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 III: Subjects related to the Convention itself and to possible Additional Protocols
Possible amendments to the Convention
I. The introduction of implementation mechanisms
The total lack of implementation mechanisms in the 1980 Convention is a problem that should be addressed during the Review Conference.
The Symposium on mines that the ICRC hosted in Montreux, while recognizing the limits of the implementation mechanisms provided by international law, proposed that certain implementation provisions be incorporated into the main body of the 1980 Convention. With this in view, the participants looked first at implementation mechanisms in other humanitarian law treaties that could be used in the 1980 Convention and then at other international law mechanisms that could be useful.
(i) Proposals on implementation mechanisms stemming from those that exist in other humanitarian law treaties
Insofar as the provisions of the 1980 Convention reaffirm the rules of international humanitarian law found in other treaties, implementation measures provided for in those other treaties are naturally also relevant to the 1980 Convention. However, it may be desirable to specifically include such measures in the 1980 Convention.
Provision of legal advisers
This is presently required by virtue of Ar ticle 82 of Protocol I additional to the Geneva Conventions. A similar provision in the 1980 Convention could indicate that legal advisers should give guidance on matters relating to the use of weapons. The participants in the Montreux Symposium recommended that legal advisers be appointed at all levels down to brigade or equivalent level and be incorporated into planning staffs.
Specific requirements for training in humanitarian law
Several of the participants in the Montreux Symposium placed great stress on the importance of correct training. The requirement to instruct the armed forces in the law is provided in Hague Convention IV of 1907, the four Geneva Conventions of 1949 and their Additional Protocols of 1977. It was thought that such a requirement ought also to appear in the 1980 Convention. Certain specific suggestions were made in this regard:
- there should be training in the use of weapons in accordance with humanitarian law at cadet academies and in all command and staff training programmes;
- manuals on weapon systems should incorporate the law applicable to their correct use in the languages of the user countries;
- the packaging of weapons should include warnings of the legal limitations on their use;
- all military training of foreign nationals should include training in humanitarian law.
Incorporation into domestic law
The 1980 Convention should be translated into local languages, and appropriate national laws and regulations should be adopted. This is similar to the provision in Article 84 of Protocol I of 1977.
Liability and criminal sanctions
It is clear that the law of international responsibility applies in relation to violations of the law governing the use of mines. The difficulty lies in determining liability with respect to compensation for damage resulting from violations of the law, and establishing which body should be responsible for making such decisions. The possibility of compulsory adjudication will be considered below.
With regard to individual liability, the participants in the Montreux Symposium thought that as a matter of principle criminal sanctions ought to be obligatory for violations of the rules contained in the Protocols of the 1980 Convention. However, they recognized that similar provisions in the 1949 Geneva Conventions and Protocol I of 1977 have not usually been respected.
If Protocol 11 to the 1980 Convention were to be amended to prohibit the use of certain types of mines, violation of such a rule would be much easier to establish than violation of the present rules, which place certain constraints on behaviour only. The experts at the Montreux Symposium made some general suggestions as to how to improve implementation of the rule requiring the application of criminal sanctions (page 164).
International Fact-Finding Commission
It was suggested that the International Fact-Finding Commission provided for in Article 90 of Protocol I additional to the Geneva Conventions could also be used to investigate possible violations of the 1980 Convention. In the context of the 1977 Protocol, the competence of the Commission is based on consent that can either be given in advance, in the form of a declaration, or ad hoc. it would have to be decided whether the same formula would be appropriate for the 1980 Convention and whether it should also be based on confidentiality, as provided for in the 1977 Protocol. The participants in the Montreux Symposium pointed out that the Commission would be more effective as a law-enforcement mechanism if it had an automatic right to monitor possible violations of the 1980 Convention.
(ii) Other possible implementation mechanisms
The following are possibilities:
- International Court of Justice. The compulsory jurisdiction of the ICJ is provided for by several treaties and a similar provision could be incorporated into the 1980 Convention. The disadvantage is that the ICJ has jurisdiction only over international disputes and cannot cover individual accountability.
- International arbitration. This depends on a certain degree of cooperation by the parties involved in order to create the arbitral tribunal and its regulations.
- International criminal court. The United Nations International Law Commission is at present studying the possibility of setting up such a court. However, the suggestion of establishing such a court has existed for a long time and it is not likely to materialize in the near future.
- A court created especially for the 1980 Convention. A number of international treaties create courts for the implementation of their rules by deciding on allegations of violations and sometimes also by delivering advisory opinions. These courts are frequently very effective law-enforcement mechanisms as they often have jurisdiction not only over inter-State disputes but also over cases brought by individuals or organizations.
