including humanitarian and 
military considerations.'' Such precautions might include 
warnings, risk education to the civilian population, marking, 
fencing, and monitoring of territory affected by explosive 
remnants of war, as set out in Part 2 of the Technical Annex to 
the Protocol.

Co-operation and assistance in handling ERW

    Article 7 provides that each State Party has the right to 
``seek and receive assistance, where appropriate,'' from other 
Parties, non-parties, and relevant international organizations 
and institutions in dealing with problems posed by ERW. Article 
7 further provides that States Parties ``in a position to do 
so'' shall provide such assistance ``as necessary and 
feasible.'' Article 8 addresses the provision of more general 
assistance, information on ERW, and cooperation with 
international, regional, national, and non-governmental 
organizations regarding ERW. Article 8 similarly provides that 
each State Party ``in a position to do so'' shall provide such 
assistance.
    In response to committee questions, the Department of State 
clarified that the phrases ``where feasible'' and ``in a 
position to do so'' are ``self-judging and are intended to 
reflect the necessity of states making their own evaluation of 
relevant factors in implementing these provisions.'' Thus, each 
State Party must, for example, determine for itself whether it 
is in a ``position to do so.'' This determination, as noted in 
the article-by-article analysis attached to the Letter of 
Submittal from the Secretary of State, would be based on 
national considerations of economic, political, and military 
factors.\4\ According to the Department of State, this 
understanding was made clear at the negotiations and was not 
disputed by other delegations.\5\
---------------------------------------------------------------------------
    \4\Treaty Doc. 109-10 at p. 15.
    \5\Ibid.
---------------------------------------------------------------------------

Preventive measures to minimize the occurrence of ERW

    Protocol V encourages States Parties to take generic 
preventive measures aimed at minimizing the occurrence of ERW. 
Specifically, Article 9 provides that such preventive measures 
include, but are not limited to, those listed in part 3 of the 
Technical Annex. Each State Party may also, on a voluntary 
basis, exchange information related to efforts to promote and 
establish best practices in respect of such measures.

Best practices

    The Technical Annex to Protocol V provides ``suggested best 
practices'' for ERW information management; risk education; 
marking and monitoring ERW areas; and munitions manufacturing, 
training, and transfer. Compliance with the Annex is voluntary 
under the Protocol.
    The Department of Defense has assured the committee that 
Protocol V is fully consistent with current U.S. practice and 
policies with respect to ERW, including cluster munitions, and 
is consistent with the administration's current negotiating 
position on cluster munitions in particular. To date, there are 
44 parties to Protocol V, which entered into force on November 
12, 2006.

                          VI. Scope Amendment

    As discussed, the Convention on Conventional Weapons and 
its Protocols are part of a legal regime that regulates the use 
of particular types of conventional weapons that may be deemed 
to pose special risks of having indiscriminate effects or 
causing unnecessary suffering. As adopted in 1980, Article 1 of 
the Convention on Conventional Weapons did not extend the scope 
of application of the Convention to non-international armed 
conflicts (otherwise known as ``Article 3 conflicts'' because 
Article 3 is the common article in the Geneva Conventions of 
1949 that deals with non-international conflicts). 
Nevertheless, when the Senate provided its advice and consent 
to the Convention in 1995, included in the resolution of advice 
and consent was a declaration that the United States would 
extend its application of the Convention and Protocols I and II 
to non-international conflicts despite the fact that the text 
limited the Convention's scope to international armed 
conflicts, otherwise known as common ``Article 2 conflicts.'' 
The declaration stated as follows:


          The United States declares, with reference to the scope of 
        application defined in Article 1 of the Convention, that the 
        United States will apply the provisions of the Convention, 
        Protocol I, and Protocol II to all armed conflicts referred to 
        in Articles 2 and 3 common to the Geneva Conventions for the 
        Protection of War Victims of August 12, 1949.

    At the urging of the United States, on December 21, 2001, 
States Parties to the Convention on Conventional Weapons 
adopted the Scope Amendment, which amended Article 1 of the 
Convention so that the scope of application of the Convention 
and certain Protocols were extended to include non-
international armed conflicts. This Amendment is particularly 
important now because many of today's armed conflicts are 
considered to be non-international in character.
    The Amendment makes clear that recognizing the 
applicability of the Convention and Protocols to non-state 
parties to a conflict does not change the legal status of those 
non-state parties and it advances the U.S. national objective 
of preserving humanitarian values during all armed conflict. 
Finally, the extended scope of application applies not only to 
the Convention, but to all of the Protocols adopted before 
January 1, 2002, which includes Protocols I, II, III, and IV. 
Protocols adopted after January 1, 2002, including Protocol V, 
are to make clear the scope of their application in the text of 
each protocol. Article 1 of Protocol V provides that Protocol V 
applies to common Article 2 and common Article 3 conflicts.

                         VII. Entry Into Force

    In accordance with Article 5 and Article 8 of the 
Convention on Conventional Weapons, the Amendment and each of 
the Protocols will enter into force for the United States six 
months after the date on which the United States deposits its 
instrument of ratification.

                     VIII. Implementing Legislation

    No implementing legislation is required for these treaties. 
The United States already complies in practice with the norms 
contained in all four treaties. In response to the committee's 
questions, the Department of Defense additionally noted that if 
the United States were to ratify these treaties, existing 
Department of Defense and Military Department directives and 
publications that refer to treaties to which the United States 
is a party would be updated to reflect that the United States 
is a party to these treaties, but no new Department of Defense 
directives or regulations would be needed.

                          IX. Committee Action

    The committee held a public hearing on these treaties on 
April 15, 2008. Testimony was received from Mr. John B. 
Bellinger, Legal Adviser at the Department of State; Mr. 
Charles A. Allen, Deputy General Counsel for International 
Affairs at the Department of Defense; and Brigadier General 
Michelle D. Johnson, Deputy Director for the War on Terrorism 
and Global Effects, J-5 Strategic Plans and Policy Directorate, 
Joint Staff. A transcript of this hearing can be found in Annex 
II.
    On July 29, 2008, the committee considered these treaties 
and ordered them favorably reported, by voice vote, with a 
quorum present, and without objection.

                      X. Committee Recommendation


                 A. ADVICE AND CONSENT TO RATIFICATION

    The Committee on Foreign Relations views U.S. ratification 
of these treaties as important to U.S. leadership in developing 
the law of armed conflict and in protecting U.S. forces abroad. 
The United States played a key role in negotiating each of 
these treaties, many of which were done at the prompting of the 
United States and on the basis of U.S. delegation drafts. As a 
result, none of these treaties requires changes to long-
standing U.S. and Defense Department policies. Joining these 
treaties would put the United States in a better position, 
however, to persuade other countries to adhere to humanitarian 
practices in armed conflict. Moreover, U.S. ratification is 
important because the United States loses credibility when it 
does not formally become a party to the very treaties it has 
championed. U.S. ratification would set an important example 
and would make it possible for U.S. officials to participate 
fully in relevant international meetings regarding, for 
example, the implementation of these treaties. Accordingly, the 
committee urges the Senate to act promptly to give its advice 
and consent to ratification of these treaties, as set forth in 
this report and the accompanying resolution of advice and 
consent.

                             B. RESOLUTIONS

    The committee has included in the resolutions of advice and 
consent various statements, which are discussed below.

I. CCW Protocol on Incendiary Weapons (Protocol III)

    The proposed resolution of advice and consent for Protocol 
III includes a reservation, an understanding, and a 
declaration.
            Reservation
    The proposed reservation was recommended by the executive 
branch and would permit the United States to use incendiary 
weapons against military objectives located in concentrations 
of civilians, where it is judged that such use would cause 
fewer casualties and/or less collateral damage than alternative 
weapons, while nevertheless taking all feasible precautions 
with a view to limiting the incendiary effects to the military 
objective and to avoiding, and in any event to minimizing, 
incidental loss of civilian life, injury to civilians, and 
damage to civilian objects. The executive branch explained in 
its submission of the Protocol that this reservation is 
necessary because incendiaries are the only weapons that can 
effectively destroy certain targets such as biological weapons 
facilities, for which high heat would be required to eliminate 
bio-toxins. To use only high explosives would risk the 
widespread release of dangerous contaminants with potentially 
disastrous consequences for the civilian population. In 
addition, certain flammable military targets are more readily 
destroyed by incendiaries. Thus, with this reservation, the 
United States can retain its ability to employ incendiaries to 
achieve the destruction of high-priority military targets in a 
manner consistent with the principle of proportionality, which 
governs the use of all weapons in armed conflict.
            Understanding
    The proposed understanding makes clear that the actions of 
U.S. military personnel, for example, can only be assessed in 
light of information that was reasonably available at the time. 
In other words, U.S. military personnel cannot be judged on the 
basis of information that subsequently comes to light.
            Declaration
    The proposed declaration relates to the self-executing 
nature of the Protocol and is included in light of the recent 
Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346 
(2008), which has highlighted the importance of clarity 
regarding the self-executing nature of treaty provisions. A 
further discussion of the committee's view on this matter can 
be found in Section VIII of Executive Report 110-12. In brief, 
the Protocol is self-executing, in the sense that it operates 
of its own force as domestically enforceable federal law, but 
the Protocol does not confer private rights enforceable in U.S. 
courts.

II. CCW Protocol on Blinding Laser Weapons (Protocol IV)

    The proposed resolution of advice and consent for Protocol 
IV includes an understanding and a declaration.
            Understanding
    The proposed understanding makes clear that with respect to 
Article 2 of the Protocol, the actions of U.S. military 
personnel, for example, can only be assessed in light of 
information that was reasonably available at the time. In other 
words, U.S. military personnel cannot be judged on the basis of 
information that subsequently comes to light.
            Declaration
    The proposed declaration relates to the self-executing 
nature of the Protocol and is included in light of the recent 
Supreme Court decision, Medellin v. Texas, 128 S. Ct. 1346 
(2008), which has highlighted the importance of clarity 
regarding the self-executing nature of treaty provisions. A 
further discussion of the committee's view on this matter can 
be found in Section VIII of Executive Report 110-12. In brief, 
the Protocol is self-executing, in the sense that it operates 
of its own force as domestically enforceable federal law, but 
the Protocol does not confer private rights enforceable in U.S. 
courts.

III. CCW Protocol on Explosive Remnants of War (Protocol V)

    The proposed resolution of advice and consent for Protocol 
V includes an understanding and a declaration.
            Understanding
    In the article-by-article analysis attached to the Letter 
of Submittal from the Secretary of State, it was noted that 
during the course of the negotiations, the United States 
``raised the need to reconcile this Protocol with other 
international agreements or arrangements related to the 
settlement of armed conflict, in order to avoid unintended 
consequences in connection with peace treaties or similar 
arrangements.'' It was further noted that ``[i]n the context of 
armed conflict, the parties to the conflict themselves will be 
in the best position to determine how the responsibilities for 
ERW should fit into an overall settlement.'' The proposed 
understanding makes clear that nothing in Article 3, which 
generally covers the allocation of responsibilities with 
respect to marking, clearing, removing, and destroying 
explosive remnants of war, would preclude arrangements in 
connection with the settlement of armed conflicts, or 
assistance connected thereto, that allocate such 
responsibilities in a manner that respects the essential spirit 
and purpose of the Protocol.
            Declaration
    The proposed declaration relates to the self-executing 
nature of the Protocol and is included in light of the recent 
Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346 
(2008), which has highlighted the importance of clarity 
regarding the self-executing nature of treaty provisions. A 
further discussion of the committee's view on this matter can 
be found in Section VIII of Executive Report 110-12. In brief, 
with the exception of Articles 7 and 8, which deal with various 
forms of co-operation and assistance, the Protocol is self-
executing, in the sense that it operates of its own force as 
domestically enforceable federal law, but the Protocol does not 
confer private rights enforceable in U.S. courts. In specifying 
that Articles 7 and 8 are not self-executing, the committee 
intends that the provisions of these articles will be 
implemented through existing statutes and authorities providing 
for the provision of relevant cooperation and assistance, 
including the Foreign Assistance Act of 1961, rather than 
through direct application of the Treaty in U.S. law. The 
committee understands that these statutes and authorities are 
sufficient to allow the United States to implement these 
articles.

IV. CCW Amendment to Article 1

    The proposed resolution of advice and consent for the 
Amendment includes a declaration.
            Declaration
    The proposed declaration relates to the self-executing 
nature of the Amendment and is included in light of the recent 
Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346 
(2008) has highlighted the importance of clarity regarding the 
self-executing nature of treaty provisions. A further 
discussion of the committee's view on this matter can be found 
in Section VIII of Executive Report 110-12. In brief, the 
Amendment is self-executing, in the sense that it operates of 
its own force as domestically enforceable federal law, but the 
Amendment does not confer private rights enforceable in U.S. 
courts.

         XI. Resolutions of Advice and Consent to Ratification


           CCW PROTOCOL ON INCENDIARY WEAPONS (PROTOCOL III)

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A RESERVATION, AN 
                    UNDERSTANDING, AND A DECLARATION

    The Senate advises and consents to the ratification of the 
Protocol on Prohibitions or Restrictions on the Use of 
Incendiary Weapons to the Convention on Prohibitions or 
Restrictions on the Use of Certain Conventional Weapons Which 
May be Deemed to be Excessively Injurious or to Have 
Indiscriminate Effects (Protocol III), adopted at Geneva on 
October 10, 1980 (Treaty Doc. 105-1(B)), subject to the 
reservation of section 2, the understanding of section 3, and 
the declaration of section 4.

SECTION 2. RESERVATION

    The advice and consent of the Senate under section 1 is 
subject to the following reservation, which shall be included 
in the instrument of ratification:

          The United States of America, with reference to 
        Article 2, paragraphs 2 and 3, reserves the right to 
        use incendiary weapons against military objectives 
        located in concentrations of civilians where it is 
        judged that such use would cause fewer casualties and/
        or less collateral damage than alternative weapons, but 
        in so doing will take all feasible precautions with a 
        view to limiting the incendiary effects to the military 
        objective and to avoiding, and in any event to 
        minimizing, incidental loss of civilian life, injury to 
        civilians and damage to civilian objects.

SECTION 3. UNDERSTANDING

    The advice and consent of the Senate under section 1 is 
subject to the following understanding, which shall be included 
in the instrument of ratification:

          It is the understanding of the United States of 
        America that any decision by any military commander, 
        military personnel, or any other person responsible for 
        planning, authorizing or executing military action 
        shall only be judged on the basis of that person's 
        assessment of the information reasonably available to 
        the person at the time the person planned, authorized, 
        or executed the action under review, and shall not be 
        judged on the basis of information that comes to light 
        after the action under review was taken.

SECTION 4. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Protocol is self-executing. This Protocol does 
        not confer private rights enforceable in United States 
        courts.

                              ----------                              


          CCW PROTOCOL ON BLINDING LASER WEAPONS (PROTOCOL IV)

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO AN UNDERSTANDING AND A 
                    DECLARATION

    The Senate advises and consents to the ratification of the 
Protocol on Blinding Laser Weapons to the Convention on 
Prohibitions or Restrictions on the Use of Certain Conventional 
Weapons Which May be Deemed to be Excessively Injurious or to 
Have Indiscriminate Effects (Protocol IV), adopted at Vienna on 
October 13, 1995 (Treaty Doc. 105-1(C)), subject to the 
understanding of section 2 and the declaration of section 3.

SECTION 2. UNDERSTANDING

    The advice and consent of the Senate under section 1 is 
subject to the following understanding, which shall be included 
in the instrument of ratification:

          It is the understanding of the United States of 
        America with respect to Article 2 that any decision by 
        any military commander, military personnel, or any 
        other person responsible for planning, authorizing or 
        executing military action shall only be judged on the 
        basis of that person's assessment of the information 
        reasonably available to the person at the time the 
        person planned, authorized, or executed the action 
        under review, and shall not be judged on the basis of 
        information that comes to light after the action under 
        review was taken.

SECTION 3. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Protocol is self-executing. This Protocol does 
        not confer private rights enforceable in United States 
        courts.

