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Toward a global ban on landmines

Published online by Cambridge University Press:  13 January 2010

Anita Parlow
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The use of arms, projectiles, or material calculated to cause unnecessary suffering, and more especially of poisoned weapons (chemical and biological weapons), was banned under the conceptual framework of both the 1907 Hague Convention (IV) and the 1925 Geneva Protocol. In the discussions leading to a ban on the use of chemical weapons, diplomats from around the world referred to their use as “barbaric and dishonourable” because of their effect on soldiers or the likely indiscriminate impact on civilians. It is a universal achievement that it is now impossible to conceive of a world that does not show concern for civilians caught up in war. As international attention to the protection of civilians in internal armed conflicts grows, it is accompanied by renewed debate regarding regulation of warring parties' conduct through humanitarian and human rights law.

Type
Review Conference of the 1980 United Nations Conventions on Prohibitions or Restrictions on the use of Certain Conventional Weapons
Information
International Review of the Red Cross (1961 - 1997) , Volume 35 , Issue 307 , August 1995 , pp. 391 - 410
Copyright
Copyright © International Committee of the Red Cross 1995

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References

1 See Convention (IV) respecting the Laws and Customs of War on Land, October 18. 1907, II, ch. I, art. 23(a), 36 Stat. 2277, T.S. No. 539, reprinted in Documents on the Laws of War, 43, 52 ( Roberts, Adam and Guelff, Richard, eds., 1982)Google Scholar; Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, 17 June 1925, 26 U.S.T. 571, T.I.A.S. No. 8061, 94 L.N.T.S. 65. reprinted in International Committee of the Red Cross, International Law Concerning the Conduct of Hostilities 174, 174–175 (1989). See also 1899 Hague Declaration 2 Concerning Asphyxiating Gases, reprinted in Documents on the Laws of War 35–37 ( Roberts, Adam and Guelff, Richard, eds., 1982)Google Scholar banning delivery of asphyxiating gas by projectile.

2 Interview with Department of Humanitarian Affairs Under-Secretary Peter Hansen. Geneva, 5 July 1995.

3 Dr Rémi Russbach, Medical Director of the International Committee of the Red Cross and founder of its Medical Division, writes that in the period between January 1991 and July 1992, 23 per cent of the 14,221 individuals seeking treatment at four ICRC hospitals were wounded by mines. Russbach, Rémi, “Casualties of Conflicts and Mine Warfare”, in A Framework For Survival: Health, Human Rights, And Humanitarian Assistance In Conflicts And Disasters, pp. 121, 126 Google Scholar ( Cahill, Kevin M. ed., 1993)Google Scholar [hereinafter Framework For Survival].

4 Office of International Security and Peacekeeping Operations, United States Department of State, Hidden Killers: The Global Problem with Uncleared Landmines p. 33 (1993)Google Scholar [hereinafter Hidden Killers]. The Director of the United Nations Demining Program, Patrick Blagden, estimates upward of 200 million mines. “Summary of United Nations Demining Report Presented by Patrick M Blagden, United Nations Demining Expert” in ICRC Symposium on Anti-Personnel Mines, Montreux 21–23 04 1993, p. 117 (1993)Google Scholar [hereinafter Montreux Symposium]. Additional estimates range between 100 and 200 million mines. See Eliasson, Jan, UN Department of Humanitarian Affairs, Informal Paper on the Subject of Land Mines p. 1 (7 04 1993) (on file with author).Google Scholar

5 See Watch, Asia & Physicians For Human Rights, Land Mines in Cambodia: The Coward's War, p. 9 (1991)Google Scholar [hereinafter Land Mines in Cambodia].

