Law of War Treaties Pass the Senate

The Army Lawyer, International and Operational Law Practice Note, January 2009

Synopsis of Article by By: Dick Jackson

The Senate provided its advice and consent for five law of war treaties, many of which have been waiting on Senate action for years, at the end of September.  Consistent with the Vienna Convention on the Law of Treaties, the United States has followed these treaties, as a matter of practice, since they were signed.  Nonetheless, their recent ratification is a symbol of U.S. application of the rule of law in armed conflict and helps restore U.S. leadership in the law of war.

Among these treaties is the 1954 Hague Cultural Property Convention which was approved with four understandings and a declaration.  Additionally four protocols of the Certain Conventional Weapons (CCW) Convention, including an extension of the CCW to all non-international armed conflicts, Protocol III (Incendiaries), Protocol IV (Blinding Lasers), and Protocol V (Explosive Remnants of War (ERW)), were approved with a reservation as well as several declarations and understandings.

The Senate’s actions emphasize that the treaties are self-executing except for the requirement in the 1954 Hague Convention on penal sanctions and the ERW Protocol, which requires appropriations for assistance to nations removing ERW.  The Senate’s actions also emphasize the long-standing U.S. position that law of war treaties do not create a private right of action.  Furthermore, several of the resolutions include the understanding that the application of law of war standards will be based on the information reasonably available at the relevant time; a similar understanding to those asserted by U.S. allies during their ratification process for targeting provisions of Additional Protocol I.  Finally, the Senate action regarding the 1954 Hague Convention reiterated the U.S. and allied position that the convention does not apply to nuclear weapons nor does it change the customary international law standard to protect cultural property from harm, unless it is used by the opposing military or unless military necessity demands it be attacked.

Regarding the CCW, the Amendment of Article 1 extends the provisions of the convention and its protocols to non-international armed conflicts, covered by Common Article 3 to the Geneva Conventions.  This amendment was originally proposed by the U.S. and is consistent with the U.S. policy of applying the law of war to all armed conflicts and military operations regardless of how the military operations are characterized.  Additionally, under Protocol III (Incendiaries), the Senate included a reservation to use incendiaries in populated areas only when their use would result in fewer civilian casualties (e.g., against a chemical plant) and it could be done with all feasible precautions.  This reservation is consistent with the intent of Article 2 in Protocol III, which allows attacks against military objectives, located within concentrations of civilians, with non-air-delivered incendiary weapons, if the objective is clearly separated from the civilians and all feasible precautions have been taken to limit civilian casualties and collateral damage.