                              ----------                              


         CCW PROTOCOL ON EXPLOSIVE REMNANTS OF WAR (PROTOCOL V)

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO AN UNDERSTANDING AND A 
                    DECLARATION

    The Senate advises and consents to the ratification of the 
Protocol on Explosive Remnants of War to the Convention on 
Prohibitions or Restrictions on the Use of Certain Conventional 
Weapons Which May be Deemed to be Excessively Injurious or to 
Have Indiscriminate Effects (Protocol V), adopted at Geneva on 
November 28, 2003 (Treaty Doc. 109-10(C)), subject to the 
understanding of section 2 and the declaration of section 3.

SECTION 2. UNDERSTANDING

    The advice and consent of the Senate under section 1 is 
subject to the following understanding, which shall be included 
in the instrument of ratification:

          It is the understanding of the United States of 
        America that nothing in Protocol V would preclude 
        future arrangements in connection with the settlement 
        of armed conflicts, or assistance connected thereto, to 
        allocate responsibilities under Article 3 in a manner 
        that respects the essential spirit and purpose of 
        Protocol V.

SECTION 3. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          With the exception of Articles 7 and 8, this Protocol 
        is self-executing. This Protocol does not confer 
        private rights enforceable in United States courts.

                              ----------                              


                       CCW AMENDMENT TO ARTICLE 1

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Amendment to Article 1 of the Convention on Prohibitions or 
Restrictions on the Use of Certain Conventional Weapons Which 
May be Deemed to be Excessively Injurious or to Have 
Indiscriminate Effects, adopted at Geneva on December 21, 2001 
(Treaty Doc. 109-10(B)), subject to the declaration of section 
2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          This Treaty is self-executing. This Treaty does not 
        confer private rights enforceable in United States 
        courts.

        Annex I.--Additional Material Submitted to the Committee



              Annex II.--Treaty Hearing of April 15, 2008




                                TREATIES

                              ----------                              


                        TUESDAY, APRIL 15, 2008

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:33 p.m., in 
room SD-419, Dirksen Senate Office Building, Hon. Robert P. 
Casey, Jr., presiding.
    Present: Senator Casey.

 OPENING STATEMENT OF HON. ROBERT P. CASEY, JR., U.S. SENATOR 
                       FROM PENNSYLVANIA

    Senator Casey. The hearing of the Committee on Foreign 
Relations will now come to order.
    Today, the committee meets to consider five law of war 
treaties that regulate the application of military force to 
ensure innocent civilians are appropriately protected from harm 
during an armed conflict.
    Four of the five treaties on the committee's docket today 
are protocols or amendments to the Convention on Certain 
Conventional Weapons, also known as the CCW. The CCW was 
originally concluded in 1980, which the United States ratified 
in 1995. It establishes a framework to regulate the use of 
those conventional weapons at special risk of causing 
indiscriminate damage or unnecessary suffering to innocent 
civilians. Separate protocols appended to the CCW focus on 
specific weapons.
    Accordingly, the committee today will consider whether the 
Senate should give its advice and consent to U.S. ratification 
of three protocols to the CCW that focus on the following 
weapons systems and munitions.
    The first, Protocol III, relates to prohibitions or 
restrictions on the use of incendiary weapons. Incendiary 
weapons are those weapons primarily designed to set targets on 
fire or cause burn injuries by delivering a substance that 
causes a chemical reaction.
    The second, Protocol IV, relates to blinding laser weapons. 
This protocol would prohibit the use of those weapons on the 
battlefield that are specifically designed to cause seriously 
disabling and irreversible loss of vision to the unaided eye.
    Next, Protocol V, relates to explosive remnants of war, 
which are defined as those munitions that remain armed 
following the end of a conflict, including artillery shells, 
bombs, handgrenades, cluster munitions, and rockets that do not 
explode as intended, but were simply abandoned on the 
battlefield. We're all too familiar with the tragic stories of 
innocent civilians, including children, who pick up these 
munitions, only to have them explode in their hands.
    The fourth treaty the committee will consider today, also 
relates to the CCW and is known as the Scope amendment. When 
the CCW was adopted in 1980, it only applied to traditional 
armed conflicts between sovereign states. The drafters of the 
CCW failed to appreciate that the nature of armed conflict 
would significantly evolve over ensuing decades, such that 
today, the majority of armed strife in the world is a result of 
noninternational conflicts, such as civil wars, insurgencies, 
and ethnic conflict. The Scope amendment would simply extend 
the mandate of the CCW and certain protocols to cover these 
types of noninternational conflicts, in addition to traditional 
conflicts between States. In fact, when the Senate provided its 
advice and consent to ratification of the CCW in 1995, it 
included a declaration that the United States would extend its 
application of the CCW to noninternational conflicts.
    The final treaty before the committee today is the Hague 
Cultural Property Convention, which is more than 50 years old. 
The Hague Convention establishes special protections for 
cultural properties during wartime, including a prohibition on 
direct attacks upon cultural property, theft and pillage of 
cultural property, and reprisals against cultural property. 
When we discuss cultural property in the context of the Hague 
Convention, we're referring to monuments of architecture, 
museums, works of art, sites of historical interest, and other 
uniquely important artifacts. The Hague Convention helps ensure 
that our common historical and cultural heritage is protected 
against wanton and willful destruction.
    As the United States considers these five law of war 
treaties, it is critical to remember the following points that 
these protocols and conventions all share in common.
    First, our uniformed military officers strongly support 
these treaties and believe they are consistent with U.S. 
national security interests. The presence today of Brigadier 
General Johnson of the Joint Chiefs of Staff attests to that 
support. The Department of Defense, including our combatant 
commands, already complies with, and fulfills in practice, the 
norms contained in all five of these law of war treaties.
    U.S. ratification of these treaties will not change U.S. 
military practice in any way, shape, or form. Let me repeat 
that. Our military already complies in practice with all five 
treaties before this committee today. Formal U.S. ratification 
of these treaties would do nothing--nothing to change or alter 
our current military practices.
    Although the United States already follows these treaties 
in practice, formal Senate approval and entry into force by the 
United States will set an important example and bolster U.S. 
leadership when it comes to promulgating universal adherence to 
law of war treaties. It is difficult for the United States to 
persuade other nations to adhere to humanitarian and cultural 
practices when we refuse to formally join the types of treaties 
that are before the committee today.
    Formal U.S. ratification will help advance the values our 
Nation holds dear, and will allow us to participate fully in 
relevant international meetings on the implementation of these 
treaties.
    These five treaties carry broad support within the United 
States, and bridge any partisan divide. Some of these 
agreements were submitted by Republican administrations, others 
were submitted by Democratic administrations. The current 
administration is unified in its support of the five treaties, 
with Deputy Secretary of State Negroponte, Deputy Secretary of 
Defense England reaffirming the support of the State Department 
and the Pentagon in a letter to the committee in August of last 
year. Negroponte and England both wrote, ``The Defense 
Department and the State Department strongly support all five 
of these treaties and encourage their prompt ratification.''
    U.S. ratification is also supported by the American Bar 
Association, which has long supported ratification of the Hague 
Convention, and which, last August, passed a resolution on the 
CCW Amendment and Protocol, stating, ``U.S. ratification would 
further United States humanitarian objectives without 
compromising the appropriate use of important military 
technologies.''
    The committee is pleased to have a strong panel of 
administration witnesses testifying today in support of these 
five treaties. First, John Bellinger, the Legal Adviser for the 
Department of State and second, Charles A. Allen, the Deputy 
General Counsel at the Department of Defense. Also with us 
today, but not providing an opening statement, is BG Michelle 
D. Johnson, Deputy Director for the War on Terrorism and Global 
Effects for the Joint Chiefs of Staff. Brigadier General 
Johnson will be available to answer our questions, as 
appropriate.
    I'd now like to turn to--well, Senator Lugar is not with 
us, he may be here later, but, if not, I wanted to thank him 
and thank Senator Biden for arranging this hearing.
    I also wanted to make sure that we move our agenda forward, 
so I think we'll start with Mr. Bellinger.
    And the floor is yours.

STATEMENT OF HON. JOHN B. BELLINGER, LEGAL ADVISER, DEPARTMENT 
                    OF STATE, WASHINGTON, DC

    Mr. Bellinger. Thank you very much, Mr. Chairman. And we 
want to thank you for putting this hearing together for these 
important treaties. We appreciate your particular interest in 
these, and the committee's interest.
    I have to say, having listened to your statement, that I 
could not have said it any better. I agree with everything and 
all the points that you have made about these treaties in your 
opening statement. And we do believe that they are very 
important for us and will contribute both to our military and 
also to our leadership role on international humanitarian law 
in the world.
    I have a longer written statement that I would ask be 
inserted into the record----
    Senator Casey. Without objection.
    Mr. Bellinger [continuing]. And a quite short opening 
statement to--just to get us started, and then look forward to 
answering any questions that you may have.
    These five important treaties operate in a field of 
international law that regulates the conduct of hostilities 
once there is an armed conflict, as do the well-known 1949 
Geneva Conventions. The aim of these treaties is to reduce the 
suffering caused during armed conflicts and provide protection 
to the victims of war, particularly to the civilian population 
and civilian objects, in a manner consistent with legitimate 
military requirements. The United States has been a 
longstanding and historic leader in the law of armed conflict, 
and we've played a significant role in shaping the treaties 
before you now. At the same time, we subject all treaties 
dealing with the law of armed conflict to very close 
examination, even after adoption of the texts. And I would note 
that in some cases the United States has taken more time than 
many of our friends and allies in ratifying these treaties, 
because of their particular concern to our military. But, we 
believe that such close examination allows us to be sure that 
the treaties we propose to ratify are, in fact, in our national 
interests.
    Now, some may question why it's important to ratify these 
treaties now, after they've entered into force for other 
nations long ago. The answer, in part, is that over time we've 
seen how these treaties operate, and we're confident that they 
would promote U.S. national interests and are consistent with 
U.S. practice. And I'll--I will just add something there that 
I'm occasionally asked in hearings about treaties, just to be 
clear. We in the State and the Defense Departments, and the 
administration overall, don't enter into treaties to be nice to 
other countries because we want to be part of an international 
club. We do it because they are in our national security 
interests, and we believe that they will benefit the United 
States. And I think you mentioned, Senator, in the beginning, 
some of the reasons that these particular treaties are of 
importance to us.
    An important reason is that ratification of these treaties 
would promote U.S. international security interests in 
vigorously supporting both the rule of law and the appropriate 
development of international humanitarian law. Additionally, 
when the United States ratifies a treaty, other nations are 
more likely to ratify, as well, which ultimately helps us to 
protect our forces.
    Moreover, after ratification, the United States will be 
able to participate fully in meetings of States Parties to the 
treaties aimed at implementation of the treaties, and thereby 
more directly affect how the practice under these treaties 
develops. Becoming a party to these treaties also will 
significantly strengthen our negotiating leverage and our 
credibility in our work on other law of war treaties, to the 
extent that other States ask why they should cede to U.S. 
positions if we do not ratify those treaties after they do so.
    Now, as you've said, the five treaties before us are the 
1954 Hague Convention for the Protection of Cultural Property 
in the Event of an Armed Conflict, which was transmitted to the 
Senate on January 6, 1999; three protocols to the Convention on 
Prohibitions or Restrictions on the Use of Certain Conventional 
Weapons Which May be Deemed to be Excessively Injurious or to 
Have Indiscriminate Effects, which we call, for understandable 
reasons, by the shorthand, CCW--Protocol III of the CCW on 
Incendiary Weapons, which was adopted in 1980 and transmitted 
to the Senate on January 7, 1997; Protocol IV to the CCW on 
Blinding Laser Weapons, which was adopted in 1995 and 
transmitted to the Senate on January 7, 1997; and Protocol V on 
Explosive Remnants of War, which was adopted in 2003 and 
transmitted to the Senate on June 20, 2006; and an amendment to 
this convention which was adopted in 2001 and transmitted to 
the Senate on June 20, 2006.
    All of these instruments have already entered into force 
for those States that have ratified them.
    Now, the Cultural Property Convention prohibits direct 
attacks upon cultural property, theft and pillage of cultural 
property, and reprisals against cultural property. While there 
were some initial U.S. concerns related to the convention after 
it was adopted, and, for that reason, it was not transmitted to 
the Senate until 1999, now, after some 50 years of experience 
and detailed interagency review, we've concluded that U.S. 
practice is entirely consistent with this convention, and that 
ratifying it will cause no problems for the United States or 
for the conduct of U.S. military operations.
    Because of some minor concerns that relate to ambiguities 
in the language of the treaty, however, we propose four 
understandings that are set out in Treaty Document 106-1, which 
you have. These are entirely consistent with the goals of the 
convention, and they serve to clarify a number of important 
points.
    The Convention on Certain Conventional Weapons, or CCW, is 
a framework instrument. It was adopted after extensive 
multilateral negotiations between 1974 and 1980, with 
significant U.S. involvement and participation, and it was 
approved by the Senate and ratified by President Clinton in 
1995. The CCW establishes scope and procedural provisions that 
apply to a number of annexed protocols, each of which deals 
with a particular type of conventional weapon that may be 
deemed to pose special risks of having indiscriminate effects 
or causing unnecessary suffering, or a problem common to 
certain weapons.
    We believe that the CCW is a particularly valuable 
framework, because it is designed to balance humanitarian and 
military considerations. The four CCW instruments under 
consideration today are consistent with U.S. military 
requirements and existing military practices. Each one advances 
the U.S. national objective of preserving humanitarian values 
in times of armed conflict. And ratification will permit the 
United States to participate fully in relevant meetings of 
States Parties to these instruments and to insist that other 
States Parties follow the norms that each instrument creates.
    All the major military powers are parties to the CCW and 
participate in meetings convened under its framework, and all 
decisions are made by consensus. It's because of the 
involvement of all the major military powers in the CCW that 
the United States supported the initiation of, and has actively 
participated in, two rounds of negotiations on the issue of 
cluster munitions within the CCW framework. While this step is 
important, it's also critical that we ratify the existing CCW 
instruments, particularly the Protocol on Explosive Remnants of 
War, Protocol V, which will have a direct impact on mitigating 
the humanitarian effects of cluster munitions by focusing on 
concrete actions to be taken in the post-conflict period by the 
State in control of the affected territory, as well as the 
users of such munitions. While these measures are already 
consistent with U.S. practice, our ratification will encourage 
other States to adopt similar practices through their 
ratification.
    United States ratification of the treaties before you today 
is in our military and security interests, and would promote 
the rule of law and the development of international law. These 
treaties are widely supported, and, we believe, are not 
contentious. This administration, including the State and 
Defense Departments, strongly supports these treaties, and, as 
you noted, Senator, the American Bar Association has also urged 
their ratification. They promote our cultural and humanitarian 
values, while not interfering with legitimate military 
objectives, as you will shortly hear from my colleagues from 
the Defense Department.
    Mr. Chairman, I urge that the committee give prompt and 
favorable consideration to these treaties.
    Thank you.
    [The prepared statement of Mr. Bellinger follows:]

      Prepared Statement of Hon. John B. Bellinger, Legal Adviser, 
                  Department of State, Washington, DC

