[Senate Executive Report 105-21]
[From the U.S. Government Publishing Office]
105th Congress Exec. Rpt.
SENATE
2nd Session 105-21
_______________________________________________________________________
AMENDED MINES PROTOCOL
_______
October 10, 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Helms, from the Committee on Foreign Relations, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany Treaty Doc. 105-1(A)]
The Committee on Foreign Relations to which was referred
The Amended Protocol on Prohibitions or Restrictions on the Use
of Mines, Booby-Traps and Other Devices (Protocol II or the
Amended Mines Protocol) to the 1980 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 having considered the same, reports
favorably thereon with 1 reservation, 9 understandings, and 14
conditions and recommends that the Senate give its advice and
consent to the ratification thereof as set forth in this report
and the accompanying resolution of ratification.
CONTENTS
Page
I. Background.......................................................1
II. Implications of the Amended Mines Protocol.......................4
III. Military Implications of a Land Mine Ban.........................8
IV. An Assessment of the Ottawa Convention..........................13
V. Future Land Mine Arms Control Issues............................19
VI. Committee Action................................................23
VII. Resolution of Ratification......................................34
VIII.Article by Article Analysis.....................................51
IX. Additional Views of Chairman Helms..............................73
I. Background
Introduction
The Convention on Prohibitions or Restrictions on the Use
of Certain Conventional Weapons (also known as the ``Convention
on Conventional Weapons'') was concluded at Geneva on October
10, 1980, was signed by the United States on April 8, 1982,
entered into force on December 2, 1983, and was ratified by the
United States on March 24, 1995. The Convention included three
protocols, one of which (Protocol II) is the Protocol on Mines.
U.S. adherence to the Protocol on Mines was approved in the
resolution of ratification of the Convention itself.
When the Senate considered whether to give its advice and
consent to ratification of the Convention on Conventional
Weapons (CCW), it found serious deficiencies in the Mines
Protocol. The President shared the Senate's concerns, and the
resolution of ratification of the CCW therefore included the
following condition:
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.
The above concerns were raised by the United States in the
First Review Conference for the CCW. On May 3, 1996, the CCW
Review Conference adopted the amended Protocol on Prohibitions
or Restrictions on the Use of Mines, Booby-Traps and Other
Devices (also known as the ``Amended Mines Protocol''). On
January 7, 1997, the President submitted the Amended Mines
Protocol to the Senate for its advice and consent to
ratification.
Roughly two weeks after the adoption of the Amended Mines
Protocol at the Review Conference, President Clinton announced
a new anti-personnel land mine (APL) policy and pledged to
``lead a global effort to eliminate these terrible weapons and
to stop the enormous loss of human life.'' At that time, he
restated the continuing U.S. commitment to help many afflicted
nations with demining their lands and he imposed a unilateral
moratorium on the use of most types of APL by U.S. forces. He
also pledged to work towards an international treaty for a
global APL ban.
In November 1996 the United States introduced a resolution
in the United Nations General Assembly urging ``states to
vigorously pursue an effective, legally-binding international
agreement to ban the use, stockpiling, production and transfer
of anti-personnel Land Mines (APL) with a view to completing
the negotiations as soon as possible.'' The resolution passed
by 185-0 (with 10 abstentions) and land mines thus became a
matter of concern for the 1997 Conference on Disarmament.
During the same timeframe, the Canadian Government
organized a coalition of like-minded states and interested
international and non-governmental organizations to pursue a
global land mine ban. The Canadian goal was to initiate a fast-
track effort to achieve an APL ban--the so-called ``Ottawa
process.''
The Senate's consideration of the Amended Mines Protocol
has thus occurred in the midst of a larger and more widely-
noted controversy over the Ottawa Convention and U.S. policy
regarding that Convention. The Ottawa Convention is separate
from the Convention on Conventional Weapons, and the Committee
agrees with the Administration that the existence of the Ottawa
Convention does not obviate the need to act on the Amended
Mines Protocol. This Report inevitably reflects, however, the
strong views that many Committee members hold regarding the
broader aspects of land mine policy and, in particular, about
the Ottawa Convention.
Using a draft treaty text prepared by the Government of
Austria, negotiators met in Oslo, Norway, for two weeks during
September, 1997. After initially declining to participate, the
Administration at the last minute dispatched a delegation to
Oslo. However, despite its active participation, the United
States was not able to win critical exceptions--notably more
time to resolve the need for a minefield barrier between North
and South Korea and the U.S. military's desire to use
``smart,'' self-deactivating APL to protect anti-tank
minefields from dismounted breaching. Some 125 nations signed
the Ottawa Treaty in December 1997, but neither the United
States, China, Russia, nor any of the other major land mine
producers elected to sign.
The United States refused to sign the Ottawa Convention for
a number of specific reasons, which are discussed later in this
report. The Administration's refusal to sign that Convention
was supported by a majority of the members of the Committee.
Current Administration Policies Relating to Land Mines
Currently, the Administration supports the creation of an
Ad Hoc Committee to negotiate an APL ban in the Conference on
Disarmament (CD). In its view, the only kind of APL ban that
will produce a significant humanitarian impact is one which
includes as members the major producers/exporters of APL. The
only way that those countries (including Russia, China,
Vietnam, and Iran) will participate in the negotiation of a ban
is if the process occurs within the CD, which makes decisions
only by consensus. Achieving an export moratorium is seen as
the first step towards conclusion of a realistic anti-personnel
land mine ban which includes as signatories those countries
which will not agree to the Ottawa Convention.
Previous discussions with Canada and other ``Ottawa Core
Group'' members suggested a reluctance on their part to endorse
any actions that detracted from the Ottawa process. However,
there have been indications that these countries now will agree
to the negotiation of an export ban in the CD, since the Ottawa
Convention has been signed. The Committee believes that the
willingness of CD member states to prohibit export and transfer
of long-duration APL, in particular, would go a long way toward
reducing the indiscriminate and irresponsible use of long-
duration APL in many countries by decreasing the ready
availability of these weapons. However, as shall be discussed,
if the export moratorium were also to include a prohibition on
the transfer of short-duration APL, anti-tank mines, or U.S.
mixed munitions (packages of self-destructing/self-deactivating
anti-tank and anti-personnel munitions), such a treaty would
meet stringent opposition.
Simultaneously with this diplomatic push, the
Administration has mounted a significant demining initiative,
which the Committee supports.
Finally, the Administration has urged the Senate to adopt
the Amended Mines Protocol to the Convention on Conventional
Weapons (CCW). The Administration has argued that it is
important to pursue both ratification of the CCW's Amended
Mines Protocol and negotiations within the CD on an APL ban
concurrently, and that the latter should not and will not
detract from the implementation of the Protocol. It is the view
of the Administration that wide adherence to and full
implementation of the Amended Mines Protocol will help reduce
civilian casualties resulting from land mines until a truly
global agreement to ban APL enters into force.
II. Implications of the Amended Mines Protocol
The Committee commends the Administration for its conduct
of negotiations leading to the Amended Mines Protocol to the
Convention on Conventional Weapons (CCW). Throughout these
negotiations, the Administration maintained firm focus on
essential national security factors, while working to create
meaningful restrictions on the use of long-duration anti-
personnel mines. As a result, the Amended Mines Protocol, while
having little or no impact on the United States Armed Forces,
will bring about a substantial decrease in civilian casualties
caused by non-self-disarming/self-deactivating anti-personnel
land mines. Moreover, unlike numerous other proposals, the
Amended Mines Protocol will be widely observed--both by
``right-minded countries'' and by proliferant nations such as
Russia and China. This, too, contributes to the positive
humanitarian effects of the Protocol.
Military Implications of the Amended Mines Protocol
The Amended Mines Protocol is not a ban on U.S. land mines.
It does ban the use of some types of devices, such as
undetectable mines and mines designed to explode from proximity
to mine detection equipment; however, these systems are not--
and never have been--employed by the United States. Rather, the
Protocol establishes clear and reasonable requirements for the
use of mines. These requirements, such as the obligation to
mark and monitor minefields, will provide important protections
for civilian populations. Few militaries aside from the U.S.
Armed Forces take the rigorous steps necessary to ensure the
safety of noncombatants when engaging in military action. In
agreeing to this Protocol, other countries will, in effect, be
agreeing to bring their military standards for land mine use up
to par with those already in forece in the United States.
The Committee was assured on numerous occasions by the
Executive branch that the provisions of the amended Protocol
reflect the practices already adopted by the U.S. military. In
those areas where the possibility for degradation of U.S.
military capabilities exists (through misinterpretation of the
Protocol), the Committee has recommended understandings to
preclude this from happening. Taken together, the provisions of
the resolution of ratification are designed to ensure that the
United States military will not incur any reduction in fighting
power or alteration in operating practice. The Executive branch
repeatedly assured the Committee that, since the U.S. Armed
Forces already observe the practices and obligations required
of land mine use under the Amended Mines Protocol, ratification
of the Protocol would have no implications for U.S. military
effectiveness. These assurances were central to the Committee's
decision to recommend ratification.
Significant Features of the Protocol
The Amended Mines Protocol includes provisions that achieve
the first five of the six objectives noted in the March 1995
resolution of ratification of the CCW. Only limited progress
was made toward establishing a verification mechanism, although
it was agreed in Article 14 that High Contracting Parties
should ``consult each other and . . . cooperate with each other
. . . to resolve any problems that may arise with regard to the
interpretation and application of this Protocol.'' In his
letter of transmittal of the Amended Mines Protocol to the
Senate, President Clinton pledged to ``pursue these issues in
the regular meetings that the amended Protocol provides [in
Article 13] for review of its operation.''
A. Short-duration Mines
The Protocol properly differentiates between long-duration
anti-personnel land mines (APL), which do not self-destruct or
self-deactivate and are therefore a grievous humanitarian
problem around the world, and short-duration APL, which self-
destruct and self-deactivate rapidly and reliably, and
therefore have not been a humanitarian problem.
Short-duration APL are a carefully-devised military
capability. In modern maneuver warfare, military forces
invariably will emplace a mine field but later find the
requirement to move through it themselves. Short-duration mines
are not designed to be long-lived enough to pose a major
impediment to U.S. military planners, and their defensive
benefits for U.S. forces are unquestionable. Moreover, short-
duration mines also should be viewed as a humanitarian asset,
in that they enable U.S. military forces to offer credible
protection to civilian populations, whether in Korea or Bosnia-
Herzegovina.
Unless an APL is used in areas marked and monitored to
effectively exclude civilians, the Amended Mines Protocol
requires the APL in question to be capable of self-destructing
within 30 days of emplacement and of self-deactivation within
120 days of emplacement. The Protocol specifies that the APL
must accomplish these tasks with 90 percent reliability in the
case of self-destruction, and 99.9 percent reliability for
self-deactivation and self-destruction combined. Because long-
duration APL typically have a thirty-year active ``laid'' life
span, the Protocol thus requires that active laid life be
reduced by roughly 99 percent.
All United States short-duration anti-personnel land mines
meet the Protocol's technical criteria. The term ``self-
destructing,'' when used in conjunction with land mines, means
that the mine blows up automatically at a preset time. ``Self-
deactivating'' means that the mine can no longer function
because an internal mechanism, such as power supplied by a
battery, runs out. U.S. self-destructing mines can be set to
one of three durations: 4 hours; 48 hours; or 15 days. (Only 5
percent of the inventory can be set for 15 days, and the vast
majority of the ``smart'' mines in the inventory are set to
last 4 hours.) United States mines self-destruct before or on
the preset time with 99.99 percent reliability. Of 32,000 mines
tested, only one missed its self-destruct time (and it was only
one hour late in destructing). All U.S. self-destructing land
mines are also self-deactivating. The reliability rate for
self-deactivation within 120 days is 99.9999 percent.
In other words, U.S. short-duration mines exceed the
Protocol's self-destruction/self-deactivation requirements by
at least two orders of magnitude on the basis of self-
destruction alone. Accordingly, U.S. mines so-equipped are
physically incapable of presenting a long-lived hazard. The
mines cannot be re-used, and the minefield poses no threat once
self-destructed or de-activated. Finally, the U.S. military
only employs mines if combat operations are imminent. It is for
this reason that no one credibly alleges that U.S. ``smart''
mines have contributed to the humanitarian problem.
If other countries adhere to the Amended Mines Protocol,
its technical limitations will make a substantial contribution
to international efforts to reduce death and injury resulting
from long-duration land-mine use. Indeed, if the Protocol had
been in force and fully observed for the past thirty years,
there would be little or no humanitarian APL problem today from
the world's remaining unexploded mines. The Committee
recognizes that the Protocol's specifications, including the
original concept of self-deactivation, were created by the
United States and regards this as cause for particular
commendation.
The Committee notes that the requirement for self-
deactivation is particularly valuable with respect to low-cost
mines which may be manufactured by low-technology countries.
The simplest form of self-deactivation is simply a mine which
relies upon a battery as a power source; thus, once the battery
is exhausted, the mine is rendered inert. By consequence, poor
production quality will not create a humanitarian problem, but
simply will cause the mine to stop functioning sooner than
expected.
By restricting the use of long-duration APL while allowing
full military use of short-duration APL, the Protocol strikes
an appropriate balance between humanitarian concerns and
military requirements for short-duration APL (as well as long-
duration APL in static and closely-controlled environments such
as Korea). This is the principal reason why the Committee
recommends the Protocol's approval.
B. Detectability
A second important feature of the Amended Mines Protocol is
its prohibition (in Article 4, and in paragraph 2 of the
Technical Annex) on the use or transfer of APL that are less
detectable than 8 grams of iron in a single coherent mass. The
Department of Defense determined that 8 grams of iron created a
magnetic signature sufficiently strong to stand out against
normal background noise as seen by a common metal detector.
