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– Lisa Beyer
Bloomberg News
August 27, 2018
Filling the Gaps in the Conventional Weapons Convention

Michael J. Matheson

The Convention on Certain Conventional Weapons (CCW) regulates conventional arms that pose special risks of causing indiscriminate damage to civilians or unnecessary suffering. Concluded in 1980, the CCW established a general framework to control the use of conventional weapons, and several protocols have been added to address specific types of armaments. Nevertheless, certain gaps remain in the CCW’s coverage—gaps that will be addressed at the treaty’s second review conference, to be held in Geneva next month.

Originally, the CCW contained three protocols: the first prohibited the use of weapons that rely on nondetectable fragments; the second limited the use of landmines and booby traps; and the third controlled the use of incendiaries. By the early 1990s, however, it had become clear that the world was faced with a severe humanitarian crisis caused by the indiscriminate use of anti-personnel landmines in various conflicts during the preceding decade and that the original protocol on landmines was wholly inadequate to deal with that crisis.

As a result, the United States and others proposed convening a review conference of CCW parties to amend the Mines Protocol so that it would impose much more rigorous restrictions on the design and use of mines. This first CCW review conference, which was held in 1995 and 1996, made important improvements in the CCW regime. After several rounds of difficult negotiations, the conference adopted an Amended Mines Protocol, essentially based on U.S. proposals. It also adopted a new protocol to prohibit the use of a new category of hypothetical weapons: blinding lasers. These new instruments entered into force in 1998 and were ratified by the United States in 1999.

Notwithstanding these accomplishments, much remained to be done after the first conference—a fact recognized by the conference itself, which provided for the convening of a second review conference no later than 2001 and set in process a series of preparatory sessions to lay the groundwork for it. The United States has taken the lead in putting forward proposals to fill the gaps left in 1996, including the protection of civilians in internal armed conflicts, the control of anti-vehicle mines, and the adoption of a stronger compliance procedure. Others have proposed the adoption of a new protocol to deal with the problem of unexploded ordnance, including restrictions on the use of cluster munitions.

The December review conference provides a valuable opportunity for states-parties to address these issues and once again strengthen the fundamental international agreement regulating conventional weapons.

Internal Armed Conflicts

Traditionally, international law has imposed much more rigorous and comprehensive controls on international conflicts (those between states) than on internal conflicts (for example, between a state and insurgent forces within that state). This is partly a result of the historical perception that wars between states are more dangerous and partly a result of many states’ insistence that internal conflicts are a matter of domestic concern and not the business of the international community.

However, the past few decades have shown dramatically that internal conflicts can and do cause as much or more suffering and loss of life as international conflicts. The indiscriminate use of anti-personnel mines, which killed or injured large numbers of civilians during internal conflicts, made this particularly apparent. For example, anti-personnel mines were routinely used to kill large numbers of civilians in the civil wars in Angola and Mozambique, as well as in the Afghanistan conflict (which was international in character but was treated as an internal conflict by the Soviet Union).

Yet the CCW’s original Mines Protocol, adopted in 1980, applied only to international conflicts. As a result, one of the major objectives of the United States and others during the preparatory work for the 1995-1996 review conference was to amend the Mines Protocol so that it applied to internal as well as international conflicts.

A number of important states—such as China, India, and Pakistan—initially opposed this expansion in the scope of the protocol, arguing that it would lead to an undue intrusion into their sovereignty or that it would place their forces at a disadvantage in dealing with insurgent groups that might not comply with the new restrictions. In the end, however, these states had to acknowledge that an amended Mines Protocol would be largely meaningless if it did not apply to the kinds of conflicts most threatening to civilians. As a result, they agreed to expand the scope of the protocol to internal conflicts in return for the addition of language confirming that this would not constitute a basis for outside intervention or give international recognition to insurgent groups.

Quite apart from its critical importance in regulating mine use, this expansion of the scope of the protocol proved to be a groundbreaking precedent for the expansion of the scope of other international restrictions. For example, a similar expansion took place in the negotiation of the 1998 Statute of the International Criminal Court and the changes in 2000 to the Hague convention on the protection of cultural property. The International Criminal Tribunal in The Hague has used this expansion to justify more rigorous standards for internal conflicts.