The participants in the Montreux Symposium thought that it was unlikely that States would accept compulsory adjudication, as this does n ot at present exist in any international humanitarian law treaty. However, there is no doubt that it could be a very effective method, especially if individuals or organizations were able to bring claims.
United Nations Security Council
It was suggested during the Montreux Symposium that, in the absence of a compulsory adjudication mechanism, the Security Council might be able to impose suitable remedies for violations of the 1980 Convention. However, this would depend on the political will of the members of the Council.
Creation of a supervisory body
A number of international treaties create specific supervisory bodies to help the implementation of their provisions. These bodies typically receive periodic reports submitted by States Parties on the measures they have taken to implement the treaty, receive complaints about alleged violations, undertake investigations and discuss the results of these activities with the States concerned. They also often undertake promotional activities in order to improve compliance with the law.
The Review Conference could consider whether it would be appropriate to create an analogous body for the 1980 Convention or whether the terms of reference of the International Fact-Finding Commission could be extended to cover these roles for the purposes of the 1980 Convention.
II. Extension of the scope of application of the Convention to non-international armed conflict
The 1980 Convention at present formally applies only to international armed conflicts, even though the majority of conflicts are internal. The laying of millions of mines during non-international armed c onflicts has caused not only tremendous immediate suffering but also severe social and economic damage to the countries concerned.
The major rules of international humanitarian law already apply to non-international armed conflicts by virtue of Article 3 common to the Geneva Conventions of 1949, Additional Protocol 11 of 1977 and international customary law. However, specific rules applicable to the use of weapons in non-international armed conflicts would give useful precision to the law.
The participants in the Montreux Symposium thought that the 1980 Convention ought also to apply to non-international armed conflicts, although they recognized that this may be a sensitive issue. They felt that given the enormous damage that is frequently inflicted on the assets of a State by the widespread improper use of weapons in an internal armed conflict on its territory, there may be greater interest in making these international rules applicable in such conflicts,
The most obvious way to extend the application of the 1980 Convention to non-international armed conflicts is by an amendment to Article I of the Convention. Should this cause too much difficulty, another possibility is to create an optional protocol to this effect, or to introduce into the Convention an additional article which parties could accept by a declaration to that effect or, conversely, which would be applicable to parties unless they specifically opted out. All three methods are to be found in other international treaties when a specific provision is desired by some of the parties but not by others.
As indicated in Part 11 above (pp. 142-145), additional arms control measures are vital to limit the damage inflicted during internal armed conflicts.
1. Blinding weapons
The ICRC is of the opinion that blinding weapons should be on the agenda of the Review Conference with a view to the possible adoption of an additional protocol on this subject. Given the advanced stage of development of hand-held versions of this type of weapon, together with the real possibility of their appearance on the battlefield in the near future and their subsequent proliferation among all groups that use force, it is essential that the Review Conference use this last opportunity to take preventive action.
(i) Information gathered at expert meetings convened by the ICRC Prompted by reports concerning the development of certain types of laser weapons which would result in permanent and incurable blindness, the ICRC convened four meetings of experts. The meetings were attended by leading specialists in laser technology, ophthalmology, military medicine and psychiatry, and international humanitarian law. The scientists described the nature and effects of these laser weapons and the physical, psychological and social effects of blindness as compared with other combat injuries. Subsequently, the legal and policy aspects of this issue were discussed, together with possibilities for future legal regulation.
Technical characteristics of new laser weapons and their effects in medical terms
The specialists gave information on laser weapons under development as reported in unclassified sources.
A number of weapons were said to be designed for anti-sensor or anti-personnel use. " Anti-sensor " use refers to the destruction of enemy optical viewing systems, whereas " anti-personnel " use refers to an intentional effect on peoples'eyesight. As the energy and wavelength of the laser necessa ry to destroy sensors is similar to those necessary to damage eyes, laser systems said to be designed for anti-sensor purposes could also be used for anti-personnel purposes.
With regard to current technical possibilities for the further development of anti-personnel laser systems, the experts stressed that lasers can be very small and pointed out that small, clip-on laser devices that can now be fitted to rifles for training purposes could easily be made non-eye-safe. At present the range of these training devices is relatively limited but more powerful ones are being designed. It was also indicated that lasers can be very cheap. ' Me group further pointed out that range-finding systems (which are less powerful than the anti- sensor/anti-personnel lasers being developed) could be misused to blind intentionally and that some accidents have indeed already occurred with these.
