[Senate Executive Report 104-1]
[From the U.S. Government Publishing Office]
104th Congress Exec. Report
SENATE
1st Session 104-1
_______________________________________________________________________
CONVENTION ON PROHIBITIONS OR RESTRICTIONS ON THE USE OF CERTAIN
CONVENTIONAL WEAPONS
_______
March 22 (legislative day, March 16), 1995.--Ordered to be printed
_______________________________________________________________________
Mr. Helms, from the Committee on Foreign Relations, submitted the
following
R E P O R T
[To accompany Treaty Doc. 103-25]
The Committee on Foreign Relations, to which was referred
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, and
Two Accompanying Protocols on Non-Detectable Fragments
(Protocol I) and on Prohibitions or Restrictions on the Use of
Mines, Booby-Traps and Other Devices (Protocol II), having
considered the same, reports favorably thereon and recommends
that the Senate give its advice and consent to ratification
thereof subject to the seven conditions as set forth in this
report and the accompanying resolution of ratification.
Convention on Conventional Weapons
Purpose
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 (The
Convention on Conventional Weapons) and Two Accompanying
Protocols on Non-Detectable Fragments (Protocol I) and on
Prohibitions or Restrictions on the Use of Mines, Booby-Traps
and Other Devices (Protocol II) are designed to protect victims
of armed conflict from the effect of certain weapons. The
primary effect of the treaty is to restrict widespread and
indiscriminate use of landmines.
background
The Conventional Weapons Convention was negotiated in
Geneva from 1978-80 and entered into force in 1983. The United
States signed the Convention in 1982, but it was not
transmitted to the Senate for its advice and consent until May
1994.
The Convention was an outgrowth of the negotiations on
international humanitarian law in armed conflict that took
place in Geneva in the 1970s. During negotiations the non-
aligned states made an effort to prohibit broad categories of
weapons, including modern fragmentation weapons, incendiaries
and high-velocity small-caliber ammunition (such as that for
the M-16). In the end, however, the Conference adopted more
limited restrictions (described below) on the use of three
specific types of conventional weapons: (1) weapons with non-
detectable fragments; (2) landmines and booby-traps; and (3)
incendiaries.
The Administration has requested that the Senate give the
earliest possible consideration to the Convention on
Conventional Weapons. A Review Conference has been scheduled
for September 25 to October 14, 1995, primarily for the purpose
of considering improvements to the Convention and its
protocols. The United States can be a full participant only if
it deposits its instrument of ratification six months in
advance of the Conference, which would be March 25, 1995. The
Administration wishes to be a full participant at the
Conference in order to pursue improvements in the Convention,
particularly with regard to landmine provisions. Any amendments
agreed upon by Parties at the Review Conference would have to
be transmitted to the Senate for its advice and consent.
Since the conclusion of these negotiations in 1980, a total
of 42 States have become Parties to the Convention, including
France and most other NATO members, China, Japan and Russia.
Italy ratified on January 19, 1995; the United Kingdom ratified
on February 13, 1995.
Major provisions
The most important part of the Convention is Protocol II,
dealing with the use of land mines and similar devices. During
the past two decades, millions of antipersonnel mines have been
used indiscriminately in various conflicts in the third world,
causing enormous numbers of civilian casualties. In response to
the widespread uncontrolled use of landmines, the United States
and other countries proposed a series of actions, including the
adoption of export moratoria, extensive de-mining programs, and
a U.S. proposal for transfer and stockpiling.
Protocol I prohibits the use of any weapons, the primary
use of which is to injure by fragments that cannot be detected
by x-rays. Protocol III prohibits the use of air-delivered
incendiary weapons against military objectives within cities,
towns, villages or similar civilian concentrations. Other
incendiaries could only be used in such areas when military
objectives are clearly separated and all feasible precautions
are taken to minimize civilian casualties and damage.
The most significant provisions are as follows:
Articles
Article 1 provides that the Convention applies to
international armed conflicts. It also applies to ``national
liberation'' wars, but (as described below) the Administration
proposes a reservation on this point.
Article 4 provides that a State ratifying or acceding to
the Convention must accept at least two of its Protocols. As
described below, the Administration proposes to accept the
first two Protocols (on non-detectable fragments and landmines)
at this time, but not the third Protocol (on incendiaries),
which the Pentagon strongly opposes.
Article 7 includes a provision applying the Convention and
the 1949 Geneva Conventions to any ``national liberation
movement'' that accepts and applies those agreements.
Article 8 provides for the possibility of a Review
Conference to consider amendments to the Convention or the
addition of new Protocols.
Protocol I (non-detectable fragments)
This Protocol prohibits the use of any weapon of which the
primary effect is to injure the human body with fragments that
escape detection by x-rays. This Protocol only applies to
wounding fragments, and does not prohibit munitions with
plastic casings or internal parts. The U.S. military has made
it clear that they have no interest in such weapons. In fact,
the use of such weapons makes it more difficult to treat
wounded civilians or U.S. military personnel.
Protocol II (landmines and booby-traps)
Article 1 limits the Protocol to landmines, excluding anti-
ship mines at sea or in inland waterways. This provision was
negotiated in accordance with the position of the Joint Chiefs
of Staff, who preferred not to negotiate restrictions on naval
mines in this context.
Article 3 regarding restrictions on the use of landmines
restates customary international law as it applies to landmines
and does not add any additional restrictions on military
operations.
Article 4 imposes specific restrictions on the use of
manually-emplaced landmines and booby-traps in cities, towns,
villages or other areas containing a concentration of
civilians. Such use is prohibited unless: (1) combat between
ground forces is taking place or appears imminent; (2) the
mines or booby-traps are placed on or in the close vicinity of
a military objective belonging to or under the control of the
enemy; or (3) measures are taken to protect civilians from
their effects, such as warning signs, sentries or fences. These
prohibitions on use are consistent with U.S. military doctrine
and practice.
Article 5 imposes restrictions on the use of remotely
delivered mines--that is, mines delivered by artillery, rocket
or aircraft. In particular, their location must be accurately
recorded or each mine must be equipped with a mechanism that
renders the mine harmless or causes it to destroy itself,
either automatically or by remote control. These restrictions
do not affect the operations of the U.S. military, since all
U.S. remotely delivered mines are equipped with self-destruct
devices.
Article 6 imposes restrictions on the use of booby traps--
that is, devices which function unexpectedly when a person
disturbs or approaches an apparently harmless object or
performs an apparently safe act. In particular, this provision
prohibits the attachment of booby-traps to children's toys,
corpses, medical equipment, food or drink, or other specified
objects that might pose special danger to the civilian
population. In addition, the Article prohibits the use of
booby-traps in the form of apparently harmless objects which
are constructed to contain explosive material to detonate when
disturbed (such as booby-traps made to resemble portable
radios). These restrictions are consistent with U.S. military
doctrine and practice.
Article 7 requires the recording of the location of all
pre-planned minefields and all areas in which there has been
large-scale and pre-planned use of booby-traps. The Article
states that the parties ``shall endeavor to ensure'' the
recording of the location of all other minefields, mines and
booby-traps. These records must be exchanged at the end of
active hostilities and all necessary and appropriate measures
must be taken to protect civilians. This is also consistent
with U.S. military doctrine and practice, which require that
the location of all mines and booby-traps laid by the U.S.
military be recorded.
Article 8 imposes special obligations for the protection of
U.N. forces or missions operating in an area in which mines or
booby-traps have been laid. It requires each party to the
conflict, ``as far as it is able,'' to clear such mines and
booby-traps, to take other measures to protect the U.N. force
or mission from these devices, and to make available to the
U.N. all information in its possession to the U.N. concerning
the location of these devices in the area. These requirements
are consistent with U.S. military doctrine.
Article 9 provides that parties to a conflict shall, after
the cessation of active hostilities, ``endeavor to reach
agreement'' on the provision of information and technical and
material assistance to clear mines and bobby-traps laid during
the conflict. No specific requirements for assistance or
financial contributions are imposed. (The U.S. has in fact
participated in or given assistance to mine-clearing efforts in
a number of countries, including Kuwait, Afghanistan, Cambodia,
Ethiopia and Mozambique.)
The Technical Annex contains specific guidelines for
recording the location of mines and booby-traps.
Protocol III (incendiary weapons)
Article 1 defines the scope of weapons covered by the
Protocol. It excludes munitions having only incidental
incendiary effects, such as illuminants, tracers, smoke and
signalling systems. It also excludes munitions that combine
penetration, blast or fragmentation effects with an additional
incendiary effect designed for use against military objectives
such as armored vehicles, aircraft and facilities.
Article 2 prohibits the use of air-delivered incendiary
weapons against any military objective located within a city,
town, village or similar concentration of civilians. Other
incendiary weapons could only be used in such areas when the
military objective clearly is separated from the concentration
of civilians and all feasible precautions are taken to minimize
civilian casualties and damage to civilian objects. Incendiary
attacks on forests or other kinds of plant cover are permitted
only where such plant cover is used to conceal military
objectives or where it is itself a military objective.
The Administration recommends that the United States not
ratify this Protocol to the Convention. Civilian and military
defense officials argue that the U.S. may require the use of
air-delivered incendiaries to eliminate chemical or biological
facilities without exposing a nearby civilian population to the
massive release of dangerous substances.
committee comments
The Committee supports ratification of the Convention on
Conventional Weapons. The Committee would be remiss, however,
in not emphasizing and endorsing the Administration's position
that the Convention (particularly its landmines Protocol) needs
improvement. The Committee cites three major problems with the
treaty in its present form:
1. To date, there are only 42 States Parties to the
Convention, even though the Convention was completed 15 years
ago. The Convention cannot be effective unless it is adhered to
by most of the world's nations, particularly producing
countries.
2. The Convention does not have any mechanism for
verification and compliance.
3. The Convention does not cover internal armed conflict.
Most of the civilian casualties from the use of mines over the
past two decades have occurred in such internal conflicts.
The Administration recognizes these concerns and has
assured the Committee that it will make a strong effort to
resolve them at the Review Conference this fall. Accordingly,
the Committee is pushing forward with Senate consideration in
order to give the United States a seat at the table in upcoming
negotiations to improve the enforcement mechanism and
application of the treaty. Any amendments to the Convention
must be submitted to the Senate for its advice and consent.
The Administration has made a number of proposals to
advance changes during the preparatory meetings for the
September-October Review Conference. In testimony before this
Committee, the Administration advocated the following additions
to the Convention:
Expansion of the scope of the Convention to include
internal armed conflicts as well as international armed
conflicts. The greatest civilian casualties from landmines have
occurred in internal conflicts such as Cambodia, Angola and
Iraq.
A requirement that all remotely-delivered mines be equipped
with self-destructing and self-deactivating devices to ensure
that they do not pose a danger to civilians long after the
conflict is over. At present, the Convention gives parties an
option to either equip mines with de-neutralizing devices or
record the location of mines. Under the proposed changes, these
devices would have a specified maximum lifetime and reliability
standard, and would have a backup self-deactivating feature
(for example, a battery that exhausts itself) to ensure that
they do not detonate even if the self-destruct device should
fail.
