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New Protocol on Blinding Laser Weapons

Published online by Cambridge University Press:  23 November 2010

Louise Doswald-Beck
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Extract

On 13 October 1995, the first Review Conference of the 1980 Convention on Certain Conventional Weapons (CCW) adopted during its first session in Vienna a new fourth Protocol entitled “Protocol on Blinding Laser Weapons”. The 1980 Convention comprises a framework Convention (containing technical provisions such as applicability, entry into force and amendment) and annexed Protocols containing the substantive rules relating to certain weapons. Although many weapons had been discussed during the preparatory stages of this Convention, only three Protocols were adopted in 1980. However, the structure chosen enabled new Protocols to be added in order to accommodate future weapons which needed t o be prohibited or otherwise regulated.

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 36 , Issue 312 , May 1996 , pp. 272 - 299
Copyright
Copyright © International Committee of the Red Cross 1996

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References

1 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, adopted on 10 October 1980 and opened for signature on 10 April 1981. For the text of the Convention, see International Review of the Red Cross (IRRC), No. 220, January-February 1981, p. 41.

2 Held from 25 September to 13 October 1995. Subsequent sessions of the Review Conference, which concentrated on the problem of anti-personnel landmines and the possible amendment of Protocol II, were held in Geneva from 15 to 19 January and from 22 April to 3 May 1996.

3 CCW/CONF.I/7. The text of the Protocol is annexed to this article.

4 For greater detail on the Convention and its Protocols, see IRRC, No. 279, November-December 1990, pp. 469–577.

5 Protocol I on Non-Detectable Fragments; Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices; Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons.

6 Including the support of persons and institutions which helped influence governments.

7 A number of facts stated in this article are based on the experience of the author during the negotiating process. At the time of writing there are no comprehensive official records of the travaux préparatoires for Protocol IV of the CCW.

8 The draft resolution in its section B, operative paragraph 4, “notes that the development of laser technology for military use includes a risk that laser equipment of armed forces can be specifically used for anti-personnel purposes on the battlefield, such as causing permanent blindness of human beings, and that such use may be considered already prohibited under existing international law”. Doc. CI/2.67PR3, Commission I, Item 2.6.

9 The possible use of lasers in outer space in the context of the Strategic Defense Initiative was generally known, but not developments for battlefield anti-personnel use.

10 Resolution VII, paras. 6 and 7, read as follows: “notes that some governments have voiced their concern about the developments of new weapons technologies the use of which, in certain circumstances, could be prohibited under existing international law; appeals to governments, with a view to meeting the standards laid down in international humanitarian law, to coordinate their efforts to clarify the law in these fields and exercise the utmost care in the development of new weapons technologies”, 1RRC, No. 255, November-December 1986, p. 350.

11 Verbatim record of the thirty-third session of the First Committee, UN Doc. A/C.1/41/PV.33 of 21 November 1986, and of the thirty-fourth meeting, UN Doc. A/C.1/42/PV.34 of 9 November 1987. Sweden's statement at the thirty-fourth session of the First Committee of the General Assembly was as follows: “There seems to be a risk of developing lasers for anti-personnel lasers for anti-personnel purposes on the conventional battlefield. It is already technically possible to develop and manufacture specific anti-personnel laser weapons, the main effect of which would be to blind the adversary's soldiers permanently. It can be argued that methods of warfare which are intended and may be expected to cause irreversible injury to the human eye are already prohibited under existing principles of humanitarian law. These principles should be laid down in an international instrument in order effectively to prevent such methods of warfare. There i s therefore a need to elaborate a prohibition on the use of battlefield laser weapons specifically designed for anti-personnel use. On the other hand, it is evident that anti-mat6riel laser weapons would not, as such, violate international standards, even if they were to have secondary anti-personnel effects”. In 1987, Sweden distributed a paper on this issue entitled Battlefield laser weapons and the question of anti-personnel use ofsuch weapons; on file with the author.

2 1 There were several articles to this effect, e.g. in The Army, August 1985; Infantry, March-April 1987; Military Review, May 1987; Defense News, October 1987.

13 First Round Table of Experts, 19–21 June 1989, which brought together technical and military experts in laser weapons, ophthalmologists, psychologists specialized in the effects of blindness and specialists in international humanitarian law.

14 A short summary of the findings of the four meetings is to be found in IRRC, No. 299, March-April 1994, pp. 150–153.

15 First working group of experts (31 May-1 June 1990), which comprised highly specialized experts in lasers and their effects on the eye. See the report Blinding Weapons: reports of the meetings of experts convened by the International Committee of the Red Cross on Battlefield Laser Weapons 1989–1991, hereinafter Blinding Weapons: reports, ICRC (Doswald-Beck, L., ed.), Geneva, 1993 Google Scholar.

