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The 1980 Convention on Certain Conventional Weapons: A useful framework despite earlier disappointments

Published online by Cambridge University Press:  27 April 2010

Robert J. Mathews
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Résumé

La Convention sur l'interdiction ou la limitation de l'emploi de certaines armes classiques qui peuvent être considérées comme produisant des effets traumatiques excessifs ou comme frappant sans discrimination (du 10 octobre 1980) a établi le cadre juridique pour non seulement interdire certaines armes particulièrement cruelles mais encore, et surtout, en limiter l'emploi. l'article retrace l'histoire de ce traité et rappelle l'évolution qu'il a connue depuis 1980 à travers, notamment, l'adoption d'un nouveau protocole sur les armes à laser aveuglantes et le renforcement du Protocole II (relatif aux mines terrestres). Toutefois, après l'interdiction complète des mines antipersonnel par le traité d'Ottawa en 1997, peut-on encore justifier l'approche choisie par la Convention de 1980, à savoir la limitation dans l'emploi ? L'auteur répond par l'affirmative.

Type
Research Article
Information
International Review of the Red Cross , Volume 83 , Issue 844 , December 2001 , pp. 991 - 1012
Copyright
Copyright © International Committee of the Red Cross 2001

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References

1 For an overview of these efforts, including the role of the ICRC, see Mathews, R.J. and McCormack, T.L.H., “The influence of humanitarian principles in the negotiation of arms control treaties”, IRRC, No. 834, June 1999, pp. 331–352.Google Scholar

2 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, and Protocols I-III, 10 October 1980.

3 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997, which entered into force on 1 March 1999.

4 Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, 2nd ed., ICRC, Geneva, 1958.Google Scholar

5 The Draft Rules (supra, note 4), in addition to proposing a prohibition on delayed-action weapons (Article 14 — Prohibited methods of warfare), also proposed that weapons capable of causing serious damage to the civilian population be equipped with a safety device which renders them harmless when they escape from the control of those who employ them (Article 15 — Safety measures and devices).

6 This Conference is normally referred to as “the Diplomatic Conference” or CDDH. The acronym CDDH, which was also used to designate official documents, was based on the French-language title of the Conference: Conférence diplomatique sur la reaffirmation et le développement du droit international humanitaire applicable dans les conflits armés.

7 Incendiary Weapons, Anti-personnel Fragmentation Weapons, Flechettes, especially Injurious Small Calibre Projectiles, Anti-Personnel Land Mines, Working Paper, presented by Egypt, Mexico, Norway, Sudan, Sweden, Switzerland and Yugoslavia. Doc. CDDH/DT/2, 21 February 1974.

8 ICRC Report, Conference of Government Experts on the Use of Certain Conventional Weapons (Lucerne 24.9. 18.10.1974), ICRC, Geneva, 1975.

9 ICRC Report, Conference of Government Experts on the Use of Certain Conventional Weapons (Second Session, Lugano, 28.1.-26.2.1976), ICRC, Geneva, 1976.

10 Ibid., p. 78.

11 There was also an implied linkage between advanced technology in weapons with increased inhumanity: a notion which had inconsiderable appeal to certain developing States and groups involved in guerrilla warfare and wars of national liberation.

12 The two sessions were attended by representatives of 82 States and 76 States respectively. A number of governments included a representative of their National Red Cross or Red Crescent Society in their delegations. In addition, the ICRC was present with observer status; it made a number of useful interventions and provided information on weapons issues.

13 Decision-making on the weapons- related issues (both in the CDDH ad hoc Committee and subsequently in the CCW negotiations) was made difficult because decisions were taken by consensus (unlike other decisions taken in the CDDH which, had it been necessary, could have been taken by a two-thirds majority).