6 The Arms Project of Human Rights Watch & Physicians for Human Rights,

Landmines: A Deadly Legacy p. 431 (1993)Google Scholar. For additional discussion of landmine wound treatment, see Robin M. Coupland & Korver, Adrian, “Injuries from Antipersonnel Mines: The Experience of the International Committee of the Red Cross”. 300 British Medical Journal p. 1509 (1991)IGoogle Scholar; Coupland, Robin M., “Amputation for Antipersonnel Mine Injuries of the Leg: Preservation of the Tibial Stump Using Medial Gastrocnemius Myoplasty”, 71 Annals of the Royal College of Surgeons, England, p. 405 (1989).Google ScholarPubMed

7 Interview with DrRussbach, Rémi, 13 09 1993 Google Scholar. See also Garachon, Alain, ICRC Technical Orthopaedic Programmes for War Disabled 2 (1993)Google Scholar. Alain Garachon, Director of the ICRC's Rehabilitation Programme, noted that “a child injured at 10 years of age with a life expectancy of another 40 or 50 years will need 25 protheses which at 125 USD each amount to 3125 USD. In countries where average incomes are of the order of 10 to 15 USD a month, one can easily understand that crutches are all that are available to that population”.

8 Landmines: A Deadly Legacy, supra note 5, pp. 126–127.Google Scholar

9 Interview with Dr Phillippe Chabasse, Director, Handicap International, in London, England (18 May 1993). Chabasse also noted in his earlier presentation at the ICRC Symposium on Anti-Personnel Mines that “families have less and less the financial and production capacity to support” the growing numbers of handicapped persons. Montreux Symposium, p. 9 Google Scholar, supra note 3, at 9. Also: Rendre la Terre a La Vie, Handicap International, 07 1995 Google Scholar.

In his testimony to the Senate Foreign Affairs Subcommittee on the Global Landmine Crisis, UN demining expert Patrick Blagden testified that 3,400 mine clearers in four countries have been able to remove between 65,000 and 80,000 mines, approximately one-thousandth of the world's total. “Two and one-half million were laid in Yugoslavia and Cambodia, [meaning] we are losing the battle at least thirtyfold”. Interview with Patrick Blagden, 13 05 1994.Google Scholar

10 See Hidden Killers, p. 10 Google Scholar, supra note 3. “Landmines pose a special problem to the world's poorest countries. For example, rural Africa, the world's most mine-infested region with roughly 18–30 million mines sown in eighteen countries, has the least capacity for mine-clearance. External support is required for a meaningful mine-clearance campaign to exist”, Id, p. 34. “In fiscal year 1993, the US State Department, including US AID, allocated $9 million for demining projects in Afghanistan, Mozambique, Somalia, Cambodia, and Central America”, Id, p. ii.

11 Telephone interview with Jan Eliasson, former Under-Secretary General for Humanitarian Affairs, 16 February 1994.

12 Interview with Joel Charney, International Programme Director, Oxfam International, in London, England, 25 May 1993.

13 See Hidden Killers, pp. 153–154 Google Scholar, supra note 3.

14 Interview with Dr Sadako Ogata, UN High Commissioner for Refugees, in Washington, D.C., 13 May 1994. The interview occurred at the time of the Commissioner's testimony to the Foreign Operations Subcommittee of the Senate Appropriations Committee.

15 Even before the 1949 adoption of the Geneva Conventions, the NGOs and the ICRC acted to protect civilians from abuse by States. Traditionally, this effort was made in two discrete spheres; humanitarian law kept its focus on matters military, leaving human rights concerns for peacetime review. More recently, human rights reporting organizations such as the Human Rights Watch and Amnesty International have begun to incorporate humanitarian law principles into their human rights reporting. The two spheres, human rights and humanitarian law, appear to be converging in view of the international community's obligation to protect civilians from abusive State action in the context of internal conflicts. See generally Meron, Theodor, “On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument”, 77/3 American Journal of International Law, p. 589 (1983)CrossRefGoogle Scholar.

But sometimes action on the ground is required to bring the two sets of principles together. According to NGO coalition organizer, Jodie Williams, “When exploding mines impeded UN peacekeeping operations, the UN's concerns matched the NGOs' and the issue gained visibility.” Interview with Jodie Williams, Director, Vietnam Veterans of America Foundation Landmines Campaign, in Washington, D.C., 18 December 1993.