With regard to the effect of these lasers on the eye, it was indicated that the extent of damage to the eye will depend on the energy and distance. The anti-personnel and anti-sensor weapons presently under development will permanently blind a person up to a distance of a kilometre or more. Beyond this distance a person may be flash blinded, or even further away may be dazzled if a visible wavelength is used. The exact distance at which there is no longer a permanent blinding effect is unpredictable because a laser beam is affected by atmospheric conditions and dust. The aiming of the beam does not appear to be particularly difficult as it can be diverged to an area of about 50 em across at a range of one kilometre, and the very large number of shots in each battery pack means that it is possible to sweep the battlefield with the beam. The weapon is silent and the beam is invisible.
The specialists then studied the possibilities for medical treatment and means of protection and concluded that neither was adequate. Damage to the retina is perm anent and irreparable; vision loss caused by haemorrhage might be successfully treated in only a small minority of cases and even in those cases the long-term outcome would be doubtful.
Protection by special goggles would also seem to be largely illusory, as they would only screen out a limited range of known wavelengths, whereas lasers can operate over a wide range of wavelengths.
Functional disabilities and psychological problems that would be caused by blinding weapons as compared with those caused by other weapons
In making this assessment, the specialists drew attention to a number of considerations specific to blindness:
There is no prosthesis to reduce the effect of the disability, and in functional terms blindness is an exceptionally severe handicap, even when compared with the worst of injuries.
Rehabilitation training for the blind is essential, but is not available everywhere, and it also gives rise to major difficulties:
a. the learning process is long and very complex;
b. a psychologically robust personality is needed to undertake this learning effort, but people who have been blinded usually suffer from severe depression and cannot do it well;
c. comparatively satisfactory results are seen only in persons with a good education and sound financial, family and social support;
d. successful rehabilitation allows recovery of only a fraction of the person's previous skills and he will always remain dependent to quite a large degree.
The experts stressed that blindness almost always causes very severe depression which in a large proportion of cases lasts for many years, if not permanently.
Another matter o f importance in a war context is the prevalence of an extreme fear of blindness; for the majority of people it is the most dreaded injury and soldiers are no exception. If soldiers are aware of the existence of weapons that can silently and invisibly blind them, there will be an increased incidence of combat stress disorder during battle and such weapons will cause more mental illness in the long term.
The medical experts thought that public reaction to blindness caused by weapons especially used for that purpose is likely to be very negative, as the public in general tend to feel special pity for blind persons. They likened the fear of blindness and the probable reactions to blindness-inducing weapons to the fear and disgust aroused by chemical weapons.
Finally, the experts pointed out that large numbers of blind persons would put an exceptionally heavy burden on medical and social services and on society in general.
Foreseeable situation if there were to be widespread use of anti-sensory anti-personnel laser weapons here would evidently be an increase in the numbers of blind servicemen returning from war. The number of eye injuries has steadily increased from 0.5% in the last century to between 5 and 9 % in the Vietnarn war. The increase is said to be due to the effects of fragmentation weapons. It has been estimated that if anti-sensor lasers were used, but not to target the human eye, eye injuries would nevertheless increase by 2-3%. If, however, lasers were to be used intentionally to inflict blindness, so that blinding as a method of warfare became common practice, serious damage to the eye might account for between 25% and 50% of all casualties.
The experts also pointed out that laser weapons could easily be used to cause terror outside armed conflict situations by repressive regimes, terrorists or criminals. Since such weapons are so light and easy to transport, proliferation would be inevitable.
Legal and policy considerations
The final expert meeting was attended by 37 government officials, participating in their personal capacity, from 22 countries. They considered the legal and policy implications of the information gathered by the scientists.
The present lawfulness of the use of blinding weapons was discussed mainly in the light of the rule prohibiting the use of weapons of a nature to cause unnecessary suffering and superfluous injury. One participant was of the opinion that any intentional blinding would violate this rule, including the use of lasers to blind the pilots of aircraft. The majority of participants, however, thought that the most controversial use of lasers would be against infantry, as the latter can easily be put out of action by means other than blinding. There was a division of opinion, however, as to whether such use is already illegal under existing law.
The majority of participants thought that whatever the assessment of the present lawfulness of such use, it should be subject to legal regulation because there are important policy reasons for prohibiting blinding as a method of warfare. Many thought that such a prohibition ought to be introduced simply because blinding weapons are horrific and therefore totally unacceptable. The various possibilities for legal regulation were discussed and are outlined below.