Nonmetallic mines, which are prohibited if they do not meet the
Protocol's technical requirements for detectability, offer no
military advantage. But they greatly complicate the task of
humanitarian demining.
One of the more important deficiencies of the 1980 Mines
Protocol is that it does not prohibit the use of non-detectable
mines. A number of countries, such as China, have produced or
deployed large numbers of non-detectable plastic mines which
present a serious threat to civilians, peacekeepers, relief
missions and mine-clearance personnel. The Amended Mines
Protocol eliminates this earlier deficiency with respect to
anti-personnel mines. The Committee urges the President to
continue to seek the extension of this provision to ban non-
detectable anti-tank mines, as well.
C. Transfer Restrictions
A third commendable feature of the Amended Mines Protocol
is its restriction (in Article 8) on APL transfers. Parties to
the Protocol are barred from transferring APL to governments
that have not committed to observe the obligations of the
Protocol themselves. Transfer of prohibited (e.g., non-
detectable) mines is banned altogether. Many of the landmine
tragedies around the world are caused by imported mines rather
than those that are indigenously constructed. The Amended Mines
Protocol outlaws the most undesirable aspects of the worldwide
APL trade. Because a number of countries which have refused to
take part in other land mine negotiations (but which are key
suppliers of land mines around the globe) are now taking steps
to join the Protocol, the restrictions on transfer will make an
important contribution to reductions in civilian casualties.
D. Scope of Application
Article 1 of the Amended Mines Protocol enlarges the scope
of application of the Protocol to include armed conflict that
occurs within the territory of a High Contracting Party. Given
the terrible contribution that civil wars have made to the
humanitarian land mine crisis (e.g., in Afghanistan, Angola,
Mozambique and Cambodia), the extension of the Protocol's
application to those wars is a major accomplishment. The
Amended Mine Protocol will apply to all parties to such a
conflict within the territory of a High Contracting Party, not
just to established governments.
This aspect of the Amended Mines Protocol is, in fact, a
step forward in the development of the rules of war, which
generally have applied only to war among states (even though
the United States has considered them applicable to all its own
military operations). The Amended Mines Protocol is the first
treaty to accept the reality that internal armed conflicts are
as deadly as inter-state wars, and therefore deserving of
limitation through international rules.
III. Military Implications of a Land Mine Ban
As has been noted, the Amended Mines Protocol is not a land
mine ban. It is for this reason, and for the numerous
humanitarian benefits offered by the Protocol, that the
Committee is able to recommend its ratification to the Senate.
Some have suggested that the United States, by ratifying
the Amended Mines Protocol but refusing to adopt the Ottawa
Convention, will fail to take serious steps to address the
humanitarian consequences of land mine use. The Committee
rejects this view, and believes it essential that one assess
the implications for the United States Armed Forces of a ban on
the use of the short-duration anti-personnel land mines upon
which they rely. In the view of many members of the Committee,
there is too little awareness of the grave risks involved with
various proposals to forbid United States commanders in the
field from using land mines to protect American servicemen.
While the Committee supports an international effort to end
the indiscriminate carnage and devastation caused by anti-
personnel land mines, all its members agree that both the
Congress and the Executive branch must exercise care to protect
the lives of U.S. servicemen sent around the world in defense
of America's vital national security interests.
In the era of modern maneuver warfare and and diverse U.S.
military commitments overseas, land mines are, in the view of
the majority of Committee members, an essential military
capability. If the United States were to deny this capability
to its commanders in the field, the majority of the Committee
believes the United States would needlessly be placing at risk
the lives of its young soldiers, and would be jeopardizing the
ability of the United States Armed Forces to accomplish its
assigned missions.
Land mines serve several critical tactical functions.
First, minefields are used to protect defending forces and to
ensure that units are not outflanked or overrun during attack.
The United States has used mines in every major conflict this
century--and they have helped save the lives of countless U.S.
servicemen. In their capacity as a defensive measure, land
mines are an extremely important ``force multiplier'' that the
Army and Marine Corps, with their downsized force structures,
cannot today live without. APL afford protection to the U.S.
military during the initial entry of forces. They also allow
the United States to control more terrain with fewer forces and
buy time for U.S. units to build-up to maximum strength.
More generally, without the ability to use mines to protect
the flanks, and with no other alternative/offsetting
capabilities, U.S. ground commanders would be forced to commit
more forces to the wings, and keep more units in reserve. By
spreading forces more thinly, the senior leadership of the U.S.
Army and Marine Corps would have that much less flexibility in
planning missions.
Second, APL are used to obstruct and influence the enemy's
direction of movement. In this way, mines are used to channel
enemy forces into zones where overwhelming U.S. firepower can
be concentrated. Without mines, in the view of the majority of
the Committee, battlefield dominance will be much harder for
the United States to maintain. An enemy that is not forced to
pick his way through a complex obstacle, such as a minefield,
will move faster and thus be more difficult to halt or
otherwise destroy. Loss of battlefield dominance inevitably
will translate into larger numbers of U.S. military casualties.
Additionally, when the United States interposes its Armed
Forces to separate warring factions, whether in Bosnia
Herzegovina or Korea, loss of the ability to shape and control
the battlefield can increase the risk of war that will bring
large numbers of civilian casualties, as well.
Third, mines are used to delay or stop enemy forces in
their tracks. As such, mines serve as a force multiplier, and
allow the U.S. Armed Forces to bring a variety of other weapons
to bear on the opposing force. Since the Gulf War, military
planners have emphasized high-tech weaponry in a continuing
effort to minimize U.S. casualties and capitalize upon an area
of comparative advantage. But the capabilities of precision-
guided, standoff munitions are maximized when the enemy has
been significantly slowed or brought to a halt (by a minefield,
for example). Thus, banning APL use could undercut much of the
value the United States has derived from the ongoing
``revolution in military affairs.'' The majority of the
Committee believes that elimination of mines from the U.S.
military's inventory of weaponry will mean that the military
will have less time to capitalize on the employment of standoff
munitions; the enemy will close ranks with U.S. forces much
more quickly than otherwise would be the case. When he does,
there will be more enemy units with which to deal.
Fourth, land mines increase the effectiveness of other
weapons systems. They are indispensable, for instance, in
protecting anti-tank mines from tampering or breaching. Without
APL, the opposing force can use satchel charges to destroy our
anti-tank systems, or pull them out of the way. According to
the Joint Chiefs of Staff, modeling has been done showing that
it takes nearly ten times longer to breach an anti-tank
minefield if APL are interspersed, than if they are not. This
is why the United States employs mixed munitions which contain
both anti-tank and anti-personnel mines.
It is the view of the majority of the Committee members,
that, in the absence of technological alternatives offering a
military capability equal to or greater than land mines, a ban
on these systems will result in large numbers of American
soldiers being killed. At greatest risk would be the units our
nation relies upon to provide force projection--Marine
Expeditionary Brigades and the Army's Airborne and Air Assault
Divisions. These early entry and support units will have less
``stopping power'' and far fewer defense options. They will
find it far more difficult to disrupt or deter enemy attack.
The net result will be increased U.S. casualties.
According to the then-Chairman of the Joint Chiefs of
Staff, General John Shalikashvilli, a moratorium on the use of
land mines:
constitutes an increased risk to the lives of US
forces, particularly in Korea and Southwest Asia, and
threatens mission accomplishment. It is the
professional military judgment of the Joint Chiefs of
Staff and the geographic Combatant Commanders that the
loss of APL which occurs as a result of this
moratorium, without a credible offset, will result in
unacceptable military risk to US forces.
The Committee was alarmed by Pentagon estimates that U.S.
casualties would increase by 15 percent during the initial
phase of a conflict in the Persian Gulf region if land mines
were banned with no credible, alternative technologies. United
States casualty rates could reach as high as 30 percent in a
North East Asian contingency, and 35 percent in various
European theaters.
The Foreign Relations Committee heard testimony on February
3, 1998, from three retired four-star generals, including one
who has earned the Nation's highest decoration for heroism--the
Congressional Medal of Honor. Those witnesses were: (1) General
Carl E. Mundy, a former commandant of the United States Marine
Corps who has earned, among other things, the Bronze Star and
the Purple Heart; (2) General Frederick Kroesen, former
Commander of the United States Army, Europe, and Vice Chief of
Staff for the United States Army, whose decorations include the
Bronze Star, the Silver Star, and the Purple Heart; and (3)
General Raymond Davis, former Assistant Commandant of the
Marine Corps, who, as a lieutenant colonel in Korea, earned the
Congressional Medal of Honor during the 1st Marine Division's
historic ``break out'' from the Chosin Reservoir.
In his testimony, General Carl Mundy stated:
We deserve to equip these young men and women with the
very best in weaponry that we have, and I would submit
that the self-destructing land mine is one of those
weapons. Without it, we place them at greater risk. It
is that simple.
Similarly, General Frederick Kroesen added that ``any
deployment of our American forces into a combat zone without a
supply of anti-personnel mines that can be used to help
guarantee their security would be highly irresponsible.''
But General Davis summarized the danger of a land mine ban
most succinctly when he warned:
The lives of our sons and daughters should be given the
highest priority when deciding whether or not to ban
unilaterally the use of self-destructing mines. Let
there be no doubt. If we were to deny our troops the
ability to protect themselves on the battlefield with
these mines, we would be needlessly putting at risk
their lives.
For all of these reasons, the majority of the Committee
believes that the most prudent means of addressing the
humanitarian land mine problem is to establish strict
conditions on the employment of long-duration mines and to
promote a shift towards the use of short-duration mines which
meet technological criteria designed to ensure that such mines
pose no humanitarian threat. The Amended Mines Protocol
accomplishes these two objectives.
Minority Views on the Implications of a Land Mine Ban
A minority of the Committee takes a more benign view of a
land mine ban and of the Ottawa Convention. To these members,
the issues are complex and must be analyzed against a backdrop
of profound moral concerns.
For the United States, the choice not to sign the
Convention was made confidently, but with sadness. U.S.
military leaders said that they could not prudently forego
anti-personnel mines along the border between South Korea and
North Korea within the 10-year transition period permitted in
the convention. They added that combat effectiveness would be
imperiled by the requirement to end our practice of sowing of
short-duration anti-personnel mines in anti-tank minefields.
Anti-personnel land mines can indeed be militarily
effective weapons. As Jody Williams, the Nobel Prize-winning
head of the International Campaign to Ban Land mines, has
stated: ``Nobody in their right mind denies the utility of land
mines.''
Yet, there is a long history of laws of war. These have all
been adopted with an eye to limiting the inhumaneness of war by
governing the use of weapons and tactics that are militarily
useful. Thus, the United States does not condone torture, even
though some have argued that it could save U.S. lives. Neither
does the United States condone mass murder of civilians, even
though such gruesome tactics might indeed save lives on the
attacking side. Indeed, the Uniform Code of Military Justice
bans all purposeful killing of non-combatants, even if such
killing would be militarily useful. The United States also
refrained from bombing dams in North Vietnam to cause flooding
of their villages and cities.
The United States also bans, by various treaties, the use
of poison gas, of toxins, or of biological warfare. Nobody
denies that the use of such weapons might save U.S. lives in
some cases, although perhaps only rarely. But the United States
weighs the world's interest in sparing innocent civilians from
the greatest horrors of war against any military utility of
such weapons.
Both logic and humanity require that the United States
engage in a similar calculus regarding anti-personnel land
mines. The executive branch accepts this point and is trying
both to limit the unintended casualties caused by land mines
and to hasten the day when a world-wide ban on anti-personnel
mines will be deemed feasible for U.S. forces.
There is continuing debate regarding the military
usefulness of anti-personnel land mines. U.S. war-fighting
doctrine is based increasingly upon fast maneuver and the
exploitation of real-time battlefield intelligence. Anti-
personnel mines inhibit fast maneuver. The United States tries
to maximize their impact on enemy forces and to minimize the
impact upon our own, but this is an imperfect science. Even
though short-duration mines permit U.S. forces to cross through
safely after a specified period of time, both past wars and
recent exercises have shown that some U.S. forces may well be
hemmed in, and some even killed or injured, as a result of
those weapons.
Many--and probably most--military officers feel that the
advantages of using anti-personnel land mines outweigh these
risks. This view is not unanimous, however. Thus, on September
9, 1993, General Alfred Gray, Jr., former U.S. Marine Corps
commandant, addressed the American Defense Preparedness
Association and said, in part:
We kill more Americans with our mines than we do
anybody else. We never killed many enemy with mines. .
. . I know of no situation in the Korean War, nor in
the five years I served in Southeast Asia, nor in
Panama, nor in Desert Shield-Desert Storm where our use
of mine warfare truly channelized the enemy and brought
them into a destructive pattern. . . . In the broader
sense, I'm not aware of any operational advantage from
broad deployment of mines. . . .
Similar concerns have been expressed by retired General
Jack Galvin, who was a battalion commander in Vietnam and is
now the dean of the Fletcher School of Law and Diplomacy, and
by retired Lieutenant General Robert Gard, who until this year
was president of the Monterey Institute of International
Studies. Lieutenant General Gard states: ``The United States,
with its enormous high-tech military arsenal, would be far
better off if the use of . . . [anti-personnel land mines] were
a war crime.''
Even in Korea, the utility of anti-personnel land mines has
been questioned. Retired Lieutenant General James F.
Hollingsworth, a former I Corps commander in Korea, has warned
against the use of ``smart'' mines:
They would be scattered by the thousands, according to
most scenarios, from the air and by artillery in the
path of advancing troops south of the DMZ. In
consideration of the certain prospects of the flood of
civilian refugees in this area, and the fluidity and
rapid response needs of our own counter-attacking
forces, the use of scatterable mines, ``smart'' or not,
would be a game plan for disaster.