However, although the scope of the Mines Protocol was expanded in 1996, the scope of the rest of the convention and its protocols was not. This is a gap that needs to be filled. It is bizarre and unjustifiable to protect civilians from the indiscriminate use of incendiaries or blinding lasers, for example, in wars between states but not in civil wars. Accordingly, the United States and others have proposed that the 2001 review conference amend the convention to provide that all of the protocols will apply to all types of armed conflicts. There is no valid reason not to do so, and hopefully those states that have residual political qualms about international regulation of internal conflicts will accept this logic.

Mines

The 1995-1996 review conference primarily focused on controlling the use of anti-personnel landmines under the Mines Protocol. (Naval mines, which present much different risks and policy issues, have traditionally been dealt with in customary and conventional law outside the CCW framework.) After much difficult negotiation, the conference agreed to a series of restrictions, based on U.S. proposals, to deal with the most serious threats to the civilian population from the use of anti-personnel mines.

First, to facilitate mine clearance and to reduce the risks to mine-clearance personnel, the Amended Mines Protocol required that all anti-personnel mines be designed and constructed so as to be detectable using commonly available technology. The protocol also imposed technical specifications to achieve this level of detectability.

Second, the Amended Mines Protocol required that all “remotely delivered” anti-personnel mines—those delivered by artillery or aircraft—be equipped with self-destruct devices and backup self-deactivation features so that no more than one in 1,000 mines would be capable of functioning after 120 days. This requirement was intended to minimize the threat to civilians of long-lived mines that might be scattered over a wide area and that might cause casualties years after they had been laid.

Third, the Amended Mines Protocol required that manually emplaced anti-personnel mines either be equipped with such self-destruct devices and self-deactivation features or be kept within minefields that were controlled, marked, and monitored. This restriction was intended to ensure that any manually emplaced, long-lived mines were kept under tight control and supervision to protect civilians in the area.


The cumulative effect of these restrictions, if generally accepted and complied with, would be to eliminate future use of anti-personnel mines in the ways that have caused the vast majority of casualties among civilians and mine-clearance personnel. For example, nondetectable plastic mines and long-lived “dumb” mines were used indiscriminately and in great numbers in Cambodia and in conflicts in Africa, such as those in Angola and Mozambique; and the infamous Soviet “butterfly” mine was widely used in the Afghanistan conflict. Compliance with the revised CCW restrictions on anti-personnel mines would have largely eliminated the civilian casualties from mine use in these conflicts.

These restrictions were in fact modeled on changes that had already been adopted by U.S. forces for sensible military reasons—namely, that nondetectable and long-lived anti-personnel mines posed a threat to U.S. forces that might occupy or pass through the areas in which such mines had been laid. It was not easy to sell these restrictions to the major mine-using states—particularly to Russia and China, which had very large stocks of non-compliant mines. However, in the end, the Russian and Chinese delegations were persuaded that these restrictions were militarily acceptable and that the costs of converting or replacing their existing stocks were reasonable in light of the great benefit for the civilian population (and the political penalty of refusing to accept reasonable restrictions).

For the same reasons, these restrictions make sense as well for types of mines other than anti-personnel mines—particularly mines designed to destroy or disable tanks and other vehicles. These mines are not designed to be activated by contact with people, and they are therefore not as dangerous to the civilian population as anti-personnel mines. Nonetheless, these mines can be a serious problem for civilian traffic, including humanitarian relief convoys, and for peacekeeping units. The International Committee of the Red Cross (ICRC) points out that anti-vehicle mines have caused a number of civilian casualties and have frequently led to a reduction or suspension of badly needed relief shipments in areas where roads are mined and alternative forms of transport are not practical.

Some of the provisions of the Amended Mines Protocol apply to anti-vehicle mines, but the specific technical restrictions described above, which are the heart of the protections for civilians, do not. Consequently, the United States and others have proposed that some of these technical requirements now be applied to all types of landmines, including anti-vehicle mines—specifically, that they be made detectable to facilitate clearance and that remotely delivered mines of all types be equipped with self-destruct and self-deactivation features.