16 Interview with Edward Cummings, Department of State Legal Office and member of US delegation to the United Nations expert sessions regarding the Review Conference of the Convention on Conventional Weapons, in Washington, D.C. (12 August 1994). Cummings described the US policy as stopping short of a ban. In a press conference following his presentation at the United Nations International Meeting on Mine Clearance, (Geneva, 5–7 July 1995) sponsored by the Department of Humanitarian Affairs, the head of the US Delegation, Cyrus R. Vance, said that, although there was not unanimity in the United States Government on the question of military utility of anti-personnel landmines, “the US position favours tightly restricting and controlling the stockpiling, production of landmines” and, where possible, restricting its use to governments. “It is our considered position that an outright ban is impossible — that a great majority of countries do not favor a ban,” said the United Nations Secretary-General's former envoy to Yugoslavia.

UN Secretary-General Boutros Boutros-Ghali, in his statement on 13 May 1994 before the Foreign Operations Subcommittee Hearings on the Global Landmine Crisis, supported a total ban on landmines:

“An international Convention on Mines is urgently needed. Its purpose should be to reach agreement on a total ban on production, stockpiling, trade and use of mines and their components. Only in this way can the international community begin to make sustained headway against the killing, maiming and societal destruction caused by these terrible weapons”.

The Secretary-General reinforced this advocacy of a global ban at the International Meeting on Mine Clearance in his address to the Plenary Session on 6 July 1995, saying that the 50th Anniversary of the United Nations offers an opportunity for “clear humanitarian action”. See UN International Meeting on Clearance, Mine, SG/Conf. 7/2, 9 06 1995 Google Scholar.

Arms Watch Director, Steve Goose, reported that the NGOs' approach is to keep the heat on and enlist more NGOs, particularly in the developing world, to “make this much more of a grass roots campaign”. Interview with Steve Goose, Director, Human Rights Watch/Arms Watch Project, in Washington, D.C., 12 August 1994.

17 See CCW/Conf. 1/GE/23, 20 January 1995. See also Landmines and Blinding Weapons from Expert Group to the Review Conference: ICRC Briefing and Position, ICRC, 02 1995.Google Scholar

18 Telephone interview with Rod Bilz, Public Relations, Alliant Techsystems (16 December 1993); see also Ryle, John, “The Invisible Enemy”, New Yorker, 29 11 1993, at p. 120.Google Scholar

19 Supra, note 1. Hansen said he hoped for $75 million in contributions from member States to the United Nations Voluntary Trust Fund for Mine Clearance Activities. Interview, Geneva, 5 July 1995.

20 A/RES/49/75D and A/RES/49/79.

21 Interview with the Public Relations Team of the US Mission to the United Nations, in Washington, D.C. (15 December 1993). Ambassador Albright also calls efforts to persuade UN General Assembly members to observe a moratorium on the export of landmines, a “first step in the Clinton administration's comprehensive effort to address the devastating consequences of their [mines] indiscriminate use”. Madeleine Albright, US Permanent Representative to the United Nations, Press release, 15 December 1993.

22 In a letter to Senator Patrick Leahy from Secretary of State Warren Christopher and Secretary of Defense William J Perry, the Secretaries indicated that the administration is conducting an “intensive policy review” to determine the parameters of the US position regarding landmines. However, the letter indicated the unlikelihood of US support for a ban:

“[W]e are concerned that the legislation that you are considering, which would ban US production/procurement of anti-personnel landmines, would be counterproductive to the goal we all share of developing as quickly as possible an effective anti-personnel landmine control regime. Pursuing this legislation now would prejudge US negotiating position, restricting our ability to conduct effective consultations with countries critical to control regime”.

Letter from Warren Christopher, Secretary of State, and William J Perry, Secretary of Defense, to Patrick Leahy, US Senator (28 June 1994) (on file with Senator Leahy) [hereinafter Christopher letter].