Hollingsworth adds that ``North Korea could neutralize much of
their effectiveness with rocket-line charges, fuel-air
explosives, and other breaching techniques.'' He insists that
there are numerous other methods--not necessarily other
weapons--to halt a North Korean advance. Hollingsworth
concludes as follows:
There is indeed a military utility to . . . [anti-
personnel land mines], but in the case of US forces in
Korea it is minimal, and in some ways even offset by
the difficulty our own . . . [mines] pose to our brand
of mobile warfare. The loss of this utility is a small
and acceptable price to pay for moving the world toward
a complete ban on . . . [anti-personnel land mines].
So it is only with difficulty that some Committee members
support the Administration's decision not to sign the Ottawa
Convention at this time. These members look forward to the day
when, through the efforts of General David C. Jones, retired
Chairman of the Joint Chiefs of Staff, the United States
succeeds in developing new weapons and techniques that will
permit it to join our NATO allies and the majority of the
world's countries in banning anti-personnel land mines forever.
IV. An Assessment of the Ottawa Convention
The majority of the members of the Committee commend the
Administration for its refusal to sign the Convention on the
Prohibition of the Use, Production, Stockpiling, and Transfer
of Anti-Personnel mines and on Their Destruction, opened for
signature at Ottawa on December 3-4, 1997 (otherwise known as
the Ottawa Convention). That Convention is not an effective
worldwide APL ban. Most of the major producers and users of APL
have declined to sign it. The Amended Mines Protocol, in
contrast, is a genuine worldwide agreement that will include
the major land mine powers.
Setting aside the question of universality and the military
implications of a land mine ban, the Ottawa Convention also
oversimplifies a complex problem requiring a carefully-planned,
comprehensive solution. The Convention served unique political
purposes, rather than humanitarian needs. It was negotiated
without any serious consideration to security concerns. Indeed,
few delegations had military representatives at all. It also
was negotiated in a forum with large numbers of non-
governmental organizations protesting aspects of the U.S.
negotiating position and otherwise criticizing the United
States as being part of the land mine problem. Additionally, a
number of small countries such as the Seychelles, funded and
emboldened by the various activist organizations, repeatedly
sought to embarrass the United States. It was, in short, an
environment where serious consideration of national security
issues could not occur.
The result is that the Ottawa Convention is a poorly-
conceived, poorly-drafted document which fails to take into
account any of the security concerns of the United States or
its closest allies. Not only does it ban short-duration mines
that are not a humanitarian problem, but it permits some mines
that are. Long-duration anti-tank mines with long-duration
anti-handling devices are a significant humanitarian problem.
But the Ottawa Convention permits their use without
restriction, largely because the Austrian delegation drafted
the treaty so as to allow Austria to continue to sell its anti-
handling device. The Ottawa Convention thus failed to solve the
humanitarian problem and has rendered further progress more
difficult.
A spokesman for the Canadian Foreign Ministry recently said
of the Ottawa Convention that U.S. Government officials who
``urged us to remove this from politics and bring it back to
the realm of humanitarian concerns . . . entirely missed the
point. This is about politics.'' While this may be so with
respect to the Ottawa Convention, the Committee notes that the
Amended Mines Protocol provides meaningful solutions to the
humanitarian problem.
Despite misgivings on the part of many in the Congress and
the Administration, U.S. negotiators were dispatched to Oslo,
Norway, with instructions to resolve five critical concerns
with the draft Ottawa Convention (the so-called ``red lines'').
The analysis of those issues that follows reflects the views of
the majority of members on the Committee, who concur largely
with the Administration on these matters.
1. Exemption for the Korean Peninsula
In 1996, when President Clinton announced the U.S. APL
policy and the intent to aggressively pursue an international
agreement to ban the use, stockpiling, production, and transfer
of APL, he also stated:
The United States views the security situation on the
Korean Peninsula as a unique case and in the
negotiation of this agreement will protect our right to
use APL there until alternatives become available or
the risk of aggression has been removed.
The Department of Defense continues to study alternatives
to APL, but a credible offsetting capability has yet to be
developed. Accordingly, an exception for Korea remains a
central element in U.S. APL policy. The United States' need to
protect the right to use APL in Korea stems not only from U.S.
commitments to South Korea as an ally, but from U.S.
responsibilities as the leader of United Nations Forces in
South Korea and from the essential military function that APL
serve in U.S. defense plans for South Korea.
The situation on the Korean Peninsula is unique. First, it
is the only place in the world where a UN unified command
maintains a military armistice agreement. Moreover, the forces
in South Korea are confronted by one of the world's largest
military forces, maintained at a high state of readiness.
Hostilities could resume with little or no notice. North Korea
fields a large ground force, massed just north of the
demilitarized zone. A sizeable percentage of this force is
deployed roughly 30 to 60 miles of the South Korean capital,
Seoul (population: 10 million). At present, U.S. war plans call
for halting any North Korean offensive before it reaches Seoul,
and for the use of APL to delay and disrupt the expected mass
infantry attack by the North. Anti-personnel land mine use is
intended to delay the attack long enough for other weapons
systems to fully engage the enemy, and until U.S. and other UN
forces can be reinforced to meet the aggression.
Without APL, U.S. officials argue, North Korea likely would
destroy Seoul before the invasion could be turned. Under such
circumstances, tens of thousands of soldiers and hundreds of
thousands of civilians would be killed.
The United States' policy requirements for Korea could have
been met in any number of ways by the negotiators in Oslo. The
simplest solution would have been to grant an exception for
Korea, noting the unique threat of aggression. (Obviously, the
forces in Korea relying on APL are not there only to protect
themselves or an ally; they are stationed in Korea to enforce
the will of the international community, expressed through the
United Nations.)
Equally sufficient would have been the adoption of the
U.S. proposal to grant an exception to the ban on APL use for
those situations where such systems are used in defense of UN-
mandated or brokered cease-fires or truces. The United States
proposed, in Oslo, that Article 3, paragraph 3, of the treaty
be revised to read:
The general obligations under Article 1 shall not apply
to activities in support of a United Nations Command or
its successor, by a State Party participating in that
command, where a military armistice agreement had been
concluded by a United Nations Command.
Indeed, U.S. negotiators were even willing to stipulate that in
such a case, the number of anti-personnel mines would not
exceed that necessary for that specific purpose. However, the
``Ottawa Core Group''--led by Canada and various
nongovernmental organizations such as the International
Campaign to Ban Land Mines and the International Committee on
the Red Cross--blocked all U.S. efforts to secure an exemption
for Korea. These organizations failed to recognize that no
treaty will prove effective in the long run if it decreases the
sense of security of its participants or increases the
likelihood of hostilities, which will lead to greater civilian
casualties than the situation the treaty is meant to address.
2. Change the Definition of APL to Allow Use of ``Mixed Munitions''
Virtually all U.S. anti-tank land mine systems are fielded
in conjunction with anti-personnel mines to protect the anti-
tank mines from being disabled or rapidly breached by the
opposing force. Accordingly, the Ottawa Convention's ban on APL
also would forbid the use of U.S. anti-tank systems. The United
States sought a change in the draft treaty's definitions to
ensure that munitions primarily designed as anti-tank, anti-
vehicle, or runway denial systems would not be captured by the
Convention.
Anti-tank and anti-vehicle munitions are designed to block
or channel tanks and armored vehicles, not people, and are only
deployed in areas where an armored offensive is imminent.
Similarly, runway denial systems are designed primarily to deny
access to airstrips and other military sites. The munitions
that are integral to these weapons are designed to self-
destruct or self deactivate within a very short period of time
(15 days or less in the case of U.S. weapons) and are in
accordance with the Amended Mines Protocol of the Convention on
Conventional Weapons.
Generally speaking, in the case of U.S. mixed munitions,
the majority of submunitions in each package are not APL.
Moreover, the submunitions cannot be separately deployed from
the rest of the munition after the munition leaves the
production facility. Specific facts regarding individual
systems follow:
Gator: The Gator system is dispensed by both Air Force and Navy
aircraft. It consists of a bomb casing that holds a mix
of self-destructing anti-tank (AT) and anti-personnel
land mines (APL). While the Air Force Gator carries 72
AT and 22 APL, the naval variant contains a mix of 45
AT and 15 APL. Delivery by aircraft allows the mines to
be used deep in enemy territory to turn, block,
disrupt, or delay the enemy before it is able to close
with U.S. ground forces. Gator mines were used
successfully during Operation Desert Storm to protect
the flanks of U.S. forces engaging in combat
operations. By consequence, the United States VII Corps
was able to more effectively concentrate its forces
during battle since units and reserves were not
required for the flanks.
Volcano: Volcano is a system that either can be deployed on the
ground (by two soldiers) or delivered from helicopter.
It is the principal delivery system for self-
destructing mines in the U.S. inventory. The mine
dispenser consists of six canisters of self-
destructing/self-deactivating land mines, each of which
contains five AT and 1 APL mine. When deployed by hand,
two soldiers can use Volcano to establish a minefield
in less than 10 minutes. Air-delivery emplaces the
minefield in less than 30 seconds. A similar minefield,
hand-emplaced, would take a 30-member engineer platoon
5 hours. U.S. Army light forces are particularly
dependent upon the Volcano. It provides them the
capability to establish rapidly minefields to delay
enemy movement, isolate the battlefield, and reinforce
friendly fire.
MOPMS: Finally, the Modular Pack Mine System (MOPMS) is a man-
portable mine dispenser. It is operated by a single
soldier using a hand-held radio control. Each MOPMS
internally contains a mix of 17 anti-tank and 4 anti-
personnel land mines (all of which self-destruct). The
system serves a variety of roles. It can close lanes
and gaps in minefields or at choke points, and also can
be used for close-in protection of soldiers during
defensive operations. The remote control unit gives the
soldier the ability either to extend the self-destruct
time of the mines or to destroy the minefield
immediately.
While the primary U.S. ``red line'' dealt with the Ottawa
Convention's treatment of mixed munitions, the Austrian text
also created several other serious definitional problems.
First, by failing to incorporate the word ``primarily'' before
the definition of APL, the definition can be misconstrued to
capture devices other than APL, such as anti-runway cluster
munitions and anti-tank devices with certain types of anti-
handling mechanisms.
Second, the treaty uses the term ``incapacitating,'' which
presumably is drawn verbatim from the Amended Mines Protocol
(and CCW) definition. However, neither the Protocol nor the
underlying CCW restricted non-lethal weapon technology that may
temporarily disable, stun or signal the presence of persons but
not cause permanent incapacity. The United States was unable to
make this understanding clear in the context of the Ottawa
Convention. (With respect to the Protocol, on the other hand, a
formal understanding regarding interpretation of this term is
included in the resolution of ratification reported to the
Senate by the Committee).
Finally, with respect to Claymores, the Ottawa Convention
definition covers such mines when they are used with a trip-
wire or are otherwise target-activated. (When such mines are
command-detonated, they do not meet the treaty's definition and
therefore would not be subject to prohibition). However, unlike
the Amended Mines Protocol, which specifically permits the use
of trip-wired Claymores for the protection of units in the
field, the Ottawa Convention bans all such uses, even for very
short-term, small unit protection.
The United States received no support for any of its
proposals to address these concerns.
3. Entry-Into-Force Transition Period
The United States went into the negotiations in Oslo
proposing that the Convention enter into force only after at
least 60 countries have ratified it, including all five
Permanent Members of the Security Council and at least 75
percent of the historic producers and users of APL. While such
a requirement would guarantee that the APL ban would prove more
effective, the Ottawa Core Group members were intent on
negotiating an immediate ban.
In response, the U.S. delegation noted that since a number
of significant land mine producers would remain outside the
Ottawa treaty for the foreseeable future, the United States
required a provision to give states the option of invoking a
nine-year deferral period (in addition to the 10-year
transition period allowed for currently deployed APL) for
certain provisions. Such a deferral period was intended to
allow states intent on giving up their APLs, in the absence of
a universal treaty, the necessary time to prepare for that
eventuality.
The President's 1996 announcement that the United States
would relinquish the use of self-destructing/self-deactivating
APL outside Korea when an international agreement took effect
was based upon the presumption that the international agreement
would be universal. The President explicitly retained the
right, in the absence of such universality, to use self-
destructing/self-deactivating APL worldwide. Consistent with
the U.S. intent to retain ``smart mines,'' the nine-year
deferral was designed to ensure that the treaty would provide a
means to prevent a gap in defensive capabilities.
The U.S. proposal made at Ottawa read as follows:
In the event that a State Party determines that it
cannot immediately comply with the provisions of
paragraphs 1(a), 1(b) or 2 of Article 1, as they relate
to retention, stockpiling, transfer not involving
transfer of title to or control over, and use of anti-
personnel mines, it may declare at the time of the
deposit of its instrument of ratification, acceptance,
approval or accession to the Convention that it will
defer compliance with those provisions for a period not
to exceed nine years from the entry into force of this
Convention.
The U.S. delegation was prepared to go so far as to link the
optional nine-year deferral period to compliance with certain
provisions comparable to those agreed in the Amended Mines
Protocol. Nevertheless, this U.S. proposal, too, was rejected.
4. Withdrawal Clause
The fourth U.S. ``red line'' consisted of an objection to
the Ottawa Convention's withdrawal clause. Rather than adopting
the standard ``supreme national interest'' clause utilized in
virtually every major arms control treaty, Article 18 of the
Ottawa Convention utilized a ``laws of war'' formulation,
prohibiting withdrawal during wartime and requiring a one year
waiting period. The United States contended that a party must
be allowed to withdraw when that party's supreme national
interests are threatened, regardless of whether the party is
engaged in armed conflict when the period of advance notice of
withdrawal expires. The U.S. delegation contended that, as
drafted, the treaty unduly infringes on the sovereign right of
a country for self-defense.
