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The influence of humanitarian principles in the negotiation of arms control treaties

Published online by Cambridge University Press:  19 April 2010

Robert J. Mathews  and
Timothy L.H. McCormack
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International Review of the Red Cross , Volume 81 , Issue 834: 100 ans: Droit de La Haye (1899) 50 ans: Conventions de Genève de 1949/100 years: Law of The Hague (1899) 50 years: Geneva Conventions of 1949 , June 1999 , pp. 331 - 352
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Copyright © International Committee of the Red Cross 1999

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References

2 Hans Blix, Development of International Law relating to Disarmament and Arms Control since the First International Peace Conference of 1899, preliminary report prepared for the 1999 centennial of the First International Peace Conference pursuant to U N GA res. 52/154 of 15 December 1997 and UN Doc. A/C.6/52/3 (1999), paras 9–21. See also Eyffinger, Arthur (ed.), The International Court of Justice 1946–1996, 1996, pp. 40–44.Google Scholar

3 Ibid.

4 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Undergo Grammes Weight, 29 November/11 December 1868, Schindler, /Toman, (eds.), The Laws of Armed Conflicts, Martinus Nijhoff Publishers/Henry Dunant Institute, Dordrecht/Geneva, 1988, p. 101Google Scholar (Declaration of St Petersburg).

5 Declaration Concerning Asphyxiating Gases (Hague Declaration II), 29 July 1899, Schindler, /Toman, , Op. cit. (note 4), p. 105Google Scholar; Declaration Concerning Expanding Bullets, (Hague Declaration III), 29 July 1899, Schindler, /Toman, , Op. cit. (note 4), p. 109.Google Scholar As at 24 March 1999, there were 32 States Parties.

6 Goldblat, Jozef, Agreements for arms control-a critical survey, International Peace Research Institute, Stockholm, 1982, p. 89.Google Scholar

7 Myrdal, Alva, The Game of Disarmament, 1977.Google Scholar

8 Goldblat, , Op. cit. (note 6), p. xv.Google Scholar

9 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or other Gases and of Bacteriological Methods of Warfare (Geneva Protocol), 17 June 1925, Schindler, /Toman, , Op. cit. (note 4), p. 115.Google Scholar

10 Frei, Daniel, «International humanitarian law and arms control», IRRC, No. 267, November-December 1988, p. 491.CrossRefGoogle Scholar

11 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 (1980 Certain Conventional Weapons Convention), of 10 October 1980, 1342 UNTS137; 19 ILM 1523, Schindler, /Toman, , Op. cit. (note 4), p. 179.Google Scholar As at 24 March 1999, there were 73 States Parties.

12 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa treaty), of 18 September 1997, 36 ILM 1507, IRRC, No. 320, September-October 1997, p. 563. As at 24 March 1999, there were 67 States Parties.

13 Declaration Prohibiting the Use of Asphyxiating Gases (‘Hague Declaration II’), loc. cit. (note 5).

14 United Nations, Disarmament Yearbook, Vol. 11, 1986, p. 241.Google Scholar

15 Cited in Stockholm International Peace Research Institute, «The problem of chemical and biological warfare», CB Disarmament Negotiations, 1920–1970, Vol. IV, 1974, p. 41.Google Scholar

16 Ibid., p. 44.

17 For example, in November 1920 the ICRC addressed a letter to the General Assembly of the League of Nations proposing an absolute prohibition on the use of asphyxiating gas, and in 1921, the 10th International Conference of the Red Cross urged governments to come to an agreement on the absolute prohibition of “the use of gas as a weapon, however delivered, whether by drift, missiles or otherwise”. Mirimanoff, J., “The Red Cross and biological and chemical weapons”, IRRC, No. 111, June 1970, p. 301.CrossRefGoogle Scholar

18 Op. cit. (note 15), p. 44.

19 Supra, note 9.

20 The ICRC recognized the potential of the 1925 Geneva Protocol to reduce the suffering caused by chemical weapons, and vigorously and repeatedly encouraged States to sign and ratify the Protocol, including through resolutions adopted by the International Conferences of the Red Cross. “The ICRC and disarmament”, IRRC, Vol. 203, March-April 1978, p. 90.Google Scholar

21 For a more detailed discussion about the limitations of the 1925 Geneva Protocol see McCormack, Timothy L.H., “International law and the use of chemical weapons in the Gulf War”, California Western International Law Journal, Vol. 21, 1990–91, pp. 5–10.Google Scholar

22 See Mathews, Robert J. and McCormack, Timothy L.H., “The relationship between international humanitarian law and arms control”, in Durham, Helen and McCormack, Timothy L.H. (eds), The Changing Face of Conflict and the Efficacy of International Humanitarian Law On press, (1999).Google Scholar

23 A team led by a special envoy of the ICRC vis ited Halabja and confirmed the use of poisonous gases. See News Chronology, Chemical Weapons Convention Bulletin, 31 March 1988.