A requirement that manually emplaced antipersonnel mines
without self-destruct devices and backup self-deactivation
features be used only within controlled, marked and monitored
minefields. These minefields would be protected by fencing or
other safeguards to ensure the exclusion of civilians. Such
minefields could not be abandoned (other than through forcible
loss of control to enemy military action) unless cleared or
turned over to another state that committed itself to
maintaining the same protection.
A requirement that all mines be detectable using commonly-
available technology. The Administration argues this would
simplify the burden and risks of de-mining.
A requirement that the party laying mines assume
responsibility for them, including a duty at the end of active
hostilities to clear them, maintain them in controlled fields
to protect civilians, or turn them over to another State that
has committed to maintaining the same protection. Where the
party laying the mines no longer controls the territory in
which the mines were laid, it would have a duty to provide
assistance to ensure their clearance, to the extent this is
permitted by the State in control of the territory in question.
The addition of an effective verification mechanism,
including the possibility of fact-finding inspections by a
Verification Commission where credible reports of violations
have been made. If violations are found to have occurred, there
would be a possibility of reference to the U.N. Security
Council for action, as well as individual criminal liability
for persons who willfully or wantonly put the civilian
population in danger.
Further, the Administration finds that the command-
detonated Claymore-type mines (i.e., actuated by means of a
firing device controlled by a soldier in the field) does not
pose the sort of danger to civilians that were the reasons for
the restrictions on use of landmines in the Convention's
landmines protocol. The Committee supports the Administration's
proposal to seek appropriate action at the forthcoming Review
Conference which would exclude the command-detonated Claymore-
type mines from the restrictions applicable to the mine devices
covered by the landmines protocol.
committee recommendations
In addition to the recommendations that the United States
only accept Protocols I and II, the Administration has proposed
the following conditions on U.S ratification:
a. A statement that the fourth paragraph of the
Preamble, which refers to the substance of two
provisions of Additional Protocol I to the 1949 Geneva
Conventions (a separate law-of-war agreement on
international armed conflicts) applies only to States
which have accepted those provisions. The two
provisions in question would prohibit methods of
warfare that are intended, or may be expected, to cause
widespread, long-term and severe damage to the natural
environment. The U.S. military has raised concerns
about the possible effect of these provisions on
military operations. The issue is being considered as
part of the Administration's ongoing review of
Additional Protocol I to the 1949 Geneva Conventions.
(That Additional Protocol has not yet been submitted to
the Senate.)
b. A Declaration that the provisions of the
Convention on so-called national liberation wars will
have no effect.
c. A Declaration that the United States will instead
apply the Convention to all armed conflicts covered by
the 1949 Geneva Conventions. In effect, this would
constitute a reservation to the provisions of the
Convention that would give so-called liberation
movements the same status as governments if they accept
and apply the Convention. The Administration takes the
view that this would inject subjective and politically
controversial standards into international humanitarian
law. Instead, the Administration proposes that the
United States declare its intent to apply the
provisions of the Convention to all armed conflicts,
whether international or internal, without regard to
their political character.
d. An understanding that the provision of the
landmines Protocol on booby-traps in the form of
harmless portable objects does not prohibit the
adaptation, for use as booby-traps, of portable objects
created for another purpose. This is consistent with
the language of the Protocol. It simply makes clear
that the option is available to create field-expedient
booby-traps provided they meet the further requirements
of paragraph 1(b) of Article 6. This provision
prohibits attaching or associating booby-traps with
certain items such as children's toys.
The Committee recommends three further conditions be
included in the Resolution of ratification along with the above
conditions:
e. A declaration that any amendment to the treaty,
including the formation of any commissions, and any
submission of Protocol III, must be submitted to the
Senate for its advice and consent;
f. A declaration that acknowledges that there are
concerns about the acceptability of Protocol III
regarding the use of incendiary weapons from a military
perspective at this time that require further study by
the U.S. Government. The Senate urges a report on this
study when amendments to the Convention are presented
for the Senate's advice and consent; and
g. A statement that the Senate recognizes the
President's intention to negotiate certain specified
conditions at the upcoming Review Conference in
September, 1995.
Committee Action
The Committee on Foreign Relations held a public hearing on
Tuesday, March 7, 1995, to consider ratification of the
Convention. Testimony was received from Michael Matheson,
Principal Deputy Legal Adviser for the Department of State, who
has been the U.S. representative to the preparatory meetings
for the Convention's Review Conference. He was accompanied by
Major General Michael J. Byron, USMC, Vice Director of the
Strategic Plans and Policy Directorate of the Joint Chiefs of
Staff, who answered questions on the military position
regarding the treaties provisions.
The Committee considered the Convention at its business
meeting on March 22, 1995, and voted by voice vote with a
quorum present to report if favorably to the Senate for its
advice and consent.
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
article-by-article analysis of provisions
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 was
concluded at Geneva on October 10, 1980. It consists of twelve
preambular clauses, eleven operative articles, and three
annexes protocols, one of which has a technical annex. The
Convention text itself is merely a framework document
containing procedural and formal provisions, while the
substantive provisions are contained in the three annexed
protocols.
The preamble
Paragraph 1 of the Preamble recalls the principle contained
in Article 2(4) of the UN Charter that prohibits the use of
force in international relations against the sovereignty,
territorial integrity or political independence of any state,
or in any other manner inconsistent with the purposes of the
UN.
Paragraphs 2 and 3 recall certain principles recognized by
the customary international law of armed conflict, namely the
general principle of protection of the civilian population
against the effects of hostilities, and the prohibition on
means and methods of warfare of a nature to cause superfluous
injury or unnecessary suffering.
Paragraph 4 recalls the substance of provisions of Protocol
I Additional to the 1949 Geneva Conventions, which adopted a
new prohibition relating to the use of means or methods of
warfare that are intended or may be expected to cause
widespread, long-term and severe damage to the natural
environment. The United States has not ratified Protocol I, and
the Executive branch has not yet completed its review of that
Protocol. Accordingly, U.S. ratification should include a
statement that this provision applies only to states which have
accepted those provisions.
Paragraphs 5-10 express a number of objectives sought by
the majority of the states represented at the diplomatic
conference that produced the Convention, including an end to
the arms race, the progressive development of the rules of war,
and negotiated limitations on conventional stockpiles.
Paragraphs 11 and 12 refer to the possibility that the UN
General Assembly, the UN Disarmament Commission and the
Committee on Disarmament might decide to consider similar
restrictions on the use of conventional weapons. Efforts are
now under way to conduct a formal review of the Convention by
States Parties, with particular emphasis on improvements to the
Protocol on landmines.
Article 1
Article 1 states the scope of application of the
Convention. It provides that the Convention and its annexed
protocols shall apply in the situations referred to in Article
2 common to the 1949 Geneva Conventions, including any
situation described in Article 1(4) of Protocol I Additional to
those Conventions. The reference to common Article 2
incorporates the traditional definition of international armed
conflicts, namely conflicts between states or the occupation by
one state of the territory of another. The treatment of
``national liberation'' wars in Article 1(4) of Protocol I,
however, is objectionable, for reasons described more fully in
the discussion of the related provisions of Article 7 below.
Accordingly, U.S. ratification of the Convention should be
subject to a declaration as proposed in the discussion of
Article 7.
Article 2
Article 2 provides that nothing in the Convention detracts
from other obligations imposed by international humanitarian
law in armed conflict. This would include obligations under the
four 1949 Geneva Conventions, the 1899 and 1907 Hague
Conventions, and the prohibitions on the use of ``dum-dum''
bullets and chemical and bacteriological weapons.
Articles 3-11
These articles for the most part incorporate typical final
clauses of an international convention. They include provisions
for ratification, amendment and possible denunciation with one
year's notice. They provide for the possible convening of a
review conference to consider amendments (which would enter
into force in the same manner as the Convention itself). Such a
review conference has been requested and will convene during
the next two years to consider possible improvements to the
Convention. On ratification of the Convention, a State may
accept all three of the annexed protocols or any two of the
three. There are no provisions on reservations.
One provision in these articles is objectionable. Paragraph
4 of Article 7 of that article provides that the Convention
applies to the wars of ``national liberation'' identified in
Article 1(4) of Protocol I Additional to the 1949 Geneva
Conventions. (Article 1(4) of Additional Protocol I would apply
the rules of international armed conflict to any armed conflict
``in which peoples are fighting against colonial domination and
alien occupation and against racist regimes in the exercise of
their right of self-determination.* * * '') In the case of a
state that is party to the Convention but not to Additional
Protocol I, an ``authority'' representing a ``liberation
movement'' would, under this provision, be entitled to the
protections of the 1949 Geneva Conventions (including those
conferring prisoner-of-war status) if it accepts and applies
those Conventions.
In our view, Article 1(4) of Additional Protocol I injects
subjective and politically controversial standards into
international humanitarian law and undermines the important
traditional distinction between international and non-
international armed conflicts. Accordingly, the United States
should not accept the validity of Article 1(4) as a basis for
the application of the rules of humanitarian law. We recommend
that the United States declare, at the time of ratification of
the Convention, that Article 7 will have no effect. During the
coming Review Conference on the Convention, it is our intention
to support an amendment extending the Convention to all
internal armed conflicts. This would have the effect of
applying the requirements of the Convention to all armed
conflicts, whatever their political character, without giving
special preference and status to ``liberation wars.''
To demonstrate our support for humanitarian concerns, we
should formally state, at the time of U.S. ratification, our
intention to apply the provisions of the Convention to all
international and non-international armed conflicts, as defined
in common Articles 2 and 3 of the Geneva Conventions.
The Convention currently contains no provisions on
verification or enforcement of its provisions. At the
conference which adopted the Convention the United States
proposed a mechanism for international investigation of
possible violations, but was unable to secure its adoption
because of strong opposition from the Soviet bloc. It is our
intention to support adoption of such a provision during the
upcoming international review of the Convention.
Protocol on non-detectable fragments (Protocol I)
This Protocol prohibits the use of any weapon the primary
effect of which is to injure by fragments which in the human
body escape detection by X-rays. This provision was designed to
preclude the use of weapons using non-detectable fragments
(such as glass or light plastic) as the primary wounding
mechanism. Such weapons were regarded as likely to complicate
or preclude effective medical treatment for no legitimate
military purpose. However, this provision does not preclude
non-metallic casing materials or other parts or components
which are not designed as the primary wounding mechanism. The
United States has no weapons of the type prohibited by this
provision and no interest in acquiring them, nor to our
knowledge do any western military establishments. The Protocol
is therefore unobjectionable, and the United States should
accept it at the time of ratification.
Protocol on prohibitions or restrictions on the use of mines, booby-
traps and other devices (Protocol II)
As stated in Article 1, the Protocol imposes a series of
restrictions in the use of landmines, booby-traps and certain
other delayed-action weapons. It applies to mines laid to
interdict beaches, waterway crossings or river crossings, but
does not apply to the use of anti-ship mines at sea or in
inland waterways. Article 2 contains a series of definitions of
terms used in the Protocol.