Most other arms control treaties dealing with weapons of
mass destruction have shorter withdrawal periods--ABM (6
months), CWC (90 days), BWC and NPT (3 months), and CTBT (6
months). Logically, if a country believes that ``extraordinary
events, related to the subject matter of this Convention, have
jeopardized [its] supreme interests,' then it should be
permitted to withdraw within a reasonable period of time.
Again, the U.S. position was not accepted. Instead, the
Ottawa Core Group argued that the CCW contains the same
withdrawal provision, which is correct. However, the CCW does
not, at present, ban a class of weapons. Rather, it regulates
their legitimate use as a means of defense. As the resolution
of ratification for the Protocol makes clear, if new protocols
containing arms control provisions should be added to the CCW,
the withdrawal clause likely will become an issue.
5. Verification/Compliance
The final ``red line'' represents the one area where the
United States, working with the German delegation, enjoyed
modest success. The original draft text, when compared with
other conventional arms control agreements, was sorely lacking
in the necessary detail for a compliance/verification regime.
Even as amended, however, the Convention is unlikely to be
effectively verifiable.
Key factors inhibited developing an effective verification
regime as part of an APL ban in the ``Ottawa process.'' First,
given the time constraints, rules of procedure, and strong
opposition by key Ottawa process supporters to the protracted
discussion necessary to develop such a regime, it was difficult
to negotiate detailed compliance/verification provisions.
Moreover, some countries, such as Mexico, repeatedly opposed
any strengthening of the verification regime.
Second, due to the very nature of APL, an intrusive
verification regime covering use, production, stockpiling and
transfer may have only marginal returns with respect to
increased assurance of compliance. The United States therefore
focused on improving the Austrian text in two areas: to provide
more detailed notifications; and to clarify the role of and
procedures for the Fact Finding Missions.
Other Ottawa Convention Issues
The text of the Ottawa Convention raises several concerns
related to interoperability of allied forces in coalition
operations when one or more military forces is Party to the
Convention and others are not. These issues can be identified
in the General Obligations of Article 1, and they are further
clarified in related articles, including 2, 4, 5, 6, and 8. The
issues can be separated into three categories: (1) use of land
mines during coalition operations; (2) storage of land mines;
and (3) command and control.
With respect to ``use,'' most (but not all) delegations
seemed to agree that use means emplacement. Thus, since the
United States is not a Party, other countries in a coalition
would not violate the treaty so long as they did not engage in
physical emplacement. However, Canada's comments during debate
on the Convention suggested that simply receiving a tactical
benefit from emplaced mines would violate Article 1 regardless
of who emplaced them. Moreover, under the Canadian view, the
clearing requirements would come into play immediately upon
taking over a mined area, even one mined by an allied force.
Such a broad interpretation would raise significant concerns
regarding whether U.S. forces could fight alongside our allies.
One immediate concern would relate to the formulation of rules
of engagement for Bosnia or Kosovo. Could NATO allies, many of
whom proclaimed in Oslo that land mines have no military
utility, continue to insist (as they have) that the United
States be prepared to use APL to defend their troops in the
event of a contingency?
There are two related legal issues regarding the storage of
land mines. The treaty prohibits stockpiling and requires
destruction of mines. The two technical questions are: 1)
whether there is a destruction requirement for land mines owned
by another State, but stored on the territory of a State Party;
and 2) whether allowing a foreign-owned stockpile to exist on a
State Party's territory would amount to assistance,
encouragement or inducement under paragraph 1c. The answers to
these questions are based on the interpretation of the language
of paragraph 1c, as well as the words ``jurisdiction or
control'' as they pertain to the destruction requirement. That
is, what is ``assistance,'' and is a U.S. base on State Party
soil under that State Party's jurisdiction or control? How
allies intend to interpret these requirements is a critical
issue. If the issue is not clarified satisfactorily, U.S.
stockpiles in Japan, Norway, Germany, Spain, and Italy, and on
ships at Diego Garcia could be forced to be withdrawn.
Command and control issues could arise during NATO and
coalition operations, since the control of U.S. mixed munitions
is held at relatively high levels. Commanders that are State
Party citizens may not be in a position to authorize Rules of
Engagement (ROE) that allow for use of mines. In some NATO
situations, the North Atlantic Council itself is the
authorizing authority for ROE. To what extent would an order or
ROE authorization constitute assistance, encouragement or
inducement to take part in an activity that is prohibited by
the Convention? If not rectified, this ambiguity ultimately
could prevent NATO or other coalition commanders from
commanding U.S. forces. It also could complicate future U.S.
involvement in various operations.
V. Future Land Mine Arms Control Issues
A. Differentiation Between Short-Duration and Long-Duration Systems
The majority of the Committee hopes that the Administration
will re-emphasize the distinctions drawn in the Amended Mines
Protocol rather than those the Administration tried to make at
Oslo. In particular, the majority of the Committee expects that
Senate approval of the Protocol will encourage the
Administration to abandon its indefensible and illogical
arguments relating to ``mixed'' mine systems and instead return
to the Protocol's distinctions between short- and long-duration
devices.
The Administration currently insists that if a short-
duration anti-personnel mine is contained in a package that
also contains short-duration anti-tank mines, the anti-
personnel mine becomes instead an ``anti-handling device,'' a
``little kind of explosive,'' or just a ``munition.''
No other country has accepted this diplomatically untenable
argument. The attempt to exempt U.S. APL by mislabelling them
as ``mixed'' systems was not only counterproductive at the Oslo
conference; it was opposed even by the United States' closest
APL allies (including Australia and South Korea). Progress in
Oslo was achieved--not by the delegation's defense of the
``mixed'' munition red line--but by the repeated explanation to
foreign delegations that the APL in mixed munitions are
equipped with self-destructing/self-deactivation features.
Moreover, any headway that was made in this respect was erased
when, at the end of the Oslo conference, the Administration
abandoned critical humanitarian principles for which it
previously stood by deleting from its red-line proposal the
requirement that permissible mixed munitions be self-
destructing and self-deactivating. Had that proposal been
accepted, any nation could have used canisters containing
hundreds of long-duration, nondetectable anti-personnel mines
without restriction so long as each canister contained a single
anti-tank mine. Any agreement so drawn would have had serious
humanitarian consequences.
The Oslo conference has been long ended, and the question
of U.S. membership in the Ottawa Convention definitively
resolved. But the Administration persists in its claim that APL
in mixed munitions are not, in fact, APL; this contradicts (a)
the President's May 16, 1996 policy which included ``mixed''
munitions among U.S. APL; (2) his enumeration of U.S. APL types
banned from export, which includes ``mixed'' munitions; (3) the
APL definition proposed by the United States, which is
contained in the Protocol and which includes ``mixed''
munitions; (4) the APL definition used by the United States in
the Conference on Disarmament, which includes ``mixed''
munitions; and (5) U.S. military acquisition and operational
documents on ``mixed'' munitions, which describe them as
containing APL.
If the Administration persists in this policy, it likely
will have seriously negative national security consequences.
The Administration's current policy calls for ending use of
pure APL outside Korea in 2003. The Administration is not
advocating this policy because these mines are a humanitarian
problem; they are all short-duration mines.
On the contrary, many on the Committee suspect that this
policy has been created and espoused so that the United States
can declare that it is not using APL outside Korea.
Unfortunately, this claim is unlikely to be believed by those
who otherwise have sought to support the Administration for its
rejection of other land mine proposals (e.g., the Ottawa
Convention). It certainly will be rejected by all Ottawa
states, since it will not bring the United States into Ottawa
compliance.
In the view of the majority of the Committee, moreover, the
U.S. policy on abolishing APL will create genuine harm to U.S.
national security, in part because it seeks to forego use of
the Pursuit Deterrent Munition (PDM). This is an indispensable
capability for light infantry, Ranger, light combat engineers,
and special operations forces. There is no alternative to this
munition. The nearest approximation is the command-detonated
Claymore, which is far heavier, is slower to emplace, and
cannot operate unattended.
The U.S. policy also will ban, in the near future, the use
of the artillery-delivered ADAM mine, which constitutes the
vast majority of U.S. APL and is the only mine that can be
emplaced in hostile territory without exposing friendly forces
to fire. The only way to preserve this capability under the
current policy will be to spend more than $200 million
repackaging ADAM in to a mixed munition solely so that it can
be claimed to be no longer an APL--a claim accepted nowhere.
As has been noted previously, the Amended Mines Protocol
makes a clear and reasonable distinction between mines which
destroy themselves or deactivate (such as ADAM and the PDM) and
those which do not. The majority of the Committee recommends
that the misdefinition of mixed munitions be abandoned, and
that future U.S. policy on land mine issues capitalize on terms
set forth in the Technical Annex to the Protocol.
B. Future Negotiations on an Export Ban
Having rejected the Ottawa Convention for its failure to
accommodate U.S. security concerns, the Administration has
refocused its attention on achieving a global anti-personnel
land mine (APL) ban through the Conference on Disarmament. By
negotiating a treaty through the CD, consensus will be required
of several countries that refused even to participate in the
Ottawa process. The significant roster of countries that
elected not to sign the Ottawa Convention includes Russia,
India, China, Israel, Egypt, Finland, Cuba, Iran, Iraq, Kuwait,
Saudi Arabia, and the two Koreas. It is the hope of the
Administration that agreement can be reached in the CD with
these countries on curtailing exports of APL. Following this
first step, the Administration intends to launch additional
negotiations for a comprehensive ban.
Over the past two decades the United States has produced
several varieties of reliable and effective short-duration
mines. Because large-scale production of these mines has
already occurred, further production for export is possible at
relatively low cost. It is in the security interest of the
United States that our allies be well equipped to defend
themselves and to participate in joint operations. It is in
everyone's interest that long-duration mines be replaced by
short-duration mines, if reliance on such a capability is not
to be eliminated altogether. Thus a strong argument can be made
that the United States should export short-duration mines to
allies requesting them (so as to end their use of long-duration
mines).
For several years, the Administration has adopted a
unilateral ban on all anti-personnel mine exports. The majority
of members of the Committee notes that, while laudable as a
gesture of restraint and leadership, the unilateral export
moratorium has conveyed the misimpression that U.S. anti-
personnel mines are not being exported for humanitarian
reasons. As has been noted elsewhere in this report, U.S. land
mines, because of their sophisticated disarming and de-
activation safeguards, do not contribute to the land mine
crisis. Thus the U.S. policy, while well-intentioned, has
created misconceptions about U.S. mines and has further
complicated U.S. diplomatic efforts to secure exemptions for
systems which meet the criteria specified in the Technical
Annex to the Protocol.
In the view of many, the transfer moratorium also has had
an adverse impact on U.S. defense relations with South Korea.
The South Korean government has long desired to eliminate from
its stockpile roughly one million long-duration, hand-emplaced
anti-personnel mines, replacing them with a similar number of
artillery-delivered mines that self-destruct four hours after
emplacement. While the cost of developing such mines and
starting a production line for them is prohibitive for Korea,
the U.S. ADAM mine meets the South Korean requirement well. The
Korean government therefore desires to import ADAM mines while
destroying its long-duration mines. But under the
Administration's policy, this is not permitted.
As a result, South Korea has kept its hand-laid long-
duration mines. This will have two adverse humanitarian
consequences if war erupts on the Korean peninsula. First,
instead of vanishing in four hours, these mines potentially
could lie in wait for 30 years. Second, the current inventory
of South Korean mines will be less effective in blunting or
stopping a North Korean attack than would ADAM munitions that
are not hand-emplaced but rather are remotely-delivered by 155
mm artillery; thus a lightning strike by North Korea
potentially would inflict far more casualties than otherwise
need be the case.
Accordingly, many of the members of the Committee urge the
Administration to differentiate, in future negotiations on a
land mine export ban, between short-duration (e.g. ``smart'')
and long-duration (e.g. ``dumb'') mines. The impetus behind the
land mine issue is the grave international humanitarian crisis
caused by ``dumb'' land mines scattered indiscriminately around
the globe, not by ``smart'' mines (such as ADAM), which disarm
in such a short period of time with such reliability as to pose
no long-lasting threat to innocents. Insofar as the
Administration has stated that negotiations on an export
moratorium will serve as the ``first step'' towards
negotiations on a comprehensive ban within the Conference on
Disarmament, the approach taken in the export treaty likely
will set the stage for all future negotiations. Unless the
Administration is able to distinguish in a transfer ban between
munitions which pose no threat to innocents and those which do,
the United States will once again be placed in the situation of
negotiating an Ottawa Convention like treaty, which--in the
view of the majority of the Committee--clearly does not serve
the national security interests of the United States.
The minority of the Committee, while in agreement that U.S.
short-duration mines are of much less concern than long-
duration mines from the humanitarian standpoint, shares the
Administration's goal that an export ban be undertaken as a
further step toward an effective world-wide APL ban. These
members believe that the crucial purpose of negotiations in the
CD should be to determine how extensive an export ban the
world's major land mine producing countries can agree to
accept. They sincerely hope that current efforts to find
alternatives to APL will bear fruit and that such alternatives
will afford a long-term answer to the problem of fortified
border regions such as that in Korea. In their view, while it
might be possible in the context of a world-wide export ban to
craft exemptions for some transfers of short-duration mines to
replace long-duration mines, any U.S. interest in allowing such
transfers to South Korea must be balanced against the broader
humanitarian objective of moving all countries away from APL.
C. Other Issues Relating to Land Mine Negotiations
Many members of the Committee strongly recommend that the
United States follow the model used in crafting the Amended
Mines Protocol in all future land mine negotiations.