24 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC), of 13 January 1993, 32 ILM 800.

25 For details of the verification measures of the CWC, see Mathews, Robert J., “Verification of chemical industry under the Chemical Weapons Convention”, in Poole, John B. and Guthrie, Richard (eds.), Verification 1993: Arms Control, Peacekeeping and the Environment, 1993, p. 41.Google Scholar

26 Mathews, Robert J., “Entry into force of the Chemical Weapons Convention”, Stockholm International Peace Research Institute, SIPRI Yearbook 1998: Armaments, Disarmament and International Security, 1998, pp. 490–500.Google Scholar

27 See, for example, the statement by Boutros Boutros-Ghali, Secretary-General of the United Nations, Paris, 13 January 1993: “(…) je veux ouvrir le volumineux dossier qui nous réunit ici sur sa pièce essentielle: l'angoisse d'hommes, de femmes, d'enfants devant des armes imparables; des armes qui détruisent et tuent sans qu'il soit possible ni de combattre, ni de fuir, ni même de se défendre. Leurs effets fulgurants sur les soldats qui y étaient exposés, les séquelles irrémédiables qu'elles laissent aux combattants qui avaient la chance d'en réchapper, les souffrances et la terreur que leur emploi engendraient chez les hommes des tranchées, disent l'horreur de cette arme. Nous sommes rassemblés ici pour dire que nous ne l'acceptons plus. ” — Copy on file with authors.

28 SIPRI Yearbook 1596: World Armaments and Disarmament, 1996, p. 687.

29 News Chronology, Chemical Weapons Convention Bulletin, 31 July 1995.Google Scholar

30 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BWC), of 10 April 1972, 11 ILM 3320, Schindler, /Toman, , Op. cit. (note 4), p. 137.Google Scholar As at 24 March 1999, there were 141 States Parties.

31 For a critique of the BWC see Goldblat, Jozef, “The Biological Weapons Convention: An overview”, IRRC, No. 318, May-June 1997, p. 251.CrossRefGoogle Scholar

32 SIPRI Yearbook 1993: World Armaments and Disarmament, 1993, pp. 287–288.

33 Iraq's BW programme embraced a comprehensive range of agents and munitions. These included lethal agents (e.g. anthrax, botulinum toxin and ricin), incapacitating agents (e.g. afla—toxins, mycotoxins and rotavirus) and “economic” agents (e.g. wheat cover smut).

34 USA Congress, Office of Technology Assessment (OTA), Proliferation of Weapons of Mass Destruction: Assessing the Risks, OTA-ISC-559, 1993, p. 65.

35 Primakov, Yevgeny, New Challenge after the Cold War: The Proliferation of Weapons of Mass Destruction, a report by the Foreign Intelligence Service of the Russian Federation, 1993.Google Scholar

36 Based on the decisions taken at the 1994 Special Conference of States Parties to the BWC.

37 Duncan, Annabelle and Mathews, Robert J, “Development of a verification protocol for the Biological Weapons Convention”, in Guthrie, Richard (ed.), Verification 1996: The VERTIC Yeartxtok, 1997, pp. 151–70.Google Scholar

38 For example, less than one month after the atomic weapons were used, the ICRC sent a circular to the central committees of the National Societies which stressed the considerable concern it felt with respect to the use of atomic weapons. In 1948, the 22nd International Conference of the Red Cross called on all States to forbid “the use of atomic energy or any similar force for purposes of warfare”. Op. cit. (note 20), p. 90.

39 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), of 1 July 1968, 729 UNTS 161, 7 ILM 809. As at 24 March 1999 there were 183 States Parties.

40 Article IX(3) of the NPT.

41 Article VI of the NPT requires States Parties to “pursue negotiations in good faith on effective measures relating to the cessation of the nuclear arms race at an early date and to nuclear disarmament” leadingtothe negotiation ofatreaty banning nuclear weapons. It should be noted, however, that the USA and the Russian Federation have agreed to substantial reductions to their nuclear arsenals in bilateral treaty arrangements — particularly the Treaties on the Reduction and Limitation of Strategic Offensive Arms (START I and II). There have also been recent attempts to encourage the nuclear-weapons States to reduce their nuclear weapons stockpiles — for example, by the Canberra Commission — which will hopefully assist in working towards the ultimate objective of elimination of nuclear weapons. See Report of the Canberra Commission on the elimination of nuclear weapons, Australian Department of Foreign Affairs and Trade, 1996.

42 Evans, Gareth and Grant, Bruce, Australia's foreign relations in the world of the 1990s, 2nd ed., 1995, p. 84.Google Scholar

43 Loc. cit. (note 22).

44 CTBT, 24 September 1996, UN Doc. A/50/1027/Annex (1996), adopted by UNGA res. 50/245; (1996) 35 ILM 1439 (not yet in force). As at 24 March 1999, there were 29 States Parties.