Article 3 sets forth a series of general restrictions on
the use of these weapons, which are taken from principles of
customary international law applicable to all types of
conventional weapons. In particular, the article prohibits
directing such weapons against the civilian population as such
or against individual civilians, as well as the indiscriminate
use of such weapons, and requires that all feasible precautions
be taken to protect civilians from the effects of such weapons,
taking all circumstances into account, including humanitarian
and military considerations.
Article 4 sets forth a series of more specific restrictions
on the use of mines in populated areas. Such weapons may only
be used in cities, towns, villages or other areas containing a
similar concentration of civilians if: (1) combat between
ground forces is taking place or appears imminent; (2) these
weapons are placed in the close vicinity of a military
objective under the control of an adverse party; or (3)
measures are taken to protect civilians, such as the posting of
warning signs, the posting of sentries, the issuance of
warnings or the erection of fences.
Article 5 deals with remotely-delivered mines, that is,
mines delivered by aircraft or artillery. It requires: (1) that
such mines only be used against an area which is itself a
military objective or contains military objectives; (2) that
their location be accurately recorded or that they be equipped
with an effective neutralizing mechanism which destroys the
mine or renders it harmless when it no longer serves the
military purpose for which it was placed in position; and (3)
that effective advance warning be given when such mines are
used where they may affect the civilian population, unless
circumstances do not permit.
Article 6 deals with booby-traps, that is, devices which
kill or injure and which function unexpectedly when a person
disturbs or approaches an apparently harmless object or
performs an apparently safe act. Paragraph 1(a) prohibits the
use of any booby-trap in the form of an apparently harmless
portable object which is specifically designed and constructed
to contain explosive material. This does not prohibit the
adaptation for booby-trap use of objects not designed or
constructed for that purpose, and understanding should be
adopted at the time of ratification to make that clear. Such
improvisation of booby-traps, for example to retard an enemy
advance, does not pose the same sort of danger to the civilian
population as the mass production of objects specifically
designed as booby-traps toward which the provision was
directed.
Paragraph 1(b) of Article 6 prohibits booby-traps attached
to or associated with any of a series of objects thought to
pose particular dangers to civilians or other protected
persons, including: internationally recognized protective
emblems; sick, wounded or dead persons; medical facilities or
equipment; children's toys or objects specially designed for
children; and food or drink. Paragraph 2 prohibits booby-traps
designed to cause superfluous injury or unnecessary suffering
(a principle of customary international law applicable to all
weapons).
Article 7 deals with the recording and publication of the
location of mines and booby-traps. Parties are required to
record the location of all pre-planned minefields laid by them,
and all areas in which they have made large-scale and pre-
planned use of booby-traps. They are to endeavor to ensure the
recording of the location of other mines and booby-traps, but
are not strictly required to do so where operational
requirements make that impracticable. All such records must be
retained. Immediately after the cessation of active
hostilities, the party which laid the mines must take all
necessary and appropriate measures to protect civilians from
their effects, and make information on the location of the
mines available to the appropriate parties.
Article 8 contains special requirements to protect the
personnel of UN peacekeeping forces. Upon the request of the
head of such a force, each party to a conflict is required, so
far as it is able, to remove mines or render them harmless, to
take such measures as may be necessary to protect the UN force
from the effects of such mines, and to make available to the
head of that force all information in its possession concerning
the location of such mines. As a matter of policy, the United
States will encourage observance of the provisions of Article 8
with respect to non-UN peacekeeping forces in which our armed
forces participate.
Article 9 provides that, after the cessation of active
hostilities, the parties shall endeavor to reach agreement on
the provision of information and technical and material
assistance for the purpose of facilitating the removal of mines
and booby-traps laid during the course of the conflict. No
specific obligation exists to provide any particular type of
assistance.
Finally, the Protocol contains a technical annex providing
guidelines for recording the location of minefields, mines and
booby-traps, which are to be taken into account in carrying out
the requirements of the Protocol, but which are not strictly
mandatory.
The provisions of this Protocol essentially reflect the
practices already adopted by western military forces for the
protection of the civilian population. Their observance by
other countries could help substantially to reduce casualties
among civilians and peacekeeping forces that may result from
these weapons. The Protocol is therefore desirable and
consistent with U.S. military interests, and the United States
should accept it upon ratification of the Convention.
At the same time, we recognize that these provisions do not
provide a complete solution to the serious problem of
indiscriminate use of these devices. Accordingly, it is our
intention, during the upcoming international review of the
Convention, to support amendments that would strengthen the
requirements of Protocol II, with particular attention to
requirements on recording and marking, on self-destructive
mechanisms, and on other precautions to protect the civilian
population. We also intend to press forward in other
international fora with our recent proposal for a moratorium on
the export of all anti-personnel landmines.
Entry into Force
This Convention and its Protocols I and II shall enter into
force six months after the date on which the United States has
deposited its instrument of ratification.
Text of Resolution of Ratification
Resolved (two-thirds of the Senators present concurring
therein), That (a) the Senate advise and consent to the
ratification of the following Convention and two accompanying
Protocols, concluded at Geneva on October 10, 1980 (contained
in Treaty Document 103-25), subject to the conditions of
subsections (b) and (c):
(1) 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 (in
this resolution referred to as the ``Convention'').
(2) The Protocol on Non-Detectable Fragments (in this
resolution referred to as ``Protocol I'').
(3) The Protocol on Prohibitions or Restrictions on the Use
of Mines, Booby-Traps and Other Devices, together with its
technical annex (in this resolution referred to as ``Protocol
II'').
(b) The advice and consent of the Senate under subsection
(a) is given subject to the following conditions, which shall
be included in the instrument of ratification of the
Convention:
(1) Reservation.--Article 7(4)(b) of the Convention shall
not apply with respect to the United States.
(2) Declaration.--The United States declares, with
reference to the scope of application defined in Article 1 of
the Convention, that the United States will apply the
provisions of the Convention, Protocol I, and Protocol II to
all armed conflicts referred to in Articles 2 and 3 common to
the Geneva Conventions for the Protection of War Victims of
August 12, 1949.
(3) Understanding.--The United States understands that
Article 6(1) of Protocol II does not prohibit the adaptation
for use as booby-traps of portable objects created for a
purpose other than as a booby-trap if the adaptation does not
violate paragraph (1)(b) of the Article.
(4) Understanding.--The United States considers that the
fourth paragraph of the preamble to the Convention, which
refers to the substance of provisions of Article 35(3) and
Article 55(1) of Additional Protocol I to the Geneva
Conventions for the Protection of War Victims of August 12,
1949, applies only to States which have accepted those
provisions.
(c) The advice and consent of the Senate under subsection
(a) is given subject to the following conditions, which are not
required to be included in the instrument of ratification of
the Convention:
(1) Declaration.--Any amendment to the Convention, Protocol
I, or Protocol II (including any amendment establishing a
commission to implement or verify compliance with the
Convention, Protocol I, or Protocol II), any adherence by the
United States to Protocol III to the Convention, or the
adoption of any additional protocol to the Convention, will
enter into force with respect to the United States only
pursuant to the treaty-making power of the President, by and
with the advice and consent of the Senate, as set forth in
Article II, Section 2, Clause 2 of the Constitution of the
United States.
(2) Declaration.--The Senate notes the statements by the
President and the Secretary of State in the letters
accompanying transmittal of the Convention to the Senate that
there are concerns about the acceptability of Protocol III to
the Convention from a military point of view that require
further examination and that Protocol III should be given
further study by the United States Government on an interagency
basis. Accordingly, the Senate urges the President to complete
the process of review with respect to Protocol III and to
report the results to the Senate on the date of submission to
the Senate of any amendments which may be concluded at the 1995
international conference for review of the Convention.
(3) Statement.--The Senate recognizes the expressed
intention of the President to negotiate amendments or protocols
to the Convention to carry out the following objectives:
(A) An expansion of the scope of Protocol II to include
internal armed conflicts.
(B) A requirement that all remotely delivered mines shall
be equipped with self-destruct devices.
(C) A requirement that manually emplaced antipersonnel
mines without self-destruct devices or backup self-deactivation
features shall be used only within controlled, marked, and
monitored minefields.
(D) A requirement that all mines shall be detectable using
commonly available technology.
(E) A requirement that the party laying mines assumes
responsibility for them.
(F) The establishment of an effective mechanism to verify
compliance with Protocol II.
A P P E N D I X
----------
CONSIDERATION OF THE CONVENTION ON THE PROHIBITIONS OR RESTRICTIONS ON
THE USE OF CERTAIN CONVENTIONAL WEAPONS WHICH MAY BE DEEMED TO BE
EXCESSIVELY INJURIOUS OR TO HAVE INDISCRIMINATE EFFECTS (THE CONVENTION
ON CONVENTIONAL WEAPONS) TREATY DOC. 103-25
______
TUESDAY, MARCH 7, 1995
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in room SD-419,
the Dirksen Senate Office Building, Hon. Richard G. Lugar presiding.
Present: Senators Lugar, Ashcroft, and Pell.
Senator Lugar. This hearing of the Senate Foreign Relations
Committee will come to order. The Committee meets this morning for
purposes of considering the Convention on Conventional Weapons.
This Convention is formerly known as 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.
The Convention was negotiated in Geneva, Switzerland from 1978
through 1980, and entered into force in 1983. The United States signed
the Convention in 1982. But it was not transmitted to the Senate for
its advice and consent until May 1994.
The administration has requested the Senate give the earliest
possible consideration to this Convention.
A review conference has been scheduled for the September-October
time frame, primarily for the purpose of considering improvements to
the Convention and its Protocols.
The United States can be a full participant only if it deposits its
instrument of ratification 6 months in advance of the Review
Conference, which would be, effectively, March 25, 1995.
It is understood that any amendments agreed to at the Review
Conference would have to be transmitted to the Senate for its advice
and consent.
The most important part of the Convention is Protocol II, dealing
with the use of land mines and similar devices. In response to the
widespread, uncontrolled and indiscriminate use of antipersonnel mines
that have caused enormous civilian casualties in various conflicts, the
United States and other countries proposed a series of actions,
including the adoption of export moratoria, extensive demining
programs, and the United States proposal for transfer and stockpiling.
Protocol I prohibits the employment of any weapons, the primary use
of which is to injure by fragments that cannot be detected by x rays.
Protocol III prohibits the use of air-delivered incendiary weapons
against military objectives within cities, towns, villages or similar
civilian concentrations.
Other incendiaries could only be used in such areas when military
objectives are clearly separated and all feasible precautions are taken
to minimize civilian casualties and damage.
Since the conclusion of the negotiations in 1980, a total of 42
states have become parties to the Convention, including most NATO
countries, China, Japan, and Russia.
Senate consideration of this administration request for advice and
consent to ratification may represent something of a unique experience
for some members.
Normally, it is the executive branch that wants a so-called clean
treaty and argues against Senate attachment of any conditions to the
resolution of ratification.
However, in the case of the Convention on Conventional Weapons, it
is the administration that has recommended that the United States
accept only Protocols I and II.