Senator Leahy points out that the previous administrations' failure to seek ratification of the Conventional Weapons Convention was linked to a dispute with Congress over ratification of two earlier international agreements regarding the law of war: Protocols I and II to the 1949 Geneva Conventions, which the United States signed in 1977. The Reagan administration submitted the more limited Protocol II of the 1949 Conventions for ratification, withholding support from the more extensive Protocol I. The Senate Foreign Relations Committee refused to act, waiting for the submission of both of the almost universally accepted Protocols to the Geneva Conventions before acting on either. The Department of Defense is currently reviewing these Protocols. This dispute between the Executive and the Congress was in part responsible for the refusal of the Reagan and Bush administrations to submit for ratification the 1980 CCW. Interview with Patrick Leahy, US Senator, in Washington D.C., 13 May 1994.

23 Interview, Geneva, 5 July 1995.

24 International Conference for the Protection of War Victims, ICRC (Geneva, 30 08 – 1 09 1993)Google Scholar. The Conference's Final Declaration, adopted on 1 September 1993 by consensus of the 168 participating States, concluded: “We refuse to accept that civilian populations should become more and more the principal victim of hostilities and acts of violence perpetrated in the course of armed conflicts”, International Review of the Red Cross (IRRC), No. 296, 09–10 1993, p. 377 Google Scholar.

Cambodia's civil conflict is the first war in history where mine-related casualties have exceeded injuries caused by all other weapons. Cambodia has the highest percentage of disabled inhabitants of any country in the world. Of the country's 8.5 million inhabitants, over 30,000 are amputees and a further 5,000 Or so amputees live in refugee camps along the Thai border. In 1990 alone, as many as 6,000 Cambodians had a leg or foot amputated as a result of an injury caused by a mine. See Stover, Eric & Charles, Dan, “Cambodia's Killing Minefields”, New Scientist, 19 10 1991, p. 29 Google Scholar; Land-mines in Cambodia, supra note 4, pp. 59–79; NGO Conference on Anti-personnel Mines (London, 24–26 05 1993).Google Scholar

25 Aryeh Neier, Director of the Soros Foundation, in his keynote address to VVAF-led NGO Conference on Anti-Personnel Mines, in London (24 May 1993). Neier advised the coalition to “stigmatize” mine warfare in the same manner that biological and chemical warfare are stigmatized by the world community. Since the ICRC Montreux meetings and the NGO Conference in London, producing States have placed moratoria on landmines and, more recently, the Organization of African Unity supported a restriction on use, with NGOs in Mozambique preparing a country-wide conference in June 1995 on the scope of the problem in Mozambique.

26 See: Beck, Louise Doswald, ed., Blinding Weapons: Reports of the Meeting of Experts Convened by the International Committee of the Red Cross on Battlefield Laser Weapons, 1989 – 1991, ICRC, Geneva, 1993.Google Scholar

27 A central issue for the Review Conference of the 1980 CCW is its application to internal armed conflict. Although this article will not trace the legal evolution of placing humanitarian restraints on internal conflict, it is relevant to note that Article 3 common to the four 1949 Geneva Conventions imposes legal obligations on parties involved in an internal war. In 1975, Antonio Cassese argued for the proposition of customary laws of internal war. See Cassese, Antonio, “The Spanish Civil War and the Development of Customary Law Concerning Internal Armed Conflicts”, in Current Problems of International Law, p. 287 (Antonio Cassese, ed., 1975)Google Scholar. Protocol II confirms the validity of legal regulation of internal war and provides some details about the human rights of civilians in internal armed conflict. Forsythe, David P., “Human Rights and Internal Conflicts: Trends and Recent Developments”, 12 California Western International Law Journal, pp. 287, 294 (1982)Google Scholar; Goldman, Robert K., “International Humanitarian Law and the Armed Conflicts in El Salvador and Nicaragua”, 2 American University Journal of International Law and Policy pp. 539, 543 (1987)Google Scholar. The ICRC argues that the Convention applies to both liberation movements and States party: Sandoz, Yves, “A new step forward in international law - Prohibitions or Restrictions on the Use of Certain Conventional Weapons”, IRRC, No. 220, 01–02 1981, p. 10.CrossRefGoogle Scholar

28 Interview with Jan Eliasson, supra note 10. Renewed interest in the humanitarian law of war is, in part, due to the strategic focus of domestic conflicts in which civilian populations are the primary targets of hostilities.