    Mr. Chairman, I am pleased to testify, along with my colleagues 
from the Department of Defense, before the committee today to express 
the strong support of the State Department and the administration for 
the Senate's prompt provision of advice and consent to ratification of 
five important treaties that deal with the law of armed conflict. One 
of the treaties concerns the protection of cultural property and the 
other four concern certain conventional weapons.
    In its February 2007 letter to Chairman Biden setting out its 
treaty priorities for the 110th Congress, the administration supported 
Senate action on each of these treaties. In August of last year, in a 
letter to this committee, the Deputy Secretaries of State and Defense 
reaffirmed their support for all five treaties. Ratification of these 
treaties will promote the cultural and humanitarian values of the 
United States, while being fully consistent with our military needs.
    These treaties operate in a field of international law that 
regulates the conduct of hostilities once there is an armed conflict, 
as do the 1949 Geneva Conventions. This area of law is referred to as 
the law of war, the law of armed conflict, or international 
humanitarian law. The aim of these treaties is to reduce the suffering 
caused during armed conflicts and provide protection to the victims of 
war, particularly to the civilian population and civilian objects, in a 
manner consistent with legitimate military requirements.
    The United States has been a longstanding and historic leader in 
the law of armed conflict, and we played a significant role in shaping 
the treaties before you now. At the same time, due to the complexity of 
the law in this field and the involvement of our military forces in 
armed conflict, we subject all treaties dealing with the law of armed 
conflict to close examination, even after adoption of the texts. I 
would note that in some cases the United States has taken more time 
than many of our friends and allies in ratifying the treaties we 
initiate, negotiate, support and with which we generally comply, even 
where we have not formally become a party. But we believe that such 
close examination is necessary, and allows us to be sure that the 
treaties we propose to ratify are in our national interests.
    Some may question why it is important to ratify these treaties now 
after they have entered into force for other nations long ago. The 
answer, in part, is that over time we have seen how these treaties 
operate and we are confident that they promote U.S. national interests 
and are consistent with U.S. practice. Another reason for the United 
States to ratify these treaties is that ratification would promote U.S. 
international security interests in vigorously supporting, along with 
our friends and allies, both the rule of law and the appropriate 
development of international humanitarian law. Additionally, when the 
United States ratifies a treaty, other nations are more likely to 
ratify as well, with the result that overall implementation of and 
compliance with these norms will improve over time, which ultimately 
helps to protect our forces.
    Ratification will also specifically enhance U.S. leadership in 
international humanitarian law and increase our ability to work with 
other states to promote effective implementation of these treaties in 
at least two ways. First, after ratification, the United States will be 
able to participate fully in meetings of States Parties aimed at 
implementation of these treaties and, thereby, more directly affect how 
the practice under these treaties develops. Second, becoming a party to 
these treaties will significantly strengthen our negotiating leverage 
and credibility in our work on other law of war treaties, to the extent 
other states ask why they should cede to U.S. positions if we do not 
ratify those treaties after they do so. We hope to change that 
situation with the ratification of the five instruments under 
consideration today.
    We believe that these treaties are not contentious. Some have been 
transmitted to the Senate for advice and consent to ratification by 
Democratic administrations and some by Republican administrations. The 
American Bar Association has urged the ratification of all five 
treaties.
    The five treaties before you are the 1954 Hague Convention for the 
Protection of Cultural Property in the Event of Armed Conflict, which 
was transmitted to the Senate on January 6, 1999; three protocols to 
the Convention on Prohibitions or Restrictions on the Use of Certain 
Conventional Weapons Which May Be Deemed to Be Excessively Injurious or 
to Have Indiscriminate Effects, or ``CCW'': Protocol III on Incendiary 
Weapons, which was adopted in 1980 and transmitted to the Senate on 
January 7, 1997; Protocol IV on Blinding Laser Weapons, which was 
adopted in 1995 and transmitted to the Senate on January 7, 1997; and 
Protocol V on Explosive Remnants of War, which was adopted in 2003 and 
transmitted to the Senate on June 20, 2006; and an amendment to this 
convention, which was adopted in 2001 and was transmitted to the Senate 
on June 20, 2006. All of these instruments have already entered into 
force for those states that have ratified them.
                   hague cultural property convention
    I would like to address the Cultural Property Convention first. It 
prohibits direct attacks upon cultural property, theft and pillage of 
cultural property, and reprisals against cultural property. While the 
United States helped negotiate this convention after World War II to 
address problems encountered during that war--indeed, the convention is 
based in large measure on practices of U.S. military forces during 
World War II--we have seen in much more recent conflicts how important 
it is to take measures to protect cultural property. While there were 
some initial U.S. concerns related to the convention after it was 
adopted, and for that reason it was not transmitted to the Senate until 
1999, now, after some 50 years of experience and detailed interagency 
review, we have concluded that U.S. practice is entirely consistent 
with this convention and that ratifying it will cause no problems for 
the United States or for the conduct of U.S. military operations. 
Because of some minor concerns that relate to ambiguities in language, 
however, we propose four understandings that are set out in Treaty 
Document 106-1. These are entirely consistent with the goals of the 
convention and serve to clarify a number of important points.
    The American Bar Association Report accompanying its resolution 
recommending ratification of this convention stated that ``[b]y 
ratifying the 1954 Hague Convention, the United States would 
demonstrate . . . the importance the United States places on the 
protection of the cultural heritage of humanity.''
    Let me note that there are two protocols to this convention, one 
adopted in 1954--on preventing the exportation of cultural property and 
providing for restitution of illegally exported objects--and one in 
1999--on establishing an enhanced system of protection for specifically 
designated cultural property. Both protocols require further review, 
but the convention itself stands on its own, and the administration 
urges that the committee take action now on the convention itself.
               convention on certain conventional weapons
    The Convention on Certain Conventional Weapons (``CCW'') is a 
framework instrument. It was adopted after extensive multilateral 
negotiations between 1974 and 1980, with significant U.S. involvement 
and participation, and was approved by the Senate and ratified by 
President Clinton in 1995. The CCW establishes scope and procedural 
provisions that apply to a number of annexed protocols, each of which 
deals with a particular type of conventional weapon that may be deemed 
to pose special risks of having indiscriminate effects or causing 
unnecessary suffering, or a problem common to certain weapons. We 
believe that the CCW is a particularly valuable framework for 
considering such questions because it is designed to balance 
humanitarian and military considerations.
    The framework instrument and the protocols are separate treaties 
each requiring advice and consent to ratification. With Senate advice 
and consent, the United States ratified the framework instrument and 
the first two protocols, on nondetectable fragments and landmines, in 
1995. We ratified an amended version of the landmines protocol in 1999.
    The four instruments under consideration today--a 2001 amendment to 
article 1 of the convention itself, the 1980 Protocol III on incendiary 
weapons, the 1995 Protocol IV on blinding laser weapons, and the 2003 
Protocol V on explosive remnants of war--are consistent with U.S. 
military requirements and existing military practices. Each one 
advances the U.S. national objective of preserving humanitarian values 
in times of armed conflict, and ratification will permit the United 
States to participate fully in relevant meetings of States Parties to 
these instruments and to insist that other States Parties follow the 
norms that each instrument creates.
    The American Bar Association Report accompanying its resolution 
urging ratification of this amendment and these protocols concluded 
that ``U.S. ratification would further the United States humanitarian 
objectives without compromising the appropriate use of important 
military technologies.''
    All the major military powers are parties to the CCW and 
participate in meetings convened under its framework, and all decisions 
are made by consensus. It is because of the involvement of all the 
major military powers in the CCW that the United States supported the 
initiation of and has actively participated in two rounds of 
negotiations on the issue of cluster munitions within the CCW 
framework. While this step is important, it is also critical that we 
ratify the existing CCW instruments--particularly the protocol on 
explosive remnants of war, which will have a direct impact on 
mitigating the humanitarian effects of cluster munitions by focusing on 
concrete actions to be taken in the post-conflict period by the state 
in control of the affected territory as well as the users of such 
munitions. While these measures are already consistent with U.S. 
practice, our ratification will encourage other states to adopt similar 
practices through their ratification.
     Let me briefly describe the four CCW instruments under 
consideration.
Amendment to Article 1
    Article 1 of the convention as adopted in 1980 limited the scope of 
application of the convention to international armed conflicts between 
states and to wars of national liberation. As we informed the Senate, 
the United States declared, when we deposited the instruments of 
ratification, that the provision in article 1 concerning wars of 
national liberation would have no effect because it injected subjective 
and politically controversial standards into international humanitarian 
law and undermined the important traditional distinction between 
international and noninternational armed conflicts. We also informed 
the Senate that the United States will apply the provisions of the CCW 
to all armed conflicts, whatever their nature--international or 
noninternational--and that we intended to support an amendment to the 
CCW formally extending the scope of application to all armed conflicts.
    The amendment to article 1 before you today does just that. The 
United States proposed this amendment, which conforms the convention to 
U.S. practice and extends the convention's and protocol's existing 
rules to noninternational as well as international armed conflicts. For 
instance, it would lead to increased protection of the civilian 
population from the effects of hostilities during civil war by 
requiring adherence by the State Party involved to the restrictions 
contained in any of the first four protocols it had ratified. The 
amendment was adopted in 2001 and was transmitted to the Senate in 
2006, along with Protocol V.
    As of the date of this hearing, 59 states are bound by the 
amendment to article 1 of the convention, including most of our NATO 
allies, Japan, South Korea, Russia, and China.
Protocol III (incendiary weapons)
    Protocol III, which was adopted in 1980 along with the CCW and the 
first two protocols, provides increased protection for civilians from 
the potentially harmful effects of incendiary weapons, while 
reconfirming the legality and military value of incendiary weapons for 
targeting specific types of military objectives. Incendiary weapons are 
weapons or munitions that are primarily designed to set fire to objects 
or to cause burn injury to persons through the action of flame, heat, 
or a combination thereof, produced by a chemical reaction of a 
substance delivered on the target. They do not include tracer or smoke 
munitions, such as white phosphorus munitions.
    This protocol was not transmitted to the Senate in 1994 along with 
the CCW and the first two protocols because of concerns raised at that 
time relating to the possible need to use air-delivered incendiaries in 
certain situations. It was subsequently transmitted to the Senate in 
1997 with a proposed condition that would make the protocol acceptable 
from a broader national security perspective. The precise wording of 
this condition, however, continued to undergo military review, in order 
to ensure that the United States was able to retain its ability to 
employ incendiaries against high-priority military targets.
    We are now in a position to state that U.S. ratification of this 
protocol, subject to a reservation that I will describe, would further 
humanitarian purposes as well as provide even clearer legal support for 
U.S. practice, particularly given past controversies surrounding the 
use of incendiary weapons. Based on the military review, we can say 
that U.S. military doctrine and practice are consistent with Protocol 
III, except for the two paragraphs for which we have proposed the 
reservation--which is permitted under the CCW--in the interest of 
reducing risk to innocent civilians and collateral damage to civilian 
objects.
    The protocol would prohibit the employment of incendiary weapons 
against military objectives within a ``concentration of civilians.'' 
This is usually the right rule, but there could be particular combat 
situations in which it would cause fewer civilian injuries and less 
damage to use an incendiary, even where a concentration of civilians is 
present. Therefore, the administration recommends that the United 
States, when ratifying Protocol III, reserve the right to use 
incendiary weapons against military objectives located in 
concentrations of civilians where it is judged that such use would 
cause fewer casualties and less collateral damage than alternative 
weapons, such as high-explosive bombs or artillery.
    There are currently 99 States Parties to Protocol III, including 
all NATO Member States except Turkey and the United States.
Protocol IV (blinding laser weapons)
    The negotiation of Protocol IV, which began in 1994, had as its 
impetus the possibility that countries would develop weapons with the 
capability to disable enemy forces through mass blinding, although such 
weapons had not actually been developed at the time. As adopted in 
1995, the protocol prohibits the use, against any individual enemy 
combatant, of blinding laser weapons ``specifically designed, as their 
sole combat function or as one of their combat functions, to cause 
permanent blindness to unenhanced vision, that is to the naked eye or 
to the eye with corrective eyesight devices.'' This prohibition is 
fully consistent with DOD policy, which served as the principal basis 
for the Protocol IV text.
    Protocol IV also obligates States Parties to take ``all feasible 
precautions'' in using laser systems, ``to avoid the incidence of 
permanent blindness to unenhanced vision. Such precautions shall 
include training of their armed forces and other practical measures.'' 
This is also fully consistent with DOD policy. Such lasers include 
those used for range-finding, target discrimination, and 
communications.
     There are currently 89 States Parties to Protocol IV, including 
all other NATO Member States and Israel. Protocol IV was transmitted to 
the Senate on January 7, 1997, together with Protocol III.
Protocol V (explosive remnants of war)
    The negotiation of Protocol V was begun in 2002, based on concerns 
that a large proportion of civilian deaths and injuries from explosive 
remnants of war during post-conflict periods are both predictable and 
preventable. The situation in Kosovo had been cited as an example of 
the problems caused by explosive remnants of war. Protocol V, which was 
adopted in November 2003, is the first international agreement 
specifically aimed at reducing the humanitarian threat posed by 
unexploded and abandoned munitions of all types that remain on the 
battlefield after the end of armed conflicts (together known as 
``ERW''). ERW have existed since the earliest use of explosive devices 
in armed conflict. The protocol contains no restrictions or 
prohibitions on the use of weapons as such but provides rules for what 
must be done with respect to ERW, in order to reduce the threat such 
ordnance poses to civilians and post-conflict reconstruction.
    The primary focus of Protocol V is on the post-conflict period. The 
protocol provides that, after entry into force, the party in control of 
the territory on which the munitions are found is responsible for the 
clearance, removal, and destruction of the ERW.
    The party that used the munitions--if the munitions are not located 
on its territory--is obligated to assist ``to the extent feasible.'' 
The users of munitions are obligated to record and retain information 
on the use of munitions and on the abandonment of munitions ``to the 
maximum extent possible and as far as practicable.'' They are also to 
transmit such information to the party in control of the territory. The 
protocol contains voluntary ``best practices'' on recording, storage, 
and release of information on ERW, as well as on warning and risk 
education for ERW-affected areas.
    The protocol also includes a technical annex that encourages states 
to take steps to achieve the greatest reliability of munitions and to 
prevent munitions from becoming ``duds.''
    There are currently 42 States Parties to Protocol V, including 14 
NATO Member States, with a number of the remaining NATO Member States 
close to ratifying. Israel is not a party to Protocol V but it took 
part in the negotiations and supported the final text. A large number 
of states have indicated that they expect to join this protocol in the 
near future. Protocol V was transmitted to the Senate on June 20, 2006, 
along with amended Article I and Protocol III to the 1949 Geneva 
Convention, following extensive interagency review. Priority for Senate 
action was given to Protocol III to the 1949 Geneva Convention, given 
its relative importance, and that protocol entered into force for the 
United States on March 8, 2007.
                               conclusion
    United States ratification of the treaties before you today is in 
our military and security interest and would promote the rule of law 
and the development of international law. These treaties are widely 
supported and are not contentious in our view. This administration, 
including the State and Defense Departments, strongly supports these 
treaties. They promote our cultural and humanitarian values while not 
interfering with legitimate military operations, as you will shortly 
hear from my colleagues from the Defense Department. The United States 
has traditionally been at the forefront of efforts to improve the legal 
regime dealing with the conduct of armed conflict, in order to protect 
our own forces, to reduce the suffering caused by armed conflicts and 
to provide protection to the victims of war, in a manner consistent 
with legitimate military requirements. Our ratification of these 
instruments will therefore serve our interests in these areas.
    Mr. Chairman, I urge that the committee give prompt and favorable 
consideration to these treaties.

    Senator Casey. Thank you.
    Mr. Allen.