45 UNGA res. 49/75 K (1995).

46 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, l.C.J. Reports 1996, p. 226. For a detailed analysis of the international humanitarian law implications of the opinion see IRRC, No. 316, January-February 1997, pp. 3–118.

47 Ibid., Joint Opinion, para. 105(2)E.

48 Ibid, para. 105(2)F.

49 These UN-based figures are cited in ICRC (ed.), Landmines must be stopped, ICRC, Geneva, 1995, P. 4. More recently, some sources have claimed that the total number of landmines deployed worldwide is closerto half of the estimated 110 million or more. See Lachowski, Zdzislaw, “The Ban on Anti-Personnel Mines”, SIPRI Yearbook 1998: Armaments, Disarmament and International Security, 1998, pp. 545–558.Google Scholar

50 Weapons that may cause unnecessary suffering and have indiscriminate effects, ICRC Report on the Work of Experts, ICRC, Geneva, 1973.

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

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

53 At the second session, the Vice-President of the ICRC stated (Ibid., p. 78): “Moreover, I think relatively minor results which meet with general agreements are far better than projects which look dazzling on paper but which are worthless in practice and likely, when all is said and done, to undermine humanitarian law as a whole”.

54 Supra, note 11.

55 See Roach, J. Ashley, “Certain Conventional Weapons Convention: Arms control or humanitarian law?”, Military Law Review, Vol. 105, 1984, p. 3.Google Scholar

56 See Carnahan, Burrus M., “The law of land mine warfare: Protocol II to the United Nations Convention on Certain Conventional Weapons”, Military Law Review, Vol. 105, 1984, p. 73.Google Scholar

57 For example, there were only 31 States Parties to the CCW at the beginning of 1992. This number rose to 57 in the lead up to the CCW Review Conference in 1995.

58 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended on 3 May 1996 (Revised Protocol II to the 1980 Convention on Conventional Weapons), (1996) 35 ILM 1209.

59 Supra, note 12.

60 See Lachowski, supra (note 49).

61 Australia ratifies Landmines Ban Convention, Media Release (15 January 1999).

62 Two Swords for the Beating, Add ress by the Hon. Alexander Downer MP, Minister for Foreign Affairs, to the Conference on Disarmament, in Geneva on 3 February 1998, Peace and Disarmament News, March 1998, pp. 12–13.

63 For example and as discussed above, the imperatives of intense human suffering forced the traditionally apolitical ICRC to adopt anything but a neutral position in the campaign to ban antipersonnel landmines. Of course, neutrality was not jeopardized as the ICRC was not critical of specific States during this campaign.

64 The argument that disarmament regimes are the most effective means of ensuring respect for general principles of international humanitarian law relating to the deployment of weapons is discussed (in relation to the specific example of the CWC) by Christopher Greenwood, International Humanitarian Law and the Laws of War, Preliminary Report for the Centennial Commemoration of the First Hague Peace Conference 1899 pursuant to UN General Assembly resolution 52/154 of 15 December 1997 and UN Doc. A/C.6/52/3 (1998), para. 93, p. 41.

65 Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which Maybe Deemed to be Excessively Injurious or to Have Indiscriminate Effects (Protocol IV on Blinding Laser Weapons), of 13 October 1995; 35 ILM 1218. As at 24 March 1999, there were 31 States Parties.

66 Loc. cit. (note 51), pp. 73–74.

67 See, for example, Arms Availability and the Situation of Civilians in Armed Conflict, ICRC, Geneva, 1998.

68 UNGA Res. 46/36 L (6 December 1991).

69 “Seize the moment”, speech by Senator Gareth Evans to the UN Conference on Disarmament Issues, Kyoto, Japan, 27 May 1991, and extracted in Stockholm International Peace Research Institute, SIPRI Yearbook 1992: World Armaments and Disarmament, 1992, p. 291.

70 Coupland, Robin M. (ed.), The StrUSproject: Towards a Determination of Which Weapons Cause Superfluous Injury or Unnecessary Suffering, ICRC, Geneva, 1997.Google ScholarPubMed

71 For example, in a policy document entitled The ICRC and Disarmament, loc. cit. (note 20), the ICRC stated inter alia that “the Red Cross is aware of the fact that it is of the utmost priority for mankind that the disarmament cause be vigorously defended and that it must take up its position in the vanguard of this battle… However, it can take no stand on the methods to be used in achieving disarmament without endangering one of its basic principles, that of neutrality. So it has to act in a general way as it has already done by associating itself, through various resolutions adopted by its international conferences, with the desire for general and complete disarmament which has so often been expressed at the UN”.

72 While some within the ICRC might question the validity of the role played by the ICRC in the landmine debate, no one would question that the primary reason that significant progress was achieved in recent years in relation to more comprehensive limitations on landmines was the mobilization of public opinion against the effects of these weapons. A number of organizations, including several international humanitarian relief organizations, professional medical associations, other non-governmental organizations, as well as the ICRC, combined to influence the outcome of the “Ottawa” negotiations.