(ii) Possibilities for legal regulation
Several approaches have been used to prohibit or restrict the use of certain weapons in international humanitarian law; it is possible to consider which would be the most appropriate by analogy in the case of blinding laser weapons:
a. Prohibition of the use of a certain type of weapon
This was the method used for chemical weapons and dum-dum bullets, because it was recognized that the overall dangers represented by the use of such weapons outweighed their military utility. In the case of laser weapons, this could involve prohibiting the use of all or of some types of anti-sensor/ anti-personnel weapons. The difficulty is that these weapons can be used for both anti-sensor and anti-personnel purposes, but it could be decided that those more obviously suited to anti-personnel purposes should be prohibited.
b. Prohibition of certain uses of a particular weapon
Examples of limitations of this type are seen in some military manuals which prohibit the use of incendiary weapons against unprotected soldiers, or state that explosive bullets may be used against objects but not persons. In the case of laser weapons, such a regulation could prohibit the use of lasers against persons, or against certain classes of persons, e.g., infantry.
c. Prohibition of the use of weapons which have a certain effect, without mentioning the weapon by name
An example of this type of provision is Protocol I to the 1980 Weapons Convention, which prohibits the use of any weapon the primary effect of which is to injure by fragments which cannot be detected by X-rays. In the case of laser weapons, a norm of this type could read as follows: " The use of weapons the primary effect of which is to damage eyesight is prohibited. "
Such an approach would have the advantage of covering not only lasers whose primary effect is to blind bu t also any other future weapons which may have this effect. A disadvantage is that such a wording may give rise to arguments as to whether blinding is a primary effect, given that these lasers can also have other uses (anti-sensor in particular), and that at the end of their range they only have a dazzle effect. This wording would not cover intentional blinding by the misuse of other systems such as range-finders.
d. Prohibition of certain types of behaviour without any reference to the characteristics of a weapon
This alternative could concentrate on the prohibition of blinding or of the use of weapons with the primary intention or expected result of permanently damaging eyesight. A norm of this type could be worded as follows:
"blinding as a method of warfare is prohibited",
" blinding as a method of rendering a combatant hors de combat is prohibited" .
Alternatively, the wording of the rule could be more specific, such as:
" weapons may not be used against persons with the primary intention or expected result of permanently damaging their eyesight".
Such an approach could also include rules that create a duty to take precautions to avoid accidental blinding by weapons that are particularly dangerous for eyesight.
Arms control regulation
States might wish to thin k about prohibitions or limitations on the production of certain types of lasers that could be too easily misused to blind because of their particular features, e.g., tunability, power, portability. Other possibilities would be regulations to prevent undesirable proliferation, or policies favouring eye-safe lasers for range-finding, etc., in order to prevent avoidable cases of blindness.
II. Unexploded sub-munitions
Unexploded sub-munitions are remnants of war that in many ways represent the same type of threat to the civilian population as anti-personnel landmines.
Sub-munitions are bomblets which are delivered by aircraft or by artillery, rockets or guided missiles. The bomblets are assembled in " clusters " of hundreds or even thousands and delivered from aircraft dispensers, artillery shells or rocket or missile warheads. The bomblets are small (typically under 800 grams and under 7 cm in diameter) and can contain various payloads for use against different targets, such as a high explosive inside a controlled-fragmentation casing, a shaped charge (with or without a fragmentation easing), or a high explosive combined with an incendiary material. They may be fitted with an impact fuse (with or without a delay mechanism) or a proximity fuse.
Unlike landmines, which cause casualties among the civilian population when they are functioning normally, these bomblets create a similar situation as a result of malfunction, namely, when they have not exploded on impact and are left lying on or near the surface of the ground in an unstable condition.
Bomblets have reportedly had very high failure rates - up to 40%, depending on the state of the ground (the rate is usually higher on soft ground) and on meteorological conditions (especially if the soil is covered with snow). Once on the grou nd and unexploded, some of these bomblets are extremely unstable. They are liable to explode at any time and can be triggered by even the slightest movement of the ground on which they are lying, such as vibrations caused by people walking or a moving vehicle.
Clearing this unexploded munition is very difficult. If the bomblets are in an unstable condition, is it not possible to touch them and they cannot be neutralized. They must therefore be destroyed, but this too can be difficult. Indeed, it is very risky even to approach them as this might disturb the ground and trigger their explosion.
The use of cluster bombs has increased tremendously over the last 30 years.
Like anti-personnel mines, they have been used as area denial weapons. This means that very large quantities of unexploded bomblets are now threatening the civilian population and, unless some solution is found, their numbers will increase.
This lack of reliability in exploding at the intended time has prompted many manufacturers of bomblets to include self-destruct devices in their new model now in production. It is suggested that as the incorporation of such self-destruct devices is clearly a technical possibility, and acceptable to manufacturers, the Review Conference should seriously consider making such a measure mandatory.