In addition, the administration has proposed conditions on the
United States' ratification.
Last, the administration has asserted that the Convention needs
improvement and has made a number of proposals to be considered at the
Review Conference.
To help the committee understand the intricacies of the Convention
and its Protocols as well as the administration's rationale for
attaching conditions to ratification and proposing additional
improvements, we are pleased to welcome this morning two witnesses from
the administration, Mr. Michael Matheson, Principal Deputy Legal
Adviser at the Department of State, who has been the United States'
representative to the preparatory meetings for the Convention's Review
Conference, and General Michael Byron, Vice Director of the Strategic
Plans and Policy Directorate at the Joint Chiefs of Staff.
Mr. Matheson will offer the administration's testimony. And both he
and General Byron will be available to answer questions.
At this moment, let me turn to Senator Pell for comments before
asking the witnesses to proceed. Senator Pell.
Senator Pell. Thank you. I join in welcoming the--I join you in
welcoming Mr. Matheson and General Byron before our committee today.
But as you point out, we have under consideration this morning the
Convention on Conventional Weapons. That Convention was signed by our
country in 1982 and submitted to the Senate for its advice and consent
last May.
The Senate is being asked to agree to two Protocols prohibiting the
use of any weapons with the primary purpose of injuring with fragments
that cannot be detected by x ray and restricting the use of land mines
and booby-traps.
Succeeding administrations have weighed the pros and cons of
adhering to a third protocol restricting the use of incendiary weapons.
The Clinton administration has decided to set aside that issue and seek
Senate approval of the Convention and just the two Protocols.
I am pleased the administration is actively seeking to tighten the
restrictions on land mines. And that approval can best be accomplished
if the United States is a full participant in the Review Conference
scheduled this autumn.
For that to happen, the Senate must approve the Convention this
month. Senator Lugar and I will do our best to speed matters along. If
all goes smoothly, the committee should be able to take up the
Convention at its next business meeting.
And I would be remiss if I did not pay tribute to our colleague,
Senator Leahy, the Senator from Vermont who has taken such an interest
in this problem for many years. Thank you.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Senator Patrick Leahy
Mr. Chairman, I want to thank you for scheduling this hearing on
very short notice. Unless the Senate ratifies the Conventional Weapons
Convention by March 24, 1995, the U.S. Government will be unable to
participate fully as a party at the September conference to review the
CWC, and especially Protocol II, the ``Landmine Protocol.'' That would
be very unfortunate because the United States has been a leader in
efforts to stop the killing and maiming of civilians by antipersonnel
landmines. It is vitally important that our government continue to show
that leadership at the review conference.
A century ago, landmines were used for defensive purposes, to
defend a piece of territory or channel the enemy into or away from an
area. In recent years, landmines have been increasingly used as
offensive weapons, and often as weapons of terror against civilian
populations. They are scattered in huge numbers on roads, foot paths,
around water holes, in fields and rice paddies, even in heavily
populated areas. In countries like Afghanistan, Bosnia, Cambodia, and
Angola, they have been used to turn vast areas of territory into death
traps for years or even decades. People are still being killed and
maimed in Europe from landmines left from World War II, and in Vietnam
and Laos from the Vietnam War.
Today, there are an estimated 110 million unexploded landmines in
62 countries. These tiny, concealed bombs have been aptly called
``weapons of mass destruction in slow motion.'' Every day, an estimated
7O people are killed or injured by landmines. That is 26,000 people
each year, the overwhelming majority of whom are innocent civilians
including thousands of children.
In the past year alone, millions of new mines were added to those
already laid. During that same period, the landmine manufacturers
produced another 5 to 10 million new mines. These will be added to the
existing tens of millions of mines in existing stockpiles. The State
Department has said that ``landmines may be the most toxic and
widespread pollution facing mankind.''
What makes landmines so insidious, and what makes the case for
stopping their proliferation and use so compelling, is that they cannot
discriminate between civilians and combatants. Guns can be fired by
soldiers at soldiers and artillery can be aimed at military targets.
But landmines will mutilate or kill whoever steps on them. A military
target today may be occupied by civilians next week or next month when
the mine is triggered. The long-term social and economic costs caused
by landmines is immense, and the cost of locating and removing them is
incalculable.
In 1992, when the United States enacted its moratorium on exports
of antipersonnel landmines, almost no one was paying attention to this
problem. Since then, 18 countries have declared export moratoria. Last
September, President Clinton announced a U.S. goal of the eventual
elimination of antipersonnel landmines, and on December 15, 1994, the
U.N. General Assembly adopted a U.S. resolution endorsing the goal.
Then just last week, the Belgian Parliament passed legislation imposing
a five year total ban on antipersonnel landmines, the first NATO
country to do so.
The September review conference is the next stage in what is likely
to be a long process towards realizing the goal of eliminating
antipersonnel landmines. The Conventional Weapons Convention is
universally regarded as badly flawed. Only 42 countries have ratified
it, and in the ten years since it came into force the number of
civilian casualties from landmines has skyrocketed. Some have suggested
that the CWC is flawed beyond repair.
While it would be naive to regard the CWC as a solution to the
landmine problem, I believe it can be a basis for progress towards the
goal of eliminating antipersonnel landmines. In the meetings of experts
in preparation for the review conference, the United States has made
several important proposals, including that the scope of the CWC be
extended to internal conflicts, that antipersonnel landmines be easily
detectable, and that the CWC include a verification regime.
If accepted, these proposals could help reduce civilian casualties,
although they fall far short of what is needed to stop the widespread
use of such tiny, cheap and effective weapons. I am convinced that the
only way to reach the goal of eliminating antipersonnel landmines is to
treat them with the same stigma as poison gas and other indiscriminate,
inhumane weapons. There will always be the pariahs of the world who are
willing to use chemical weapons or commit other outrages against their
own people, but they will be the rare exception if the price of using
antipersonnel landmines is to be branded a war criminal and ostracized
by the international community.
Mr. Chairman, I want to briefly mention the issue of blinding laser
weapons, since several countries including some of our closest allies
have proposed that a protocol prohibiting their use be added to the
CWC. I believe the United States should support this effort. Although
the Pentagon insists that it is not developing antipersonnel blinding
weapons, there is widespread concern that it is only a matter of time.
I recognize that there are legitimate uses of lasers in warfare, and
would not want such a protocol to impede those uses. However, I believe
it would be inexcusable not to seize this opportunity to seek
international agreement on a narrowly written prohibition on the use of
weapons that are specifically designed to blind personnel. The United
States should be actively pursuing this goal, not standing in the way
of it.
Mr. Chairman, your support and Senator Pell's support for my
landmine export moratorium amendment and its three year extension was
much appreciated. By holding this hearing you have moved us another
step towards ending the terrible toll landmines take on thousands and
thousands of innocent people around the world.
Senator Lugar. Senator Pell, I join you in that tribute to Senator
Pat Leahy, who has, indeed, been a leader in this field. He has
organized dear colleague letters. And a number of us have been much
better informed through his advocacy.
At this point, I would like to call on you, Mr. Matheson, for your
testimony.
STATEMENT OF MICHAEL J. MATHESON, PRINCIPAL DEPUTY LEGAL ADVISER,
UNITED STATES DEPARTMENT OF STATE; ACCOMPANIED BY MAJOR GENERAL MICHAEL
J. BYRON, USMC, VICE DIRECTOR FOR STRATEGIC PLANS AND POLICY, THE JOINT
STAFF
Mr. Matheson. Thank you very much, Mr. Chairman. I am pleased to
have the opportunity to testify today on behalf of the administration
in support of the ratification of the Convention on Conventional
Weapons.
Prompt U.S. ratification of this Convention is an important part of
the overall U.S. strategy for dealing with the very serious problem of
the indiscriminate use of land mines, which has caused very severe
civilian casualties in armed conflicts during the past two decades.
As you mentioned, sir, the Convention was concluded in 1980, signed
on behalf of the United States in 1982, and entered into force in 1983.
Because of concerns about its provisions on incendiary weapons, the
Convention was not submitted to the Senate during the previous two
administrations. However, as the magnitude of the humanitarian crisis
over land mine use became evident, renewed interest in U.S.
ratification developed.
And so, in November, 1993, the Senate voted 100 to nothing for a
provision in the National Defense Authorization Act that called for
submission of the Convention to the Senate.
And in May, 1994, the President submitted the Convention and two of
its three Protocols for the Senate's advice and consent.
Now, the Convention and its protocols restrict, for humanitarian
reasons, the use in armed conflicts of three specific types of
conventional weapons.
As you mentioned, the two protocols submitted to the Senate are
Protocol I, which deals with nondetectable fragments, and Protocol II,
which deals with land mines and booby-traps.
The Protocol not submitted at this time to the Senate is Protocol
III, which deals with incendiary weapons.
The section-by-section analysis which was transmitted to the Senate
with the Convention described these provisions in some detail. So let
me just highlight a few of the main provisions.
Protocol I is a straightforward prohibition on the use of any
weapon relying on fragments that are not detectable by x ray. This
prohibition is desirable from a humanitarian viewpoint and in no way
constrains U.S. military plans.
Protocol II is a more detailed set of restrictions on the use of
land mines and booby-traps.
Among these restrictions are requirements for the recording of the
location of mines; special restrictions on the use of mines delivered
by aircraft or artillery; requirements for the use of mines in areas
containing concentrations of civilians; and prohibitions of certain
types of booby-traps that could pose unnecessary danger to civilians.
The Protocol was essentially a Western proposal. On the whole, it
basically codified the responsible practices that have already been
adopted by the United States and other Western military forces to
minimize civilian casualties from the use of these devices.
If these restrictions had been observed during the conflicts of the
past two decades, such as those in Afghanistan, Cambodia and Angola,
there might have been a substantial reduction in civilian casualties.
Unfortunately, most of these states were not party to the
Convention. And it did not apply to internal armed conflicts, where
most of these casualties occurred. As a result, large numbers of mines
were laid without proper marking and recording, and often were used for
the specific purpose of causing civilian casualties.
Now, that is not to say that the Landmines Protocol, as it
currently stands, is an adequate answer to this problem. In fact, the
United States is pressing and will press at the Review Conference, for
a series of substantial improvements to the Protocol.
Among other things, we will press for an expansion of the scope to
include internal armed conflicts; a requirement that all mines
delivered by artillery or aircraft be equipped with self-destruct
devices to ensure that they are no longer a danger to civilians long
after the conflict is over; a requirement that any antipersonnel mines
without self-destruct devices and backup self-deactivation features be
used only within controlled, marked and monitored mine fields; a
requirement that all mines be detectable, to facilitate mine clearance;
a requirement that the party laying mines assume responsibility for
them, including their ultimate disposal; and the addition of an
effective verification mechanism, including the possibility of fact-
finding missions.
These proposals are described in greater detail in a paper which I
have submitted for the record of this hearing.
These proposed improvements to the Landmines Protocol are one
important element of the broader U.S. strategy on the landmine problem.