    STATEMENT OF CHARLES A. ALLEN, DEPUTY GENERAL COUNSEL, 
  INTERNATIONAL AFFAIRS, DEPARTMENT OF DEFENSE, WASHINGTON, DC

    Mr. Allen. Thank you very much, Mr. Chairman.
    I'd like to begin by echoing Mr. Bellinger's comments, and 
not only his specific comments regarding these treaties, but 
also in thanking you for your very thoughtful statement 
regarding these treaties.
    The Department of Defense believes that--and this includes 
the military departments and the combatant commands--these 
treaties are consistent with U.S. national security interests 
and overall U.S. interests. The U.S. Armed Forces already 
comply with the norms contained in these treaties, as you 
indicated.
    Four of these treaties relate to the Convention on 
Conventional Weapons: An amendment to that convention, and 
three protocols to it. The fifth is the separate 1954 Hague 
Convention on the Protection of Cultural Property, which, 
although codifying protections for cultural property, 
specifically authorizes military commanders to do what is 
necessary to accomplish their missions. The convention does not 
restrict legitimate military actions that may be taken even if 
collateral damage is caused to cultural property. Importantly, 
it prohibits the use of cultural property in armed conflict for 
purposes likely to expose it to destruction or damage. The 
Department of Defense has carefully studied the convention and 
its effect on military practice and operations, and believes 
the convention to be fully consistent with good military 
doctrine and practice, as conducted by the U.S. Armed Forces.
    We recommend that ratification of the convention be subject 
to the four understandings that Mr. Bellinger mentioned that 
are set out in the treaty document submitted to the Senate.
    Among other things, these understandings reflect key law of 
war principles that are consistent with the convention: 
Prohibiting use of cultural property to shield legitimate 
targets from attack, and recognizing that property may be 
attacked using lawful and proportional means if required by 
military necessity.
    The CCW and its protocols are part of a legal regime that 
takes into account both humanitarian considerations and 
military necessity in regulating the use of particular types of 
conventional weapons that may pose risks to civilian 
populations within the vicinity of military operations.
    The first of the four CCW instruments under consideration 
is the amendment to article 1, which extends the scope of the 
application of the convention in Protocols I, II, and III to 
noninternational armed conflicts. The amendment is important, 
because many of the conflicts that occur today are 
noninternational in character. Ratifying this amendment will 
result in no changes to longstanding U.S. and Department of 
Defense policy, as reflected in the U.S. declaration upon 
becoming a party to the CCW and two protocols to CCW in 1995.
    Additionally, the amendment applies the rules contained in 
the convention and protocols to both State and non-State 
belligerents. The amendment recognizes that the applicability 
of the CCW and protocols to non-State Parties to a conflict 
does not change the legal status of those non-State Parties, 
and it advances U.S. national objectives of preserving 
humanitarian values during armed conflict.
    Now, Protocol III codifies increased protection for 
civilians from the potentially harmful effects of incendiary 
weapons. It reconfirms the legality of military use of 
incendiary weapons for targeting specific types of military 
objectives. Ratification of this protocol would further 
humanitarian purposes, as well as provide clearer support for 
U.S. practice, given past controversies surrounding incendiary 
weapon use. U.S. military doctrine and practice are consistent 
with Protocol III, subject to the proposed reservation in the 
interest of reducing risk to innocent civilians and collateral 
damage to civilian objects. In this reservation, we would 
reserve the right to use incendiary weapons against military 
objectives, but only where it is judged that such use would 
actually reduce the risk of civilian and friendly force 
casualties and collateral damage than alternative weapons, such 
as high-explosive bombs or artillery.
    Protocol IV to CCW prohibits the use of blinding laser 
weapons, ``specifically designed, as their sole combat function 
or as one of their combat functions, to cause permanent 
blindness to unenhanced vision, that is to the naked eye or to 
the eye with corrective eyesight devices.'' This prohibition is 
fully consistent with DOD policy, which was established prior 
to, and was the principal basis for, the Protocol IV text.
    Protocol V to the CCW provides rules for what must be done 
with respect to unexploded munitions and abandoned munitions, 
together known as explosive remnants of war, or ERW, remaining 
on the battlefield after a conflict. These munitions may be 
artillery shells, bombs, handgrenades, mortars, rockets, and, 
in fact, also cluster munitions; but, by definition, do not 
include land mines, which are regulated by Protocol II, the 
Amended Mines Protocol to the CCW. In the view of the United 
States and other major military powers, many of the reported 
problems concerning the use of cluster munitions can be 
addressed through the effective implementation of Protocol V, 
including the voluntary best practices stated in the technical 
annex to the protocol.
    The United States delegation stated its understandings 
regarding a number of Protocol V provisions during the 
negotiations and upon the adoption of the final text, and these 
understandings were not disputed. These understandings are 
found in the administration's article-by-article analysis, and 
we believe Protocol V rules and best practices are completely 
consistent with U.S. military doctrine and policy.
    Because the Department of Defense views these treaties as 
being consistent with United States national security interests 
and overall U.S. interests, and because being party to these 
treaties, as Mr. Bellinger said, will reinforce existing 
military norms and practices and enhance our stature in the 
international community with regard to the law of war, I urge 
you to act favorably on all five of these treaties.
    Thank you.
    [The prepared statement of Mr. Allen follows:]

    Prepared Statement of Charles A. Allen, Deputy General Counsel, 
      International Affairs, Department of Defense, Washington, DC

    Mr. Chairman and members of the committee, thank you for the 
opportunity to testify today on the ratification of five Law of Armed 
Conflict treaties. As Mr. Bellinger has indicated, ratification of 
these treaties is fully supported by both the Departments of State and 
Defense. Mr. Bellinger provided reasons why the treaties are important 
to us. I will discuss the content of the treaties in more detail.
    On February 7, 2007, the State Department transmitted to the Senate 
Foreign Relations Committee the administration's Treaty Priority List 
for the 110th Congress. This list includes six treaties dealing with 
the law of armed conflict currently on the committee's calendar. Senate 
action on the five treaties summarized as follows is proposed at this 
time.
    Action on these treaties now, as proposed in Treaty Docs. 105-1, 
106-1, and 109-10, is important because:

   These treaties promote the humanitarian and cultural values 
        of the United States;
   They promote the rule of law and international law;
   They are widely supported, including by the Departments of 
        State and Defense, and we do not believe they pose contentious 
        issues; some have been sent to the Senate by Republican 
        administrations and some by Democratic administrations;
   The Department of Defense believes these treaties are 
        consistent with U.S. national security interests and overall 
        U.S. interests. The Department of Defense, including the 
        Military Departments and Combatant Commands, already comply 
        with the norms contained in them;
   By becoming party to the treaties, the United States will be 
        in a stronger position to urge treaty partners to comply with 
        them;
   Ratification will allow us to participate fully in relevant 
        meetings of states party to the treaties;
   Ratification will increase U.S. negotiating leverage and 
        credibility as we seek to negotiate other treaties generally 
        and instruments concerning the law of armed conflict in 
        particular.

    In addition, this year a key element in our effort to deal with the 
issues posed by cluster munitions is ratification of Protocol V to the 
Convention on Conventional Weapons (CCW), on explosive remnants of war. 
Our ratifying this protocol would strengthen U.S. efforts to show that 
we are serious about dealing with cluster munitions in the CCW 
framework. The CCW framework is advantageous to the United States 
because it balances humanitarian and military interests; the 
alternative to CCW is an effort by some other countries to achieve a 
ban on the use, production, and transfer of these weapons without 
recognizing their military utility in some circumstances.
 the 1954 hague convention for the protection of cultural property in 
                      the event of armed conflict
    The Hague Convention for the Protection of Cultural Property, among 
other things, prohibits direct attacks upon cultural property, theft, 
and pillage of cultural property, and reprisals against cultural 
property. It also prohibits the use of cultural property in armed 
conflict for purposes likely to expose it to destruction or damage.
    The definition of cultural property includes monuments of 
architecture, art or history, archeological sites, groups of buildings 
of historical or artistic interest, works of art, manuscripts, books 
and other objects of artistic, historical, or archeological interest, 
as well as scientific collections and important collections of books or 
archives.
    The convention was negotiated following World War II with the 
purpose of avoiding problems encountered during and following World War 
II. U.S. military practice in World War II was a point of reference in 
drafting the treaty. The convention was concluded in 1954 and entered 
into force in 1956. The United States was one of the original 
signatories.
    It was initially believed that implementation of the treaty could 
cause operational problems for U.S. military forces. The convention was 
not sent to the Senate for advice and consent immediately following 
U.S. signature. The U.S. military's conduct of operations over the last 
50 years has been entirely consistent with the convention's provisions. 
After almost 50 years of practice, initial concerns did not 
materialize. Following the experience of Operation Desert Storm, the 
Department of Defense informed the Department of State in 1992 of its 
support for U.S. ratification. The convention and its first protocol 
were submitted to the Senate in 1999.
    The convention does not prevent military commanders from doing what 
is necessary to accomplish their missions. Legitimate military actions 
may be taken even if collateral damage is caused to cultural property. 
Protection from direct attack may be lost if a cultural object is put 
to military use. The Department of Defense has carefully studied the 
convention and its impact on military practice and operations. The 
Department believes the convention to be fully consistent with good 
military doctrine and practice as conducted by U.S. forces.
    We have recommended that ratification of the 1954 convention be 
subject to the following four understandings:
    1. The ``special protection'' as defined in Chapter II of the 
Convention prohibits the use of cultural property to shield any 
legitimate targets from attack, and allows all property to be attacked 
using lawful and proportionate means if required by military necessity.
    2. Decisions by military commanders and others responsible for 
planning and executing attacks can only be judged on the basis of the 
information reasonably available to them at the relevant time.
    3. The rules established by the convention apply only to 
conventional weapons.
    4. The primary responsibility for the protection of cultural 
objects rests with the party controlling the property.
   amendment to article 1 of the convention on conventional weapons 
                               (``ccw'')
    The CCW entered into force on December 2, 1983, for those states 
that had ratified it. The CCW and its protocols are part of a legal 
regime that regulates the use of particular types of conventional 
weapons that may pose risks to civilian populations within the vicinity 
of military objectives. As adopted in 1980, Article 1 of the CCW did 
not extend the scope of application of the convention to 
noninternational armed conflicts. On December 21, 2001, States Parties 
to CCW adopted an amended article 1 that extended the scope of 
application of the convention and Protocols I, II, and III to 
noninternational armed conflicts as well.
    At the time it ratified the CCW, the United States made a 
declaration stating that the United States would apply the convention 
and the first two protocols to conflicts referred to in Common Article 
3 of the Geneva Conventions--that is, noninternational armed conflicts. 
Additionally, in 1996 the United States successfully led the initiative 
to amend CCW Protocol II (regulating mines, booby traps, and other 
devices) to apply in both international and noninternational armed 
conflicts. The United States ratified the amended CCW Protocol II on 
May 24, 1999, with one reservation and nine understandings. In view of 
this success, and of U.S. humanitarian goals, the United States urged 
CCW States Parties to build on the success of the Protocol II amendment 
by amending Article 1 of the CCW to achieve the same effect for the 
convention and Protocols I and III. This amendment is important because 
many of the conflicts that occur today are noninternational in 
character. Ratifying this amendment will result in no changes to 
longstanding U.S. and Department of Defense policy.
    The amendment to article 1 makes clear that the rules contained in 
the convention and protocols will apply to both state and nonstate 
belligerents. The amendment provides that recognizing the applicability 
of the CCW and protocols to nonstate parties to a conflict does not 
change the legal status of those nonstate parties, and it advances the 
U.S. national objective of preserving humanitarian values during armed 
conflict.
    CCW States Parties negotiating future protocols will decide on a 
case-by-case basis whether the new protocols should apply in 
noninternational armed conflicts.
    Fifty-nine states currently are parties to amended Article 1 to the 
CCW, including most of our NATO allies, Japan, South Korea, Russia, and 
China.
                 protocol iii (``incendiary weapons'')
    Protocol III to the Convention on Conventional Weapons (CCW) 
provides increased protection for civilians from the potentially 
harmful effects of incendiary weapons, and it reconfirms the legality 
and military value of incendiary weapons for targeting specific types 
of military objectives. Accordingly, U.S. ratification of this protocol 
would further humanitarian purposes as well as provide clearer support 
for U.S. practice given past controversies surrounding the use of 
incendiary weapons. U.S. military doctrine and practice are consistent 
with Protocol III other than the two paragraphs to which the United 
States intends to reserve, in the interest of reducing risk to innocent 
civilians and collateral damage to civilian objects.
    Protocol III was the product of hard-fought negotiations in 1978-
1980 and for many delegations it was the raison d'etre for the CCW. 
Widespread use of incendiary weapons by axis and allied forces in WWII 
and by the United States in Vietnam was widely criticized. The 
provisions of Protocol III were the result of a last-minute compromise 
on the part of both proponents (Sweden and Mexico) and opponents 
(United States, the Soviet Union and its Warsaw Pact members, and other 
governments). The U.S. delegation agreed to the language ad referendum 
in order to reach a successful conclusion of the debate.
    The compromise centered on retaining the use of incendiaries for 
recognized and legitimate military purposes. Even with that compromise, 
however, the United States cannot accept the protocol's prohibition on 
the employment of incendiary weapons--of any mode of delivery--against 
military objectives within a ``concentration of civilians.'' A 
``concentration of civilians'' is undefined and could encourage enemy 
forces to use innocent civilians as human shields around military 
objectives to avoid attack. Nonetheless, the United States carries out 
all military operations with a view to taking feasible precautions to 
protect the civilian population and individual civilians not taking a 
direct part in hostilities.
    The administration therefore recommends that the United States, 
when ratifying Protocol III, reserve the right to use incendiary 
weapons against military objectives located in concentrations of 
civilians where it is judged that such use would cause fewer civilian 
and friendly force casualties and less collateral damage than 
alternative weapons, such as high-explosive bombs or artillery. In 
addition, incendiary weapons are the only weapons that can effectively 
destroy certain counterproliferation targets such as biological weapons 
facilities, which require high heat to eliminate biotoxins.
    In 2005 a foreign news report alleged that U.S. employment of white 
phosphorous munitions in Iraq constituted the illegal use of an 
incendiary weapon or a chemical weapon. This report was incorrect. 
White phosphorous does not fit the definition of incendiary weapon in 
the protocol. Nor does white phosphorous meet the definition of 
``chemical weapon'' in the Chemical Weapons Convention. White 
phosphorous is a lawful weapon used for target marking and limited 
antipersonnel purposes against military objectives and enemy 
combatants. In any case, U.S. and coalition forces take measures to 
protect civilians and select weapons to minimize risk to civilians and 
civilian property, notwithstanding efforts by insurgents to use 
civilians and civilian objects as shields from attack.
    There are currently 99 states party to Protocol III, which entered 
into force on December 2, 1983. This includes all NATO Member States 
except Turkey and the United States.
                protocol iv (``blinding laser weapons'')
    Protocol IV to the Convention on Conventional Weapons prohibits the 
use of blinding laser weapons ``specifically designed, as their sole 
combat function or as one of their combat functions, to cause permanent 
blindness to unenhanced vision, that is to the naked eye or to the eye 
with corrective eyesight devices.'' This prohibition is fully 
consistent with DOD policy, which preceded and was the principal basis 
for the Protocol IV text.
    Protocol IV also obligates State Parties to take ``all feasible 
precautions,'' in the employment of laser systems, ``to avoid the 
incidence of permanent blindness to unenhanced vision. Such precautions 
shall include training of their armed forces and other practical 
measures.'' This is also fully consistent with DOD policy. To date, no 
individual has suffered permanent blindness, as that term is defined in 
the protocol, from battlefield laser use. Such lasers include those 
used for range-finding, target discrimination, and communications. 
Military personnel fighting in Afghanistan and Iraq, as in previous 
armed conflicts, have suffered blindness from blast and fragmentation 
weapons.
    The definition of permanent blindness is consistent with widely 
accepted ophthalmological standards and means ``irreversible and 
uncorrectable loss of vision which is seriously disabling with no 
prospect of recovery. Serious disability is equivalent to visual acuity 
of less than 20/200 Snellen measured in both eyes.''
    The United States has employed ``dazzler'' laser devices in Iraq at 
checkpoints and elsewhere as a warning device to drivers of oncoming 
vehicles to avoid resort to deadly force. Although not a laser weapon, 
each dazzler has undergone a legal review as required by DOD directives 
to ensure its consistency with our law of war obligations and Protocol 
IV.
    There are currently 89 states party to Protocol IV, which entered 
into force on July 30, 1998, including all other NATO Member States and 
Israel.
               protocol v (``explosive remnants of war'')
    Protocol V to the Convention on Conventional Weapons provides rules 
for what must be done with respect to unexploded munitions and 
abandoned munitions (together known as ``ERW'') remaining on the 
battlefield after a conflict. These munitions may be artillery shells, 
bombs, handgrenades, mortars, rockets, and cluster munitions, but by 
definition do not include landmines, which are regulated by amended 
Protocol II.
    In the view of the United States and other major military powers, 
many of the reported problems concerning the use of cluster munitions 
can be addressed through the effective implementation of Protocol V.
    The primary focus of Protocol V is on the post-conflict period. The 
party in control of the territory on which the munitions are found is 
responsible for the clearance, removal, and destruction of the ERW. In 
the case of ERW located in Iraq, this would mean that Iraq is 
responsible for the clearance, removal, and destruction, although other 
states could assist Iraq--financially or otherwise--in carrying out 
those activities.
    The party that used the munitions--if the munitions are not located 
on its territory--is obligated to assist ``to the extent feasible.'' 
This obligation does not apply to a state that sold or transferred the 
munitions to the user.
    The users of munitions are obligated to record and retain 
information on the use of munitions and on the abandonment of munitions 
``to the maximum extent possible and as far as practicable.'' They are 
also to transmit such information to the party in control of the 
territory. The protocol contains voluntary best practices on recording, 
storage, and release of information on ERW, as well as on warning and 
risk education for ERW-affected areas.
    The parties to an armed conflict are obligated to take ``all 
feasible precautions'' in the territory under their control to protect 
civilians and civilian objects from ERW. They are also to protect 
humanitarian missions and organizations from ERW ``as far as 
feasible.''
    Protocol V also contains voluntary best practices to prevent 
munitions from becoming ``duds.''
    All obligations concerning clearance, removal, and assistance apply 
only to ERW that were created after entry into force of the protocol 
for the party on whose territory the ERW are located. That being said, 
a party has the right to seek and receive assistance, ``where 
appropriate,'' for ERW that existed in its territory prior to entry 
into force of the protocol, and other parties may provide assistance on 
a discretionary basis.
    The protocol is not intended to preclude future arrangements or 
assistance connected with the settlement of armed conflicts that may 
set different divisions of responsibilities for parties to a conflict.
    The United States delegation stated its understandings with regard 
to a number of provisions during the negotiations and on the adoption 
of the final text, and these understandings were not disputed. We do 
not believe that there is a need to repeat those understandings--which 
are found in the administration's article-by-article analysis--in the 
Senate resolution of advice and consent.
    There are currently 42 states party to Protocol V, which entered 
into force on November 12, 2006, including 14 NATO Member States. 
Israel is not a party to Protocol V but took part in the negotiations 
and supported the final text.
    Thank you for your consideration of these treaties. Because the 
Department of Defense views these treaties as being consistent with 
U.S. national security interests and overall U.S. interests, and 
because the Department already complies with the norms within these 
treaties, I urge you to act favorably on these five important treaties.