These steps make good sense and would offer significant humanitarian benefit at little or no military cost. The U.S. military, for example, takes the view that detectable, self-destructing, anti-vehicle mines can adequately perform the mission of impeding and diverting enemy armored units without the risk of casualties to friendly forces that are presented by long-lived or nondetectable mines. Widespread observance of a prohibition on the use of non-compliant anti-vehicle mines would also have greatly reduced or eliminated the civilian casualties and would have avoided serious disruptions to civilian relief missions that anti-vehicle mines caused in recent African conflicts.

Unfortunately, many militaries are sensitive about the issue of anti-vehicle mines, which they correctly consider to be of serious military importance, and have been wary of accepting any technical restrictions on them. Some military establishments may want to retain nondetectable or long-lived anti-vehicle mines in the belief that their military advantages outweigh the danger to civilian vehicle traffic. It is therefore not yet clear whether it will be possible to reach consensus on these restrictions at the 2001 review conference.

Some may question whether the CCW provisions on mines still have any real significance in light of the subsequent adoption of the Ottawa Convention, which prohibits anti-personnel mines altogether and now has more than 115 states-parties. In my view, the answer is clearly yes. In fact, it is unlikely that the major mine-using and mine-producing states—particularly the United States, Russia, China, India, and Pakistan—will join the Ottawa Convention in the foreseeable future. These states maintain that anti-personnel mines serve important military functions and are therefore not prepared to give them up entirely. In particular, Russia, China, India, and Pakistan have large minefields, which they consider essential for national defense, protecting their border areas.

China, India, and Pakistan have now ratified the Amended Mines Protocol and are in the process of implementing it. Russia has not yet done so and faces considerable cost and effort in replacing its large, current stock of non-compliant mines, but there is reason to believe that Russia will ratify the protocol if the United States and other influential governments continue to apply pressure and persuade them to do so. In addition, Israel and South Korea have ratified the Amended Mines Protocol but not the Ottawa Convention; Iran, Iraq, Syria, and Turkey have ratified neither.

The adherence and compliance of such states with the Amended Mines Protocol is important—not simply to ensure that they do not themselves use non-compliant mines to the detriment of civilian populations, but also to preclude the possibility that non-compliant mines might fall into the hands of less responsible parties elsewhere. (Although the Amended Mines Protocol does not specifically require the destruction of non-compliant mines, it does prohibit their transfer to others, and adhering states would have an incentive in due course to destroy mines that they can neither use nor transfer.) Accordingly, even the main proponents of the Ottawa regime (including the majority of Western states and the ICRC) also support universal acceptance of and compliance with the Amended Mines Protocol.

Likewise, the improvement of the CCW regime on mines remains important, notwithstanding the conclusion of the Ottawa Convention. The Ottawa Convention does not address many important issues covered by the Amended Mines Protocol, such as anti-vehicle mines and booby traps.

These points would hold true even if the United States were to change its present policy on anti-personnel mines and accept the Ottawa Convention—a step the Bush administration has given no indication of taking. The major mine-using and mine-producing states would still be outside the Ottawa Convention, and their compliance with the Amended Mines Protocol would still be essential. The CCW would still be an important means for controlling all types of landmines and similar devices for the purpose of reducing the risks of conflict for the civilian population. Therefore, the heated debate about U.S. policy on anti-personnel mines is beside the point for CCW purposes, and all sides to that debate can and should support U.S. efforts to strengthen the Amended Mines Protocol further at the 2001 review conference.

Compliance Mechanisms

A treaty is of limited value if there are no effective means of enforcing its provisions. For this reason, the United States and others proposed at the 1995-1996 review conference that the Amended Mines Protocol include various provisions for monitoring and enforcing its provisions. Some of these ideas were adopted, such as a requirement that penal sanctions be imposed against those who willfully kill or seriously injure civilians through violation of the protocol. However, one central feature of the U.S. proposal was not adopted: a regular procedure for international review and fact-finding inspections regarding allegations of noncompliance. Nonaligned delegations refused to consider such procedures, which they regarded as unacceptable intrusions into their sovereignty, particularly in the context of internal armed conflicts that were now to be covered by the protocol.