The important point in this context, which you have already
referred to, is that the ability of the United States to effectively
press forward with its various landmine initiatives would be seriously
compromised if we do not promptly ratify the Convention.
Under the terms of the Convention, the United States will be a full
participant at the Review Conference this fall only if it is a state
party. And it will only become a state party six months after it
deposits its instrument of ratification.
So in other words, to be a full participant at the Review
Conference, we must ratify this month.
Furthermore, the failure of the United States to ratify would
inevitably cast doubt on the seriousness of the U.S. commitment to
dealing with the landmine problem as a whole, and would erode the
credibility of our various proposals on land mine use, export and
clearance.
For these reasons, we very much appreciate the willingness of the
committee to give expedited consideration to the ratification of the
Convention.
Now, this leaves the third Protocol, which imposes restrictions on
the use of incendiary weapons, particularly in populated areas.
As the President's message indicated, there are concerns about the
acceptability of these restrictions from a military point of view,
which are explained in greater detail in the transmittal documents.
And in light of the need for further examination of these problems,
the President recommended that the United States exercise its right to
ratify the Convention while accepting only Protocols I and II.
The President also recommended, as you mentioned, that U.S.
ratification of the Convention be subject to four conditions, which are
described in some detail in the transmittal package.
These conditions state the U.S. understanding on various matters
and reserve to certain provisions that would, in our view, give
inappropriate status to so-called national liberation movements.
We are satisfied that the recommended conditions adequately deal
with these points.
Mr. Chairman, this Convention has now been ratified by most of the
major military powers and nearly all of our NATO allies. It is the
basic international document that regulates the use of specific types
of conventional weapons for the purpose of reducing civilian
casualties.
We expect it to be the vehicle by which improved controls on the
use of landmines can be adopted, and which, in turn, will lead to more
far-reaching controls on the production, transfer and stockpiling of
these devices.
We cannot effectively pursue these goals unless the United States
promptly ratifies the Convention. We, therefore, strongly urge the
committee to give it prompt and favorable consideration.
Mr. Chairman, that is the end of my prepared remarks. I, of course,
would be happy to answer your questions.
I also have with me, as you mentioned, Major General Michael Byron,
who is the Vice Director of the Strategic Plans and Policy Directorate
of the Joint Staff, in case the committee should wish to direct
questions to him as well.
Thank you, sir.
Senator Lugar. Well, thank you very much, Mr. Matheson.
[The prepared statement of Mr. Matheson follows:]
Prepared Statement of Michael J. Matheson
Thank you, Mr. Chairman. I am pleased to have the opportunity to
testify today on behalf of the administration in support of the
ratification of the Convention on Conventional Weapons. Prompt U.S.
ratification of this Convention is an important part of the overall
U.S. strategy for dealing with the very serious problem of the
indiscriminate use of landmines, which has caused severe civilian
casualties in armed conflicts during the past two decades.
The Convention was concluded in 1980, signed on behalf of the
United States in 1982, and entered into force in 1983. Because of
concerns about its provisions on incendiary weapons, the Convention was
not submitted to the Senate during the previous two administrations.
However, as the magnitude of the humanitarian crisis over landmine use
became evident, renewed interest in U.S. ratification developed. In
November 1993, the Senate voted 100-0 for a provision in the National
Defense Authorization Act that called for submission of the Convention
to the Senate. In may 1994, the President submitted the Convention and
two of its three Protocols for the Senate's advice and consent.
The Convention and its Protocols restrict, for humanitarian
reasons, the use in armed conflicts of three specific types of
conventional weapons. The two Protocols submitted to the Senate are
Protocol I, which deals with non-detectable fragments, and Protocol II,
which deals with landmines and booby-traps. The Protocol not submitted
at this time to the Senate is Protocol III, which deals with incendiary
weapons. The section-by-section analysis transmitted to the Senate with
the Convention describes these Protocols in some detail. Let me
highlight a few of the main provisions.
Protocol I is a straightforward prohibition on the use of any
weapon relying on fragments not detectable by x-ray. This prohibition
is desirable from a humanitarian viewpoint and in no way constrains
U.S. military plans.
Protocol II is a more detailed set of restrictions on the use of
landmines and booby-traps. Among these restrictions are: requirements
for the recording of the location of mines; special restrictions on the
use of mines delivered by aircraft or artillery; requirements for the
use of mines in areas containing concentrations of civilians; and
prohibitions on certain types of booby-traps that could pose
unnecessary danger to civilians. The Protocol was essentially a western
proposal, and on the whole it basically codified the responsible
practices that had already been adopted by the United States and other
western military forces to minimize civilian casualties from the use of
these devices.
If these restrictions had been observed during the conflicts of the
past two decades--such as those in Afghanistan, Cambodia and Angola,
there might have been a substantial reduction in civilian casualties.
Unfortunately, most of these states were not party to the Convention
and it did not apply at all to internal armed conflicts, where most of
these casualties occurred. As a result, large numbers of mines were
laid without proper marking and recording, and often were used for the
specific purpose of causing civilian casualties.
This is not to say that the landmines Protocol, as it currently
stands, is an adequate answer to this problem. In fact, the United
States will press for a series of substantial improvements to the
Protocol at the review conference scheduled for September and October
of this year. Among other things, we will press for:
An expansion of scope to include internal armed
conflicts;
A requirement that all mines delivered by artillery
or aircraft be equipped with self-destruct devices to ensure
that they are not a danger to civilians long after the conflict
is over;
A requirement that any anti-personnel mines without
self-destruct devices and backup self-deactivation features be
used only within controlled, marked and monitored minefields;
A requirement that all mines be detectable to
facilitate mine clearance;
A requirement that the party laying mines assume
responsibility for them, including their ultimate disposal; and
The addition of an effective verification mechanism,
including fact-finding missions.
These proposals are described in greater detail in a paper which I
have submitted for the record of this hearing.
These proposed improvements to the landmines Protocol are one
important element of a broader U.S. strategy on the landmine problem.
The important point in this context is that the ability of the United
States to effectively press forward with its various landmine
initiatives would be seriously compromised if it does not promptly
ratify this Convention. Under the terms of the Convention, the United
States will be a full participant at the review conference this fall
only if it is a state party, and it will only become a state party six
months after it deposits its instrument of ratification. In other
words, to be a full participant at the review conference, we must
ratify this month.
Further, the failure of the United States to ratify would
inevitably cast doubt on the seriousness of the U.S. commitment to
dealing with the landmine problem as a whole, and would erode the
credibility of our various proposals on landmine use, export and
clearance. For these reasons, we very much appreciate the willingness
of the committee to give expedited consideration to the ratification of
the Convention.
This leaves the third Protocol, which imposes restrictions on the
use of incendiary weapons, particularly in populated areas. As the
President's message indicated, there are concerns about the
acceptability of these restrictions from a military point of view,
which are explained in greater detail in the transmittal documents. In
light of the need for further examination of these problems, the
President recommended that the United States exercise its right to
ratify the Convention, while accepting only Protocols I and II.
The President also recommended that U.S. ratification of the
Convention be subject to four conditions, which are described in detail
in the transmittal package. These conditions state the U.S.
understanding on various matters and reserve to certain provisions that
would, in our view, give inappropriate status to so-called national
liberation movements. We are satisfied that the recommended conditions
adequately deal with these points.
Mr. Chairman, this Convention has now been ratified by most of the
major military powers and nearly all of our NATO allies. It is the
basic international document that regulates the use of specific types
of conventional weapons for the purpose of reducing civilian
casualties. We expect it to be the vehicle by which improved controls
on the use of landmines can be adopted, and which will lead in turn to
more far-reaching controls on the production, transfer and stockpiling
of these devices. We cannot effectively pursue these goals unless the
United States promptly ratifies the Convention. We therefore strongly
urge the committee to give it prompt and favorable consideration.
That is the end of my prepared remarks. I would be happy to answer
the committee's questions, and I also have with me Major General
Michael J. Byron, the Vice Director of the Strategic Plans and Policy
Directorate of the Joint Staff, should the committee wish to direct any
questions to him.
u.s. proposals to improve the convention on conventional weapons
One important part of the U.S. strategy on landmines is to
encourage substantial improvements in the substance and scope of the
landmines Protocol. A formal review conference will be held from
September 25 to October 13, 1995 in Vienna to consider possible
amendments. The U.S. is pressing for the following changes:
The expansion of the scope of the Protocol, which is
presently limited to international armed conflicts, so as to
encompass internal armed conflicts as well. It is in these
internal conflicts (such as Cambodia and Angola) that the
greatest civilian casualties have occurred.
A requirement that all remotely-delivered mines
(that is, those delivered by aircraft, rocket or artillery) be
equipped with self-destruct devices to ensure that they are not
a danger to civilians long after the conflict is over. These
devices would have a specified maximum lifetime and minimum
reliability, and would have a backup safety feature to ensure
that they deactivate even if the self-destruct device does not
function.
A requirement that any anti-personnel mines without
self-destruct devices be used only within controlled, marked
and monitored minefields. These minefields would be protected
by fencing or other safeguards to ensure the exclusion of
civilians. Such minefields could not be abandoned (other than
through forcible loss of control to enemy military action)
unless they were cleared or turned over to another state that
had committed to maintain the same protections.
A requirement that all mines be detectable using
commonly-available technology. This would greatly simplify the
burden and risks of demining.
A requirement that the party laying mines assume
responsibility for them, including a duty at the end of active
hostilities to clear them or maintain them in controlled fields
to protect civilians. Where the party laying the mines no
longer controls the territory in which they were laid, it would
have a duty to provide assistance to ensure their clearance, to
the extent this is permitted by the state in control of the
territory in question.
The addition of an effective verification mechanism,
including the possibility of fact-finding inspections by a
verification commission where credible reports of violations
have been made. If violations are found to have occurred, there
would be a possibility of reference to the U.N. Security
Council for action, as well as individual criminal liability
for persons who willfully or wantonly put the civilian
population in danger.
The U.S. has already made progress in marshalling support from
other states for these changes. However, we will be seriously hampered
in this effort if we do not ratify the Convention in time to be a full
participant at the 1995 review conference. Specifically, under the
terms of the Convention, we will not become a party to the Convention
until six months after we deposit our ratification, which means that we
must do so by mid-march 1995.
Senator Lugar. The committee will now engage in questioning you and
General Byron. I will ask that in the first round we have a ten-minute
time limit.
Let me begin by asking for general background. The Convention was
signed on behalf of the United States April 8th, 1982, but was not
submitted to the Senate until May 12th, 1994. What was the reason for
that 12-year delay?
Mr. Matheson. The reason had nothing to do with the provisions
which we have submitted to you. Rather, it dealt with the incendiaries
Protocol, which we have, for the time being, reserved.
And the reasons for those concerns were military in character and
related to the desire of the military to preserve certain options
concerning the use of incendiaries that would be precluded by parts of
the incendiaries Protocol.
And maybe General Byron would like to elaborate on that point.
Senator Lugar. General Byron.