III. Small-calibre weapon systems
During the United Nations Conference that led to the adoption of the 1980 Convention, the governments of Mexico and Sweden submitted a draft protocol on the regulation of the use of small-calibre weapon systems.
The Conference felt that further research was necessary to establish more accurately the wounding effe cts of new types of bullets in order to prevent an unnecessary increase in their injurious effects. The Conference therefore adopted a resolution on small-calibre weapon systems, at its seventh plenary meeting on 23 September 1979, expressing the view that:
"...such research, including testing of small-calibre weapon systems, should be continued with a view to developing standardized assessment methodology relative to ballistic parameters and medical effects of such systems."
The resolution also invited " Governments to carry out further research, jointly or individually... and to communicate, where possible, their findings " , and to " exercise the utmost care in the development of small-calibre weapon systems, so as to avoid an unnecessary escalation of the injurious effects of such systems " .
A considerable amount of research has taken place since the adoption of this resolution and has confirmed that energy transfer is the most important factor for wound severity. High energy transfer, resulting in more severe wounds, is often caused by early turning of the bullet once it hits the body and by the break-up of the bullet. These phenomena can be caused by poor stability and by the construction of the bullet itself, especially the materials used and the thickness and toughness of the jacket.
On the basis of this information, some States have taken steps to improve the design of their bullets, in particular to increase their resistance to fragmentation so as to conform to the letter and the spirit of the Hague Declaration of 1899 which prohibits the use of expanding bullets.
Standardization of the testing of bullets would be a very important step towards clarification of manufacturing specifications in order to ensure that bullets do not fragment easily. To this end, the Swis s government has offered (in a diplomatic note of November 1991) to put its anti-personnel weapon test facilities at the disposal of all interested States.
The Review Conference could consider the most appropriate way to take these developments into account.
IV. Naval mines
In November 1991, the government of Sweden submitted to the First Committee of the United Nations General Assembly a working paper and a draft Protocol on Prohibitions or Restrictions on the Use of Naval Mines. This draft was presented as an additional protocol to be attached to the 1980 Convention on certain conventional weapons.
The only existing treaty regulating the use of naval mines is the 1907 Hague Convention Relative to the Laying of Automatic Submarine Contact Mines (Hague Convention VIII). Although this Convention is still in force and has the effect of preventing the indiscriminate use of naval mines, it is clear that it has become outdated in certain respects. In particular, it makes specific reference to automatic contact mines and does not take later technical developments into account.
It would therefore be appropriate to consider this draft during the Review Conference with a view to adopting a new protocol to the 1980 Convention.
The draft will need to be studied with care to make certain that it does not in any way provide less protection than the 1907 Hague Convention. In this respect, it should be noted that Article 5 of the Hague Convention provides very clear guidelines as to which party is responsible for clearing mines after the conflict. Ibis question is a critical one from a humanitarian point of view and the new protocol should not be weaker in this respect. The other provisions can be studied in the light of suggested new rules relating to landmines, taking into account co nsiderations peculiar to the naval context.
V. Future weapons
The Conference of Government Experts that met in Lucerne and Lugano in 1974 and 1976, and whose findings served as a basis for the United Nations Conference that adopted the 1980 Convention, discussed a number of futuristic weapons. ' Mese included laser weapons, microwave, infrasound, and light-flash devices, environmental warfare and electronic warfare.
The experts recognized that at that time it was too early to consider specific restrictions on devices that were only at the research stage. However, the majority stressed the importance of keeping a close watch on developments in order to introduce specific prohibitions or limitations that might be necessary before the weapon in question became widely accepted. Several experts underlined the importance of national review measures, which are now required under Article 36 of Additional Protocol I of 1977, as well as of international review measures.
As regards the futuristic weapons discussed at the Lucerne/Lugano Conference, developments in laser technology have raised the possibility of one disturbing application, namely, the use of lasers as anti-personnel weapons to damage eyesight. This matter is referred to above under the heading " Blinding weapons " .
There has also been further research into other new technologies, in particular directed energy weapons such as high-power microwave and infrasound devices. Although it may be too early to consider the need for specific regulation, it should be recognized that such future developments are subject to the standards of humanitarian law. In particular, it is important to ensure that new weapons do not have indiscriminate effects and that they do not contravene the rule prohibiting the use of weapons of a nature to cause unnecess ary suffering or superfluous injury to combatants. With regard to the interpretation of this latter rule, reference can be made to the standard on which it was originally based, namely, the provision in the 1868 St. Petersburg Declaration which states that weapons which " uselessly aggravate the sufferings of disabled men or render their death inevitable " are " contrary to the laws of humanity " .