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Published online by Cambridge University Press: 17 February 2009
Efforts to regulate warfare, including the use of particular weapons, have a long history, dating back, according to some scholars, thousands of years. But international codification of the rules of war in binding multilateral legal instruments only began in the second half of the nineteenth century. Among the first such efforts was one devoted to the prohibition of the use of a particular weapon in wartime. The St. Petersburg Declaration of 1868 on exploding bullets banned the use of explosive projectiles under 400 grammes in weight and is generally recognised as constituting the first significant international instrument prohibiting a specific weapon. It also incorporated into the conventional law of armed conflict the customary principle prohibiting the use of weapons ‘of a nature to cause superfluous injury or unnecessary suffering’ — a tenet of international humanitarian law and a touchstone for many important international agreements on the use of weapons that have since followed, including the Hague Declaration of 1899 on expanding bullets, the Geneva Gas Protocol of 1925 and, most recently, the United Nations Convention on Conventional Weapons of 1980 (hereafter, CCW).
3. See generally Howard, M. et al. , eds., The Laws of War: Constraints on Warfare in the Western World (New Haven, Yale University Press 1994)Google Scholar.
4. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, 11 December 1868, reprinted in 1 AJIL (1907) Supp., pp. 95–96Google Scholar.
5. There are cases prior to the St. Petersburg Declaration where the use of particular weapons was proscribed although rarely through the kind of treaty-making process that established the St. Petersburg Declaration and the agreements which followed it. For example, the crossbow was ‘outlawed’ in the twelfth century by Vatican declaration, although apparently the prohibition extended only to its use against Christians and, in any case, had little effect. In about 700 B.C., the belligerent Greek states involved in the War of the Lelantine Plain reportedly agreed to ban the use of projectile missiles. There are other such examples but the point remains that the enactment of internationally recognised laws governing the use of specific weapons is essentially a modern phenomenon.
6. Declaration (IV, 3) Concerning Expanding Bullets, 29 July 1899, reprinted in 1 AJIL (1907) Supp., pp. 155–157Google Scholar.
7. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 17 June 1925, reprinted in 25 AJIL (1931) Supp., pp. 94–96Google Scholar.
8. 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 (CCW), 10 October 1980, 1342 UNTS p. 137. Key CCW documents, including the Convention and its Protocols, the final documents from the First and Second Review Conferences, and statements and presentations made by the US delegation during the 2001 review process, may be found at the US CCW Delegation's website <http://www.ccwtreaty.com>.
9. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (Ottawa Convention), 18 September 1997, 36 ILM (1997) p. 1507Google Scholar.
10. Important military powers that have chosen not to join the Ottawa Convention include the United States, Russia, China, India, Pakistan, Israel, Iran, Egypt and both North and South Korea. Important military states that are party include the United Kingdom, Germany, France and Japan.
11. It should be noted, however, that the Ottawa process grew out of some states' and NGOs' belief that the CCW landmine process ‘didn't go far enough’. The author has been a member of the US delegations to these efforts to address conventional weapons.
12. Preambular para. 3 of the CCW refers to these principles as the basis for agreement among the High Contracting Parties. Its language echoes, inter alia, Art. 22 of Hague Regulations of 1907, annexed to Convention IV on the Laws and Customs of War on Land, 36 Stat. p. 2277, 1 Bevans p. 631: ‘The right of belligerents to adopt means of injuring the enemy is not unlimited’; Art. 35(1) of Protocol Additional to the Geneva Conventions of 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS p. 3: ‘In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited’ and Art. 35(2) of Protocol I: ‘It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.’ See generally Tucker, R.W., ‘Weapons of war’, in Trooboff, P., ed., Law and Responsibility in Warfare: The Vietnam Experience (Chapel Hill, University of North Carolina Press 1975) p. 161Google Scholar.
13. The key treaties regulating armed conflict include the four Geneva Conventions of 1949, which boast nearly universal membership; the Hague Regulations of 1907; Additional Protocol I and Protocol Additional to the Geneva Conventions of 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 12 December 1977, 1125 UNTS p. 609 (both Protocols I and II have a more limited membership than their parent Conventions); the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 UNTS p. 240; and the Second Protocol to the Hague Convention of 1954, 26 March 1999, 38 ILM (1999) p. 769Google Scholar.
14. In addition to being important descriptively, the law of war rather than disarmament character of an instrument such as the CCW has bureaucratic implications for some countries. For example, US delegations to CCW meetings have traditionally been led by the US Department of State's Office of the Legal Adviser, responsible for law of armed conflict-related issues, as opposed to the Bureau of Arms Control, which leads most US disarmament delegations.