    Senator Casey. Thank you very much.
    I'll have some questions for each witness, and I'll start 
with Mr. Bellinger.
    For those who are here and those who may be listening, and, 
I think, even for Senators like me, can you talk a little bit 
about the CCW process? Just walk through that for us. I know 
you touch on it a couple of times, but please walk us through 
the process and the relevance of that process to our national 
security and our standing in the world.
    Mr. Bellinger. Certainly. Thank you.
    The--as I mentioned, the CCW process--it's got a long 
title, but the CCW generally refers to Certain Conventional 
Weapons--is a framework agreement that takes into account both 
humanitarian considerations--because of the particular impact 
that certain kinds of weapons can have on civilians and others, 
and the combatants in war--and military considerations in the 
process of reaching agreements. Essentially, if we are going to 
go to war with one another, the idea is to agree to certain 
limits on certain particularly destructive weapons. They need 
to be consistent with our military objectives, but, at the same 
time, our military recognizes that there are certain things 
that the military themselves will not use, or that they will 
use in a--only in a particular way, in order to limit civilian 
harm. And hence, there's the framework agreement and a process 
that brings the players together. I gather we might want to 
talk about this later on, but that's the process that we're 
using right now in Geneva to talk about cluster munitions. But, 
already we have reached agreement on protocols on certain types 
of weapons, like blinding lasers, which our military does not 
plan to use, incendiary devices, which would only be used under 
certain circumstances, and then the protocol on explosive 
remnants of war. So, it's an important process that we continue 
to place a lot of faith in to try to make war as minimally 
destructive as possible for civilians and for combatants.
    Senator Casey. And, if you would, take it forward from the 
point at which ratification takes place. What happens after 
that, in terms of implementation?
    Mr. Bellinger. It operates by consensus; and so, there are 
periodic reviews, both in the overall framework of CCW, which 
reviews past protocols, and then look to negotiate new ones. 
So, the group meets together, and it is very important that, 
unlike some other groups, that the major military powers are 
represented to look at how well the past instruments are 
working or to look at additional instruments. And then, there 
are subgroups of--that will focus, in particular, on the 
particular protocols, so there's a working group, for example, 
on Protocol V on Explosive Remnants of War. All of these 
negotiate by consensus.
    Senator Casey. I wanted to get your sense of understanding 
of the attitude of other countries toward the United States at 
the conferences. Have we been able to effectively influence 
negotiations over these treaties in these forums? What's the 
sense that you have of the attitude of these other nations as 
it pertains to the United States?
    Mr. Bellinger. Well, thank you. It's a good question, and I 
am proud to answer. I would certainly ask my colleagues here to 
add on.
    The United States, for decades and decades, if not 100 
years, has been a leader in developing law of war treaties. We 
are a major military power, so there is recognition and 
pressure on us to limit our own use of military forces, and 
sometimes constrain ourselves in ways that we're not 
comfortable with, but, at the same time, there is great respect 
for our negotiators, for our lawyers, and for our values, as a 
people, to do the right thing. So, even when other countries 
don't agree with us--and sometimes we will have countries who 
never have to go to war, and so, for them, these are academic 
questions and are putting great pressure on the United States 
to limit the use of certain weapons--there is great respect for 
us as a leader in the laws of war. And many of the people 
sitting behind the witnesses at the table are the men and women 
who negotiate, and have for years, in these processes. And I 
can tell you, as the Legal Adviser at the State Department, how 
much respect there is for the people who do this, even if 
there's not agreement with every position the United States 
takes.
    Senator Casey. We appreciate their service. It's terribly 
complex assignments they have, and we appreciate that.
    I wanted to move to, Mr. Bellinger--before we get to our 
other witnesses--to the question of cluster munitions. As it 
stands now, the Norwegian Government launched separate 
negotiations, is that correct? And they, of course, fall 
outside of the CCW process. And, I guess, their agreement would 
ban most, if not all, cluster munitions. Is that correct?
    Mr. Bellinger. Generally right, sir. Yes, sir.
    Senator Casey. And the United States is boycotting those 
negotiations.
    Mr. Bellinger. Well, we are not participating.
    Senator Casey. OK. Fair enough.
    I want to ask you a direct question about why the 
administration is opposing an agreement that would not just 
regulate the use and disposition of cluster munitions, but 
would go one step beyond and ban, in fact, their production.
    Mr. Bellinger. No; it's a good question, and I will tell 
you we looked very hard at this, between the State and Defense 
Departments, as to whether we wanted to participate in the Oslo 
process. For the reasons that I laid out, we are a leader in 
the laws of war, and in their humanitarian aspects, but, at the 
same time, we do use cluster munitions. We have a large number 
of them in our inventory, and, at least for right now, until a 
review conducted by the Defense Department about their possible 
future uses, and under what terms, is finished, we could not 
agree to a total ban on use of cluster munitions. There are 
legitimate military uses for cluster munitions, that my defense 
colleagues can go into.
    So, what we chose to do, because of the absolute ban on 
clusters that the Oslo process would--is pursuing, we are 
looking to agree to a binding instrument within the CCW process 
that would address cluster munitions. We're fully aware of the 
humanitarian considerations involved when cluster munitions are 
used. The CCW process involves all of the major military 
players--and I think that's one of the most important things I 
want to emphasize--at Oslo, it's a group that does not include 
the major military players--Russia, China, Pakistan, India. So, 
it's not going to have a lot of effect if you don't have the 
countries in the world that have cluster munitions, or might 
use them. In the CCW process, we have those players 
represented. We think we could reach an agreement, and we've 
just, over the weekend, gotten back from a second round of 
negotiations for a protocol on cluster munitions, and we think 
that's a better approach, to be working with the countries that 
actually have got the cluster munitions.
    Senator Casey. So, it's currently--I guess you're saying 
it's currently under review.
    Mr. Bellinger. Well, two things. Our Defense Department 
procedures and policies for use of cluster munitions in our 
military are under review. The review is close to ending. My 
Defense Department colleagues may be able to say a little bit 
more about it as to what--how we would use them. But, we have 
already agreed that we would--are interested in entering into 
what would essentially become a Protocol VI to the CCW on 
Cluster Munitions, that, at a very minimum, would address the 
law applicable to use of cluster munitions, best practices for 
their use, and for cleanup after a conflict.
    Senator Casey. Let me direct my question both to you and to 
Mr. Allen; one or both can answer.
    The results of the review, would they be made available to 
this committee?
    Mr. Allen. Senator, I'm sure that we'll be in a position to 
brief the committee on that review. And I'm sure there'll be 
correspondence to the committees following the review that go 
into detail with respect to it.
    Senator Casey. Do you have any sense of timing on that?
    Mr. Allen. I think we're, as Mr. Bellinger indicated, very 
close to it. It has had a full review through the combatant 
commands and the military departments, and currently it's being 
dealt with by the Defense Department leadership.
    Senator Casey. In terms of time, are we talking weeks or 
months?
    Mr. Allen. I think, weeks.
    Senator Casey. Weeks; OK.
    Mr. Allen. Yes, sir.
    Senator Casey. I wanted to move on, because I know we have 
a lot to cover.
    Mr. Bellinger, one more question. With regard to Senate 
legislation 594, which would prohibit the export of cluster 
munitions to other nations with a less than 95-percent success 
rate, do you know the administration's position on that bill?
    Mr. Bellinger. I do, sir. And we do have concerns about 
that bill. We certainly understand the--and I can tell you 
personally, I understand the concerns that motivate it, because 
of the humanitarian impact of cluster munitions. But, to have 
legislation that would impose what appears to be an absolute 
ban on their use--I think it would actually require a 99-
percent reliability rate--and the cluster munitions currently 
in our military arsenal, while some of them have that 
reliability, many of them do not, at this point--would hamper 
the flexibility of our military commanders to say that there 
would be an absolute ban. Frankly, this legislation could be 
contrary to humanitarian purposes, because there really could 
be some cases where, rather than having a single weapon after 
single weapon after single weapon lobbed into a particular 
site, it actually would be more humanitarian to use a cluster 
munition. So, with respect to the second part of the 
prohibition, that says ``could never be used when civilians are 
present,'' that actually could be contrary to humanitarian 
purposes.
    Senator Casey. Now, to your knowledge, is the approach 
taken by this administration different than, or in conflict 
with, either the prior administration--Clinton or President 
Bush's administration prior to President Clinton?
    Mr. Bellinger. I would have to ask my Defense and military 
colleagues what they recall previously, but my understanding, 
sir, is, because cluster munitions have been in our arsenal for 
a long time, and have been a staple of our arsenal, while we've 
been trying to increase the reliability, I think no 
administration would be prepared--has been or would be prepared 
to immediately foreswear their use, even as we try to move 
forward to address the humanitarian considerations.
    Mr. Allen. I can confirm that, Senator, that the usefulness 
of cluster munitions is well established. Having said that, we 
always apply the law of war, in terms of discrimination, only 
going after military targets, and proportionality in the use of 
all of our weapons, including cluster munitions. But, there has 
been no change in this administration over past 
administrations.
    Senator Casey. Thank you.
    Mr. Allen, I wanted to ask you a couple of questions. One 
was about the DOD implementation of these treaties now. Could 
you tell us--what, if anything, would change if the United 
States joined the treaties? What's the before and after?
    Mr. Allen. Well, I think, as you rightly pointed out--in 
large measure, not very much would change, because we have 
implemented these treaties in our doctrine and in our training. 
They're in our culture of training our Armed Forces, preparing 
them for the different operations that they're involved in, you 
know, as we speak. And there--there obviously would be some 
changes. We have--obviously, we tune in to these matters, and 
at our various legal schoolhouses and training commands, they 
will tune in to the fact that we are now party to these 
treaties. And that will--that will be reflected in the 
training. But, again, sir, as you rightly pointed out in your 
statement, in regard to all five of these matters, there's 
really not a lot that would change, except for what we think is 
an increase in our stature in being able to assume and continue 
our lead role in the law of war, internationally.
    Senator Casey. So, it would be, in terms of the mechanics 
of it, mostly internal, in terms of training and----
    Mr. Allen. Right. Exactly.
    Senator Casey. And with regard to implementation and 
resources spent, will more resources be devoted to 
implementation and training associated with these treaties if 
we join?
    Mr. Bellinger. I think the resources would--added resources 
would be negligible, in terms of implementing the treaties, in 
getting the word out to the Armed Forces as to the fact that 
we're party to the treaty instead of just applying these norms 
that are contained in the treaty as a part of the doctrine that 
soldiers, sailors, airmen, and marines have been oriented in 
all along. I think, truly, there's not much of a training 
expense at all.
    Senator Casey. And finally, with regard to just the time 
that's passed--these have been on the Senate calendar for quite 
a while now--and some of this is by way of reiteration, but if 
you could explain why it's important that we act on these 
treaties now, in light of the passage of time and in light of 
the significance of these treaties.
    Mr. Allen. I think it does matter that we're party to the 
treaties. I think we have--in particular, in the CCW forum, we 
have, as Mr. Bellinger indicated, an extraordinary positive 
example of interagency work for the best interests of the 
country, the way our Defense Department and State Department 
colleagues work together in CCW. And we have high hopes for 
this instrument, which may end up being a Protocol VI, dealing 
responsibly with cluster munitions. And our stature and our 
ability to carry that forward would be enhanced by becoming 
party to the CCW treaties.
    Senator Casey. Thank you.
    And, General, I wanted to get to questions for you. And I 
appreciate your patience in waiting.
    First of all, thank you for your service, as well. We're 
grateful for your service and your participation here in this 
hearing.
    I wanted to ask you--often when Americans hear about 
treaties, as I think Mr. Bellinger mentioned, they think of it 
in a different context than warfare or combat. And I think it's 
important that we bring them together. I know some of the 
previous testimony did just that. But, just from the vantage 
point of combatant commanders, can you tell us why these 
treaties are important, from a combatant commander's vantage 
point?

 STATEMENT OF BG MICHELLE D. JOHNSON, DEPUTY DIRECTOR FOR THE 
 WAR ON TERRORISM AND GLOBAL EFFECTS, J-5 STRATEGIC PLANS AND 
        POLICY DIRECTORATE, JOINT STAFF, WASHINGTON, DC