14 In the course of the negotiations, several States had proposed that the CCW should contain some form of compliance-monitoring procedures. See Draft Article on a Consultative Committee of Experts, UN Doc. A/CONF.95/L.7, 9 October 1980, sponsored by Belgium, Canada, Federal Republic of Germany, France, Ireland, Italy, Japan and The Netherlands. Unfortunately, this proposal did not gain consensus support.

15 This is in stark contrast to 1977 Additional Protocol I of the Geneva Conventions (agreed three years earlier) which required development of military manuals, orders and instructions to ensure observance of the provisions (Art. 80), including availability of legal advisers (Art. 82), broad dissemination (Art. 83) and criminal proceedings against those who commit “grave breaches” of the provisions (Arts 85–89).

16 Indeed, preambular para. 6 of the CCW referred specifically to the importance of ratification by “militarily significant States”.

17 It should be noted, however, that not all States are members of the United Nations, so comparisons should be made with care, especially with the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). For example, a number of internationally recognized States that are party to the NPT are not UN Member States (e.g. Holy See and Switzerland). At the end of 2000, four States (Cuba, India, Israel and Pakistan) were not party to the NPT. The “cross-over” of the NPT and UN curves in the late 1990s was a consequence of, inter alia, Kiribati, Nauru and Tonga (which had ratified the NPT in 1985, 1982 and 1971 respectively) not becoming UN Member States until 1999.

18 Anti-personnel landmines (APLs) had become a greater problem since the 1970s, because of improved production methods, increased use of plastics and more compact design. This resulted in APLs becoming more readily available, less expensive, less labourintensive to deploy (i.e. air-scatterable or remotely deliverable), and more difficult to detect. This resulted in massive numbers of casualties, most notably civilians after conflicts.

19 Meetings were held in June 1989, November 1990 and April 1991 to consider technical, medical, psychological and legal aspects of the use of battlefield laser weapons. ICRC Report, Blinding Weapons — Reports of the Meetings of Experts Convened by the ICRC on Battlefield Laser Weapons 1989–1991, ICRC, Geneva, 1993.Google Scholar

20 The ICRC convened meetings to consider means of addressing the APL problem, See e.g. ICRC, Report on Landmines: Report of a Meeting of Experts Convened by the ICRC (Montreux, 21–23 April 1993), Geneva, 1993.

21 These UN-based figures were cited in ICRC, Special Brochure: Landmines Must be Stopped, Geneva, 1995, p. 4. More recently, some sources have claimed that the total number of landmines deployed worldwide at that time was closer to half of the estimated 110 million or more. Z. Lachowski, “The Ban on Anti-Personnel Mines”, SIPRI Yearbook 1998, pp. 545–558.

22 Indeed, the term “Review Conference” is a little misleading in this context. In fact, the review of the CCW took place over 27 months, starting with the first of several meetings of groups of experts in February 1994, and ending with an extended final formal session in May 1996. The Review Conference had a high rate of participation. For example, 44 of the (then) 57 States Parties took part in the October 1995 session and 40 other States attended as observers.

23 Additional Protocol 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 to the 1980 Convention on Certain Conventional Weapons), which was adopted on 13 October 1995 and entered into force on 30 July 1998.

24 Apparently a number of countries had been developing laser weapons capable of inflicting blindness on their victims, and in some cases these weapons had gone into production. They had not, however, been deployed in battle.

25 The achievement of this session (Protocol IV on blinding laser weapons) went virtually unnoticed in the disappointment at the failure to agree on amendments to Protocol II on APLs. Indeed, press headlines on 13 October 1995 included comments such as “Landmine conference falls apart” (The Times) and “UN talks to ban landmines fail” (International Herald Tribune).

26 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as Amended on 3 May 1996 (Protocol II to the 1980 Convention as amended on 3 May 1996), which entered into force on 3 December 1998.

