Report of the ICRC for the review conference of the 1980 UN conventions on Prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects
30-04-1994 Article, International Review of the Red Cross, No. 299
PART I : The significance of the Review Conference in the context of present-day armed conflicts and weapon developments
I. The importance of the 1980 Convention and the role of the Review Conference
The International Committee of the Red Cross has first-hand experience of the real consequences of the many armed conflicts now taking place and of the actual use and effects of weapons. It therefore has a particular interest in ensuring that the law takes into account the realities of the use of weapons in order to effectively reduce the amount of suffering caused in armed conflicts.
International humanitarian law aims at reducing the suffering caused by the use of weapons by prohibiting indiscriminate attacks and by prohibiting the use of weapons that are by nature indiscriminate or of a nature to cause unnecessary suffering or superfluous injury. These international customary rules are universally applicable and are codified in major international humanitarian law treaties, in particular Protocol I of 1977 additional to the Geneva Conventions of 1949. The ultimate purpose is to mitigate the suffering and damage caused during armed conflicts as much as is practically possible. In order to achieve this effect, it is essential that international humanitarian law treaties, including the 1980 UN Convention on certain conventional weapons, be ratified widely and implemented correctly.
The 1980 Convention has the purpose of codifying and developing specific rules on the use of weapons, either by totally prohibiting the use of certain weapons, or b y regulating their use, so that the customary principles of inter- national humanitarian law on the use of weapons are given concrete expression in treaty form. However, in many respects this Convention has not achieved its aim, not only because it has been insufficiently ratified or implemented, but also because in many ways it does not provide the means needed to prevent the excessive damage that is actually being caused in armed conflicts, the majority of which are non-international. In particular, the Convention relies too extensively on regulating behaviour in relation to the use of certain weapons, which is frequently difficult to enforce, rather than prohibiting the use of certain types of weapons altogether. Further, no parallel measures have been taken in the disarmament context, although they are proposed in the preamble to the Convention.
The Review Conference is a unique opportunity to make a careful assessment of the real problems caused by the use of certain weapons and of the reasons for these problems, so as to decide on the most effective measures to redress the situation. It is also an opportunity to decide on measures that may be necessary to prevent major problems arising from weapon developments in the near future.
The most urgent problem which the Review Conference must address is that of landmines. Despite the fact that the legal regulation of the use of mines was carefully discussed in the 1970s and that these deliberations culminated in Protocol 11 of the 1980 Convention, the situation that we are facing today as a result of landmine use is a disastrous one. It is estimated that there are about 100 million uncleared mines in the world, rendering huge expanses of land uninhabitable and uncultivable. It is estimated that every month landmines kill about 800 people and maim thousands, most of the victims being innocent civilia ns, especially children. The worst feature of mines is that they continue to cause damage for years or even decades after the end of hostilities. Mine clearance is a very slow and dangerous task and in some situations virtually impossible. It takes many years to clear very small areas and casualty rates among mine-clearing teams are appallingly high.
Part of the problem is that mine-laying has been undertaken in ways that are in violation of the law, and there would have been fewer casualties had the law been respected. However, Protocol II has serious shortcomings as it stands and it is clear that in order to try to find an effective way of improving the situation it is essential to consider much firmer measures, including complementary arms control measures. This issue will be examined in Part 11 of this report.
The Review Conference is also a critical opportunity for a more forward-looking assessment of the likely problems that weapons production and use are going to create.
The situation caused by the use of modem landmines is a pertinent example in this respect. These weapons have always been considered normal conventional weapons and certainly not weapons of mass destruction that merited important international arms control measures. However, a certain amount of thought and foresight would have shown that the introduction of plastic mines which can be sown in large quantities, which are cheap and widely available, and which remain active for an indefinite period would lead to the grave situation that we now face.
The international community does not have to wait for catastrophes to happen, but can rather anticipate probable dangers. In this respect it needs to take into account the types of conflicts that actually occur and the way in which weapons proliferate. Once a weapon is fielded it is very difficult to stem its proliferation and widespread use. Therefore it makes sense to devote some time to taking preventive steps that would avert enormous problems at a later stage.