15. While the central focus of CCW is on the use of weapons, it should be noted that some CCW provisions do regulate other aspects, such as transfer and (indirectly) production of weapons as a means of more effectively controlling use. The Amended Mines Protocol, for example, restricts the transfer of non-detectable anti-personnel mines, and anti-personnel mines produced after 1 January 1997 must meet the detectability requirements set by the Protocol or they cannot be lawfully used. This has essentially the same effect as a production ban on non-detectable mines, since there is no economic utility in producing a mine that cannot be used or transferred.
16. See Roach, J. Ashley, ‘Certain Conventional Weapons Convention: arms control or humanitarian law’, 105 Mil. LR (1984) p. 3Google Scholar.
17. During World War II, napalm was made by adding a gelling powder composed of the chemicals naphthenate and palmitate (hence ‘napalm’) to gasoline.
18. One particular photograph from the Vietnam War, widely circulated soon after it was taken, focused attention on the use of incendiary weapons. It was that taken on 8 June 1972, of young Pan Thi Kim Phuc as she fled down Route 1 from the village of Trang Bang after being burned by napalm dropped from South Vietnamese planes. Background on the photo by AP photographer Nick Ut can be found at <http://digitaljournalist.org/issue0008/ng2.htm>.
19. B.M. Carnahan, ‘Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa Convention)’, The Federalist Society for Law and Public Policy Studies <http://www.ngowatch.org/carnahan.pdf>.
20. See Carnahan, B.M., ‘The law of land mine warfare: Protocol II to the United Nations Convention on Certain Conventional Weapons’, 105 Mil. LR (1984) pp. 73 at 75Google Scholar.
21. See generally Message from the President Transmitting 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, and Two Accompanying Protocols on Non-detectable Fragments (Protocol I) and on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), US Senate Treaty Doc. No. 103–25 (1994) p. VI.
22. Weapons of mass destruction are outside the CCW's material scope of application.
23. Protocol on Non-Detectable Fragments (Protocol I), 10 October 1980, 1342 UNTS p. 168. At the time of its submission by President Clinton to the Senate for advice and consent to ratification, the US government indicated that ‘[w]e are not aware of any significant current attempt to develop or produce such a weapon, but the prohibition is in principle desirable from a humanitarian viewpoint and in no way constrains U.S. military options’. Message from the President of the United States transmitting the Convention, US Senate Treaty Doc. 25, 103d Cong., 2d Sess. (1994) p. VI.
24. Protocol on Blinding Laser Weapons (Protocol IV), 13 October 1995, 35 ILM (1996) p. 1218Google Scholar.
25. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), 10 October 1980, 1342 UNTS p. 168.
26. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as Amended (Amended Mines Protocol), 3 May 1996, 35 ILM (1996) p. 1206Google Scholar. For a discussion of the key provisions and negotiating history of the Amended Mines Protocol, see Matheson, M.J., ‘The revision of the mines protocol’, 91 AJIL (1997) p. 158CrossRefGoogle Scholar.
27. Art. 1, Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, 10 October 1980, 1342 UNTS p. 171. See generally Message from the President Transmitting Protocols to the Convention, US Senate Treaty Doc. 1, 105th Cong., 1st Sess. (1997) pp. 37–40.
28. Protocol on Explosive Remnants of War (Protocol V), 28 November 2003. Report of the Meeting of the States Parties to the Convention, UN Doc. CCW/MSP/2003/3, 18 February 2004, p. 25.
29. CCW, supra n. 8, preambular para. 10.
30. Of the CCW's major military powers, several have opted not to ratify certain of the protocols. For example, the United States, the Republic of Korea, Israel and, until 2002, France, chose not to ratify Protocol III on incendiary weapons. Had these states been required to accept Protocol III it is quite possible they would have chosen instead not to ratify the Convention at all.
31. See generally Sabel, R., Procedure at International Conferences (Cambridge, Cambridge University Press 1997)Google Scholar.
32. For example, in April 2001, during preparatory meetings for the Second Review Conference, Judge Theodor Meron and Professor Georges Abi-Saab participated in a panel discussion on the extension of the scope of application of the Convention, providing delegates with an academic framework to understand the implications of expanding the scope of the CCW's application. Professor Christopher Greenwood participated in meetings of the Group of Governmental Experts which led to the conclusion of Protocol V on explosive remnants of war (ERW).
33. Final Document of the Review Conference of the States Parties to the Convention, UN Doc. CCW/CONF.I/16 (1996) p. 14. The First Review Conference was presided over by Ambassador Johann Molander of Sweden. The US delegation to the First Review Conference was led by US Department of State Principal Deputy Legal Adviser Michael J. Matheson. Mr Matheson had participated in the US delegation to the negotiations of the Convention itself and signed the instrument on behalf of the United States on 8 April 1982.