29 Interview with Jan Eliasson, supra note 10. See generally “Cambodia's Killing Minefields”, supra note 23; Americas Watch, Landmines in El Salvador and Nicaragua: The Civilian Victims (1986).Google Scholar

30 Meeting, American Society of International Law, in Washington, D.C. (6–9 April 1994).

31 Interview with João Paulo Cuelho, Chair, Landmine Symposium sponsored by Eduardo Mondlane University and Human Rights Watch, 14 June 1995.

32 Landmines: A Deadly Legacy, supra note 5, at pp. 35, 37 Google Scholar. This is especially true with the sales of plastic, scatterable mines - although difficulty in tracking landmine production and sales is compounded by the fact that no company makes meaningful public disclosure of its land mine sales. For an overview of mine variety and availability see Jane's Military Vehicles and Logistics 1992–1993 (1993).Google Scholar

33 Interview with Tim Rieser, Aide to Senator Patrick Leahy, in Washington, D.C. (12 July 1994). (Rieser noted that several conversations were initiated by Alliant representatives to lobby support for the retention of a self-destruct solution).

34 Alliant Techsystems, Press release, 16 December 1993 (generally concerned with company views on efforts to curb impact on civilians).

35 1980 CCW, Preamble.

36 The issue of the application of the Protocol to internal conflict has emerged as a substantive issue at the Meetings of the Governmental Experts to prepare the Review Conference of the 1980 CCW. Their discussions have reflected the tension between the State's right to national sovereignty and political independence and its duty to respect the rights of civilian populations. Progress Report of the Group of Governmental Experts to Prepare the 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 GAOR, 49th Sess., Agenda Item 10, at p. 8, UN Doc CCW/CONF.1/GE8 (1994). The Summary Report noted that the “issue of extending the scope of Protocol II and/or the Convention as a whole was widely discussed to extend the scope of at least the Protocol to cover non-international conflicts that,” according to the Chair, “cause the greatest problem”, Id. “Alternative A” and “Alternative B” of Article I reflect the necessity to protect civilian populations “in all circumstances” inferring the likely application of the revised Protocol to internal conflict. Fourth Session, 20 January 1995, CCW/CONF.1/GE/23, Final Report.

Human Rights Watch has argued that the Landmines Protocol already applies to internal conflict since the civilian populations' need for protection from combatants remains the same whether they are enmeshed in international or internal war. Interview with Steve Goose, Deputy Director, Arms Watch. In addition, the ICRC attached great importance to verification procedures through a permanent, independent, supervisory body.

37 Louise Doswald-Beck, Legal Department, ICRC. The rules of humanitarian law of war reflect a tension between the “standards of civilization and the necessities of war”. Interview, Geneva, 04 1994.Google Scholar

38 A few member States view the UN's preparatory sessions as a way to raise the entire question of how to assess the development of new weapons in humanitarian terms. For example, the ICRC has shown a clear interest in discussing new weapons such as anti-personnel laser weapons to get ahead of the technology rather than mop up after it. See Parlow, Anita & Deans, Bob, “Long After Wars End, Land Mines Remain, Bringing Death Underfoot”, Atlanta Journal & Constitution, 16 01 1994 at AlCrossRefGoogle Scholar. Also, Parlow, Anita, “Banning Land Mines”, 16 Human Rights Quarterly, No 4, 11 1994, p. 715.CrossRefGoogle Scholar

39 ICRC President, Comelio Sommaruga, vows to continue the landmine campaign as part of the ICRC's effort to create a world in which a “humanitarian space” is preserved. Interview in Geneva (8 May 1995).

40 McGrath, Rae, Report on the Afghanistan Mines Survey 58, London, England, 1991.Google Scholar

41 The author is grateful to the William Penn Foundation, Mrs Kenneth Montgomery, the Uniterra Fund, Reebok International and the Public Welfare Foundation for underwriting this work as part of a series of articles on human rights and humanitarian intervention.