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II. Conventional Weapons: A Cluster Of Developments

Published online by Cambridge University Press:  17 January 2008

J Mcclelland Mbe
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Abstract

The adoption of Protocol V to the UN Convention on Certain Conventional Weapons represents a shift in focus for weapons law towards the long-term after-effects of weapons. This note considers this development.

Type
Current Developments
Information
International & Comparative Law Quarterly , Volume 54 , Issue 3 , July 2005 , pp. 755 - 767
Copyright
Copyright © British Institute of International and Comparative Law 2005

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References

1 See Sandoz, Y Prohibitions or Restrictions on the Use of Certain Conventional Weapons Extract from International Review of the Red Cross Jan-Feb 1981, which analyses the two approaches and characterizes them as disarmament law and international humanitarian law.Google Scholar

2 1899 Hague Declaration 2 Concerning Asphyxiating Gases reproduced in Adam, Roberts and Richard, GuelffDocuments of the Laws of War (3rd ed OUP Oxford 2000) 59 et seq. The Declaration focused on the method of delivery of the gas and therefore provided an opportunity for the use of other types of gas-producing weapons in the First World War such as cyhnders which circumvented the prohibition (see HMSO British Army Manual of Military Law Part III, 1958, at 41, para lll. n1).Google Scholar

3 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare signed 17 June 1925, entered into force 8 Feb 1928. Reproduced in Roberts and Guelff above n 2 155 et seq. The manner in which the use of ‘gas’ or ‘smoke’ has been viewed and re-viewed by States is commented upon by Roberts and Guelff at 156.Google Scholar

4 The principle was enunciated in treaty text in Art 23(e)Hague Convention IV Regulations Respecting the Laws and Customs of War on Land, adopted 18 Oct 1907 where it stated that it was forbidden to ‘employ arms, projectiles, or material calculated to cause unnecessary suffering’ (emphasis added). The authentic French text used the term ‘propres áa causer des maux superflus’, terminology which has been translated more closely in subsequent treaties as ‘of a nature to cause superfluous injury’ (see 1977 Protocol I Additional to the Geneva Conventions 1949, Art 35).Google Scholar

5 Notable discussions in the recent past have been centred upon an International Committee of the Red Cross initiative called the ‘SMJS Project’ (see Coupland, R The SIrUS Project: Towards a Determination of Which Weapons Cause ‘Superfluous Injury or Unnecessary Suffering’ ICRC Pamphlet 1997).Google ScholarPubMed

6 See Coupland, RHumanity: What is it and How Does it Influence International Law? International Review of the Red Cross, vol 83 12 2001, 969–89Google Scholarand in respect of arms control and the influence of IHL principles see Mathews, RJ and McCormack, TLH ‘The Influence of Humanitarian Principles in the Negotiation of Arms Control Treaties’ in The International Review of the Red Cross, vol 81, 06 1999 331–52.CrossRefGoogle Scholar

7 The 1899 Hague Declaration 2 (op cit) regarding gases had the principle of superfluous injury or unnecessary suffering as its basis.Google Scholar

8 In particular the aftermath of the Vietnam War focused attention on the use of napalm, fuel air explosives, and small-calibre weapons. These were the subject of proposals by several States at the conferences leading up to the adoption of the CCW (eg Small-calibre weapon systems(Mexico, Sweden, and Zaire), Fuel-Air Explosives (Mexico, Sweden, and Switzerland)) see UN GA A/AC.206/10 dated 16 June 1981, entitled ‘A Comparative Study of the Scope Originally Proposed or Aimed at in Draft Multilateral Disarmament Treaties of a Universal Character Concluded under UN Auspices and the Scope Finally Fixed in Those Treaties, Including the Contemplated Measures for Expanding That Scope’ (‘UN GA Comparative Study’).Google Scholar

9 The CDDH states had adopted Resolution22(IV) dated 7 June 1977 which recommended follow-up discussions to discuss prohibitions or restrictions on the use of specific conventional weapons. By a UN General Assembly resolution (32/152 dated 19 Dec 1977) it was decided that a UN Conference would be held.Google Scholar