Specifically, mines that cause a significant humanitarian
problem should be tightly restricted, though care must be taken
to preserve U.S. security obligations in Korea and the
potential for similar requirements to emerge elsewhere in the
future. Mines that do not cause such a problem should not be
captured by future agreements, nor should the United States
agree to any prohibition on use, production, stockpiling or
transfer of short-duration anti-personnel land mines, in the
view of these members.
The Committee recommends that the United States explore
future modifications to the Protocol to raise the reliability
requirement for self-destruction and self-deactivation, and to
provide for improved verification. The Committee also supports
seeking a ban on non-detectable anti-tank mines. The Committee
also recommends, however, that future agreements on land mine
transfers explicitly exclude short-duration anti-tank mines
from coverage.
VI. Committee Action
The Amended Mines Protocol together with its Technical
Annex was adopted at Geneva on May 3, 1996. It was submitted to
the Senate on January 7, 1997, and referred on the same day to
the Committee on Foreign Relations.
The Committee held two hearings related to the Amended Land
Mines Protocol and land mine issues generally.
February 3, 1998 (open session)
General Carl E. Mundy, former commandant of the United States
Marine Corps;
General Frederick Kroesen, former Commander of the United
States Army, Europe, and Vice Chief of Staff for the
United States Army;
General Raymond Davis, former Assistant Commandant of the
Marine Corps and Congressional Medal of Honor
recipient.
February 25, 1998 (open sesson)
Robert Grey, then-nominee for the rank of Ambassador during his
tenure of service as U.S. Representative to the
Conference on Disarmament.
At a markup on July 23, 1998, the Committee considered a
resolution of ratification including 1 reservation, 9
understandings, and 14 conditions. The resolution was agreed to
by the Committee by a roll-call vote of 14-4. Those members
voting in the affirmative were Senators Helms, Lugar,
Coverdell, Hagel, Smith, Thomas, Grams, Ashcroft, Frist,
Brownback, Biden, Dodd, Kerry, and Robb. Those members voting
in the negative were Senators Sarbanes, Feingold, Feinstein,
and Wellstone.
Reservation
In its examination of the Amended Mines Protocol, the
Committee became concerned that subparagraph 1(f) of Article 7
precluded the use of certain munitions against military
establishments, such as supply depots, which are legitimate
military targets. Specifically, Article 7 of the Amended Mines
Protocol bans the use of ``booby traps and other devices'' in
any manner that is ``in any way attached to or associated
with'' ten different categories of items, one of which is
``food and drink.'' This is an expansion of the prohibition
contained in the original 1980 Protocol, to which the United
States is already a party; the original provision barred only
the use of booby traps against such targets.
Under the Protocol, the definition of ``other devices'' is
broad, covering everything from special demolition munitions to
satchel charges (such as C-4 with a timer). Moreover, the term
``food and drink'' is undefined, and therefore might be
construed broadly to include all nature of food and drink,
including supply depots and other logistics dumps. Because
Article 7 prohibits the use of ``other devices'' in a manner
that is ``in any way attached to or associated with . . . food
or drink'', the Protocol threatens to make it far more
difficult, or impossible, for the United States Armed Forces to
accomplish certain types of missions.
A variety of U.S. military units train to use specialized
explosive charges against a wide range of legitimate military
targets, including depots and enemy supply dumps. As written,
the Article 7 creates the potential that military personnel
could be accused of ``war crimes'' under the CCW and the
Protocol for legitimate military actions (for instance, if they
were to drop a satchel charge under a truck carrying crates of
rations). Likewise, the use of a demolition charge to destroy a
mountain of ammunition and fuel barrels would be precluded if
that mountain also contained crates of food.
Consequently, a reservation to the Protocol is necessary to
ensure that this provision does not tremendously complicate
mission accomplishment, and ultimately lead either to increased
U.S. casualties or to a command decision not to employ the U.S.
Armed Forces against supply dumps, depots, or other military
locations containing ``food or drink.''
Such a reservation is also necessary to make clear that the
Senate will not agree to the use of Article 7(f) of the Amended
Mines Protocol (or like provisions in the Convention on
Conventional Weapons) as a precedent for future ``laws of war''
treaties. The reservation clarifies the fact that stocks of
``food or drink,'' if judged by the United States to be of
potential military utility, will not be accorded special or
protected status.
Some have argued that ``food and drink''--regardless of
whether it is in a military establishment or not--is
particularly attractive to civilians. For this reason, the
proposed reservation requires that ``due precautions are taken
for the safety of the civilian population.'' However, in
providing for the use of ``other devices'' to destroy any stock
of food judged ``likely to be used by an enemy military
force,'' the Committee implicitly rejects the argument that
munitions cannot be used against supply depots because
civilians might be present. According to the same logic,
neither cruise missiles nor gravity bombs should be used
against supply depots. The Committee reservation makes clear
that the Amended Mines Protocol may not be construed as a
precedent for seeking to ban the use of other types of weaponry
against these legitimate military targets in further
negotiations associated with the ``laws of war.''
In making this reservation, the United States in no way
diminishes the protections afforded civilians under the Amended
Mines Protocol. Numerous other overlapping provisions of the
Protocol eliminate all concerns over the appropriate employment
of various munitions by the Armed Forces of the United States.
Understanding 1: United States Compliance
This understanding states the view of the United States
that U.S. military personnel may not be prosecuted for a
violation of the Amended Mines Protocol unless they knowingly
and intentionally kill or cause serious injury to a civilian.
Further, the actions of U.S. military personnel can only be
assessed in light of information that was reasonably available
at the time. In other words, U.S. military personnel cannot be
judged on the basis of information which only subsequently
comes to light. Taken together, these two provisions erase the
danger that U.S. military personnel will be at risk of being
``second guessed'' with respect to land mine use.
Understanding 2: Effective Exclusion
Understanding (2) states the view of the United States that
the Amended Mines Protocol's requirement for U.S. military
personnel to ensure the ``effective exclusion'' of civilians
when using a Claymore mine is satisfied as long as the unit
using the mine monitors various avenues of approach where the
mines are deployed. United States military personnel have not
violated the Amended Mines Protocol if a civilian is killed or
injured by a trip-wired Claymore, provided that those personnel
had posted sentries, or were otherwise maintaining overview of
the area where the mines were emplaced. This understanding is
important to ensure that small units of the U.S. Armed Forces
(such as reconnaissance teams) will not find the requirements
of Article 5(6)(b) impractical to fulfill. It is the
understanding of the Committee that the U.S. Armed Forces
already are trained to maintain appropriate safeguards in the
employment of Claymores, and therefore that no changes to
current operating procedures will need to be made.
Understanding 3: Historic Monuments
The Amended Mines Protocol contains a prohibition on the
use of booby-traps and other devices in connection with
historic monuments, works of art, or places of worship ``which
constitute the cultural or spiritual heritage of peoples.'' As
written, this might apply to an extremely large category of
buildings and items. Understanding (3) states the view of the
United States that Article 7(1)(i) will be interpreted as
having a restrictive meaning. This understanding protects U.S.
military personnel from accusations of violation of the
Protocol by making clear that only a very limited class of
objects having clearly and widely recognized cultural or
spiritual importance fall within the purview of Article
7(1)(i).
Further, with respect to questions of compliance with
respect to the use of booby-traps or other devices,
Understanding (1) also applies. In other words, unless
information about the cultural or spiritual significance of the
object in question can be assessed as having been reasonably
available to U.S. military personnel, the question of
compliance does not arise.
Understanding 4: Legitimate Military Objectives
This understanding states the view of the United States
that land, in and of itself, can be a legitimate military
objective. Thus the use of land mines and other devices and
munitions to neutralize or deny access to a piece of land is
not prohibited under the Amended Mines Protocol. This
understanding is fundamental to the application of the
Protocol's requirements in a reasonable, militarily-sound
manner, as is made clear in numerous instances within the
article-by-article analysis.
Understanding 5: Peace Treaties
This understanding states the view of the United States
that the Amended Mines Protocol requirement which allocates
responsibility for turning over territory for mine clearance,
or for the maintenance of protections (such as the marking and
monitoring of minefields), will not have unintended
consequences in connection with peace treaties or similar
arrangements. In particular, without this understanding, the
Amended Mines Protocol could be construed to impede
negotiations where a party to the Amended Mines Protocol is
negotiating the transfer of territory containing mines with a
state that is not a party. This understanding makes clear that
no agreement among states is precluded as long as
responsibilities are allocated in a manner which reflects the
essential spirit and purpose of Article 5.
Understanding 6: Booby-Traps and Other Devices
This understanding states the view of the United States
that the prohibition against the deliberate construction of
booby-traps in the form of apparently harmless objects does not
preclude U.S. military personnel from booby-trapping items,
either in advance or in the field, as long as those items are
not specifically designed and constructed to serve as booby-
traps. It is the mass production of apparently harmless
portable objects specifically designed as booby traps (such as
those used by Soviet forces in Afghanistan) toward which this
provision is directed--not towards the ad hoc adaptation of
devices, for example, by U.S. special operations forces.
Understanding (6) also states the view of the United States
that a trip-wired hand grenade shall be treated under the
Amended Mines Protocol only as a booby-trap, and not as a
``mine'' or an ``anti-personnel mine.'' This clarification is
necessary to prevent future confusion over whether a trip-wired
hand-grenade (or any similar device) might also fit the
definitions of mine and anti-personnel mine, and thus also be
subject to the relevant restrictions on such mines. Without
this clarification, the Amended Mines Protocol could be
misconstrued as preventing the use of trip-wired grenades
unless, for example, these devices are clearly marked and
visible. This would defeat the military utility of such a
device in the first place and is not what the Amended Mines
Protocol intended.
Finally, Understanding (6) also makes clear that hand-
grenades, other than trip-wired hand grenades, are not covered
by the Amended Mines Protocol at all. Concern arose that,
without this clarification, the term ``other devices'' might be
argued to capture a grenade, since it is manually-emplaced
(e.g. thrown) and actuated automatically after a lapse of time.
This provision makes clear that the Amended Mines Protocol's
restrictions on ``other devices'' do not apply to hand grenades
or similar devices.
Understanding 7: Non-Lethal Capabilities
This understanding states the United States' view of the
definition of an anti-personnel mine. Specifically, Article 2,
paragraph 3 of the Amended Mines Protocol leaves open the
possibility that a device designed to incapacitate a person
might be considered an anti-personnel mine. This understanding
makes clear that the United States does not consider the
Amended Mines Protocol to be relevant to non-lethal devices
designed to temporarily incapacitate or otherwise affect a
person, but not to cause permanent incapacity.
Understanding 8: International Tribunal Jurisdiction
Understanding (8), regarding the jurisdiction of any
international tribunal, states the view of the United States
that Article 14 permits only domestic penal sanctions for
violations of the Protocol. Ratification of this Protocol,
therefore, in no way authorizes the trial of any person before
an international criminal tribunal for violations of either
this Protocol or the Convention on Conventional Weapons. If
such an effort were made to misinterpret the scope of Article
14, this understanding makes clear that the United States would
not recognize the jurisdiction of any international tribunal to
prosecute a U.S. citizen for a violation of this Protocol or
the Convention on Conventional Weapons.
Additionally, and in relation to Understanding (8), the
Committee notes that the Executive branch agreed that the new
requirements of the Amended Mines Protocol are not part of
generally-recognized customary law, and therefore, that the
United States does not consider that the International Criminal
Court may assert jurisdiction over these matters.
Understanding 9: Technical Cooperation and Assistance
This understanding makes clear that the United States may
refuse to provide assistance to a country for any reason, and
that other countries may not legitimately use the Amended Mines
Protocol as a pretext for the transfer of militarily
significant assistance or equipment under the guise of
providing simple humanitarian assistance.
The Committee is increasingly concerned with the inclusion
of treaty language which seeks to give countries the ``right''
to participate in the ``fullest possible exchange'' of
technical information, equipment, and other forms of
assistance. While well-intentioned countries, such as the
United States, have agreed to such provisions in the past in
order to obtain support for treaties of universal application,
the Committee notes the risk posed to nonproliferation and arms
control regimes by treaty language purporting to entitle
countries to trade in sensitive technologies. Numerous
countries have in the past, and will continue in the future, to
cite these types of provisions to justify their illegitimate
trade in dangerous, militarily-significant technologies.
Accordingly, the Committee urges the Executive branch, in
future negotiations, either to refrain from agreeing to the
inclusion of such provisions, or to make clear within the
treaty text that such provisions may not be used as a pretext
for the transfer of weapons technology or other militarily-
significant assistance.
Condition 1: Pursuit Deterrent Munition
Condition (1) makes clear that nothing in the Amended Mines
Protocol restricts the possession or use of the Pursuit
Deterrent Munition (PDM) since that mine is considered a short-
duration (or ``smart'') mine fully in compliance with the
provisions on self-disarming, self-deactivation, and
detectability contained in the Amended Mines Protocol's
Technical Annex. The PDM is a manually-activated mine with a
hand grenade release. As such, it is primarily useful for small
force protection. Light infantry, Ranger, light combat
engineers, and special operations forces train to employ the
PDM under circumstances (such as hostage rescue or the
retrieval of a nuclear device) where capture of the unit would
mean the failure of the mission. The United States has not
developed any alternative technology to replace the PDM.
Accordingly, given the fact that the Protocol in no way affects
the use of this munition, and the unique nature of the device,
this condition requires the President to agree that the United
States will retain the PDM for use by the Armed Forces at least
until January 1, 2003, unless an effective alternative to the
munition becomes available. This certification will not keep
the executive branch from eliminating the PDM as of that date,
but it is intended to prompt careful thought before such an
action if an effective alternative to the PDM has not been
developed.