General Byron. Let me just quickly refer to my notes, sir. The
Joint Staff view on Protocol III is that there are some significant
flaws, and it unduly constrains U.S. forces.
The administration, as you know, did not submit Protocol III for
ratification because of the objections of the Joint Chiefs and the
commanders of our combatant commands.
Specifically, Article 2 of the Protocol prohibits air-delivered
incendiary attack in all circumstances on a military objective located
within a concentration of civilians. This is the wording from the
protocol.
However, in our view, the U.S. must retain the ability to employ
incendiary weapons against certain types of high priority targets.
In particular, these are the only weapons that can destroy high
priority counter-proliferation targets such as biological weapons
facilities where deadly agents would risk heavy civilian casualties if
not destroyed by extremely high heat.
Senator Lugar. So in any event, the administration has accepted the
views of the Joint Chiefs which have been expressed, I gather, for
really 12 years consistently, submitted Protocols I and II and if
those--that ratification is deposited by March the 25th, it still gives
us an opportunity to participate in the Review Conference, is that
correct?
Mr. Matheson. Yes. That is correct because the Convention
specifically recognizes that a state need only accept two of the three
Protocols on ratification. And the JCS concerns will be referred for
further study within the administration.
Senator Lugar. To date, there are only 42 state parties to the
Convention even though the Convention was completed 15 years ago.
Let me ask, generally, why have so many nations been reluctant to
sign onto the Convention? Can the Convention be effective with only 42
state parties? And have our closest allies ratified the Convention? Who
has not and why?
Mr. Matheson. Well, first of all, the numbers are somewhat
misleading in that the states which have already ratified include most
of the major military powers and virtually all of our major allies in
NATO and elsewhere.
And this will include, in addition to the states which are already
parties, the United Kingdom, Italy and Belgium, which have already
deposited ratifications during the past month.
As to those who have not ratified, which is largely states in the
Third World, I think that, in some cases, they may feel that the
restrictions are too demanding, particularly in the case of landmines.
In other cases, particularly among the neutral or nonaligned, they
may feel that the restrictions do not go far enough.
It is our hope to encourage broader adherence to the Convention
among more states. And we hope that the improvements which are going to
be negotiated this fall at the Review Conference will assist us in
doing that.
Senator Lugar. Let me ask with regard to verification, the
Convention does not appear to have mechanisms for verification and
compliance.
Therefore, why should the Senate give its advice and consent to
ratification without such mechanism? And do we plan to propose to
rectify this omission at the upcoming review conference?
Mr. Matheson. First of all, I think we should keep in mind that
this is not an arms control agreement where there would be restrictions
on production and stockpiling that would require intrusive verification
schemes.
Rather, it is a law of war treaty dealing with the use or weapons
in armed conflict, where it is typically much easier to see what the
enemy is doing and what violations occur.
Having said that, however, we agree that it is a defect in the
Convention that it includes nothing in the way of verification.
And we and other Western states have put on the table a proposal
which will be considered at the Review Conference for a verification
mechanism which would include the possibility of fact-finding missions
in the event that serious allegations are made.
So we hope very much to improve the provisions on this issue.
Senator Lugar. Is it your testimony that the administration will
submit to the Senate any amendments to the Convention that might be
adopted at the Review Conference?
Mr. Matheson. Yes, sir. We will.
Senator Lugar. The administration is, in effect, proposing a
reservation to the provisions of the Convention dealing with national
liberation wars.
Is such a reservation an adequate means of dealing with this
matter? And why does the administration only propose a statement rather
than an understanding or a reservation?
Mr. Matheson. We, basically, are proposing two things on this
issue. First, we propose a statement of our intention to apply the
provisions of the Convention to all internal conflicts regardless of
their political character. Since that is a statement of our intention,
it does not require a reservation.
Our other proposal is a declaration which has the effect of a
reservation, legally and in fact, to the provisions of the Convention
which give special status to so-called national liberation movements.
We feel that singling out these particular movements on the basis
of political criteria is an inappropriate way to deal with the issue.
But at any rate, we feel that what we have proposed is a perfectly
adequate means of dealing with the problem.
Senator Lugar. Just following through on the point of internal
armed conflicts, let me ask a question that will make, for the record,
your testimony.
In light of the fact that most of the civilian casualties from the
use of mines over the past two decades has occurred in such internal
conflicts, why should the Senate give its advice and consent to
ratification of the Convention before this defect is corrected?
And what does the United States propose to do to rectify the defect
at the upcoming Review Conference?
Mr. Matheson. You are absolutely correct that this is a very
serious problem because, as you mentioned, most of the casualties that
have occurred in the civilian population during the past couple of
decades have been in internal armed conflicts--civil wars--that are not
presently covered by the Convention.
We and a number of other states have proposed that the Review
Conference correct that defect by expanding the scope of the Convention
to include all internal armed conflicts.
And we have made encouraging progress on that issue at the experts
meetings that have occurred this year. Again, the only way we can
effectively push these and other improvements to the Convention is by
becoming a full party so that we can be a full participant at the
review conference.
But that certainly is one of the issues we will place the greatest
stress on.
Senator Lugar. In Protocol I, the nondetectable fragments Protocol,
does Protocol I, on nondetectable fragments, affect any weapon that is
of interest to the United States military?
Mr. Matheson. My understanding is that it does not.
Perhaps General Byron would like to comment on that.
General Byron. Yes, sir. I second that, sir. It does not. And we do
not have any interest in any weapon that would, sir.
Senator Lugar. What does the Protocol cover? And would it affect
munitions with plastic casings and parts?
Mr. Matheson. It does not affect plastic casings and parts. It
applies to munitions which have wounding fragments that are made of
nondetectable material like light plastic or glass.
And the reason it singles those out is that it is thought, if they
existed, that they would complicate medical treatment for persons who
were injured by these fragments.
Senator Lugar. In Protocol II, which covers landmines and booby-
traps, how would Protocol II affect the United States military doctrine
and practice on the use of landmines and booby-traps?
Mr. Matheson. Again, my understanding is that it would not because,
in fact, it was negotiated to raise the world up to the standards
already being observed by the U.S. military.
And maybe General Byron would like to comment.
Senator Lugar. Do you agree, General?
General Byron. Yes, sir. I do. It, in fact, codifies the doctrine
of most of our Western militaries including that of our own, sir.
Senator Lugar. Would this Protocol have affected United States use
of landmines in the Gulf War?
Mr. Matheson. Again, let me ask General Byron.
Senator Lugar. General Byron?
General Byron. No, sir. It would not have. The use of landmines in
the Gulf War would not have been affected by the application of the
landmines Protocol, as U.S. doctrine meets or exceeds the standard
provided by the Protocol.
Senator Lugar. This Protocol has been in force for a dozen years,
but does not seem to have lessened the danger to civilians from the use
of land mines. Why do you believe this is so?
Mr. Matheson. The main reason is that it has not been applicable in
the conflicts where most of these casualties have occurred, either
because the states in question have not been a party or because they
were internal conflicts not covered by the Convention.
If the Convention had been applicable, we believe it would have
substantially reduced civilian casualties; although, as we have said,
it is not entirely adequate. And we need to improve it.
Senator Lugar. What changes to Protocol II is the United States
going to propose at the upcoming Review Conference? And do those
changes have a realistic chance of adoption?
Mr. Matheson. The main proposals we have made to improve the
Convention were outlined in my testimony. They include an expansion of
the scope of the Convention to cover internal armed conflicts, a
requirement that all mines delivered by aircraft and artillery have
self-destruct devices, and a requirement that all other mines either
have self-destruct devices or be placed in controlled minefields that
are marked and monitored and have fencing or other protections to keep
civilians out.
We have proposed that all mines be detectable by currently
available means so as to facilitate mine clearance.
We have proposed a requirement that the party which lays mines have
responsibility for them, including their eventual disposal, and
finally, the addition of an effective verification scheme, including
the possibility of fact-finding missions.
We have had significant, heartening success in the experts meetings
on most of these points.
Probably the most difficult one we will have before us in the
Review Conference will be the verification proposals because there
seems to be some sensitivity about that among nonaligned delegations.
But we intend to press as strongly as we can.
Senator Lugar. Senator Pell?
Senator Pell. Thank you, Mr. Chairman.
What military activities might we engage in that would be
prohibited by this Protocol?
Mr. Matheson. Well, as we have said, the landmines Protocol as it
presently stands is perfectly consistent with U.S. military plans and
operations.
If we were to go beyond our own military doctrine and to use mines
in ways which would be prohibited by the Protocol then, of course, that
would be a violation.
That would include indiscriminate use of mines, and failure to mark
and record the location. But these are not within our contemplation
because our military already complies with these standards.
Senator Pell. I remember some years ago working on the ENMOD, the
Environmental Modification Treaty. And I was just curious how you could
reconcile the United States' refusal to be a party to the 1949
protocols on the environment but also being a party to the ENMOD
Convention.
Mr. Matheson. Well, first of all, we have not submitted additional
Protocol I, although we have submitted additional Protocol II to the
Senate.
And the reasons for having not submitted additional Protocol I
relate to concerns of the U.S. military about various of its
provisions, which include the provisions on irregular combatants and
some of the provisions on means and methods of warfare which they feel
might unduly restrict military combat.
An extensive study is being undertaken right now, first of all by
the JCS, and then by other elements of the government, on whether we
should reconsider our attitude toward additional Protocol I.
I do not believe that there is any inconsistency between any of
those concerns and the Environmental Modification Convention.
That Convention, you may recall, deals with the specific type of
weapons which use environmental modification techniques to cause
destruction, damage or injury; whereas additional Protocol I is dealing
with the whole range of conventional means and methods of warfare.
Senator Pell. My recollection of the ENMOD Convention was that it
could include the development of tsunamis, tidal waves, elimination of
every--of foliage----
Mr. Matheson. Yes.
Senator Pell [continuing]. And a variety of things. Would any of
those practices be contradictory to what we are permitted under this
treaty?
Mr. Matheson. These provisions are not contradictory. And we are
still fully committed to the Environmental Modification Convention in
terms of its scope.
Senator Pell. I was just given the item here that basically--under
additional Protocol I, ``It is prohibited to employ methods or means of
warfare which are intended or may be expected to cause widespread,
long-term, severe damage to the natural environment.''
You feel that this would not be in contradiction?
Mr. Matheson. Well, the U.S. military has raised concerns about
that particular provision because it applies to the generality of
conventional means and methods of warfare.
And their concern, as I understand it, is that it might inhibit or
preclude certain kinds of operations which might have serious effects
on the environment.
Again, that is not inconsistent with the Environmental Modification
Convention, which only regulates the specific category of weapons you
mentioned; that is, those which employ environmental modification
techniques as a weapon--tsunamis, earthquakes and the like.
Additional Protocol I deals with the possibility of damage to the
environment from the usual kind of conventional operations.
Senator Pell. Could you describe for us the kind of incendiary
weapons--I am changing the subject here--the kind of incendiary weapons
usage that would be prohibited?
Mr. Matheson. The incendiaries Protocol prohibits the use of any
air-delivered incendiaries against military targets located in a
concentration of civilians.