27 For more details, see Maresca, L. and Maslen, S., The Banning of Anti-personnel Landmines: The Legal Contribution of the International Committee of the Red Cross 1955–1999, Cambridge University Press, 2000.CrossRefGoogle Scholar

28 In addition to the concerns and disappointment expressed by a number of States Parties, the ICRC stated that it considered the amended Protocol II as “woefully inadequate” and that “the horror of the immense human suffering caused by landmines is set to continue, and the amended Protocol II will do little to change this situation”. ICRC Press Release 96/16, 3 May 1996.

29 For example, the ICRC recently stated: “Although a global assessment may be premature, statistics gathered by the ICRC and mine action organizations show that the average number of monthly casualties due to landmines and unexploded ordnance has decreased significantly in several affected countries.” Statement by the ICRC, UNGA, 55th Session, November 2000. – On 12 September 2001, the International Campaign to Ban Landmines (ICBL) released its third annual report on the global landmine situation, detailing substantial results in implementation of the Ottawa Treaty. The major findings of the 2001 report included: decreased use of APLs; a dramatic drop in production of APLs; an almost complete halt in trade of APLs; destruction of millions of stockpiled APLs; increased funding for humanitarian mine action; more land cleared of mines; and most importantly, fewer new APL casualties, <http://www.icbl.org/lm/2001/findings/>.

30 Proposals have been put forward by the ICRC: adoption of a new protocol which would extend the scope of the whole CCW (CCW/CONF.II/PC.1/WP.1); and the USA: amendment of Article I of the Framework Convention (CCW/CONF.II/PC.1/WP.2). For details of this and other USA proposals see <http://www3.itu.missions/US/CCW/>.

31 There were proposals by France, in a non paper entitled “Compliance” of 2 April 2001 presented to the Second Preparatory Committee, and the USA (CCW/CONF.II/ PC.1/WP.7).

32 This proposal by the ICRC included: users' responsibility for clearance; sharing of technical information on clearance; obligation of users to warn civilians; and prohibition on use against military objects co-located with civilians. See Herby, P. and Nuiten, A., “Explosive remnants of war: Protecting civilians through an additional protocol to the 1980 Convention on Certain Conventional Weapons”, IRRC, Vol. 83, March 2001, pp. 195–205.Google Scholar

33 Working paper presented by Denmark, Finland, Germany, Japan, Poland, United Kingdom and USA, Protocol on mines other than anti-personnel mines, CCW/CONF.II/- PC.3/WP.11. Working paper presented by Switzerland, Restrictions on Small Calibre Ammunition which cause excessive wounding and unnecessary injuries, CCW/CONF.II/-PC.3/WP.3.

34 Boutwell, J. and Klare, M., “Small arms and light weapons: Controlling the real instruments of war”, Arms Control Today, vol. 28, August/September 1998.Google Scholar

35 “Letter to Secretary of Defense William Perry from fifty-one U.S. Members of Congress, July 31, 1995”, Appendix G in Blinding Laser Weapons: The Need to Ban a Cruel and Inhumane Weapon, Human Rights Watch Project, vol. 7, No. 1, September 1995.

36 The letter to President Bush, dated 19 May 2001, may be viewed at <http://www.banminesusa/>

37 In this respect, the compliance-monitoring proposal by the USA includes procedures which are similar to those in Art. 8 of the Ottawa Treaty. It would in fact be most convenient for States Parties undertaking to ensure implementation of the CCW and the Ottawa Treaty at the national level if the compliance-monitoring provisions agreed for the CCW were identical to those contained in the Ottawa Treaty.

38 This view accords with a recent statemerit by the ICRC which, referring to international humanitarian law, stated that “[t]he effective implementation of existing law, including the obligation to ensure its respect, is indeed the most pressing matter, rather than the development of new rules”, Statement by the ICRC, UNGA, 53rd session, Sixth Committee, 17 November 1998.

39 It is unfortunate that certain of the NGOs which are actively seeking increased adherence to the Ottawa Treaty appear to have a disregard for, and in some cases perhaps even a sense of antagonism, towards the CCW.