16 Second working group of experts (5–7 November 1990), which comprised doctors, surgeons and psychiatrists with experience with different types of war injuries and disabilities, ibid., pp. 175–317.

17 See, for example, the position of the US Judge Advocate General in “Memorandum of Law: The Use of Lasers as Antipersonnel Weapons”, The Army Lawyer, November 1988, p. 4. Reproduced in ibid., pp. 367–371.

18 Second Round Table of Experts, 9–11 April 1991, which was attended in a personal capacity by 37 government officials from 22 countries and six of the scientists who had participated in the previous working group meetings. See ibid., pp. 319–366.

19 The fourth meeting of experts was held in April 1991 and the 26th International Conference was due to take place in Budapest in November-December 1991.

20 The CCW Convention does not provide for automatic review (Article 8 of the framework Convention).

21 Document drawn up by the ICRC for the 26th International Conference of the Red Cross and Red Crescent (1991) and entitled Prohibitions or Restrictions on the Use of Certain Weapons and Methods in Armed Conflicts: Developments in Relation to Certain Conventional Weapons and New Weapons Technologies, Doc. C.1/6.3.2/1, pp. 6–18. Several of the experts attending the fourth expert meeting also suggested submitting the question to this Conference.

22 Doc. C.l/6.3.2/Res.l. The draft, dated 1 November 1991, was circulated to all States prior to the intended conference for comment. The operative paragraphs read as follows: “1. condemns blinding as a method of warfare; 2. considers unacceptable the use of weapons against persons with the sole or principal intention of damaging their eyesight; 3. urges States not to produce weapons to be used for this purpose; 4. urges particular care in the use of weapons systems that are dangerous for eyesight so as to avoid as far as possible accidental blinding”.

23 It finally took place in Geneva in December 1995.

24 On the difficulty of achieving a specific regulation of new weapons, see comments i n ICRC document, op. cit. (note 21), pp. 4–5, and also Doswald-Beck, L., “Obstacles to regulating new weaponry: battlefield laser weapons”, in Fox, H. and Meyer, M. (eds.), Effecting Compliance, Armed Conflict and the New Law, Vol. II, The British Institute of International and Comparative Law, London, 1993, p. 107 Google Scholar.

25 Blinding Weapons: reports.

26 “Blinding Weapons”, ICRC News, 10 February 1994.

27 These developments tended to mention only the flashblinding or dazzling effects of the weapons when used against personnel, without mentioning the fact that any laser that temporarily blinds at a certain distance will inevitably blind at a closer distance. See, for example, articles in International Defense Review 1992 Google Scholar; Defence, April 1993 Google Scholar; Defense Electronics, February 1993 Google Scholar; Laser Focus World, September 1994 Google Scholar. The permanent blinding effect of battlefield laser weapons that were meant also to have an anti-sensor use was i n fact likely to be at least several hundred metres or even a kilometre for the naked eye, and several kilometres for a person using optics. However, some articles continued to mention permanent blinding as an effect, for example, articles in New Scientist, Vol. 135, No. 1833, and National Defense, December 1993 Google Scholar.

28 In a letter to the United Nations Secretary-General dated 9 February 1993. France based its request on Article 8, para. 3(a), of the Convention, which stipulates that if no review conference has taken place ten years after the entry into force of the Convention (it came into force on 2 December 1983), the Depository must call for such a conference f i one State Party so requests.

29 Dated 22 December 1993.

30 See, in particular, articles by Jody Williams and Anita Parlow in 1RRC, No. 307, July-August 1995, pp. 37 5 and 391, respectively.

31 GA res. 48/79 of 16 December 1993.

32 The letter suggested the preparation of the Review Conference by a Group of Governmental Experts. An oblique reference to a possible new Protocol was made in these terms: “Once the experts have made significant progress in their efforts to amend Protocol II, the group could also consider any other proposal relating to the Convention and its existing or future Protocols”. Neither the letter nor the GA resolution made any reference o t laser weapons.

33 The dates of the meetings were as follows: 28 February-4 March 1994 (primarily a meeting on procedure); 16–27 May 1994; 8–19 August 1994 and 9–20 January 1995. It was initially thought that there would only be three preparatory meetings, but during the August session it became clear that insufficient progress on the landmines issue meant that a fourth preparatory meeting was necessary.

34 There was also a proposal by Sweden for a Protocol on Naval Mines (Doc. CCW7 CONF.l/GE/12) and by Switzerland on Small-calibre Weapon Systems (i.e. bullets, Doc. CCW/CONF.l/GE/16). In practice these two items received very little attention and the ICRC decided that as a matter of priority it was necessary at least to achieve a proper negotiation of a new Protocol on blinding laser weapons.