Further, in meeting Condition (1)'s certification
requirement, the President must agree that a mere change in a
tactic or an operational concept, in and of itself, will not
constitute an ``effective alternative'' to the PDM. By clear
implication, then, any replacement to the PDM likely must
revolve around the application of an alternative technology.
While tactics and operational concepts may be adapted or
conformed to capitalize upon a new, technological alternative,
the Committee does not agree that manipulation of doctrine
alone is sufficient to justify the abandoning of this essential
military capability.
Condition 2: Export Moratorium.
Condition (2) calls upon the President, in future
negotiations on a land mine export ban, to avoid any
restrictions on the transfer of any mine that is primarily
designed to be exploded by the presence, proximity, or contact
of a vehicle and which is equipped with an anti-handling
device. The Committee makes this recommendation in light of the
view, expressed by some, that transfers of these munitions
should be prohibited, particularly if they contain anti-
handling devices such as tilt rods, trip-wires, or anti-lift
devices. The Committee does not support such proposals.
As the article-by-article analysis notes, the Amended Mines
Protocol specifically ensures that mines ``primarily designed''
to be exploded by the presence, proximity, or contact of a
vehicle are not treated as anti-personnel mines. With
increasing restrictions on the use of anti-personnel mines, it
was clear, from a military perspective, that alternative means
of protecting anti-tank mines against enemy removal during
combat operations would be increasingly important, and that
those means should not also be imperiled by the same sorts of
restrictions applicable to anti-personnel mines.
Anti-handling devices are the most common alternative for
protecting anti-tank devices. But these devices, like anti-
personnel mines, are intended to cause an anti-tank mine to
detonate if handled by a person. (This is essential to prevent
the rapidly disabling of anti-tank mines intended to slow,
halt, or channelize enemy forces). The Amended Mines Protocol,
however, makes clear that anti-tank mines equipped with an
anti-handling devices do not fall within the definition of an
anti-personnel mine. Therefore, they are not subject to the
relevant, additional constraints. For this reason, the
Committee views inclusion of such mines in a transfer ban meant
to address anti-personnel mines as inappropriate and
counterproductive. Moreover, it might create a dangerous
precedent whereby some might seek to include such devices
within the scope of future negotiations on a comprehensive land
mine ban.
Condition 3: Humanitarian Demining Assistance
This condition expresses the views of the Senate on the
extent to which the United States leads the international
effort to address the problems posed by the indiscriminate use
of anti-personnel land mines. It recognizes the fact that the
United States has contributed more to the global demining
effort than any other country, has done more to develop and
share critical demining technology with other countries, and
continues to expand its demining program. Finally, this
condition urges the international community to match their
diplomatic rhetoric with concrete action by joining the United
States in addressing the land mine problem through demining
efforts.
Condition 4: Limitation on the Scale of Assessment
This provision addresses the fact that the United States is
scheduled to pay for implementation of this Protocol at the
same rate of assessment that it pays to the United Nations
(i.e., 25 percent). The Senate has already made clear that the
United States should not be assessed to pay any more than 20
percent of the U.N. assessments. The current U.S. assessment is
nearly double the assessment rate to any other country. In
contrast, Russia--one of the countries directly responsible for
the transfer of long-duration mines and the resultant,
indiscriminate carnage and human suffering--pays less than 5.67
percent.
Pursuant to this provision, the United States shall not pay
more than $1 million per year (adjusted for inflation) for the
implementation of the Amended Mines Protocol, unless the
President first certifies that more funds are required and
Congress enacts a joint resolution approving the President's
certification.
Condition 5: United States Authority for Technical Cooperation and
Assistance
This provision makes clear that the Executive branch must
first obtain both statutory authorization and appropriation
before funds are withdrawn from the Treasury to pay the United
States assessed share of costs for the operation of the
Protocol, or to provide assistance for Protocol-related
activities. Accordingly, this condition prohibits the
reprogramming of funds originally authorized for unrealted
purposes, for any payment or assistance, including the transfer
of in-kind items, under Article 11 or Article 13(d) of the
Amended Mines Protocol.
Condition 6: Future Negotiation of Withdrawal Clauses
This provision expresses the sense of the Senate that
treaties containing arms control provisions must allow a party
to withdraw from such provisions when that party's supreme
national interests are threatened, regardless of whether the
party is engaged in armed conflict, provided that an
appropriate period of advance notice has been given.
Prohibiting withdrawal from arms control limitations during
wartime--obviously the period in which a country's supreme
interests are most likely to be jeopardized--unduly infringes
on the sovereign right of a country for self-defense.
The underlying treaty to the Amended Mines Protocol (the
Convention on Conventional Weapons) contains a withdrawal
clause that bars the United States from withdrawing, even after
the period of advance notice has expired, if the United States
is engaged in armed conflict at that time. When the Senate gave
its advice and consent to ratification of the CCW, that treaty
was properly characterized as a ``law of war'' convention. As
such, the withdrawal clause was appropriate since the CCW did
not ban a class of weapons; it simply regulated their use as a
legitimate defensive measure. Obviously, a treaty establishing
rules for conduct of warfare is most relevant in time of armed
conflict.
However, the Amended Mines Protocol contains provisions,
such as Article 8, which are, on their face, not of a ``law of
war'' nature. Thus, Article 8, which restricts the transfer of
mines, would appear to be an arms control provision. Moreover,
the President has asked the Senate to approve other protocols
to the CCW that appear to be at least partly of an arms control
nature. The proposed Protocol on Blinding Laser Weapons, for
instance, includes a ban on the use of blinding laser weapons
and on their transfer. If the CCW is to evolve into an arms
control treaty, serious concern will arise with respect to its
withdrawal clause.
Finally, as has been noted elsewhere, using the CCW as a
model, the drafters of the Ottawa Convention (which is an arms
control treaty) included in that treaty the CCW's withdrawal
provision.
This condition states the expectation of the Senate that
future U.S. negotiators will reject the inclusion of withdrawal
provisions akin to the CCW's in any treaty if they would apply
to an arms control provision. As the Administration noted in
response to questions for the record regarding the Amended
Mines Protocol: ``there should be appropriate provision for
timely withdrawal from any international agreement affecting
U.S. armaments, regardless of how it is characterized, if there
is a genuine risk of a situation arising where a more limited
right to withdraw could jeopardize U.S. supreme national
interests.''
Condition 7: Prohibition on De Facto Implementation of the Ottawa
Convention.
This condition requires the President to assure the Senate,
before moving forward with ratification of the Amended Mines
Protocol, that the Administration will not seek to limit the
consideration of alternatives to anti-personnel and mixed anti-
tank systems by dictating that only Ottawa Convention-compliant
alternatives be pursued. To do so might signal an intent to
engage in de facto implementation of the Ottawa Convention
without having submitted the treaty to the Senate for advice
and consent to ratification.
Concern that the Administration may have intended, at least
at one point, to circumvent the Senate's prerogatives by
attempting to implement the Ottawa Convention derives from a
draft Presidential Decision Directive (PDD) circulated on
January 30, 1998. Specifically, the draft PDD directed the
development of alternatives for U.S. anti-personnel mines and
mixed anti-tank systems. The draft PDD further stated:
These APL alternatives should be compliant with the
Convention on the Prohibition of the Use, Production,
Stockpiling, and Transfer of Anti-Personnel Mines and
on Their Destruction, otherwise known as the ``Ottawa
Convention.'' In other words, for the purposes of this
PDD, an APL ``alternative'' must be designed and
constructed so that it does not meet the definition of
``anti-personnel mine'' in the Ottawa Convention. . . .
Like alternatives to APLs, the alternatives to mixed
anti-tank systems that DoD explores should be Ottawa
Convention-compliant.
This draft PDD appears to dictate compliance with a treaty that
the President has not even signed--thereby bypassing the Senate
and the Constitution. Accordingly, Condition 7 specifically
precludes this draft direction, or any similar directive, from
being implemented.
Aside from the Constitutional principles involved, the
Committee is also very concerned with the substantive effect of
a decision to limit consideration of non-APL solutions to those
alternatives which are compliant with the Ottawa Convention.
Specifically, the Committee suspects that very few
``technological'' alternatives would meet this narrow
compliance requirement. As has been noted, the Ottawa
Convention bans the possession, use, and development of ``anti-
personnel mines.'' The drafters of the treaty deliberately
refused to use the definition of APL contained in the Amended
Mines Protocol. Because Sweden's effort to limit the Ottawa
definition of APL to those mines ``primarily'' designed to be
triggered by a person failed, a system can be banned even if it
is not intended to explode due to the presence, proximity, or
contact of an individual.
Few countries may recognize the significance of the
differences in the APL definitions between the Protocol and the
Ottawa Convention. Without the use of the word ``primarily'' in
the Ottawa definition, a determination must be made as to
whether additional munitions, other than those generally
accepted as APL, fall under the Convention's definition and
prohibitions. For these reasons, a search for APL alternatives
which precludes anything but Ottawa-compliant systems may well
be steered towards doctrinal or operational changes, rather
than technological fixes. As the Committee makes clear in
Condition (9), this is unlikely to be acceptable.
Additionally, Condition (7) requires the President to
certify to the Congress that, in pursuing alternatives to anti-
personnel mines and mixed anti-tank systems, the United States
will only pursue those technologies which are affordable and
which will provide a level of military effectiveness
``equivalent'' to that currently provided by the mine of mixed
system in question.
The Committee agreed to the use of the term ``equivalent''
with the understanding that the Joint Chiefs of Staff will
reject any alternative unless it offers a military capability
that is at least equal to the capability provided by the
relevant mine or mixed system. It is on the basis of its
confidence that the Administration can be trusted to apply this
common-sense definition of ``equivalent'' that the Committee is
willing to accept the President's certification under paragraph
(B) of this Condition. For the Administration to argue any
other definition of the term ``equivalent'' would necessarily
mean that it intends to pursue alternatives less effective than
the mines they seek to replace. Obviously, the Committee would
reject such an approach given the heightened risk at which this
would place U.S. soldiers.
Condition 8: Certification With Regard to International Tribunals
Condition (8) is directly related to Understanding (8)
(which makes clear that no international tribunal or similarly
constituted body shall have jurisdiction over the United States
or any of its citizens with respect to the Amended Mines
Protocol or the Convention on Conventional Weapons). In order
to fully clarify the shared understanding between the Executive
and the Senate, Condition (8) requires a certification by the
President as a condition of ratification. Specifically, prior
to the deposit of the United States instrument of ratification
for this Protocol, the President shall certify to the Congress
that with respect to this Protocol, the Convention on
Conventional Weapons, or any future protocol or amendment
thereto, the United States shall not recognize the jurisdiction
of any international tribunal over the United States or any of
its citizens.
Condition 9: Tactics and Operational Concepts
Condition (9) operates in tandem with Condition (7). It
makes clear that the Senate is unlikely to regard as acceptable
any claim that a change in tactics or operational concepts
would be sufficient, in and of itself, to constitute an
effective alternative to mines. The Administration has
repeatedly declared its intent to eliminate unilaterally U.S.
APLs and mixed anti-tank systems. As National Security Advisor
Sandy Berger committed in a May 15, 1998 letter to Senator
Leahy:
The United States will search aggressively for
alternatives to our mixed anti-tank systems by (a)
actively exploring the use of APL alternatives in place
of the self-destructing anti-personnel submunitions
currently used in our mixed systems, and (b) exploring
the development of other techniques and/or operational
concepts that result in alternatives that would enable
us to eliminate our mixed systems entirely.
Mr. Berger's letter is of concern to the Committee insofar as
it suggests that the development of ``techniques and/or
operational concepts'' could constitute, in the
Administration's mind, an acceptable form of APL alternative.
The Administration may well find it difficult to identify
acceptable ``technological'' alternatives to land mines and
mixed systems. Thus, if it fails to find a credible,
technological offset to replace land mines or mixed systems,
the Administration may be tempted to argue that changes in
``techniques and/or operational concepts'' have eliminated the
military's need for APL.
Condition (9) makes clear the view of the Senate that the
Administration is unlikely to argue successfully that a new
tactic or operational concept can replace APL or mixed systems.
Moreover, the Committee expects that the Department of Defense
will not expend scarce resources on researching new tactics or
operational concepts that are not associated with new
technological alternatives to APL. As Condition (1) makes
clear, the Committee considers an ``effective alternative''
(for the Pursuit Deterrent Munition) to require more than a
change in tactics or operational concepts, thereby implicitly
suggesting the requirement for a ``technological'' remedy.
Moreover, as the discussion of Condition (7) makes clear, the
President may not limit the pursuit of alternatives to Ottawa
Convention-compliant remedies because of the Committee's
concern that such a limitation would threaten to push the
alternatives considered towards changes of a purely tactical or
doctrinal nature.
Condition 10: Finding Regarding the International Humanitarian Crisis
Condition (10) makes clear that United States short-
duration anti-personnel land mines have not contributed to the
international humanitarian problem posed by the indiscriminate
use of land mines. As has been noted, the large majority of
U.S. short-duration mines are designed to self-destruct 4 hours
after emplacement. The longest-lived of this type of U.S. mine
is designed to self-destruct in 15 days. Because of the short-
lived nature of these systems, and the fact that U.S. self-
destruct reliability is 100 percent within the 30 days allowed
by the Amended Mines Protocol, U.S. short-duration mines cannot
be credibly alleged to have contributed to the humanitarian
crisis created by long-duration mines.
Condition 11: Approval of Modifications
This condition reaffirms that no amendment or modification
of the Amended Mines Protocol or the Technical Annex, other
than a minor technical or administrative change, shall enter
into force for the United States unless the advice and consent
of the Senate, pursuant to Article II, section 2, clause 2 of
the Constitution, has first been obtained.
