"I want to thank the Arms Control Association … for being such effective advocates for sensible policies to stem the proliferation of weapons of mass destruction, and most importantly, reduce the risk of nuclear war."

– Joseph Biden, Jr.
January 28, 2004
Senate Approves Pacts Regulating Conventional Arms

Wade Boese

During the final days of September, the Senate gave its advice and consent to the U.S. ratification of four measures related to a 1980 convention regulating the use of conventional weapons judged to be more inhumane or indiscriminate than others.

The Convention on Certain Conventional Weapons (CCW) has five separate protocols encompassing landmines and booby traps, weapons with fragments undetectable by x-rays, incendiary weapons, blinding lasers, and explosive remnants of war (ERW). The United States has ratified and is bound by protocols covering the first two categories, but protocols covering the latter three have been waiting on Senate approval for years. The 2003 ERW protocol was submitted in 2006 to the Senate, while the 1980 incendiary weapons and 1995 blinding lasers protocols were delivered in 1997.

On Sept. 23, the Senate authorized the president to conclude ratification of the incendiary weapons and blinding lasers protocols. It also assented to a third CCW measure, an amendment expanding the scope of the treaty’s pre-2002 protocols to govern armed conflict within states in addition to fighting between states. As with each protocol, the amendment is only binding on those states that ratify it.

One hundred states are bound by the protocol on incendiary weapons, which prohibits the use of such weapons—those designed to set fire to or burn their targets—against civilians or military targets located among “concentrations of civilians,” except when there is clear separation between targets and civilians. The Senate, however, attached a condition to the protocol stating that the United States has 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.” In such cases, the Senate reservation, recommended by the Bush administration, asserts that U.S. forces should “take all feasible precautions” to mitigate harm to civilians and nonmilitary objects.

Lawmakers attached no reservations to the protocol outlawing the use of lasers designed to cause permanent blindness or the amendment expanding the scope of the earlier CCW protocols to cover intrastate conflicts. The blinding lasers protocol has 91 states-parties, while 62 countries have subscribed to the amendment.

On Sept. 26, the Senate approved the ERW protocol, which delineates the responsibilities of states to clean up unexploded or abandoned munitions after fighting ceases. The Senate Foreign Relations Committee July 29 had approved the protocol along with the other CCW instruments for consideration by the full Senate. Forty-six states have ratified the ERW protocol.

At an April 15 panel hearing on the CCW measures, Sen. Robert Casey (D-Pa.), who chaired the meeting, stated that “formal U.S. ratification of these treaties would do nothing, nothing to change or alter our current military practices.” Still, he argued it was important for the Senate to approve the agreements for ratification in order to “bolster U.S. leadership when it comes to promulgating universal adherence to law of war treaties.”

In his prepared testimony to that hearing, Charles Allen, deputy general counsel for international affairs at the Department of Defense, stated that the CCW agreements “are widely supported, including by the Departments of State and Defense, and we do not believe they pose contentious issues.” He added that approval of the measures, particularly the ERW protocol, “would strengthen U.S. efforts” to negotiate a new CCW instrument limiting cluster munitions. The United States has spearheaded CCW talks to limit the use of cluster munitions as an alternative to a more restrictive, Norwegian-led effort that recently produced a treaty banning most types of the weapons, which disperse smaller explosive submunitions over a broad area. (See ACT, July/August 2008.) The United States is pressing states-parties to the CCW to produce an instrument later this year.