That would include any type of air-delivered incendiaries--napalm,
phosphorous weapons and so on.
Senator Pell. What about the bombing the Germans did of Coventry or
we did of Leipzig? Would they be prohibited under this treaty?
Mr. Matheson. Well, what would be prohibited would have been the
use of air-delivered incendiaries, not conventional explosives, but
incendiaries. And of course, we used incendiaries against Dresden and
against a number of Japanese cities. That would have been prohibited by
this.
Senator Pell. That would have. The other incendiary weapons could
be used only on military targets separated from civilian concentration.
Why would we object to that restraint?
Mr. Matheson. Well, again, the military has raised concerns. And
perhaps I should refer to General Byron.
General Byron. Again, sir, our interpretation is that the article
prohibits in all circumstances the air-delivered incendiary attack on a
military objective located within a concentration of civilians.
Again, the wording on this is such that it reduces and takes away
the military's ability to employ these weapons that we would use to
hold certain types of high priority targets at risk.
When used in combination with high explosives, the incendiaries are
the only weapons--and let me emphasize, the only weapon that can safely
destroy high priority counter-proliferation targets such as biological
weapons facilities.
The destruction of most biotoxin agents is accomplished only
through the application of extremely high heat. This fact makes the use
of incendiaries essential against this type of target.
To use high explosives only against biological weapons facilities
would likely spread the biotoxin throughout the adjoining countryside,
risking far greater civilian casualties.
Senator Pell. All right. But, just to return to my earlier point:
Am I correct in saying that the ratification of the incendiaries
Protocol would prohibit the activities the Germans did in Coventry, as
we did in Dresden or Leipzig?
Mr. Matheson. Yes, sir. I believe so.
Senator Pell. That would be correct. Thank you.
We understand the United States may require air-delivered
incendiaries, as you pointed out, General, to eliminate the chemical or
biological weapons facilities.
Would it not be possible to accept Protocol III and work out a
condition allowing for attacks on chemical and biological facilities
when it is the best or the only way to proceed?
General Byron. Sir, Protocol III has been reviewed by the Joint
Chiefs since 1981. And I believe it has been reviewed six times.
And at each time of a review, we have carefully considered
alternative methods or means. And each time, we have found that the
wording is unacceptable because of the inordinately high risk that runs
both to our military operations and the inflexibility to our
commanders, sir.
Senator Pell. OK.
Mr. Matheson. I think to summarize the situation, the
administration has held Protocol III back for further study. Obviously,
we would study not only the issues you have described, but the various
possible ways of dealing with them. But to date, we have not yet found
a solution that is consistent with our military concerns.
Senator Pell. Could you describe briefly how you would like to
improve the Convention itself? What steps have we been disappointed in
not achieving?
Mr. Matheson. Yes. The most important ones, again, are expansion of
the scope of the Convention to include internal armed conflicts, where
most of the civilian casualties for the past couple of decades have
occurred; a requirement that all remotely-delivered mines, that is,
mines delivered by aircraft or artillery, have self-destruct devices so
that they are not active and a threat to civilians after the conflict
has ceased; a requirement that all other mines either have self-
destruct devices or be placed in controlled mine fields that are
protected from civilians; a requirement that all mines be detectable by
commonly available means so as to facilitate mine clearance; a
requirement that the party which lays mines have responsibility for
them, including their eventual disposal; and some kind of effective
verification mechanism, which would include the possibility of fact-
finding missions.
Senator Pell. Could you describe for me--I should know the answer,
but I do not--what the self-destructive device in a land mine is? Does
that mean that it would rot away, or is there an alarm clock that
shoots it off?
Mr. Matheson. It is a device that is designed to automatically
cause the mine to self-destruct after a specified period of time.
In our proposal, we also require that there be a backup self-
deactivating device in case the self-destruct device fails.
So we have, essentially, put out a proposal that would go very far
toward complete guarantee that these mines would not be a threat to
civilians after the prescribed periods of time.
Senator Pell. What is the prescribed, rough prescribed period of
time? What is the range?
Mr. Matheson. That has not yet been decided. We are considering,
within the administration, exactly what we would propose.
There have been some general discussions of the issue in the
experts' meetings. And they, basically, have ranged from weeks to
months. We have not yet established a position, but hope to do so
within the next month or two.
Senator Pell. OK. I thank you very much.
Senator Lugar. Senator Ashcroft.
Senator Ashcroft. Thank you, Mr. Chairman.
It is my understanding that, in order to be a part of the
deliberations, that a ratifying state has to accept at least two of the
Protocols.
We seem to be focussed on and most interested in the landmine
Protocol. Of the 42 ratifying states, how many of them have subscribed
to the Protocol on mines, or how many of them have omitted it?
And of the ones that have pending notification of ratification,
what is their status as it relates to Protocol II?
Mr. Matheson. To my knowledge, there is only one state that has
ratified the Convention without accepting the landmines Protocol. Oddly
enough, that is the state of Benin. And I have no idea why that was the
case.
But everyone else has accepted the landmines Protocol.
Senator Ashcroft. What Protocols are being ignored or are not being
accepted?
Mr. Matheson. The only other Protocol that has not been accepted by
anyone is Protocol III, the incendiaries Protocol, which was not
accepted by France. So, basically, with those two exceptions, everyone
who has ratified has accepted all three. [Pause.]
Senator Ashcroft. Is there an argument being made by the
Administration that military lasers that are used to blind combatants
in the field should be added to the Convention?
Mr. Matheson. This is an issue which will certainly come up at the
Review Conference because there are states which have proposed adding
an additional protocol to the Convention to prohibit lasers which are
used to blind personnel.
We have discouraged this because we want to preserve the focus of
the Conference on the landmines issue which is, by far, the most
serious in terms of civilian threats.
We also have concerns of a military character about the breadth of
the proposal that has been put on the table. As you may know, the
military relies heavily upon the use of lasers on the battlefield for
various purposes, including targeting and range-finding.
And we are concerned that the breadth of this proposal might end up
having U.S. military personnel accused of war crimes for having used
weapons in this mode.
It may be that General Byron would like to elaborate.
General Byron. Yes, sir. Senator Leahy and Congressman Evans have
recently inquired, in a letter to the Secretary of Defense,
essentially, the same question. The Office of the Secretary is now in
the process of researching that topic and drafting a reply.
And as soon as we complete that, we will be very happy to provide
that for you for the record.
But again, to follow my colleague, I agree with his general rundown
on the analysis of the laser protocol and the fact that it is very
broadly worded. We are still trying to look at all of the parts in it,
sir.
Senator Ashcroft. Is it fair to say that when we speak about self-
destructing and self-deactivating that self-destruction would be a
detonation of the mine?
Mr. Matheson. The self-destruct device would be. The passive self-
deactivation would not be a detonation. It would cause the mine no
longer to function.
Senator Ashcroft. Is there any thought that self-destruction by
detonation is a hazard as well?
Mr. Matheson. Our mine experts have told us that it is by far safer
for the civilian population and for the mine clearance teams for the
mine to completely eliminate itself by self-destruction.
The chances of a civilian actually being present at the exact spot
at the precise moment that a mine self-destructs are extremely small.
And that person would probably already be in serious danger by having
wandered into a minefield.
So we find it much better for the safety of all concerned for the
mine to be completely eliminated.
If it simply deactivated itself without self-destructing, then it
would have to be assumed to be live by any mine clearance team. And the
civil authorities of the area would have to assume the mines were live
and keep civilians out of the area.
So in effect, many of the same problems would occur if the mine had
not self-destructed but only self-deactivated.
Therefore, we think the reliance on self-destruction as the primary
mechanism is very important. And we have had now great success in
convincing other countries that this is the case. It seems to be on the
way toward acceptance.
Senator Ashcroft. Would this cover, also cover submunition?
Mr. Matheson. No. It covers only mines as defined in the
Convention; that is to say, something which is activated by the contact
or presence of a person or a vehicle. So it would not cover, for
example, a cluster bomb or something like that.
Senator Ashcroft. I have no further questions.
Thank you, Mr. Chairman.
Senator Lugar. Thank you very much, Senator Ashcroft.
Let me continue with two more questions on Protocol II. Why is the
administration not proposing a total ban on anti-personnel mines?
Mr. Matheson. As you probably know, the President said in his
speech to the UN General Assembly last fall that it is our ultimate
objective to eliminate anti-personnel mines.
And of course, we can reach that kind of eventual goal more readily
when we develop practical and humane alternatives.
But for the present, many military forces, including the United
States military, do rely upon land mines for some important military
functions which are legitimate if they are conducted in accordance with
the rules of humanitarian law.
This would include, for example, the use of antipersonnel mines in
barrier minefields in border areas, or the use in armed conflict to
protect military positions or to limit the movement of enemy forces.
So instead of a total prohibition at this time, we are pressing for
a series of various protections, both in this Convention and elsewhere,
to try to reduce the threat to civilian populations, primarily by
discouraging the use of mines which have long lives and, therefore,
would remain a threat to the civilian population after the conflict is
over.
Senator Lugar. How do the United States proposals for amending
Protocol II fit together with other elements of United States policy on
landmines such as export moratoria, the proposed control regime and the
United States demining initiatives?
Mr. Matheson. The United States has a general policy on landmines
which includes a number of different initiatives, all of which
reinforce each other and fit together.
One important element, of course, is the Convention--the
restrictions on use in armed conflict. And we, of course, intend to
ratify, to encourage others to ratify, and to improve the use
restrictions at the Review Conference.
At the same time, we are proposing a separate control regime which
will regulate other aspects of the landmine problem--production,
stockpiling, export, again with the purposes of reducing the overall
availability of anti-personnel mines and reducing the reliance on long-
lived mines, and also reinforcing the provisions of the Convention on
use.
At the same time, we are encouraging other states to adopt
unilateral export moratoria similar to the one which we have adopted as
a means of transition into the long-term control regime.
And we are engaged in extensive de-mining activities in various
countries of the world where there have been armed conflicts and large
numbers of mines laid.
So we have a number of different prongs of our strategy, all of
which reinforce one another.
Senator Lugar. And finally, with regard to Protocol III, your
testimony, both of you, has been that the administration has decided
not to submit Protocol III and that this decision has been reviewed, as
I recall, General, at least six times by the Joint Chiefs in recent
years.
And therefore, the status of the administration's review on the
Protocol is that it is current. You have reviewed--the Joint Chiefs, at
least, have recently, I gather, before reaching this decision not to
submit Protocol III, is that correct?
Mr. Matheson. Yes, sir. That is correct.
Senator Lugar. Just for the standpoint of the record, why should
the Senate not delay action on this Convention until the
administration's review of Protocol III is completed?
Are you testifying it is completed, you have come to a decision,
and you are not going to submit it?
Mr. Matheson. No. We have set it aside for further study. But as we
have said before, it is essential that we proceed with the ratification
of the Convention itself so that we will be able to be a full
participant at the Review Conference and make the changes to the
landmines Protocol which are essential to protecting the civilian
population.