In fact, the compliance mechanism proposed for the Amended Mines Protocol was much less detailed and intrusive than those of a number of arms control agreements, including the Comprehensive Test Ban Treaty, the Chemical Weapons Convention, and the Biological Weapons Convention. In deference to the concerns of some states-parties, the procedure proposed would have been optional, applying only to those parties choosing specifically to adhere to it. It would have allowed a party being inspected to shield particular areas or installations from inspection to protect sensitive equipment and information unconnected with the compliance matter under investigation. The proposed mechanism would also have allowed the inspected state to impose other limits on inspectors that it deemed necessary to meet its domestic constitutional obligations or to protect the conduct of actual military operations. (In these cases, the party being inspected would have an obligation to make every reasonable effort to satisfy the needs of the inspection through other means.) Nonetheless, non-aligned governments refused to consider these less rigorous measures because they could be applied to armed conflicts and subject ongoing military operations to scrutiny.

The United States has put forward the substance of its 1995-1996 proposal again in the context of the 2001 review conference as an optional Compliance Annex to the Amended Mines Protocol.

Notwithstanding its relatively modest scope and character, the review conference should adopt the U.S. proposal, so as to have some means for dealing with compliance issues on a regular basis. Following the 1995-1996 review conference, a somewhat similar procedure for review and inspection was included in the Ottawa Convention. Since so many non-aligned states have signed or ratified the Ottawa Convention, a similar procedure might now be acceptable in the CCW context. Nevertheless, the political sensitivities involved and the complexity of negotiating inspection procedures may still make adoption in 2001 difficult.

Other Proposals

The proposals described above were all put forward and debated at the 1995-1996 review conference but then deferred for further consideration in the future. In addition to these proposals, the International Committee of the Red Cross has proposed that the 2001 review conference consider action on a new category of issues, namely what have come to be called the “explosive remnants of war.” This term refers generally to the unexploded ordnance—bombs, shells, and the like—that is typically left in the wake of modern conflicts and can pose a serious, long-term danger to the civilian population.

The ICRC has focused on the use of cluster munitions—shells or bombs that distribute large numbers of explosive sub-munitions (or “bomblets”) over a wide area—which it maintains caused significant civilian casualties during and after the Kosovo conflict. Specifically, the ICRC has suggested the adoption of a new CCW protocol that (in addition to dealing with anti-vehicle mines) would (1) require those using explosive munitions or sub-munitions to clear them or assist in their clearance after the end of hostilities; (2) require that munitions and sub-munitions be made detectable and be equipped with self-destruct mechanisms; (3) require that the civilian population be warned of the use of munitions likely to have long-term effects; and (4) prohibit the use of cluster munitions against military targets located amid concentrations of civilians (i.e., cities, towns, or villages). Switzerland has also proposed a requirement that sub-munitions operate with a reliability of at least 98 percent.

Clearly, the problem of unexploded ordnance (often called “UXO”) is a serious one deserving serious remedial action. One striking aspect of the problem is that, to a considerable degree, military and humanitarian interests are identical and not competing. Unlike mines, explosive munitions and sub-munitions only perform their military function if they explode when they are delivered; ordnance that does not explode on delivery not only fails to accomplish its mission, which means that pilots and gunners must be put at further risk to deliver more munitions, but it also poses a long-term risk to friendly military forces or peacekeeping units that may later operate in the same area. Therefore, military establishments have every incentive to eliminate or minimize the incidence of unexploded ordnance.

Techniques that could accomplish this purpose include improved fusing mechanisms to ensure more reliably that munitions and sub-munitions explode on delivery, as well as self-destruct and self-neutralization features to ensure that any munitions that do not explode will not remain dangerous beyond a very short period. In fact, the Department of Defense announced this past January that it would attempt to reach a 99 percent functioning rate in future cluster munitions it acquired. On the other hand, U.S. and other modern military forces, which rely heavily on cluster munitions, are likely to be cautious about restrictions on the areas in which they may be used.

In any event, given the technical complexity of the problem, the considerable military importance of the weapons in question, and the fact that substantive proposals are only now beginning to be given serious consideration in the CCW process, it seems unlikely that the 2001 review conference will adopt any specific restrictions on unexploded ordinance. However, the review conference should at least have serious technical discussions of the alternatives and initiate further expert review of specific proposals. Although it would likely take years for such discussions to result in binding treaty provisions, it may be possible in the meantime to consider developing voluntary measures. Because military and humanitarian interests are basically congruent in this area, it may be that consultation and the exchange of information among military experts would produce improved reliability in future munitions even without formal agreement on technical standards.