    General Johnson. Yes, Mr. Chairman, thank you very much. 
And thank you for the opportunity to represent the men and 
women of the Armed Forces today. And thank you for your and the 
committee's support for them every day. We appreciate that. 
Thank you very much.
    As has been said before, our operations are already 
consistent with the content of these treaties, and it's a part 
of our normal approach to targeting and munitions selection as 
we go along. And we've had a--the opportunity for full review 
and concurrence, both on the Joint Staff, as well as in the 
combatant commands, and in the services.
    Again, as has been said before, as well, anything that 
other countries can do in signing up to adhere to these 
treaties would be a benefit to our servicemembers, because it 
would protect them from excessive injury. And by ratifying it 
ourselves, we set the example of what responsible militaries 
do, that we follow these rules.
    And finally, several of our allies already are in 
compliance with these treaties, and for us to be able to fully 
operate with them and to participate will actually help our 
military operations, because some of--much of what we do is 
done with coalition partners.
    Senator Casey. Do you have any--and this, I guess, is a 
question that a lot of people would ask that aren't intimately 
familiar with the necessity and the rationale behind these 
treaties--but do these treaties in any way limit the 
flexibility of our military?
    General Johnson. No; actually it does not provide an 
adverse effect on our operations; again, because we operate in 
compliance with them already, and also because of what's been 
cited by my colleagues, in terms of our ability to respond to 
military necessity in any situation, we can apply and balance 
the military utility with the humanitarian considerations, as 
well.
    Senator Casey. So, you can strike that balance.
    General Johnson. Absolutely.
    Senator Casey. And I know that our military already 
implements these treaties, as previous testimony told us, just 
in terms of a matter of practical policy, even though we're not 
yet a party. Can you give us examples of how we've done this--
in other words, how we've been able to implement them, as 
policy, without--or prior to ratification----
    General Johnson. On any given----
    Senator Casey [continuing]. Just by way of examples.
    General Johnson. Right. Well, at any given day--and whether 
it's in the coalition air operations center or in the ground 
counterparts, during the targeting cycle and munitions 
selection there is a whole team, from legal experts to 
munitions experts, that select targets and take into account 
military utility for a particular target for the desired 
military effect. And there's a balance given to collateral 
damage and the impact of--on others in the munitions selection. 
It's a matter of course. That's the common practice. And so, 
because of the care given to that, we feel like that's become 
common and hopefully, again, sets the example for others.
    Senator Casey. And by way of amplification--that whole 
theme that we've talked about, each of us in our own ways 
today--setting an example for the world and for countries 
around the world, would you give us a sense of what that means 
from the perspective of your work, as a part of our military. 
This is just to give people a sense of what that means, in 
terms of setting that example around the world.
    General Johnson. America stands for something. And when we 
wear our uniform, we represent that every day. And so, people 
in uniform take that responsibility very seriously to, not just 
execute policy, but do it in the way that America does: 
Responsibly and with due attention to the humanitarian 
considerations of our actions in the leadership role that we've 
assumed, as we discussed earlier, in all the venues that we 
participate in.
    Senator Casey. And, Mr. Allen or Mr. Bellinger, do you want 
to add anything to that?
    Mr. Allen. I would add that I think that these treaties--
starting with your statement, sir, and I think throughout our 
statements, as well, these treaties reflect the balance of 
military necessity and humanity that are the underlying 
principles of the law of war. So, when we develop our doctrine 
with respect to adhering to the law of war in our military 
operations, we get to the same result as these treaties; even 
though we haven't been party, we practice and we imbue, in our 
doctrine and in our operations, respect for these same 
principles.
    Another anecdote is that, with respect to the blinding 
lasers protocol, it was a Defense Department policy that was 
adopted in the 1990s during the Clinton administration that 
actually became the foundation for that protocol. Credit goes 
to our colleagues and their predecessors who have persevered 
doggedly at the CCW meetings, extensive meetings where there is 
no time off, to deal with these issues with--on into the night, 
bilateral, as well as the plenary meetings, and then going back 
and working on the papers for the next day. Our hats are off to 
them for, over the years, really taking on a leadership role in 
that forum.
    Senator Casey. Thank you.
    Mr. Bellinger. And, Senator, thank you, I will add 
something to that--and I think the General said it very well, 
which is that we not only do set an example for the world, but 
we do stand for something in the world when it comes to 
international humanitarian law. Countries really do listen to 
us. As someone who spends a good deal of my time on the road in 
negotiations with other countries, as do my colleagues around 
me, on many, many treaties, but particularly because we have 
been in conflicts over the last 7 years on law of war treaties, 
I know that there is--you know, despite the controversies that 
all of us are aware of going on right now, there is respect for 
the United States legal positions--they know that we're 
experts, they know that we mean the right thing, they listen--
other countries listen to what we have to say.
    In answer to your question of, sort of, ``Why now?''--and I 
hear this sometimes from others who are skeptical about 
treaties, ``Well, if we're complying, and it's already 
incorporated in our military doctrine, and everybody else has 
signed up and a party, you know, why should we become a party 
and bind ourselves if we're already getting the benefit?'' And 
the answer is, we go into these negotiations, people listen to 
us, they change their positions in response to the United 
States because they think we're doing the right thing. But, if 
we then never ratify, ourselves, they sort of feel we've pulled 
the football away and it does mean that, the next go-round, 
they are going to be less likely to compromise. And all of us 
have heard that in negotiations, where we say, ``Would you 
please change the language in this provision?'' and they'll 
say, ``Well, we think you're right, it makes sense to me, but, 
you know, last time you asked us to change something, you said, 
if we change that, then you would become a party, but then you 
don't.'' So, the credibility that comes to the United States 
not only with doing a good job in the negotiations, but then, 
essentially keeping our faith with the expectations, is very 
important for us to go forward with these treaties in order to 
maintain that leadership position in the world.
    Senator Casey. Well, thank you for that explanation.
    I'm out of questions. But, before we conclude, I do want to 
submit, for the record, the statement of Senator Lugar--of 
course, this committee's ranking member--his statement from 
today will be made part of the record.
    Senator Casey. But, I do want to reiterate our thanks for 
our three witnesses and for your service, and for those who are 
sitting or standing behind you, figuratively and literally. We 
appreciate your service to the country and sometimes 
painstaking work it takes just to produce the information upon 
which these treaties are based, and also the work that goes 
into just bringing everyone here together today.
    Thank you very much.
    Meeting adjourned.
    [Whereupon, at 3:25 p.m., the hearing was adjourned.]
                              ----------                              


              Additional Material Submitted for the Record


 Prepared Statement of Hon. Richard G. Lugar, U.S. Senator From Indiana

    I join the chairman in welcoming our distinguished witnesses. The 
``Law of War Treaties'' that we will examine today seek to restrict or 
outlaw specific types of heinous weapons used in combat.
    In 1980, 51 governments negotiated the Convention on Conventional 
Weapons (CCW). The primary purposes of this treaty are to prevent the 
use of certain types of weapons judged to be inhumane and to prevent 
noncombatants from being injured. The treaty entered into force in 1983 
and was focused on incendiary weapons, mines, booby traps, and weapons 
utilizing small fragmentation to injure or maim.
    Currently, 106 governments participate in the CCW. Recently, the 
parties--including the United States--negotiated several protocols and 
one amendment to the existing CCW text. Today, the Foreign Relations 
Committee will have an opportunity to examine these ``Law of War 
Treaties'' in detail, as well as the Hague Convention for the 
Protection of Cultural Property in the Event of Armed Conflict.
    I look forward to our discussion of all the agreements before us 
today, but I would like to highlight two that I consider to be of 
particular importance in strengthening U.S. leadership in conventional 
arms control. The first is the Amendment to Article 1 of the Convention 
on Prohibitions or Restrictions on the Use of Certain Conventional 
Weapons Which May be Deemed to be Excessively Injurious or to have 
Indiscriminate Effects--commonly called ``the CCW Amendment.'' The 
second is the CCW Protocol on Explosive Remnants of War--also known as 
``CCW Protocol V (Five).'' Both were submitted to the Senate for 
consent to ratification in June 2006.
    The CCW Amendment was adopted at Geneva on December 21, 2001. It 
applies the ban on the use of certain excessively injurious 
conventional weapons to civil wars. Currently, the ban applies only to 
international conflicts. It is important to note that the legal status 
of rebel or insurgent groups is not changed. They are not protected 
under the agreement as privileged belligerents or lawful combatants.
    CCW Protocol V was adopted at Geneva on November 28, 2003. It 
establishes rules governing the post-conflict disposition of 
conventional munitions such as mortar shells, grenades, artillery 
rounds, cluster munitions, and bombs that did not explode as intended 
or that were abandoned. The protocol provides for the marking, 
clearance, removal, and destruction of such remnants by the party in 
control of the territory in which the munitions are located.
    The goal is to reduce the threat such munitions pose to civilians 
and to post-conflict reconstruction. Protocol V is the first 
international agreement specifically aimed at reducing humanitarian 
threats that remain after hostilities have ended.
    It is critical that the Senate ratify the CCW Amendment and 
Protocol V now. Absent Senate action, we will not be able to 
participate in relevant meetings in which important decisions are being 
made on treaty implementation. The U.S. has already missed one such 
meeting--the June 2007 preparatory meeting on Protocol V. Continued 
absence could lead to changes that do not serve our national security 
interests.
    Some members of the international community have proposed 
addressing issues related to cluster munitions and other weapons 
outside the Convention on Conventional Weapons. Some have suggested 
creating new forums or treaty organizations. This administration and 
its predecessors have made important progress in constructing the CCW. 
It strikes the right balance in addressing important deficiencies in 
international law, while preserving critical U.S. national security 
interests. Scuttling all of this hard work and starting anew is 
unlikely to prove beneficial to U.S. interests. In fact, if 
negotiations were to commence on a new agreement or structure, the U.S. 
position would be to advocate something identical to the CCW.
    The first step in solidifying our political and diplomatic 
investments in the CCW and preventing potential backsliding of 
commitments by other nations is for the Senate to act on the CCW 
Amendment and Protocol V.
    I thank the chairman and look forward to hearing from our 
witnesses.
                                 ______
                                 

Prepared Statement Submitted by Patty Gerstenblith, President, Lawyers' 
    Committee for Cultural Heritage Preservation, Professor, DePaul 
                       University College of Law

    Senator Casey and members of the committee, thank you for the 
opportunity to submit this written statement in support of the 
ratification of the 1954 Hague Convention on the Protection of Cultural 
Property in the Event of Armed Conflict. Ratification is a crucial step 
toward improving our foreign relations by sending a strong signal to 
all nations that the United States values their cultural heritage. It 
would also help in assuring the preservation of the world's cultural 
heritage for the benefit of future generations. We urge that the 
committee recommend Senate ratification of the 1954 Hague Convention.
    The 1954 Hague Convention was adopted in the wake of the cultural 
destruction inflicted on Europe by the German Nazi regime during World 
War II. It was based on earlier documents, including the Lieber Code 
instructions issued for the regulation of conduct by the United States 
Army during the Civil War, the Hague Conventions of 1899 and 1907, the 
Roerich Pact of 1935, and a draft convention prepared in the 1930s. The 
destruction, theft, and pillage of cultural sites, monuments, and works 
of art perpetrated by Germany during World War II demonstrated all too 
graphically the need for a new international instrument dedicated 
specifically to the protection of cultural property during armed 
conflict.
    The actions of the United States Monuments, Fine Arts and Archives 
teams and the regulations issued by General Eisenhower to ensure 
respect for cultural heritage set the United States apart in its 
efforts to protect cultural sites and to return looted art works to 
their proper owners. The 1954 Hague Convention was, to a large extent, 
based on General Eisenhower's instructions. The United States was one 
of the first nations to sign the convention, indicating its intention 
to ratify it. Subsequent conflicts, including those in the Balkans in 
the 1990s and today in Iraq, have demonstrated the ongoing need for 
such a convention to protect the cultural and historical record of 
humankind.
    Under the terms of the convention, States Parties are to protect 
the cultural property situated within their own territory and to avoid 
acts of hostility directed against cultural property, defined broadly 
to include historic structures and monuments, archaeological sites, and 
repositories of collections of artistic, scientific, and historical 
interest. There are now 118 States Parties to the convention, a number 
that includes most of our allies. Further, the United Kingdom has 
announced its intention to ratify the convention.
    The convention lays out the basic principles for protecting 
cultural property. It begins with a preamble, which sets out the 
reasons for the adoption of the convention. It is worth noting two of 
the introductory paragraphs in particular:

          Being convinced that damage to cultural property belonging to 
        any people whatsoever means damage to the cultural heritage of 
        all mankind, since each people makes its contribution to the 
        culture of the world;
          Considering that the preservation of the cultural heritage is 
        of great importance for all peoples of the world and that it is 
        important that this heritage should receive international 
        protection . . .

    These phrases are part of a tradition of nations freely joining 
together to care for the cultural property located within their borders 
and to respect their adversaries' cultural property during warfare.
    Article 1 of the Hague Convention offers a broad definition of 
cultural property as ``movable or immovable property of great 
importance to the cultural heritage of every people.'' There follows a 
list of examples of cultural property, which is clearly intended not to 
be exhaustive, but includes ``monuments of architecture, art or 
history, whether religious or secular; archaeological sites; groups of 
buildings which, as a whole, are of historical or artistic interest; 
works of art; manuscripts, books and other objects of artistic, 
historical, or archaeological interest; as well as scientific 
collections and important collections of books or archives . . .''. In 
addition to movable and immovable property, cultural property also 
includes repositories of cultural objects, such as museums, libraries, 
and archives, as well as refuges created specifically to shelter 
cultural property during hostilities.
    Article 2 defines the ``protection of cultural property'' as 
consisting of two components: ``The safeguarding of and respect for 
such property.'' Safeguarding refers to the actions a nation is 
expected to take during peacetime to protect its own cultural property. 
This is embodied in article 3, which elaborates that nations are 
obligated to safeguard cultural property located within their territory 
during peacetime from ``the foreseeable effects of an armed conflict.'' 
Respect refers to the actions that a nation must take during 
hostilities to protect both its own cultural property and the cultural 
property of another nation. This obligation is embodied in the two main 
substantive provisions of the convention: Article 4, which regulates 
conduct of parties during hostilities, and article 5, which regulates 
the conduct of occupation.
    The central premise of these articles is that parties to the 
convention are to show respect for cultural property by protecting 
cultural property situated in their own territory and by avoiding harm 
to similar resources situated in the territory of another State Party. 
Under article 4(1), nations are to avoid jeopardizing cultural property 
located in their territory by refraining from using such property in a 
way that might expose it to harm during hostilities. This means that 
nations should not use cultural property as the location of strategic 
or military equipment nor should such equipment be housed in proximity 
to cultural property. Also under article 4(1), a belligerent nation 
should not target the cultural property of another nation. Article 4(2) 
provides that the obligations of the first paragraph ``may be waived 
only in cases where military necessity imperatively requires such a 
waiver.''
    Article 4(3) sets out the obligation ``to prohibit, prevent and, if 
necessary, put a stop to any form of theft, pillage, or 
misappropriation of, and any acts of vandalism directed against, 
cultural property . . .''. Paragraph 3 also prohibits the 
requisitioning of movable cultural property located in the territory of 
another party to the convention. Paragraph 4 of this article prohibits 
carrying out acts of reprisal against cultural property. Paragraph 5 
states that if one State Party has failed to comply with article 3 by 
not preparing to safeguard its cultural property during peacetime, this 
failure does not mean that another State Party can evade its 
obligations under article 4.
    Article 5 sets out the obligations of a State Party during 
occupation, emphasizing that the primary responsibility for securing 
cultural property lies with the competent national authority of the 
state that is being occupied. Thus the first obligation imposed on the 
occupying power is to support these national authorities as far as 
possible. The obligation of the occupying power to care for and 
preserve the cultural property of the occupied territory is very 
limited and applies only when the national authorities of the occupied 
territory are unable to do so, only when the cultural property has been 
``damaged by military operations'' and only ``as far as possible.''
    Article 6, permitting the distinctive marking of cultural property 
by a special emblem, the Blue Shield, and article 7, requiring that 
States Parties undertake to educate their military and introduce 
regulations concerning observance of the convention, complete the 
general substantive provisions of the convention. Articles 8 to 14 are 
concerned with the conditions of special protection, which may be 
accorded to certain categories of cultural property under specific 
conditions. The remaining articles address such topics as personnel 
(article 15), the distinctive emblem of the Blue Shield (articles 16-
17), the scope of the convention's applicability (article 18-19), and 
procedural matters (articles 20-40).
    In conclusion, the policies and practices of the U.S. military are 
already consistent with numerous of the principles of the 1954 Hague 
Convention under the 1907 Hague Convention (IV) respecting the Laws and 
Customs of War on Land and its Annex (of which the United States is a 
party) and as a matter of customary international law.\1\ During both 
gulf wars, the United States military took considerable care to gather 
information on the locations of cultural sites in Iraq and avoided 
targeting them. Even so, ratification would codify the obligations of 
the United States military, assure our allies that we all observe the 
same rules, and encourage marking of cultural sites.
---------------------------------------------------------------------------
    \1\See, e.g., Department of Defense, January 1993 Report of 
Department of Defense, United States of America, to Congress on 
International Policies and procedures regarding the Protection of 
Natural and Cultural Resources during Times of War.
---------------------------------------------------------------------------
    We urge the committee to recommend that the Senate ratify the 1954 
Hague Convention.

    Testimony submitted on behalf of the:
    Archaeological Institute of America (AIA), Lawyers' Committee for 
Cultural Heritage Preservation, United States Committee of the Blue 
Shield (USCBS), American Anthropological Association, American 
Association of Museums (AAM), American Institute for Conservation of 
Historic & Artistic Works (AIC), American Schools of Oriental Research 
(ASOR), Association of Moving Image Archivists (AMIA), College Art 
Association (CAA), National Trust for Historic Preservation, Society of 
American Archivists (SAA), Society for American Archaeology (SAA), 
Society for Historical Archaeology (SHA), United States Committee of 
the International Council on Monuments and Sites (US/ICOMOS), and World 
Monuments Fund (WMF).
                                 ______
                                 

 Responses of Legal Adviser John Bellinger and Deputy General Counsel 
  Charles Allen to Questions Submitted for the Record by Senator Casey

    oslo process to restrict use and production of cluster munitions
    Question. Negotiations are proceeding in the Oslo process, a 
negotiating forum outside the CCW framework, to regulate the use and 
production of cluster munitions. At the same time, States Parties to 
the CCW are considering a proposed Protocol VI to the CCW to go beyond 
the terms of Protocol V and focus on cluster munitions as a specific 
weapons system.
    Please assess the likely practical implications if both a treaty 
resulting from the Oslo process and a Protocol VI to the CCW were to 
enter into force. What would the experience over the past nearly 10 
years with the Ottawa Convention and Protocol II to the CCW teach us in 
this regard?