The Committee notes its concern that the Ottawa Core Group
might be able to dominate, as a bloc, discussions on further
amendments to the Protocol, and urges the Executive branch to
reject efforts to turn the Protocol into an Ottawa-like ban. As
the Committee has noted throughout its report on the Protocol,
such is not the purpose of this treaty. Moreover, the Committee
cautions that, due to the complex, interlocking nature of the
various Articles of the Protocol and the detailed discussions
held with the Senate on the meaning and effect of every
provision, even a seemingly minor change to the Protocol might
constitute a substantive modification requiring the further
advice and consent of the Senate.
Condition 12: Further Arms Reductions Obligations
This condition affirms the Committee's intention to
consider agreements between the United States and other
countries involving militarily significant obligations on U.S.
forces only as treaties. Some in the Executive branch persist
in the mistaken belief that it is constitutionally acceptable
to undertake militarily significant international accords by
Executive agreement, approved by a simple majority vote of both
Houses.
Condition 13: Treaty Interpretation
The Committee condition on Treaty Interpretation affirms
that the constitutionally-based principles of treaty
interpretation set forth in Condition (1) of the Senate's
resolution of ratification of the INF Treaty (May 27, 1988) and
Condition (8) of the resolution of ratification of the CFE
Flank Document (May 14, 1997) apply to all treaties. These
principles apply regardless of whether the Senate chooses to
say so in its consideration of any particular treaty.
Condition 14: Primacy of the United States Constitution
This condition affirms that nothing in the Amended Mines
Protocol shall be construed to require or authorize
legislation, or the taking of any other action, by the United
States, that is prohibited by the Constitution of the United
States, as interpreted by the United States.
VII. Resolution of Ratification
Senate of the United States
IN EXECUTIVE SESSION
October ____, 1998
Resolved (two-thirds of the Senators present concurring therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A RESERVATION,
UNDERSTANDINGS, AND CONDITIONS.
The Senate advises and consents to the ratification of the Amended
Mines Protocol (as defined in section 5 of this resolution), subject to
the reservation in section 2, the understandings in section 3, and the
conditions in section 4.
SEC. 2. RESERVATION.
The Senate's advice and consent to the ratification of the Amended
Mines Protocol is subject to the reservation, which shall be included
in the United States instrument of ratification and shall be binding
upon the President, that the United States reserves the right to use
other devices (as defined in Article 2(5) of the Amended Mines
Protocol) to destroy any stock of food or drink that is judged likely
to be used by an enemy military force, if due precautions are taken for
the safety of the civilian population.
SEC. 3. UNDERSTANDINGS.
The Senate's advice and consent to the ratification of the Amended
Mines Protocol is subject to the following understandings, which shall
be included in the United States instrument of ratification and shall
be binding upon the President:
(1) United states compliance.--The United States
understands that--
(A) any decision by any military commander,
military personnel, or any other person responsible for
planning, authorizing, or executing military action
shall only be judged on the basis of that person's
assessment of the information reasonably available to
the person at the time the person planned, authorized,
or executed the action under review, and shall not be
judged on the basis of information that comes to light
after the action under review was taken; and
(B) Article 14 of the Amended Mines Protocol
(insofar as it relates to penal sanctions) shall apply
only in a situation in which an individual--
(i) knew, or should have known, that his
action was prohibited under the Amended Mines
Protocol;
(ii) intended to kill or cause serious
injury to a civilian; and
(iii) knew or should have known, that the
person he intended to kill or cause serious
injury was a civilian.
(2) Effective exclusion.--The United States understands
that, for the purposes of Article 5(6)(b) of the Amended Mines
Protocol, the maintenance of observation over avenues of
approach where mines subject to this paragraph are deployed
constitutes one acceptable form of monitoring to ensure the
effective exclusion of civilians.
(3) Historic monuments.--The United States understands that
Article 7(1)(i) of the Amended Mines Protocol refers only to a
limited class of objects that, because of their clearly
recognizable characteristics and because of their widely
recognized importance, constitute a part of the cultural or
spiritual heritage of peoples.
(4) Legitimate military objectives.--The United States
understands that an area of land itself can be a legitimate
military objective for the purpose of the use of landmines, if
its neutralization or denial, in the circumstances applicable
at the time, offers a military advantage.
(5) Peace treaties.--The United States understands that the
allocation of responsibilities for landmines in Article 5(2)(b)
of the Amended Mines Protocol does not preclude agreement, in
connection with peace treaties or similar arrangements, to
allocate responsibilities under that Article in a manner that
respects the essential spirit and purpose of the Article.
(6) Booby-traps and other devices.--For the purposes of the
Amended Mines Protocol, the United States understands that--
(A) the prohibition contained in Article 7(2) of
the Amended Mines Protocol does not preclude the
expedient adaptation or adaptation in advance of other
objects for use as booby-traps or other devices;
(B) a trip-wired hand grenade shall be considered a
``booby-trap'' under Article 2(4) of the Amended Mines
Protocol and shall not be considered a ``mine'' or an
``anti-personnel mine'' under Article 2(1) or Article
2(3), respectively; and
(C) none of the provisions of the Amended Mines
Protocol, including Article 2(5), applies to hand
grenades other than trip-wired hand grenades.
(7) Non-lethal capabilities.--The United States understands
that nothing in the Amended Mines Protocol may be construed as
restricting or affecting in any way non-lethal weapon
technology that is designed to temporarily disable, stun,
signal the presence of a person, or operate in any other
fashion, but not to cause permanent incapacity.
(8) International tribunal jurisdiction.--The United States
understands that the provisions of Article 14 of the Amended
Mines Protocol relating to penal sanctions refer to measures by
the authorities of States Parties to the Protocol and do not
authorize the trial of any person before an international
criminal tribunal. The United States shall not recognize the
jurisdiction of any international tribunal to prosecute a
United States citizen for a violation of the Protocol or the
Convention on Conventional Weapons.
(9) Technical cooperation and assistance.--The United
States understands that--
(A) no provision of the Protocol may be construed
as affecting the discretion of the United States to
refuse assistance or to restrict or deny permission for
the export of equipment, material, or scientific or
technological information for any reason; and
(B) the Amended Mines Protocol may not be used as a
pretext for the transfer of weapons technology or the
provision of assistance to the military mining or
military counter-mining capabilities of a State Party
to the Protocol.
SEC. 4. CONDITIONS.
The Senate's advice and consent to the ratification of the Amended
Mines Protocol is subject to the following conditions, which shall be
binding upon the President:
(1) Pursuit deterrent munition.--
(A) Understanding.--The Senate understands that
nothing in the Amended Mines Protocol restricts the
possession or use of the Pursuit Deterrent Munition,
which is in compliance with the provisions in the
Technical Annex and which constitutes an essential
military capability for the United States Armed Forces.
(B) Certification.--Prior to deposit of the United
States instrument of ratification, the President shall
certify to the Committee on Armed Services and the
Committee on Foreign Relations of the Senate and to the
Speaker of the House of Representatives that the
Pursuit Deterrent Munition shall continue to remain
available for use by the United States Armed Forces at
least until January 1, 2003, unless an effective
alternative to the munition becomes available.
(C) Effective alternative defined.--For purposes of
subparagraph (B), the term ``effective alternative''
does not mean a tactic or operational concept in and of
itself.
(2) Export moratorium.--The Senate--
(A) recognizes the expressed intention of the
President to negotiate a moratorium on the export of
anti-personnel mines; and
(B) urges the President to negotiate a universal
ban on the transfer of those mines that does not
include any restriction on any mine that is primarily
designed to be exploded by the presence, proximity, or
contact of a vehicle, as opposed to a person and that
is equipped with an anti-handling device, as defined in
the Amended Mines Protocol, or a tilt rod or magnetic
influence sensor, such mine not being considered an
anti-personnel mine despite being so equipped.
(3) Humanitarian demining assistance.--
(A) Findings.--The Senate makes the following
findings:
(i) United states efforts.--The United
States contributes more than any other country
to the worldwide humanitarian demining effort,
having expended more than $153,000,000 on such
efforts since 1993.
(ii) Development of detection and clearing
technology.--The Department of Defense has
undertaken a substantial program to develop
improved mine detection and clearing technology
and has shared this improved technology with
the international community.
(iii) Expansion of united states
humanitarian demining programs.--The Department
of Defense and the Department of State have
significantly expanded their humanitarian
demining programs to train and assist the
personnel of other countries in developing
effective demining programs.
(B) International support for demining
initiatives.--The Senate urges the international
community to join the United States in providing
significant financial and technical assistance to
humanitarian demining programs, thereby making a
concrete and effective contribution to the effort to
reduce the grave problem posed by the indiscriminate
use of non-self-destructing landmines.
(4) Limitation on the scale of assessment.--
(A) Limitation on assessment for cost of
implementation.--Notwithstanding any provision of the
Amended Mines Protocol, and subject to the requirements
of subparagraphs (B) and (C), the portion of the United
States annual assessed contribution for activities
associated with any conference held pursuant to Article
13 of the Amended Mines Protocol may not exceed
$1,000,000.
(B) Recalculation of limitation.--
(i) In general.--On January 1, 2000, and at
3-year intervals thereafter, the Administrator
of General Services shall prescribe an amount
that shall apply in lieu of the amount
specified in subparagraph (A) and that shall be
determined by adjusting the last amount
applicable under that subparagraph to reflect
the percentage increase by which the Consumer
Price Index for the preceding calendar year
exceeds the Consumer Price Index for the
calendar year three years previously.
(ii) Consumer price index defined.--In this
subparagraph, the term ``Consumer Price Index''
means the last Consumer Price Index for all-
urban consumers published by the Department of
Labor.
(C) Additional contributions requiring
congressional approval.--
(i) Authority.--Notwithstanding
subparagraph (A), the President may furnish
additional contributions for activities
associated with any conference held pursuant to
Article 13 of the Amended Mines Protocol which
would otherwise be prohibited under
subparagraph (A) if--
(I) the President determines and
certifies in writing to the appropriate
committees of Congress that the failure
to make such contributions would
seriously affect the national interest
of the United States; and
(II) Congress enacts a joint
resolution approving the certification
of the President under subclause (I).
(ii) Statement of reasons.--Any
certification made under clause (i) shall be
accompanied by a detailed statement setting
forth the specific reasons therefor and the
specific activities associated with any
conference held pursuant to Article 13 of the
Amended Mines Protocol to which the additional
contributions would be applied.
(5) United states authority for technical cooperation and
assistance.--Notwithstanding any provision of the Amended Mines
Protocol, no funds may be drawn from the Treasury of the United
States for any payment or assistance (including the transfer of
in-kind items) under Article 11 or Article 13(3)(d) of the
Amended Mines Protocol without statutory authorization and
appropriation by United States law.
(6) Future negotiation of withdrawal clause.--It is the
sense of the Senate that, in negotiations on any treaty
containing an arms control provision, United States negotiators
should not agree to any provision that would have the effect of
inhibiting the United States from withdrawing from the arms
control provisions of that treaty in a timely fashion in the
event that the supreme national interests of the United States
have been jeopardized.
(7) Prohibition on de facto implementation of the ottawa
convention.--Prior to the deposit of the United States
instrument of ratification, the President shall certify to
Congress that--
(A) the President will not limit the consideration
of alternatives to United States anti-personnel mines
or mixed anti-tank systems solely to those that comply
with with the Ottawa Convention; and
(B) in pursuit of alternatives to United States
anti-personnel mines, or mixed anti-tank systems, the
United States shall seek to identify, adapt, modify, or
otherwise develop only those technologies that--
(i) are intended to provide military
effectiveness equivalent to that provided by
the relevant anti-personnel mine, or mixed
anti-tank system; and
(ii) would be affordable.
(8) Certification with regard to international tribunals.--
Prior to the deposit of the United States instrument of
ratification, the President shall certify to Congress that with
respect to the Amended Mines Protocol, the Convention on
Conventional Weapons, or any future protocol or amendment
thereto, that the United States shall not recognize the
jurisdiction of any international tribunal over the United
States or any of its citizens.
(9) Tactics and operational concepts.--It is the sense of
the Senate that development, adaptation, or modification of an
existing or new tactic or operational concept, in and of
itself, is unlikely to constitute an acceptable alternative to
anti-personnel mines or mixed anti-tank systems.
(10) Finding regarding the international humanitarian
crisis.--The Senate finds that--
(A) the grave international humanitarian crisis
associated with anti-personnel mines has been created
by the indiscriminate use of mines that do not meet or
exceed the specifications on detectability, self-
destruction, and self-deactivation contained in the
Technical Annex to the Amended Mines Protocol; and
(B) United States mines that do meet such
specifications have not contributed to this problem.
(11) Approval of modifications.--The Senate reaffirms the
principle that any amendment or modification to the Amended
Mines Protocol other than an amendment or modification solely
of a minor technical or administrative nature shall 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.
(12) Further arms reductions obligations.--The Senate
declares its intention to consider for approval an
international agreement that would obligate the United States
to reduce or limit the Armed Forces or armaments of the United
States in a militarily significant manner only pursuant to the
treaty-making power as set forth in Article II, section 2,
clause 2 of the Constitution of the United States.
(13) Treaty interpretation.--The Senate affirms the
applicability to all treaties of the constitutionally-based
principles of treaty interpretation set forth in condition (1)
of the resolution of ratification of the INF Treaty, approved
by the Senate on May 27, 1988, and condition (8) of the
resolution of ratification of the CFE Flank Document, approved
by the Senate on May 14, 1997.