34. The Amended Mines Protocol was an important step in the effort to apply the more rigorous requirements of international armed conflict regarding use of weapons to internal conflicts or civil wars. It helped pave the way, both legally and politically, for other such steps in the 1990s, including the Rome Statute of the International Criminal Court of 1998, the Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1999, and the 2002 effort to expand the scope of the CCW as a whole.
35. For a more detailed review of Protocol IV, see Zöckler, M.C., ‘Commentary on Protocol IV on blinding laser weapons’, 1 YIHL (1998)p. 333CrossRefGoogle Scholar.
36. Report of the Second Review Conference of the States Parties 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, UN Doc. CCW/CONF.II/2 (2002) p. 4. The Second Review Conference was chaired by Ambassador Les Luck of Australia. Work on the amendment of Art. 1 was coordinated by Ambassador Rakesh Sood of India, a diplomat with extensive experience in disarmament and security affairs. Participants included 65 States Parties (out of a total of 88), four signatory and 18 observer states, the International Committee of the Red Cross (ICRC) and a number of other non-governmental organisations. The US delegation was led by Department of State Assistant Legal Adviser Edward R. Cummings and included representatives from other State Department bureaus, the Office of the Secretary of Defense, the Joint Chiefs of Staff, and the military services. Mr Cummings, like his predecessor Mr Matheson, had participated as a member of the US delegation to the negotiations of the Convention and its original protocols.
37. See Meron, T., ‘The Humanization of humanitarian law’, 94 AJIL (2000) pp. 239 at 260–263CrossRefGoogle Scholar.
38. See Kaye, D. and Solomon, S.A., ‘The Second Review Conference of the 1980 Convention on Certain Conventional Weapons’, 96 AJIL (2002) pp. 922–936CrossRefGoogle Scholar.
39. ‘Report of the meeting of the States Parties to the convention’, UN Doc. CCW/MSP/2003/3, 18 February 2004, p. 25. The November 2003 meeting of States Parties was presided over by Ambassador Rakesh Sood of India. Work on ERW within the Group of Governmental Experts was coordinated by the Dutch diplomat and multilateral affairs and disarmament expert, Ambassador Chris Sanders.
40. ICRC Press Release 03/76, ‘New international treaty on ERW’, 28 November 2003 <http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList282/E47D5EA84B89A19EC1256DEC003C34B0>.
41. See generally Webster, D., Aftermath: The Remnants of War (London, Constable 1997)Google Scholar.
42. Numerous other issues were also important and merit attention, including the question of retroactivity, cooperation and assistance on ERW-related matters, protection of humanitarian organisations and compliance. These subjects will no doubt receive consideration in articles devoted exclusively to the new ERW protocol.
43. ERW Framework Paper, ‘Possible structure for an ERW instrument’, UN Doc. CCW/GGE/IV/WG.1/WP.1 (2003) p. 7.
44. Draft Proposal for an Instrument on Explosive Remnants of War/By the Co-ordinator on Explosive Remnants of War, UN Doc. CCW/GGE/V/WG.1/WP.1/REV.1, (2003) p. 2.
45. See Statement of Edward R. Cummings, head of US delegation to the Second Preparatory Committee Meeting of the 2001 Review Conference of the CCW <http://www.ccwtreaty.com/ccw0405.html>. The goal includes not only working to ensure that such munitions function as intended, it also means that, if such munitions fail to function as intended, the residual dud is less likely to be hazardous, i.e., capable of exploding.
46. The costs of clearance of a hazardous dud can range anywhere between 500 and 1,000 dollars, an amount that generally is well in excess of the increase in unit production costs between a traditional munition and one incorporating technology to reduce its dud rate. It is not surprising, therefore, that the US, the UK and other major military powers are already moving to incorporate such technology into future procurement of certain munitions as a matter of policy.
47. For more on Protocol V, see Maresca, L., ‘Regulating explosive remnants of war’, 5 YIHL (2002) pp. 360–374CrossRefGoogle Scholar
48. Anti-vehicle mines within the CCW framework are often referred to as ‘mines other than antipersonnel mines’ or MOTAPM, as this is the term used within the Amended Mines Protocol for such mines. The CCW Group of Governmental Experts (GGE) has convened numerous times since the Second Review Conference held in 2001. Work on anti-vehicle mines during sessions one through six of the GGE was coordinated by Bulgarian diplomat and multilateral affairs expert, Mr Peter Kolarov. With Mr Kolarov's decision to assume a post with the United Nations Department of Disarmament Affairs, the role of coordinator for anti-vehicle mines has been assumed by Ambassador Markku Reimaa of Finland, a diplomat with considerable experience in disarmament affairs.