36 Doc. CCW/CONF.1/GE/CRP.28, dated 12 August 1994.

37 See footnote 18 above, and Blinding Weapons: reports, pp. 353–356.

38 Australia, Cuba, Cyprus, Germany, Iran, Mexico, Netherlands, New Zealand, Norway, Russia, Spain and Switzerland.

39 See note 33.

40 13 and 17 January 1995.

41 In addition to Sweden and the 12 countries listed in note 38, the following: Austria, Belgium, Bulgaria, Cambodia, Finland, France, Greece, India, Ireland, Pakistan, Poland and the United Kingdom.

42 Annex II to the Final Report of the Group of Governmental Experts, 20 January 1995, UN Doc. CCW/CONF.l/GE/23.

43 Blinding Weapons: reports.

44 For example, the President of the French Red Cross sent a letter dated 17 November 1994 to French Prime Minister E. Balladur, urging the government to do all in its power o t avoid the manufacture and proliferation of anti-personnel laser weapons and giving his opinion that the 1980 Convention would be the appropriate means to ban blinding as a method of warfare.

45 For example, debates in the United Kingdom's House of Lords, 14 March 1994, Hansard, Vol. 553, pp. 7–8; and in the House of Commons, 19 January 1995, Hansard, Vol. 262, No. 34, pp. 689–690, in which, in reply to a question, the Secretary of State for Defence indicated that: “the UK has no plans to develop or test a laser weapon designed permanently to blind human beings. Hie feasibility of making use of temporary dazzle effects was investigated in 1983 and tests on one system were conducted which were subsequently discontinued”.

46 Public statement of 24 April 1995: “…the development of anti-personnel lasers as blinding weapons represents] one of the biggest public health issues facing the world today. The World Medical Association fully supports the ICRC in its efforts to combat this growing menace”. Support was also given in the Editorial of the Lancet, Vol. 344,

17 December 1994.

47 Statement made at the Vienna session of the Review Conference of the CCW.

48 Idem.

49 Idem.

50 Resolution 26–95.

51 Resolution 23, Prohibition of anti-personnel blinding laser weapons, adopted at its 21st General Assembly (1994).

52 See below for more detail on their contribution. It should also be mentioned that several influential members of Pugwash became active in working towards a ban after the subject was discussed during its 44th Annual Conference (1994).

53 See, for example, “Eyewash no defense”, International Defense Review, Vol. 28, July 1995 Google Scholar; “Thou shalt not blind”, The Economist, 15 October 1994 Google Scholar; “A very ugly genie”, Military Technology, MILTECH - 5/95; Fridling, Barry, Blinding Lasers: The Need for Control, US Naval Institute, October 1988 Google Scholar; McCarthy, Colman, “Battlefield instruments of blindness”, Washington Post, 16 June 1995 Google Scholar.

54 Resolution A4–0119/95, operative para. 6 (a) (iii). See also preambular paras. O and P.

55 Resolution on the 1980 United Nations Convention on Certain Conventional Weapons and problems posed by the proliferation of anti-personnel mines in Africa, operative para. 7, also preambular para. 8.

56 Resolution adopted by consensus on 1 April 1995 and entitled The international community in the face of the challenges posed by calamities arising from armed conflicts and by natural or man-made disasters.

57 The only example of a blinding laser that was actually deployed was the “Laser Dazzle Sight” placed on British battleships in the early 1980s and since discontinued; see Blinding Weapons: reports, pp. 109–110 and 170–172, and note 45.

58 China North Industries Corp. (NORINCO). Reports in Jane's Defence Weekly, 27 May 1995, p. 3; International Defense Review, May 1995, pp. 19–21.

59 Also referred to as the PLQ-5. The system was developed by Lockheed-Sanders and the army hoped for government approval in June 1995 for a full-scale production contract with the same company. Congress decided to delay its decision. See Human Rights Watch Arms Project, U.S. Blinding Laser Weapons, New York/Washington DC, Vol. 7, No. 5, pp. 2 and 9Google Scholar; Inside the Pentagon, 13 July 1995, p. 9 Google Scholar.

60 Lockheed-Sanders Fact Sheet, Laser Countermeasure System (LCMS), AN/PLQ-5, 1994.

61 Law of War Review of 16 September 1994, DAJA-10 (27-la), U S Department of the Army.

62 It refers to these as “tactical laser weapons”.

63 Human Rights Watch Arms Project, op. cit. (note 59).Google Scholar

64 In addition to detailed information on ten active or dormant blinding laser programmes in the United States, the report named the following countries as having allegedly also done some research into blinding laser weapons: China, France, Germany, Israel, Russia and the United Kingdom, ibid., pp. 14–15.

65 US opposition to a Protocol was also criticized in the press, e.g. McCarthy, Colman, “Battlefield instruments of blindness”, Washington Post, 16 May 1995 Google Scholar.