    Answer. The problem with the Oslo process is not that it will in 
some way interfere with the operation of a potential Protocol VI to the 
CCW on cluster munitions, but that it would jeopardize military 
interoperability between State Parties and non-State Parties to a 
convention resulting from the Oslo process. In principle, it would be 
possible for the Oslo process to reach an agreement that would have no 
negative impact on countries that decide not to participate, but the 
current draft of the Oslo text would significantly complicate 
cooperation between the militaries of State Parties and non-State 
Parties in missions in which the use of cluster munitions may be 
effective and appropriate.
    Regardless of the outcome of the Oslo process, the CCW is better 
positioned to take effective steps to address the humanitarian concerns 
associated with the use of cluster munitions in a context that 
recognizes their military value. Unlike the Oslo process, the CCW 
includes all the major users and producers of cluster munitions, and 
therefore a potential Protocol VI would have a more substantial impact 
on the humanitarian issues it seeks to address.
    An Oslo process convention would pose some of the same problems as 
the Ottawa Convention, including those related to the storage of 
weapons in allied or partner countries, moving weapons in and out of 
such countries, and hiring workers to help in such storage or movement. 
In terms of military interoperability, however, an Oslo-type convention 
would present much greater difficulties. Cluster munitions may be very 
important munitions in any given military mission, and prohibitions in 
the current draft Oslo text would preclude cooperation with allies or 
partners that are parties to a convention resulting from the Oslo 
process. In addition,
the Oslo process risks creating unnecessary and redundant humanitarian 
relief mechanisms, resulting in added costs and diverting resources 
from more important activities.
                         protocol v to the ccw
    Question. Article 3 of Protocol V calls upon a State Party that 
used munitions on territory not under its control to provide technical, 
financial, material, or human resources assistance to facilitate the 
marking, clearance, removal and/or destruction of these explosive 
remnants ``where feasible.''
    If the United States ratifies Protocol V, what would be the cost 
implications of meeting this obligation should the U.S. military again 
use cluster munitions in a manner and quantity similar to its pattern 
of use in Operation Desert Storm? (According to a report issued by the 
Government Accountability Office, millions of cluster sub munitions 
were dropped and at least 118,000 dud cluster sub munitions littered 
Iraqi territory at the end of the war in 1991.) Who determines what is 
feasible, and could that issue be brought before an international 
tribunal in the event of a dispute similar to that which occurred 
between Panama and the United States regarding unexploded chemical 
weapons on Panamanian soil?

    Answer. Under Protocol V, it falls to each State Party to determine 
what is feasible with respect to the provision of assistance to clean 
up ERW after a conflict. This feasibility assessment is not necessarily 
tied to the financial ability to provide assistance, and other factors 
may be taken into account. There is no provision for questioning a 
State's feasibility determination, for example, by bringing the issue 
before an international tribunal. In addition, the primary 
responsibility for clearance, marking, and other activities to protect 
civilians and assist victims is that of the State in control of the 
territory and not the State that used the munitions. This was 
consciously and explicitly written into the Protocol V provisions to 
ensure that cleanup after hostilities cease would be done as quickly as 
possible.

    Question. Article 4 of the Protocol relates to the sharing of data 
concerning the use and/or abandonment of ERW following the cessation of 
hostilities to facilitate the clearance of said ERW. Given that many 
cluster munitions systems have no guidance software, how useful is the 
sharing of mapping information in identifying the likely locations of 
unexploded cluster sub munitions?

    Answer. Nonprecision-guided weapons still follow a predictable 
course when they are fired, dropped, or launched. Even if, in some 
cases, the mapping information that can be provided under Article 4 of 
Protocol V does not provide pinpoint accuracy in locating ERW, it 
remains an extremely helpful procedure for assisting the country on 
whose territory the cluster munitions were used in cleaning up any ERW.

    Question. Please describe the ``legitimate security interests'' 
referenced in Article 4 that would justify a State Party not turning 
over strike data once a conflict has ended.

    Answer. We would expect that refusal to turn over strike data on 
the basis of legitimate security interests after the cessation of 
hostilities would be rare. However, it is possible that there could be 
a situation where turning over strike data would reveal classified 
information about a particular weapons system's capability, for 
example, or about targeting procedures. In such cases a State Party 
might justifiably invoke this provision.
                                 ______
                                 

 Responses of Legal Adviser John Bellinger to Questions Submitted for 
                      the Record by Senator Biden

    Question. What do you hope will be the impact of U.S. ratification 
of Protocol V to the CCW on the CCW process on cluster munitions?

    Answer. We have played an active role in the CCW process on cluster 
munitions and will continue to work very hard to achieve a meaningful 
result in that forum. One of the issues in these negotiations is the 
question of how to deal with unexploded cluster munitions that may 
remain on the battlefield after the end of a conflict. The U.S. 
delegation to the CCW negotiations has taken the position that Protocol 
V already provides most of the international framework necessary to 
address this issue. It is not the international community's intent to 
duplicate these structures in a new instrument. Furthermore, both with 
respect to victims' assistance and cleanup of unexploded remnants of 
war, it would not make sense to have special rules for cluster 
munitions that differ from the rules that apply to other types of 
weapons. In this context it would be particularly useful to be able to 
ratify Protocol V in advance of the critical July negotiating session 
in the CCW as it would confirm our commitment to the regime established 
by Protocol V.

    Question. In the treaty transmittal packages (105-1, 106-1, and 
109-10), a reservation and several understandings were recommended for 
inclusion in the Senate's resolution of advice and consent to 
ratification. Please review the recommendations made in the transmittal 
packages and confirm whether there are any changes or additions you 
would like to propose.

    Answer. As previously discussed with committee staff, we have 
proposed two changes to the understandings and reservation recommended 
in the treaty transmittal packages for these five treaties.
    First, we have proposed to alter the second understanding to the 
Hague Convention to read as follows:

          (2) It is the understanding of the United States of America 
        that decisions by military commanders and others responsible 
        for planning, deciding upon, and executing activities covered 
        by this Convention can only be judged on the basis of their 
        assessment of the information reasonably available to them at 
        the relevant time.

    Second, we have proposed to slightly alter the proposed reservation 
to article 2 of the Incendiary Weapons Protocol as follows:

          The United States of America, with reference to Article 2, 
        paragraphs 2 and 3, reserves the right to use incendiary 
        weapons against military objectives located in concentrations 
        of civilians where it is judged that such use would cause fewer 
        casualties and/or less collateral damage than alternative 
        weapons, but in so doing will take all feasible precautions 
        with a view to limiting the incendiary effects to the military 
        objective and to avoiding, and in any event to minimizing, 
        incidental loss of civilian life, injury to civilians and 
        damage to civilian objects.

    Question. Article 3 of Protocol V to the CCW requires States 
Parties to take certain steps with respect to explosive remnants of war 
in territory under its control. Is it the executive branch view that 
decisions on taking actions called for in Article 3 are to be made by a 
State Party based on its assessment of relevant circumstances at the 
time? If so, please explain the basis for this view.

    Answer. Yes. Under Article 3, each State Party has certain 
obligations with respect to explosive remnants of war in territory 
under its control after the cessation of active hostilities. These 
obligations are necessarily to be implemented based on that State 
Party's assessment of the relevant circumstances at the time. This is 
illustrated by the use of the phrase ``as soon as feasible'' in 
paragraphs 2 and 3 of the article, which implies a level of discretion 
or judgment in how to implement these obligations. This was clearly 
understood during the negotiations.

    Question. Is it the executive branch view that feasibility 
standards and formulations that appear in Protocol V such as ``in a 
position to do so'' are self-judging and are intended to reflect a 
State Party's need to make its own evaluation of relevant factors in 
implementing Protocol V's provisions?

    Answer. Yes. All the provisions in Protocol V that use the 
expressions ``where feasible'' and ``in a position to do so'' are self-
judging and are intended to reflect the necessity of States making 
their own evaluation of relevant factors in implementing these 
provisions. This was clearly understood during the negotiations. There 
is no mechanism in the Protocol for any kind of outside judgment about 
the adequacy of a country's compliance with these types of provision.

    Question. Article 8(4) of Protocol V states that Parties ``shall 
have the right to participate in the fullest exchange of equipment, 
material and scientific and technical information other than weapons-
related technology, necessary for the implementation of this 
Protocol.'' Would this provision prevent the United States from 
exercising its discretion to restrict or deny exports of items to other 
States Parties for national security reasons? If not, please explain 
why not.

    Answer. No. The sentence that immediately follows the sentence 
quoted above specifies that ``High Contracting Parties undertake to 
facilitate such exchanges in accordance with national legislation and 
shall not impose undue restrictions on the provision of clearance 
equipment and related technological information for humanitarian 
purposes.'' The reference to national legislation clearly includes U.S. 
export control requirements. In addition, the reference to ``undue'' 
restrictions would certainly not include those based on national 
security reasons.

    Question. Article 4(3) of the Convention for the Protection of 
Cultural Property in the Event of Armed Conflict (the ``Hague 
Convention'') requires Parties to `` . . . prohibit, prevent and, if 
necessary, put a stop to any form of theft, pillage or misappropriation 
of, and any acts of vandalism directed against, cultural property.'' 
Please explain how far this obligation extends. In other words, to what 
lengths is it necessary for a party to go in protecting cultural 
property within its own territory? In addition, does this provision 
obligate States Parties with respect to cultural property in territory 
that a party is occupying?

    Answer. The obligation in Article 4(3) requires each State Party to 
take reasonable steps to protect cultural property within its own 
territory, consistent with its assessment of the relevant circumstances 
at the time. With respect to the application of this provision to 
occupied territory, Article 5 makes clear that an occupying power is to 
support the competent national authorities.

    Question. In 2003 the Iraq National Museum in Baghdad was looted. 
Had the United States been a party to the Hague Convention, would the 
United States have been required to prevent the looting of that museum? 
Would the United States have done anything differently as a party to 
the Hague Convention?

    Answer. The United States would not have been required to do 
anything differently nor would have done anything differently if we had 
been a party to the Hague Convention at the time of this unfortunate 
incident. U.S. policy has been entirely consistent with the provisions 
of the Convention for many years.

    Question. Is the universe of ``cultural property'' an expansive 
one, or is it limited in practice to a small number of objects and 
sites? Specifically, Article 1 of the Hague Convention defines cultural 
property for purposes of the Convention and provides in part that it is 
``movable or immovable property of great importance to the cultural 
heritage of every people. . . .'' Is it fair to say, given the 
definition provided in Article 1, that cultural property refers only to 
a limited class of property that is of widely recognized importance, as 
in the case of historic monuments referred to in Article 7(1)(i) of the 
Amended Mines Protocol? Or does the inclusion in that definition of 
``works of art; manuscripts, books and other objects of artistic, 
historical or archaeological interest; as well as scientific 
collections'' mean that a wide range of property, ``irrespective of 
origin or ownership,'' may be covered?

    Answer. Cultural property is generally defined under Article 1 of 
the Hague Convention to include a broad range of monuments, buildings, 
works of art, books, etc. The Convention establishes a general 
obligation to respect and protect such property. However, there is also 
a more limited class of cultural property which, when registered, is 
placed under special protection as provided for in Article 9. Neither 
of these two provisions should be equated with Article 7, paragraph 
1(i) of the Amended Mines Protocol, which refers to historic monuments, 
works of art or places of worship which ``constitute the cultural or 
spiritual heritage of peoples.''

    Question. The Hague Convention provides that a limited number of 
(1) refuges intended to shelter movable cultural property in the event 
of an armed conflict; (2) centers containing monuments; and (3) other 
immovable cultural property of very great importance, may be placed 
under ``special protection.'' Special protection is granted to such 
cultural property by its entry in the International Register of 
Cultural Property under Special Protection. Is this list available to 
the public? Please provide to the committee a list of what is currently 
listed on this International Register.

    Answer. The regulations to the Hague Convention provide that the 
register is provided to the parties to the Convention. However, as a 
practical matter, very little has been registered as special property 
to date. For instance, the Vatican is one of the few actually 
registered.

    Question. Should the United States become a party to the Hague 
Convention, would the United States be likely to apply for entry of any 
particular cultural property in the United States on the International 
Register of Cultural Property under Special Protection?

    Answer. At this time, we do not anticipate applying for this 
special protection.

    Question. Have the regulations to the Hague Convention been amended 
since the treaty was submitted to the Senate in January 1999?

    Answer. No.
                                 ______
                                 

    Responses of Deputy General Counsel Charles Allen to Questions 
               Submitted for the Record by Senator Biden

   assessment of potential costs associated with the five law of war 
                                treaties
    Question. Please provide an assessment of the costs associated with 
implementing each of these five treaties: (1) The Protocol on Explosive 
Remnants of War (Protocol V) to the Convention on Prohibitions or 
Restrictions on the Use of Certain Conventional Weapons Which May Be 
Deemed To Be Excessively Injurious or To Have Indiscriminate Effects; 
(2) the Amendment of Article 1 of the Convention on Prohibitions or 
Restrictions on the Use of Certain Conventional Weapons Which May Be 
Deemed To Be Excessively Injurious or To Have Indiscriminate Effects; 
(3) the Hague Convention for the Protection of Cultural Property in the 
Event of Armed Conflict; (4) the Protocol on Prohibitions or 
Restrictions on the Use of Incendiary Weapons (Protocol III) Additional 
to the Convention of October 10, 1980, on Prohibitions or Restrictions 
on the Use of Certain Conventional Weapons Which May Be Deemed To Be 
Excessively Injurious or To Have Indiscriminate Effects; and (5) the 
Protocol on Blinding Laser Weapons (Protocol IV) Additional to the 
Convention on October 10, 1980, on Prohibitions or Restrictions on the 
Use of Certain Conventional Weapons Which May Be Deemed To Be 
Excessively Injurious or To Have Indiscriminate Effects.

    Answer. No additional costs associated with implementing the five 
listed treaties are expected.
 explanation of u.s. national security interests involved in the five 
                          law of war treaties
    Question. Please explain why it is in our national security 
interest to ratify each of these five law of war treaties.

    Answer. Ratification of each of the five listed treaties is in our 
national security interest. Ratification promotes U.S. international 
security interests in vigorously supporting the rule of law and the 
appropriate development of international humanitarian law. U.S. 
ratification encourages other nations to ratify these treaties, which 
ultimately helps protect U.S. forces. When the United States becomes a 
party to these treaties, the United States will be able to participate 
fully in discussions with State Parties regarding the implementation of 
these treaties, enabling the United States to influence directly how 
practice under these treaties develops. Furthermore, by ratifying these 
treaties, the United States gains significant negotiating leverage and 
credibility in our work on other law of war treaties.
  further legislation, regulations, or dodds the treaties may require
    Question. Is it correct that no implementing legislation is 
required for any of these five treaties? If these five treaties are 
approved by the Senate and ratified, would it be necessary to 
promulgate new regulations or Department of Defense Directives in order 
to implement any of them? Are there existing regulations or directives 
that would be relied upon to implement any of these treaties? If so, 
please provide citations to such regulations and explain which of the 
treaties they would implement.

    Answer. No implementing legislation is required for the five listed 
treaties. No new DOD directives or regulations would be needed. If 
ratified, DOD and Military Department directives and publications that 
refer to treaties to which the United States is a party would be 
updated to reflect that the United States is a party to these treaties. 
An example is Department of Defense Directive 2311.01E (May 9, 2006), 
Subject: DOD Law of War Program, a primary document in implementation 
of U.S. law of war obligations within the Department of Defense.
                         blinding laser weapons
    Question. Does the Department of Defense have any plans or desire 
to develop blinding laser weapons? If not, why not?