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12 Mexico first raised the proposal of having a general convention to which protocols on specific conventional weapons would be attached. UN GA Comparative Study, para 64.Google Scholar

13 Mention of the CD being used for further prohibitions or restrictions on weapons is however mentioned in the Preamble to the CCW, Preambular para 12.Google Scholar

14 UN CCW, Preambular para 2.Google Scholar

15 Ibid Preambular para 3.

16 US Senate Treaty Doc 103–25 (103d Congress, 2d Session) Message from the President of the US dated 12 May 1994, states in respect of Protocol I ‘We 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 operations’ p VI.Google Scholar

17 It stated: ‘Whenever an obligation for the recording of the location of the minefields, mines and booby traps arises under the Protocol, the following guidelines shall be taken into account. With regard to pre-planned minefields and large-scale and pre-planned use of booby traps: maps, diagrams or other records should be made in such a way as to indicate the extent of the minefield or booby-trapped area; and the location of the minefield or booby-trapped area should be specified by relation to the coordinates of a single reference point and by the estimated dimensions of the area containing the mines and booby traps in relation to that single reference point. With regard to other minefields, mines and booby taps laid or placed in position; In so far as possible, the relevant information specified in paragraph 1 above should be recorded so as to enable the areas containing minefields, mines and booby traps to be identified.’ UN CCW, Protocol II Technical Annex, Guidelines on Recording UN DOC A/CONF.95/15, Annex I, 15 dated 27 Oct 1980.Google Scholar

18 The Review Conference sat over three sessions in Vienna (25 Sept-13 Oct 95) and Geneva (15–19 Jan 96 and 22 Apr-3 May 96).Google Scholar

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20 Following pressure from the French NGO Handicap International, the French Government submitted a request to the UN Secretary-General on 9 Feb 1993 to convene the first Review Conference. An analysis of some of the issues facing the 1st Review Conference is provided by the ICRC in its Report dated 1994 (International Review of the Red Cross March-April 1994 at 123–93.Google Scholar

21 Protocol IV was adopted on 13 Oct 1995. See Louise, Doswald-Beck ‘New Protocol on Blinding Laser Weapon’ in The International Review of the Red Cross, 0–-06 1996, P 272–81. See also The International Review of the Red Cross Nov-Dec 1995 at 672–7.Google Scholar

22 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction adopted 18 Sept 1997.Google Scholar

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24 The Ottawa Convention, Arts 2 and 5.Google Scholar

25 ‘Cluster bombs’ is the term used to describe air or artillery-delivered munitions that contain tens of sub-munitions which disperse above the ground, providing a larger footprint of effect than is available from a unitary conventional warhead which simply explodes upon impact at its intended target.Google Scholar

26 Peace Support Operations are defined in the UK military doctrine as ‘multifunctional operations involving military forces and diplomatic and humanitarian agencies. They are designed to achieve humanitarian goals or a long-term political settlement, and are conducted impartially in support of a UN or OSCE mandate. These include peacekeeping, peace enforcement, conflict prevention, peacemaking, peace building and humanitarian operations’. British Military; Peace Support Operations; Joint Warfare Publications 3–50, para 101a.Google Scholar

27 See Virgil, Wiebe ‘Footprints of Death: Cluster Bombs as Indiscriminate Weapons Under International Humanitarian Law’ (Fall 2000) 22 Michigan Journal of International Law 1.Google Scholar

28 In the evolution of the concern the ICRC was instrumental with a meeting organized in Nyon in Sept 2000 at which initial proposals were considered. For an analysis of the background to the negotiations see Herby, and Nuiten, ‘Explosive remnants of war: Protecting civilians through an additional protocol to the 1980 Convention on Certain Conventional Weapons’ The International Review of the Red Cross, No 841, 03 2001, 195–205.Google Scholar

29 The Second Review Conference took place in Dec 2001.Google Scholar

30 At the same meeting at which the mandate in respect of ERW was agreed (Meeting of States Parties to UN CCW Geneva 12–13 Dec 2002) a Working Group on Mines Other Than Anti-Personnel Mines received a mandate to consider restrictions on such mines in addition to those in Amended Protocol II. It is not proposed to deal with this aspect in any detail in this article.Google Scholar