The question of the use of depleted-uranium munitions has also been raised in the context of unexploded ordinance. Notwithstanding the extensive media and political debate about these weapons, even the ICRC acknowledges that these munitions seem to increase normal environmental uranium levels only marginally (except at the specific points of impact) and that its own personnel who work in areas where these munitions have been used do not seem to have suffered any increased uranium exposure. Given the lack of clear evidence of a significant humanitarian problem and NATO’s reliance on depleted uranium rounds to penetrate enemy armor, it seems unlikely that the CCW will restrict such munitions in the near future.

Finally, the Swiss government has revived the subject of restrictions on small-caliber ammunition (which is typically used in personal infantry weapons such as the AK-47 and the M-16) to minimize the inhumane effects it allegedly causes. This topic was raised in earlier CCW meetings, but states never agreed that small-caliber ammunition was a significant humanitarian problem or that the technical solutions proposed were effective or militarily acceptable. In their most recent proposal, the Swiss have suggested that there be a limit on the amount of energy which such ammunition may transfer to the body of the individual targeted and that states-parties be required to test their ammunition regularly to determine whether this limit would be exceeded. Given the fact that modern military forces rely heavily on small-caliber ammunition and that there is considerable technical disagreement with Switzerland’s assertions, it is highly unlikely that the 2001 CCW review conference could do more than have another informed debate and consider possible future expert work on the subject.

Conclusion

Notwithstanding the adoption of the Ottawa Convention, the CCW process remains important as a means of reducing the risk to the civilian population from conventional military operations. The Amended Mines Protocol remains essential as the primary means of controlling indiscriminate use of anti-personnel mines by the major mine-using states, which are unlikely to accept the Ottawa Convention in the foreseeable future. The Amended Mines Protocol is also the primary means for controlling delayed-action weapons that are not covered by Ottawa, such as anti-vehicle mines and booby traps. Furthermore, the CCW as a whole provides a vehicle for action on other types of conventional weapons that might endanger the civilian population.

The 2001 review conference is unlikely to produce results as dramatic and far-reaching as the 1995-1996 review conference did. Because the CCW review conference, in accordance with its own rules, will only take decisions on the basis of consensus, it is unlikely to adopt any proposal to which a major participant objects. Nonetheless, there is a real chance for some important steps. The proposal expanding the scope of all CCW restrictions to cover internal conflicts as well as international conflicts is most likely to succeed. There is also a good chance that additional restrictions on anti-vehicle mines, specifically with respect to their detectability or their operating life after activation, will be adopted. Some progress may be made on compliance mechanisms, but serious political obstacles will likely remain in the way of any intrusive regime. The adoption of restrictions on other categories of weapons, such as cluster munitions and unexploded ordnance, is unlikely at this point, but hopefully the conference will initiate a process to address these problems seriously.

To succeed in this effort, supporters of reasonable restrictions must take a nonpolemical approach in these negotiations, and work with other delegations to find technical approaches that address reasonable military requirements. In particular, the major mine-using states have to be thoroughly engaged rather than rolled over, as they were at Ottawa, and their military interests given serious accommodation. Intensive discussions among military experts are an essential component of such a strategy and were critical to the successful outcome of the 1995-1996 review conference. Such a willingness to make sensible accommodations makes it easier to apply effective political pressure on states that refuse to be reasonable.

The United States has done well to take the lead in strengthening the CCW. In the process, it has demonstrated that it is possible to pursue international restrictions that serve humanitarian ends in a way that is consistent with U.S. military requirements. In fact, U.S. support for reasonable restrictions is one of the best means of resisting proposals that would detract from legitimate military needs. Such a strategy was essential to the success of the 1995-1996 CCW review conference from the U.S. point of view and is still essential to the success of the 2001 review conference and the CCW work that will follow.


Michael J. Matheson was the chief U.S. negotiator at the first review conference of the Convention on Certain Conventional Weapons. He is currently a senior fellow at the U.S. Institute of Peace.