Part 111, Section 11 of our report looks at some of these issues, including the present development of directed energy weapons which could well begin to be used in the near future.
Implementation and non-international armed conflicts
The Review Conference is also an opportunity to address the fact that most damage inflicted by weapons, frequently as a result of indiscriminate use, occurs during internal armed conflicts, that effective implementation mechanisms are necessary for achieving better respect for the law, and that the Convention is lacking in both these respects. These issues will be addressed in Part IH, Section I of this report.
II. The need for regular review of the 1980 Convention
The 1980 Convention was intentionally structured in the form of a basic Convention with annexed Protocols so as to provide for the addition of further Protocols to specifically regulate, or prohibit where appropriate, the use of new weapons. The use of weapons is, of course, subject to international customary law but it is clear that specific treaty regulation is preferable in that it favours clarity of legal obligations.
Article 36 of Protocol I of 1977 additional to the Geneva Conventions of 1949 requires States Parties to review new developments in weaponry:
"In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party".
The 1980 Convention provides for a review procedure, which ought to be used regularly. Such reviews could evaluate the effectiveness of the provisions of the Convention and also take timely preventive measures in relation to new developments, whether entirely new weapons or new designs of existing weapons, that are likely to create problems.
III. The need for a reinforcement of the complementary roles of international humanitarian law and arms control law in the light of present circumstances
The proliferation of non-international and unconventional armed conflicts, in which the combatants have access to modem weaponry by various means, has resulted in conflicts that are far more murderous and damaging than in the past. As the case of mines has shown, the wide availability of small weapons has contributed to a situation which, if left unchecked, is likely to grow worse.
This fact requires a fundamental review of how to use humanitarian law and arms control law most effectively in order to limit the damage caused by these spreading conflicts.
Arms control and disarmament law
Arms control and disarmament law has for the most part concentrated on containing the threat caused by the existence of nuclear weapons and, for the last two decades, on biological and chemical weapons. More recently, however, international attention has been drawn to the dangers of the unsupervised trade in conventional weapons, although this is at present limited to an optional register of the transfer of certain conventional weapons.
This report will indicate that serious consideration should be given to ex- tending disarmament and arms control measures to support new regulations on the use of mines and possibly other weapons.
International humanitarian law
International humanitarian law originally controlled the damage caused by weapons by altogether prohibiting the use of weapons that were perceived as excessively cruel or " barbaric " . The centuries-old customary prohibition of the use of poison was based on the perception of its treacherous nature and the fact that poisoned weapons inevitably caused death. The prohibition of the use of explosive bullets by the St. Petersburg Declaration was similarly based on the wish to outlaw weapons which inflicted excessively cruel injuries or which normally killed the victim. Subsequently humanitarian law prohibited the use of expanding bullets (dum-dum bullets) in Hague Declaration IV,3 of 1899 and chemical and biological weapons in the Geneva Protocol of 1925.
Since 1925, however, international humanitarian law has not made any significant progress in prohibiting the use of specific weapons, but has instead concentrated on imposing limitations on their use in the hope of sparing the civilian population as far as possible.
However, this approach has grave shortcomings in that it assumes that all concerned will in fact abide by the rules regulating the use of weapons and that this will indeed spare civilians from the effects of the weapons in question. In reality neither of these assumptions is correct, for not only are weapons in practice used indiscriminately by a very large proportion of the persons that have them, but also, even if they are used correctly, civilians frequently suffer their " incidental " effects. The result is that unless the use of certain weapons is altogether prohibited, civilians will inevitably become victims of them. Further, the rule prohibiting the use of weapons of a nature to cause unnecessary suffering or superfluous injury to combatants is still a valid legal rule, but unless it is applied to new weapons it will fall into desuetude.
One should think very seriously, therefore, of returning to the system of altogether prohibiting the use of weapons whose effects are particularly cruel and whose use is not indispensable.
The complementary effects of humanitarian law and arms control law
Given the reality of the proliferation and transfer of weapons, it is evident that prohibiting the use of a certain weapon will not completely prevent its use if the weapon continues to be manufactured and stockpiled. Therefore a prohibition on use is more effective if it is accompanied by arms control and disarmament measures, which should include verification mechanisms.