31 CCW/GGE/W2 dated 27 Nov 03, para 1Google Scholar

32 This was an issue which caused considerable discussion as the market found it difficult to bear the idea of user responsibility. Instead States preferred the idea of generic preventive measures.Google Scholar

33 The extent of existing ERW in certain regions of the world (eg Northern Africa) concentrated the minds of States with regard to the level of obligation that they were willing to bear.Google Scholar

34 Ibid.

35 Sweden (UN Document CCW/GGE/I/WP.9/Corr 1) and Norway (UN Doc CCW/GGE/WWG.1/WP.3). The UK response was provided in UN Document CCW/GGE/ I/WP.10.Google Scholar

36 The words ‘Whenever an obligation for the recording of the location of minefields, mines and booby traps arises under the Protocol, the following guidelines shall be taken into account’ (Protocol n, Tech Annex) became ‘Recording of the location of mines other than remotely-delivered mines, minefields, mined areas, booby-traps and other devices shall be carried out in accordance with the following provisions’ (Amended Protocol II, Tech Annex, para l(a))Google Scholar

37 Protocol V adopts a cumulative definition in Art 2, as follows: Explosive ordnance means conventional munitions containing explosives, with the exception of mines, booby traps and other devices as defined in Protocol n of this Convention as amended on 3 May 1996;Google Scholar

38 Amended Protocol n was adopted on 3 May 1996. Thereafter, a number of conferences and meetings took place in quick succession: International Strategy Conference: Towards a Global Ban on Anti-Personnel Mines(Ottawa3–5 Oct 96);Google Scholar UN GA Res 51/45S (Dec 96); Expert Meeting on the Text of a Convention to Ban Anti-Personnel Mines (Vienna Feb 97); International Expert Meeting on Possible Verification Measures to ban Anti-Personnel Landmines (Germany Apr 97); International Conference for a Global Ban on Anti-Personnel Mines (Belgium Jun 97). See A Guide to Mine Action Geneva International Centre for Humanitarian Demining, July 2003 and Maresca, L and Maslen, SThe Banning of Anti-Personnel Landmines (CUP Cambridge 2000)CrossRefGoogle Scholar

39 Protocol V, Art 4.2Google Scholar

40 Ibid Art 3.3

41 eg Amended Protocol n, Art 10 regarding Removal of Minefields etc. Art 10.1 states ‘Without delay after the cessation of active hostilities’ which contrasts with ‘after the cessation of hostilities and as soon as feasible’ in Protocol V, Art 3.3 which deals with the removal of ERW.Google Scholar

42 Some 4½ pages of the 11½ page Protocol.Google Scholar

43 “[Warning] signs and other hazardous boundary markers should, as far as possible, be visible, legible, durable and resistant to environmental effects and should clearly identify which side of the marked boundary is considered to be within the explosive remnants of war affected area and which side is considered to be safe" Protocol V, Tech Annex, Part 2, para (i).Google Scholar

44 Protocol V, Art 5.1.Google Scholar

45 As Protocol HI addresses the use of incendiary weapons and Protocol V covers the aftereffects of ERW, the two Protocols are not inconsistent but they do overlap. Care has been taken to exclude mines, booby traps and other devices from the scope of Protocol V as the clearance of these weapons was already provided for in Amended Protocol II. Such deconfliction will not be as easy for future weapons systems considered for attention by CCW.Google Scholar

46 Debates have been ongoing for some time regarding how any further amendments to Amended Protocol II will be termed. Confusing the issue further is the description of mines formerly known as anti-vehicle mines as Mines Other Than Anti-Personnel Mines (MOTAPMs). Discussion of these weapons is ongoing (CCW/GGE/VI/2 dated 27 Nov 2003 contains a recommendation that the Working Group on MOTAPMs continue its work in 2004).Google Scholar

47 See UN GA a/Conf.95/15 dated 27 Oct 1980 Final Report of the Conference to the General Assembly 7, para 23Google Scholar