Senator Lugar. Senator Pell, do you have further questions of the
witnesses?
Senator Pell. I do, sir. Thank you.
Mr. Matheson, which countries that export anti-personnel mines at
this time--or to put it another way, which are the major countries that
export anti-personnel mines?
Mr. Matheson. I have a list which I will refer to.
Senator Pell. And maybe submit it for the record?
Mr. Matheson. Yes. I would be glad to do that.
Senator Lugar. It will be so included.
[The questions and answers referred to follow:]
Responses of Michael J. Matheson to Questions Asked by Senator Helms
Question. Please define more fully the type of effective
verification mechanism the United States plans to promote at the
upcoming Review Conference.
Answer. At the most recent meeting of government experts to prepare
for the Review Conference, the United States obtained the support of
the western group for the attached proposal on verification. The
proposal would create a Verification Commission and would provide for
the possibility of fact-finding inspections. The inspected party would
have the right to make any arrangements it considered necessary for the
protection of any constitutional obligations it might have with regard
to proprietary rights, searches and seizures, or other constitutional
protections or for the protection of the conduct of military
operations.
Question. One of the greatest flaws of this Convention is that it
does not apply to internal conflicts. The U.S. has expressed its
intention to negotiate an amendment that would expand the scope of the
Convention to internal armed conflicts. How effective will such a
provision be in light of national sovereignty issues and what terms for
enforcement does the U.S. plan to negotiate in this amendment at the
Review Conference?
Answer. The effectiveness of the application of these restrictions
in internal conflicts will depend in part on the adequacy of the
provisions on verification and compliance, and in part on the political
will of the parties to insist that there be compliance with the
restrictions in all circumstances. Our proposal for verification is
described in the answer to the previous question. At the most recent
experts meeting, the western group agreed to support the attached
provision on compliance which, among other things, provides for the
possibility of collective measures by the parties or a referral to the
Security Council. It would also apply the ``grave breach'' provisions
of the 1949 Geneva Conventions to any willful or wanton violation
causing death or serious injury to the civilian population, which would
have the effect of making such violators subject to personal criminal
liability in national courts.
In our view, there is nothing incompatible with national
sovereignty in our proposals. Several international agreements,
including the 1949 Geneva Conventions, already apply various
restrictions to military activities during internal armed conflicts.
The proposals on landmines would simply require states parties to apply
and enforce restrictions on the use of landmines that no sensible
government would contemplate violating in an internal conflict.
______
Responses of Michael J. Matheson to Questions Asked by the Senate
Foreign Relations Committee
major exporters of landmines
Question. Could you supply a list of current major landmine
exporters?
Answer. Through the 1980s, major exporters included the following:
Belgium, Bulgaria, China, Former Czechoslovakia, France, Hungary,
Italy, Former Soviet Union, the United Kingdom, and Former Yugoslavia.
It is difficult to provide a list of current major landmine
exporters, largely because there is no existing system for reporting
landmine sales, a gap which our proposed anti-personnel landmine
control regime would help fill. One key indicator of exports often is
how widely a given country's mines appear throughout the world over
time. The breakup of former exporters such as Czechoslovakia, the
Soviet Union, and Yugoslavia into a number of new countries also has
made the task of identifying major exporters more difficult.
The U.S. share of the international market for conventional
landmines never exceeded eight percent. Our customers primarily had
been responsible end-users such as Canada, Israel, and Greece. Of
course, no U.S.-produced anti-personnel landmines or components have
been exported since the U.S. moratorium was enacted in October, 1992.
Of the other historic major exporters listed above, the following
have moratoria on the export of anti-personnel landmines in place:
Belgium, the Slovak Republic, France, Italy, Russia, and the United
Kingdom. The United States continues to encourage anti-personnel
landmine producers and exporters to adopt export moratoria.
Question. This treaty has languished for 13 years with only 42
states parties. Why do you feel there is any new or different momentum
now to make this an effective treaty? Doesn't the cheap cost and
effectiveness of the landmines make the chances of banning landmines in
developing countries a remote possibility?
Answer. Although there are currently only 42 parties to the
Convention, most of the major military powers and virtually all of our
allies have ratified or intend shortly to do so. In particular,
Australia, Belgium, Canada, China, Denmark, France, Germany, Greece,
India, Italy, Japan, the Netherlands, New Zealand, Norway, Pakistan,
Russia, Spain, and the United Kingdom have all ratified; and Israel has
tabled the Convention with the Knesset and hopes to ratify within the
month.
It is true, on the other hand, that we need to have substantially
greater adherence to the Convention by third-world states if it is to
be fully effective, in light of the large and growing humanitarian
problem posed by the indiscriminate use of anti-personnel landmines.
The convening of the Review Conference has already accelerated the pace
of ratifications, and we believe that serious improvements in the
Convention at the Review Conference will do likewise. We intend to lead
the effort to encourage a major expansion in the number of parties.
It is true that banning landmines outright would not be practical
at this time, even if that were militarily acceptable to us. It is
important to note that the Convention does not ban landmines, nor are
we proposing to amend it to do so. We believe the restrictions we have
proposed are perfectly feasible and cost-effective, and that there is
no reason why any third-world military force could not readily comply
with them. These restrictions would not deny the use of landmines for
legitimate military purposes, but rather require that reasonable
measures be taken to protect the civilian population from their
effects. We have already made significant progress at the meetings of
government experts in developing a consensus in favor of such measures,
including the third-world delegations, and we hope to bring this
process to a successful conclusion at the Review Conference.
Question. The President of the Red Cross has asked the United
Nations to strengthen the Convention to include a ban on blinding laser
weapons now being developed. The United States is one of the nations
developing such weapons. What will the U.S. position on banning such
weapons be at the Review Conference?
Answer. This is an issue of considerable complexity and the
proposed prohibition raises significant concerns. We believe that our
core focus at the Review Conference must remain on the indiscriminate
use of anti-personnel landmines. We cannot afford to divert attention
from this critical and immediate humanitarian problem.
As we prepare for the Review Conference we are studying our
position with respect to a number of issues, including the proposal on
lasers. However, we remain concerned that the proposal is drawn too
broadly. It would be a situation of grave consequence if the proposal
could lead to prosecution of those who use our laser-guided systems. In
addition, such a proposal could constrain the use of laser systems that
provide both military and humanitarian benefits through greater target
discrimination. Even those advancing this proposal acknowledge
legitimate uses of lasers in ways that provide such benefits.
______
Responses of Michael J. Matheson to Questions Asked by Senator Biden
Question. What is the meaning of the term ``remote control'' in
Protocol II, Article 2, paragraph 3?
Does the negotiating history of the Convention shed light on the
meaning of the term? If so please provide the relevant documents.
Answer. The language of Article 2 of Protocol II suggests that the
term ``remote control'' was used to refer to munitions detonated by
command from a distance, as distinguished from munitions that detonate
automatically after a lapse of time or that are detonated by the
presence, proximity or contact of a person or vehicle. We are not aware
of any negotiating history that sheds further light on the meaning of
the term. In particular, we know of nothing in the text or the
negotiating record that would suggest that the term was limited to
radio command as opposed to wire command, or that any minimum distance
was contemplated.
Question. What is the meaning of the term ``remotely-controlled''
in Protocol II, Article 5, Paragraph 1(b)?
Does the negotiating history of the Convention shed light on the
meaning of the term? If so, please provide the relevant documents.
Answer. The language of Article 5 of Protocol II suggests that the
term ``remotely-controlled'' was used to refer to a neutralizing
mechanism that is activated by command from a distance, as
distinguished from a self-actuating mechanism within the mine that
automatically neutralizes a mine after a period of time. We are not
aware of any negotiating history that sheds further light on the
meaning of the term. In particular, we know of nothing in the text or
the negotiating record that would suggest that the term was limited to
radio command as opposed to wire command, or that any minimum distance
was contemplated.
Question. If there is not a common understanding of the term
``remote control,'' will you seek to clarify this issue at the Review
Conference in September? In particular, will you commit to proposing an
exemption to command-detonated weapons, such as the Claymore mine?
Answer. We realize that the Claymore in its command-detonated mode
does not pose the sort of dangers to the civilian population that were
the reason for the restrictions in the Convention. We are therefore
prepared to seek appropriate action at the Review Conference to exclude
the command-detonated Claymore from the restrictions applicable to the
devices covered by the landmines Protocol.
Senator Pell. Which of the top half does not? [Pause.]
Mr. Matheson. The list of major exporters really depends upon the
timeframe you are looking at. But historically, it has included
countries like Russia, some of the Eastern European countries and
China.
The United States has typically not been a major exporter because,
even before our moratorium, we never got up to more than eight percent
of the total worldwide market. And we would always export, even so, to
responsible countries like Israel, Canada and other allies.
So we never were a major exporter. And now we have gone,
essentially, to zero.
But I will be glad to give you a more detailed list with the major
exporters for the record.
Senator Pell. Thank you. Have we asked those countries that are on
that list to require self-destruction or self-deactivation mechanisms?
Mr. Matheson. Yes. We have proposed to all of them that this be one
of the features of the regime for the Convention.
Senator Pell. What has been their response?
Mr. Matheson. Well, at the last experts meeting, there was general
support finally for the U.S. proposal that there be a requirement for
self-destruction, or alternatively for use of mines only within
controlled mine fields. So that seems to be a proposal which is
succeeding.
Senator Pell. Self-destruct means blow itself up. Deactivation
means that the fuse rots, or what does it mean?
Mr. Matheson. Deactivation means that it can no longer function as
a mine. Typically, a self-destruct mine will operate by means of a
battery. And the battery will run down, predictably. And when it runs
down, the mine will no longer be capable of operation.
That is the way our self-destruct mines work. And that is the way
we think they should be designed so that in the rare event that the
self-destruct mechanism does not work, the mine will, nonetheless,
surely be incapable of operation at a certain period thereafter by a
means of the exhaustion of the battery.
Senator Pell. Which countries have been taking the lead in not
wanting to put these devices on, adding these devices to the land
mines?
Mr. Matheson. Well, there were concerns initially about our
proposal among some of the European countries, some of the nonaligned
countries.
Senator Pell. Which ones? Which European countries?
Mr. Matheson. Well, there was a period of time when France and
Germany had a proposal before the experts group which did not include a
requirement for self-destruct.
But these countries have now come aboard. And at the last experts
meeting, we seemed to have general consensus on the desirability of
that as a requirement.
Senator Pell. And this would apply to the countries, former Soviet
countries.
Mr. Matheson. Those which ratify, yes.
Senator Pell. I have no further questions.
Senator Lugar. Thank you very much, Senator Pell.
Senator Pell. Thank you.
Senator Lugar. Mr. Matheson and General Byron, we thank you for
coming to the committee and for your testimony. And as Senator Pell and
I have indicated, we are hopeful the committee will act upon this in a
timely way as you have suggested.
Mr. Matheson. Thank you very much, sir.
Senator Lugar. And the hearing is adjourned.
[Whereupon, at 10:47 a.m., the hearing was adjourned, to reconvene
subject to the call of the Chair.]