[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.]