Conversely, it is unrealistic to assume that certain restrictions on the transfer of weapons will in practice prevent these weapons from reaching prohibited destinations, and still less that these restrictions will be sufficient to prevent them from being used in the many types of conflicts around the world.
The example of the development of legal restraints on chemical weapons
The problem of the potential development of chemical weapons was first addressed at the First Hague Peace Conference of 1899, which adopted a Declaration (IV,2) prohibiting the " use of projectiles the only object of which is the diffusion of asphyxiating or deleterious gases " . This Declaration did not receive the complete support of the major nations at the time and, of course, was not accompanied by any verific ation mechanisms.
It was the use of chemical weapons in the First World War, and the fact that public opinion was horrified by the effects of chemical weapons on soldiers, that led to the move to firmly ban their use in the 1925 Geneva Protocol. It is interesting to note that most delegates to the diplomatic conference did not make a minute legal analysis of the effects of chemical weapons as compared with other weapons, or make a careful assessment of their military necessity as compared with the suffering they caused, but rather boldly stated that the use of these weapons was " barbaric " and " horrific " and therefore to be outlawed.
At the time it was suggested that legal measures taken should be limited to a ban on the export of chemical weapons. However, the majority of States thought it important to make a statement of principle that their use was prohibited. History has certainly proved that a mere export ban would not have prevented chemical weapons from being used like any other weapon, as it would not have had the effect of stigmatizing chemical weapons that outlawing them did.
It is certainly also true that if the treaty regulating chemical weapons had merely indicated that they should only be aimed at military objectives, with the usual provisions to limit incidental civilian injury, as may well have been the case had the issue arisen not in the 1920s but some decades later, the situation would be very different now.
Subsequent experience showed, however, the need for additional prohibitions on the manufacture and stockpiling of chemical weapons, together with effective verification mechanisms.
Therefore experience, which took almost a century to develop in the case of chemical weapons, has revealed the need to take probable new weapon developments seriously, to take preventive measures through the total prohibition in principle of we apons that are likely to be particularly damaging, and to back these up with effective disarmament and arms control measures.
IV. The role of the International Committee of the Red Cross
Pursuant to its mandate to work for the mitigation of suffering caused by armed conflicts, and in particular to work for the faithful application of international humanitarian law and to prepare its development, the ICRC has over the years taken a number of initiatives in relation to weapons.
One of these initiatives was the appeal made by the ICRC to governments and to the League of Nations to take action to prohibit the use of chemical weapons, which contributed to the adoption of the 1925 Protocol.
Work on the 1980 Weapons Convention was initiated at a Conference of government experts which was convened by the ICRC and which met for several weeks in 1974 in Lucerne and again in 1976 in Lugano. The ICRC had prepared a preliminary report for this Conference based on consultations with experts and subsequently published the report of the Conference, which was later used as a basis for the United Nations Conference that adopted this Convention.
Purpose and structure of this report
The present report, which the ICRC has prepared for the forthcoming Review Conference, is intended to serve as a working document for the Group of Governmental Experts that will prepare the Conference. It is divided into two main parts.
Part II concerns the problem of landmines and is an analysis of the advantages and difficulties of the various proposals that have been made to amend Protocol lI in order to achieve better regulation of landmines. This analysis takes into account the recommendations of the participants in the Montreux Symposium and of the military Symposium which the ICRC hosted, as well as other proposals.
Annex I to this report contains a summary of the principal findings of the Montreux Symposium; the full report has been sent to all States and is available from the ICRC.
The results of the Symposium of military experts are reproduced in full in Annex 11.
Part III briefly examines other issues of relevance to the Convention which could be examined once progress has been made on the issue of landmines. The ICRC is of the opinion that it would be appropriate for these subjects to be on the agenda of the Review Conference, even if they do not necessarily result in agreed amendments or further protocols, and that more complete documentation will facilitate careful analysis once the Review Conference turns its attention to these subjects.