    Answer. The Department of Defense does not have any plans or desire 
to develop and use blinding laser weapons. It has been a longstanding 
DOD policy that the U.S. Armed Forces will not use lasers specifically 
designed to cause permanent blindness of unenhanced vision. 
Significantly, a 1995 DOD policy statement provided the foundation for 
the text of the Blinding Laser Protocol.
   legitimate military employment of lasers in protocol iv, article 3
    Question. Is it important, in your view, that Protocol IV 
recognizes the legitimate military employment of lasers in Article 3? 
If so, why?

    Answer. Protocol IV recognizes the legitimate military employment 
of lasers in that it only bans the use of a very limited category--
blinding laser weapons ``specifically designed, as their sole combat 
function or as one of their combat functions, to cause permanent 
blindness to unenhanced vision, that is, to the naked eye or to the eye 
with corrective eyesight devices.'' DOD policy, which preceded and was 
the principal basis for the Protocol IV text, acknowledged 
international humanitarian concerns with the use of blinding laser 
weapons. DOD policy also acknowledges, consistent with Protocol IV, 
that lasers can be used effectively for lawful military purposes, such 
as range-finding, target discrimination, and communications.
                    dazzler devices and protocol iv
    Question. Are ``dazzler'' devices, or the deployment of such 
devices, prohibited by Protocol IV in any way? If not, please explain 
the legal reasoning for that conclusion.

    Answer. ``Dazzler'' devices are not prohibited under Protocol IV. 
They do not meet Protocol IV's definition of a blinding laser weapon; 
that is, they are not specifically designed to cause permanent 
blindness to unenhanced vision. The United States has employed 
``dazzler'' laser devices in Iraq at checkpoints as a warning device to 
drivers of on-coming vehicles to avoid resort to deadly force when 
possible.
                use of white phosphorus and protocol iii
    Question. In 2005 there were various foreign news reports alleging 
that the United States used white phosphorus munitions in Iraq and that 
doing so was a violation of Protocol III to the CCW (article in the 
U.K. Guardian: ``Behind the Phosphorus Clouds are War Crimes Within War 
Crimes,'' November 22, 2005). Are there any circumstances in which 
Protocol III prohibits States Parties from using white phosphorus? Or 
is the use of White Phosphorus permitted because White Phosphorus is 
not ``primarily designed . . . to cause burn injury through the action 
of flame, heat, or a combination thereof, produced by a chemical 
reaction of a substance delivered on the target,'' even if, in a given 
case, White Phosphorus is used with the intent, as well as the effect, 
of causing such injury?

    Answer. White phosphorous is not prohibited under Protocol III 
because white phosphorous does not fit, and was not intended to fall 
within, the definition of incendiary weapon in the Protocol. There are 
no circumstances in which Protocol III regulates or prohibits the use 
of white phosphorous against a military objective.
               use of incendiary weapons and protocol iii
    Question. In your testimony before the committee, you noted that 
``incendiary weapons are the only weapons that can effectively destroy 
certain counterproliferation targets such as biological weapons 
facilities, which require high heat to eliminate biotoxins.'' This 
statement makes it clear that under certain circumstances, it is 
important that the United States be able to use incendiary weapons. 
Under what circumstances, if any, would Protocol III, if ratified by 
the United States with the reservation below, purport to prohibit the 
United States from employing incendiary weapons against a legitimate 
military objective? For example, would the United States be prohibited 
from using any mode of delivery of an incendiary weapon? Would Protocol 
III prohibit the United States from employing incendiary weapons in any 
situation in which it would now (with the United States not having 
joined Protocol III) employ such an incendiary weapon?

    Answer. If the United States ratified Protocol III without the 
stated reservation, U.S. forces might be prohibited from employing 
incendiary weapons against a legitimate military objective located 
within a concentration of civilians in situations where it is judged 
that employment of an alternative weapon ``would cause fewer casualties 
and/or less collateral damage.'' As is the case with any treaty, good 
faith implementation is essential. This reservation provides for a 
greater protection of the civilian population and is consistent with 
the U.S. targeting practices.
   legal impact of reservation on right to use incendiary weapons on 
                            military targets
    Question. The reservation would be as follows: The United States of 
America, with reference to Article 2, paragraphs 2 and 3, reserves the 
right to use incendiary weapons against military objectives located in 
concentrations of civilians where it is judged that such use would 
cause fewer casualties and/or less collateral damage than alternative 
weapons, but in so doing, consistent with paragraph 3, will take all 
feasible precautions with a view to limiting the incendiary effects to 
the military objective and to avoiding, and in any event to minimizing, 
incidental loss of civilian life, injury to civilians and damage to 
civilian objects. What would be the legal impact of the above proposed 
reservation if the United States were a party and used incendiary 
weapons in an otherwise banned manner, because it judged that such use 
would cause fewer casualties and/or less collateral damage than 
alternative weapons? (a) If an individual were to accuse the United 
States of violating Protocol III, could that person bring suit against 
the United States in a U.S. court? (b) If a country were to accuse the 
United States of violating Protocol III and wished to pursue a legal 
case against the United States, what would be the impact of the 
reservation as a matter of international law?

    Answer. It is always possible that an individual or other 
government could bring suit in U.S. court even in a case where U.S. 
forces chose to exercise the right to use incendiaries in a manner 
consistent with the reservation. We believe, however, that use of an 
incendiary weapon in a manner consistent with the reservation could be 
justified and successfully defended in U.S. courts. We anticipate that, 
in applying applicable law, a court would conclude that Protocol III 
with the U.S. reservation precludes a decision for a plaintiff in such 
a case.
            u.s. military consistence with hague convention
    Question. In your testimony before the committee, you noted that 
the ``U.S. military's conduct of operations over the last 50 years has 
been entirely consistent with the [Hague Cultural Property] 
Convention's provisions.'' Can you describe how this policy has been 
implemented in practice? Is the military, for example, trained to 
comply with the Hague Convention? Has compliance with the Convention 
ever been a problem for the military? Is it difficult for the military 
to identify whether a target is, or contains, cultural property? If 
not, why not?

    Answer. United States military practice in World War II was a point 
of reference in drafting the treaty. The U.S. Armed Forces' conduct of 
operations over the past 50 years has been consistent with the 
Convention's provisions. Military personnel are trained to observe its 
rules. The convention does not prevent a military commander from doing 
what is necessary to accomplish the mission. Balancing compliance and 
mission accomplishment has not been a problem. Major cultural property 
or landmarks are identified and taken into consideration in planning 
attacks. Personnel are trained not to target them unless they are being 
used by an enemy for military purposes, such as to shield personnel and 
equipment from attack. In such a case, the decision to treat the 
cultural object as a military objective is one taken at higher command 
levels.

    Responses of Deputy General Counsel Charles Allen to Questions 
               Submitted for the Record by Senator Biden

   assessment of potential costs associated with the five law of war 
                                treaties
    Question. Please provide an assessment of the costs associated with 
implementing each of these five treaties: (1) The Protocol on Explosive 
Remnants of War (Protocol V) to the Convention on Prohibitions or 
Restrictions on the Use of Certain Conventional Weapons Which May Be 
Deemed To Be Excessively Injurious or To Have Indiscriminate Effects; 
(2) the Amendment of Article 1 of the Convention on Prohibitions or 
Restrictions on the Use of Certain Conventional Weapons Which May Be 
Deemed To Be Excessively Injurious or To Have Indiscriminate Effects; 
(3) the Hague Convention for the Protection of Cultural Property in the 
Event of Armed Conflict; (4) the Protocol on Prohibitions or 
Restrictions on the Use of Incendiary Weapons (Protocol III) Additional 
to the Convention of October 10, 1980, on Prohibitions or Restrictions 
on the Use of Certain Conventional Weapons Which May Be Deemed To Be 
Excessively Injurious or To Have Indiscriminate Effects; and (5) the 
Protocol on Blinding Laser Weapons (Protocol IV) Additional to the 
Convention on October 10, 1980, on Prohibitions or Restrictions on the 
Use of Certain Conventional Weapons Which May Be Deemed To Be 
Excessively Injurious or To Have Indiscriminate Effects.

    Answer. No additional costs associated with implementing the five 
listed treaties are expected.
 explanation of u.s. national security interests involved in the five 
                          law of war treaties
    Question. Please explain why it is in our national security 
interest to ratify each of these five law of war treaties.

    Answer. Ratification of each of the five listed treaties is in our 
national security interest. Ratification promotes U.S. international 
security interests in vigorously supporting the rule of law and the 
appropriate development of international humanitarian law. U.S. 
ratification encourages other nations to ratify these treaties, which 
ultimately helps protect U.S. forces. When the United States becomes a 
party to these treaties, the United States will be able to participate 
fully in discussions with State Parties regarding the implementation of 
these treaties, enabling the United States to influence directly how 
practice under these treaties develops. Furthermore, by ratifying these 
treaties, the United States gains significant negotiating leverage and 
credibility in our work on other law of war treaties.
  further legislation, regulations, or dodds the treaties may require
    Question. Is it correct that no implementing legislation is 
required for any of these five treaties? If these five treaties are 
approved by the Senate and ratified, would it be necessary to 
promulgate new regulations or Department of Defense Directives in order 
to implement any of them? Are there existing regulations or directives 
that would be relied upon to implement any of these treaties? If so, 
please provide citations to such regulations and explain which of the 
treaties they would implement.

    Answer. No implementing legislation is required for the five listed 
treaties. No new DOD directives or regulations would be needed. If 
ratified, DOD and Military Department directives and publications that 
refer to treaties to which the United States is a party would be 
updated to reflect that the United States is a party to these treaties. 
An example is Department of Defense Directive 2311.01E (May 9, 2006), 
Subject: DOD Law of War Program, a primary document in implementation 
of U.S. law of war obligations within the Department of Defense.
                         blinding laser weapons
    Question. Does the Department of Defense have any plans or desire 
to develop blinding laser weapons? If not, why not?

    Answer. The Department of Defense does not have any plans or desire 
to develop and use blinding laser weapons. It has been a longstanding 
DOD policy that the U.S. Armed Forces will not use lasers specifically 
designed to cause permanent blindness of unenhanced vision. 
Significantly, a 1995 DOD policy statement provided the foundation for 
the text of the Blinding Laser Protocol.
   legitimate military employment of lasers in protocol iv, article 3
    Question. Is it important, in your view, that Protocol IV 
recognizes the legitimate military employment of lasers in Article 3? 
If so, why?

    Answer. Protocol IV recognizes the legitimate military employment 
of lasers in that it only bans the use of a very limited category--
blinding laser weapons ``specifically designed, as their sole combat 
function or as one of their combat functions, to cause permanent 
blindness to unenhanced vision, that is, to the naked eye or to the eye 
with corrective eyesight devices.'' DOD policy, which preceded and was 
the principal basis for the Protocol IV text, acknowledged 
international humanitarian concerns with the use of blinding laser 
weapons. DOD policy also acknowledges, consistent with Protocol IV, 
that lasers can be used effectively for lawful military purposes, such 
as range-finding, target discrimination, and communications.
                    dazzler devices and protocol iv
    Question. Are ``dazzler'' devices, or the deployment of such 
devices, prohibited by Protocol IV in any way? If not, please explain 
the legal reasoning for that conclusion.

    Answer. ``Dazzler'' devices are not prohibited under Protocol IV. 
They do not meet Protocol IV's definition of a blinding laser weapon; 
that is, they are not specifically designed to cause permanent 
blindness to unenhanced vision. The United States has employed 
``dazzler'' laser devices in Iraq at checkpoints as a warning device to 
drivers of on-coming vehicles to avoid resort to deadly force when 
possible.
                use of white phosphorus and protocol iii
    Question. In 2005 there were various foreign news reports alleging 
that the United States used white phosphorus munitions in Iraq and that 
doing so was a violation of Protocol III to the CCW (article in the 
U.K. Guardian: ``Behind the Phosphorus Clouds are War Crimes Within War 
Crimes,'' November 22, 2005). Are there any circumstances in which 
Protocol III prohibits States Parties from using white phosphorus? Or 
is the use of White Phosphorus permitted because White Phosphorus is 
not ``primarily designed . . . to cause burn injury through the action 
of flame, heat, or a combination thereof, produced by a chemical 
reaction of a substance delivered on the target,'' even if, in a given 
case, White Phosphorus is used with the intent, as well as the effect, 
of causing such injury?

    Answer. White phosphorous is not prohibited under Protocol III 
because white phosphorous does not fit, and was not intended to fall 
within, the definition of incendiary weapon in the Protocol. There are 
no circumstances in which Protocol III regulates or prohibits the use 
of white phosphorous against a military objective.
               use of incendiary weapons and protocol iii
    Question. In your testimony before the committee, you noted that 
``incendiary weapons are the only weapons that can effectively destroy 
certain counterproliferation targets such as biological weapons 
facilities, which require high heat to eliminate biotoxins.'' This 
statement makes it clear that under certain circumstances, it is 
important that the United States be able to use incendiary weapons. 
Under what circumstances, if any, would Protocol III, if ratified by 
the United States with the reservation below, purport to prohibit the 
United States from employing incendiary weapons against a legitimate 
military objective? For example, would the United States be prohibited 
from using any mode of delivery of an incendiary weapon? Would Protocol 
III prohibit the United States from employing incendiary weapons in any 
situation in which it would now (with the United States not having 
joined Protocol III) employ such an incendiary weapon?

    Answer. If the United States ratified Protocol III without the 
stated reservation, U.S. forces might be prohibited from employing 
incendiary weapons against a legitimate military objective located 
within a concentration of civilians in situations where it is judged 
that employment of an alternative weapon ``would cause fewer casualties 
and/or less collateral damage.'' As is the case with any treaty, good 
faith implementation is essential. This reservation provides for a 
greater protection of the civilian population and is consistent with 
the U.S. targeting practices.
   legal impact of reservation on right to use incendiary weapons on 
                            military targets
    Question. The reservation would be as follows: The United States of 
America, with reference to Article 2, paragraphs 2 and 3, reserves the 
right to use incendiary weapons against military objectives located in 
concentrations of civilians where it is judged that such use would 
cause fewer casualties and/or less collateral damage than alternative 
weapons, but in so doing, consistent with paragraph 3, will take all 
feasible precautions with a view to limiting the incendiary effects to 
the military objective and to avoiding, and in any event to minimizing, 
incidental loss of civilian life, injury to civilians and damage to 
civilian objects. What would be the legal impact of the above proposed 
reservation if the United States were a party and used incendiary 
weapons in an otherwise banned manner, because it judged that such use 
would cause fewer casualties and/or less collateral damage than 
alternative weapons? (a) If an individual were to accuse the United 
States of violating Protocol III, could that person bring suit against 
the United States in a U.S. court? (b) If a country were to accuse the 
United States of violating Protocol III and wished to pursue a legal 
case against the United States, what would be the impact of the 
reservation as a matter of international law?

    Answer. It is always possible that an individual or other 
government could bring suit in U.S. court even in a case where U.S. 
forces chose to exercise the right to use incendiaries in a manner 
consistent with the reservation. We believe, however, that use of an 
incendiary weapon in a manner consistent with the reservation could be 
justified and successfully defended in U.S. courts. We anticipate that, 
in applying applicable law, a court would conclude that Protocol III 
with the U.S. reservation precludes a decision for a plaintiff in such 
a case.
            u.s. military consistence with hague convention
    Question. In your testimony before the committee, you noted that 
the ``U.S. military's conduct of operations over the last 50 years has 
been entirely consistent with the [Hague Cultural Property] 
Convention's provisions.'' Can you describe how this policy has been 
implemented in practice? Is the military, for example, trained to 
comply with the Hague Convention? Has compliance with the Convention 
ever been a problem for the military? Is it difficult for the military 
to identify whether a target is, or contains, cultural property? If 
not, why not?

    Answer. United States military practice in World War II was a point 
of reference in drafting the treaty. The U.S. Armed Forces' conduct of 
operations over the past 50 years has been consistent with the 
Convention's provisions. Military personnel are trained to observe its 
rules. The convention does not prevent a military commander from doing 
what is necessary to accomplish the mission. Balancing compliance and 
mission accomplishment has not been a problem. Major cultural property 
or landmarks are identified and taken into consideration in planning 
attacks. Personnel are trained not to target them unless they are being 
used by an enemy for military purposes, such as to shield personnel and 
equipment from attack. In such a case, the decision to treat the 
cultural object as a military objective is one taken at higher command 
levels.
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