66 Letters on file with Human Rights Watch Arms Project, Washington DC.

67 Fifteen States made a statement to this effect.

68 Doc. CCW/C0NF.I/MCIII/WP.1, 26 September 1995.

69 Doc. CCW/C0NF.iyMCIIIAVP.2, 26 September 1995, Article 1, para. 2.

70 Doc. CCW/CONF.1/4, 12 October 1995. See also Doc. CCW/CONF.l/MCin/WP.4/Rev.2, 5 October 1995, which is the Protocol as it appeared when negotiations concluded in the Third Committee and which includes the scope in Article 1 but leaves open the exact wording.

71 26th International Conference of the Red Cross and Red Crescent (1995), Resolution 2, Section H, para, (f), IRRC, No. 310, January-February 1996, p. 68.

72 Doc. CCW/CONF.I/16.

73 Doc. CCW/CONF.I/MCin7WP.3, 27 September 1995.

74 The ICRC was also of the opinion that the Protocol should not attempt a technical description, as this would be extremely difficult to do and would therefore considerably delay the adoption of a Protocol.

75 See note 69, Article 3, para. 3.

76 See note 70.

77 Working paper of 29 September 1995; on file with the author. The wording was inspired by Article 40 of Additional Protocol I of 1977, which provides that: “It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or t o conduct hostilities on this basis”.

78 This was actually a reflection of the fact that the phrase “method of warfare” had created difficulty for the United States in the context of the 1993 Chemical Weapons Convention; it therefore wished to avoid further use of such wording in any context.

79 Doc. CCW/C0NF.1/MCIII/CRP.1, 29 September 1995.

80 The President of France, for example, in reply to Parliamentary questions, indicated that “Il est a souligner que la France souscrit également à l'objectif de prohibition de l'aveuglement délibéré des persomes en tant que méthode de guerre”, Questions écrites des parlementaires, SIRPA ACTUALITE, No. 30, 9 September 1995. It is also worth noting a preambular paragraph in the Final Declaration of the Review Conference: “conscious of the urgent need to counter the silent and invisible threat to human sight posed by the threat of blinding laser weapons”.

81 Doc. CCW/CONF.1/MCIII/CRP.XX, 2 October 1995.

82 Doc. CCW/C0NF.I/MCIII/CRP.3, 3 October 1995.

83 For example, the statement of the French President: “Elle a cependant besoin de pouvoir employer le laser dans ses usages courants, ainsi qu'à des fins de détection et de neutralisation des capteurs”, Questions 6crites des parlementaires, op. cit. (note 80).

84 See note 73, Article 4; 20/400 means that a person cannot see at 20 feet what; normal person can see at 400 feet.

85 For greater detail on the blinding effects of laser weapons, see Blinding Weapons: reports (note 15), First Round Table of Experts, pp. 29–45, and First Working Group of Experts, pp. 98–99 and 102–139.

86 See note 72. The Declaration states that “The High Contracting Parties … solemnly declare … their wish to keep the blinding effects related to the use of laser systems under consideration…”. The preamble also notes that a number of issues could be considered in the future, for example the definition of “permanent blindness”, including the concept of field of vision.

87 When exploding bullets were prohibited by the St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight.

88 Several States indicated in the formal plenary meeting of Committee HI on 6 October that they interpreted the Protocol as banning blinding as a method of warfare. It is also worth noting the resolution of the European Parliament entitled Resolution on the failure of the international conference on anti-personnel mines and laser weapons 16 November 1995, paras. H and I of which read as follows: “welcoming the agreement on a Protocol to the Convention on Certain Conventional Weapons to restrict the use and transfer of blinding laser weapons, but regretting that the Protocol fails to ban the production of blinding laser weapons and provides loopholes for the production, use and transfer of some blinding laser weapons, including those that target optical systems; believing that blinding as a method of warfare is abhorrent and in contravention of established custom, the principles of humanity and the dictates of the public conscience…”.

89 The original French text was as follows: “L'adoption du Protocole sur les armes a laser aveuglantes est un succis de la civilisation sur la barbarie. Au-dela du seul texte de ce Protocole, ce que nous retiendrons en effet de la decision prise aujourd'hui, ce que les peuples comprendront, c'est que les Etats n'acceptent pas I'idee que les homines puissent delibirement aveugler d'autres hommes, en quelque circonstance que ce soit”. On file with the author.

90 Article 5, para. 3, of the framework Convention.

91 Finland, on 11 January 1996.

92 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices as Amended on 3 May 1996. Adopted by the first Review Conference of the 1980 CCW.

93 See note 72.

94 Defenselink transcript, Department of Defense News Briefing, 12 October 1995.

95 See note 72.