(14) Primacy of the united states constitution.--Nothing in
the Amended Mines Protocol requires or authorizes the enactment
of legislation, or the taking of any other action, by the
United States that is prohibited by the Constitution of the
United States, as interpreted by the United States.
SEC. 5. DEFINITIONS.
As used in this resolution:
(1) Amended mines protocol or protocol.--The terms
``Amended Mines Protocol'' and ``Protocol'' mean the Amended
Protocol on Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices, together with its Technical
Annex, as adopted at Geneva on May 3, 1996 (contained in Senate
Treaty Document 105-1).
(2) CFE flank document.--The term ``CFE Flank Document''
means the Document Agreed Among the States Parties to the
Treaty on Conventional Armed Forces in Europe (CFE) of November
19, 1990, done at Vienna on May 31, 1996 (Treaty Document 105-
5).
(3) Convention on Conventional Weapons.--The term
``Convention on Conventional Weapons'' means the Convention on
Prohibitions or Restriction on the Use of Certain Conventional
Weapons Which May be Deemed to be Excessively Injurious or to
Have Indiscriminate Effects, done at Geneva on October 10, 1980
(Senate Treaty Document 103-25).
(4) Ottawa convention.--The term ``Ottawa Convention''
means the Convention on the Prohibition of the Use, Production,
Stockpiling, and Transfer of Anti-Personnel Mines and on Their
Destruction, opened for signature at Ottawa December 3-4, 1997
and at the United Nations Headquarters beginning December 5,
1997.
(5) United states instrument of ratification.--The term
``United States instrument of ratification'' means the
instrument of ratification of the United States of the Amended
Mines Protocol.
VIII. Article by Article Analysis
The Protocol on Prohibitions or Restrictions on the Use of
Mines, Booby-traps and Other Devices (Protocol II) is annexed
to the Convention on Prohibitions or Restriction on the Use of
Certain Conventional Weapons Which May be Deemed to be
Excessively Injurious or to Have Indiscriminate Effects (the
Convention).
The Convention, including Protocol II, as well as two
additional protocols, was concluded at Geneva on October 10,
1980. The United States ratified the Convention and expressed
its consent to be bound by its Protocol II, as well as its
Protocol I on Non-Detectable Fragments, on March 24, 1995.
In 1994, an international review of the Convention was
begun to address, in particular, the strengthening of Protocol
II. This international review process concluded in May of this
year with the adoption of an amended Protocol II, including a
revised Technical Annex (referred to herein variously as the
amended Protocol or the amended Mines Protocol). It provides
significant improvements over the current Protocol II of 1980
(the 1980 Protocol). The provisions of the amended Protocol are
analyzed, article-by-article, below.
Article 1--Scope of Application
Article 1 consists of six paragraphs and addresses the
scope of the Protocol.
Paragraph 1 establishes the material scope of application.
Like the 1980 Protocol, the amended Protocol imposes a series
of restrictions on the use of land mines, booby-traps and
certain other delayed-action weapons. It applies to mines, both
anti-personnel and anti-vehicle, 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.
Paragraph 2 expands the circumstances in which the
provisions of the Protocol must be observed. The 1980 Protocol
is limited to international armed conflicts and ``wars of
national liberation'' identified in Article 1(4) of Protocol I
Additional to the 1949 Geneva Conventions. That is, by its
terms, it applies only to situations of armed conflict between
states or to cases ``in which peoples are fighting against
colonial domination and alien occupation and against racist
regimes in the exercise of their right of self-determination.''
The amended Protocol encompasses all internal armed
conflicts, incorporating by reference situations referred to in
Article 3 common to the Geneva Conventions of 1949. (Common
Article 3 concerns non-international armed conflict occurring
within the territory of a state.)
The result is particularly significant in several respects.
First, it is in internal conflicts (such as Cambodia and
Angola) that the greatest civilian casualties from mines have
occurred. Regulating and restricting the use of mines in such
conflicts in the future will mean, if the Protocol is complied
with, significant reductions in civilian deaths and injuries.
Second, since the requirements of the amended Protocol
apply to all armed conflicts, whatever their political
character, it gives no special status to ``liberation wars'',
as do Article 1(4) of Additional Protocol I and references
thereto in Article 7 of the Convention itself. It was because
of this special status and the subjectivity and political
controversy that the reference to it injects into international
humanitarian law that the United States declared at the time of
its ratification of the Convention in March of 1995, that
Article 7 of the Convention will have no effect in this
respect.
Third, as provided for in paragraph 3, the amended Protocol
will, if in force for a state involved in an internal armed
conflict, govern that state's use of mines as well as the use
of mines by the other party or parties to the conflict (that
is, the insurgent group). There is no requirement that the
adverse party or parties in the conflict meet specific
criteria--e.g., be organized under responsible command and
exercise some territorial control--as is the case in Protocol
II Additional to the Geneva Conventions (the most recent
attempt by the international community to improve the law
applicable to internal conflicts).
Thus, although the amended Protocol expressly excludes from
its scope of application situations of internal disturbances,
such as riots, it does not permit the armed forces of a state--
or of an insurgent group--to ignore its requirements in an
armed conflict. It applies in all cases of non-international
armed conflict and is therefore of broader application than
Protocol II Additional to the Geneva Conventions.
As a result of this more comprehensive coverage, the cases
where use of mines would technically be unregulated are quite
few. Prospects that the amended Protocol will be observed by
responsible militaries in all situations are therefore good,
since few such militaries will wish to squander resources and
material to maintain a double standard on the use of mines
under such circumstances.
Finally, it was understood that certain provisions of the
amended Protocol must be observed at all times. A statement to
this effect was made part of the negotiating record by the
delegation of Belgium, speaking on behalf of 24 other
delegations, including the U.S. delegation, at the final
plenary session of the Review Conference and was not contested
by any other delegation.
This conclusion is supported, as well, by the scope of the
Convention itself which makes clear that it and its annexed
Protocols shall apply in situations referred to in Article 2
common to the Geneva Conventions of 12 August 1949. Common
Article 2 refers specifically to provisions which shall be
implemented in peace-time, a recognition that certain
provisions must be observed at all times if they are to be
implemented in good faith. Among the provisions of the amended
Protocol that must be so observed are: the provisions regarding
the recording, marking, monitoring and protection of areas
containing mines; the provisions of Article 8 regarding
transfers; and the provisions of Articles 13 and 14 regarding
consultations and compliance. A statement to this effect was
made part of the negotiating record by the U.S. Delegation, and
was not contested by any other delegation.
Paragraphs 4 and 5 are a response to the concern that the
expanded scope of the Protocol could be used as a pretext to
violate the sovereignty of a state or intervene in its internal
affairs. The provisions repeat verbatim Article 3 of Protocol
II Additional to the Geneva Conventions.
An important point about paragraph 4 is that only
``legitimate'' means may be used to ``defend the national unity
and territorial integrity.'' Therefore, even imperative needs
of state security may not be invoked to justify breaches of the
rules of the amended Protocol as such actions are, by
definition, illegitimate.
Paragraph 5 concerns, specifically, the principle of non-
intervention, and provides that nothing in the amended Protocol
itself shall be invoked to justify intervention in the affairs
of a High Contracting Party. This does not mean that any action
to enforce the Protocol, such as a discussion of compliance
issues in the periodic meetings of Parties under Article 13,
could be considered unlawful intervention.
Finally, paragraph 6 is a response to the concern that the
application of the amended Protocol to other than High
Contracting Parties could affect the legal status of such
parties or of territory in dispute. This paragraph meets that
concern by clarifying that application of the amended Protocol
to such parties will not change their legal status or the
status of disputed territory. The language is drawn from a
similar provision in paragraph 2 of Article 3 Common to the
Geneva Conventions of 1949.
Article 2--Definitions
Article 2 consists of 15 paragraphs, each providing a
definition for a term used in the amended Protocol, including
its technical annex. These definitions are not listed in any
particular order of precedence, although it was generally
recognized during the negotiations that the definition of
``mine,'' ``remotely-delivered mine,'' ``anti-personnel mine,''
and ``transfer'' were particularly important.
Paragraph 1 of Article 2 defines ``mine'' as a munition
placed under, on or near the ground or other surface area and
designed to be exploded by the presence, proximity or contact
of a person or vehicle. It repeats the formula of the 1980
Protocol verbatim.
There are several noteworthy aspects of this definition.
First, the term ``mine'' includes both anti-personnel and anti-
vehicle mines, including anti-tank mines. Thus, where reference
is made to ``mines,'' as in Article 3 concerning general
restrictions on the use of mines, booby-traps and other
devices, it is understood that both anti-personnel and anti-
vehicle mines are being referenced.
The definition also contemplates that mines can be emplaced
in a variety of ways--under, on or near the ground or other
surface area. This makes clear that the critical defining
characteristic of a mine is not its relationship to the ground
or other surface area but rather its design function of being
exploded by the presence, proximity or contact of a target, be
that target a person or a vehicle. (This applies whether a
munition is designed for this purpose in the factory, or
adapted for this purpose in the field.)
It is also this characteristic, i.e. that the munition is
designed to be activated by the target, that distinguishes a
mine from so-called unexploded ordinance or UXO. UXO is not
covered by the Protocol, either the 1980 or the amended
version. Unexploded ordinance is a result of a malfunction of a
munition; UXO is not ``designed'' in any sense, and, in
particular, is not designed to be detonated by the presence,
proximity or contact of person. Although UXO presents a serious
problem that requires concerted attention, it is a problem
outside the scope of Protocol II.
Paragraph 2 defines ``remotely-delivered mine'' as a mine
``not directly emplaced but delivered by artillery, missile,
rocket, mortar, or similar means, or dropped from an
aircraft.'' Such mines pose particular hazards to civilians, in
part because their location cannot be marked as accurately as
mines placed by hand or by mechanical mine layers and in part
because, emplaced from long distances, it is often difficult to
ensure that civilians are excluded from areas containing such
mines. This definition was developed, therefore, to clearly
categorize such mines in order to subject them to specific,
additional restrictions. These additional restrictions are set
forth in Article 6.
Excluded from the definition of remotely-delivered mines
(and therefore from the additional restrictions of Article 6)
are mines delivered by a land-based system from less than 500
meters, provided that such mines are used in compliance with,
inter alia, the provisions of Article 5, which concern
restrictions on the use of anti-personnel mines which are not
remotely-delivered. Such mines were exempted from the
definition of remotely-delivered mines because, delivered in
the prescribed manner, they can be accurately marked and
civilian protections can be reliably maintained.
Paragraph 3 defines ``anti-personnel mine'' as a mine
primarily designed to be exploded by the presence, proximity or
contact of a person and that will incapacitate, injure or kill
one or more persons. This definition tracks closely with the
definition of ``mine'' in paragraph 1. It adds, however, two
elements.
The first is the word ``primarily'' in the phrase
``primarily designed''. This element was added to ensure that
anti-tank mines equipped with anti-handling devices are not
treated as anti-personnel mines. This was an important
consideration for U.S. military operations. Anti-personnel
mines are frequently used in conjunction with anti-tank mines
to protect anti-tank mines against enemy removal during
military operations. With increasing restrictions on the use of
anti-personnel mines, it was clear, from a military
perspective, that alternative means of protecting anti-tank
mines against enemy removal during combat operations would be
increasingly important.
One such common alternative is to equip anti-tank mines
with anti-handling devices. But since such devices are, as a
practical matter, intended to cause an anti-tank mine to
detonate if handled by a person, there was concern that an
anti-tank mine equipped with an anti-handling device would
inadvertently fall within the definition of an anti-personnel
mine, and be subject, therefore, to the additional constraints
imposed on anti-personnel mines. Adding the word ``primarily''
before ``designed'' clarified that anti-tank mines that are
equipped with anti-handling devices are not considered anti-
personnel mines as a result of being so equipped. This language
was not intended to exclude from the restrictions on anti-
personnel mines any munition designed to perform the function
of an anti-personnel mine. This interpretation of the phrase
was made part of the negotiating record through a statement by
the German delegation at the final plenary session on behalf of
19 other delegations, including the U.S. delegation, and was
not contested by any other delegation.
The second additional element in the anti-personnel mine
definition is the reference to incapacitating, injuring or
killing one or more persons. This description was understood to
be broad enough to cover the range of hazards posed by anti-
personnel mines.
However, the term 'incapacitating' does not restrict non-
lethal weapon technology that may temporarily disable, stun or
signal the presence of person but not cause permanent
incapacity. To codify this shared understanding with the
executive branch, the Committee recommends that the Senate
adopt a formal understanding in the resolution of ratification
for the Protocol which makes clear that ``nothing in the
Amended Mines Protocol may be construed as restricting or
affecting in any way non-lethal weapon technology that is
designed to temporarily disable, stun, signal the presence of a
person, or operate in any other fashion, but not to cause
permanent incapacity.''
With respect to anti-personnel mines which have the
potential to be either trip-wired or command-detonated, the
definition applies when such mines are used with a trip-wire or
are otherwise target-activated. When such mines are command-
detonated, that is, exploded not by the target itself, but by
an operator, they do not meet the definition of anti-personnel
mine and are therefore not subject to the restrictions imposed
on anti-personnel mines. They do, however, fall within the
definition of ``other devices'' in paragraph 7.
A well-known example of such a munition is the Claymore, a
munition used for protection of installations and units in the
field which can be configured for detonation either by command
or by trip wire. The Claymore and munitions like it are widely-
employed by many militaries, mostly in the command-detonated
mode. But despite their widespread use, there is little
evidence that such mines, even in trip-wired modes, contribute
to the humanitarian problems associated with land mines.
Accordingly, the Protocol is deliberately structured so as
not to prevent the traditional military use of the Claymore. In
a command-detonated mode, the Claymore does not fall within the
definition of anti-personnel mine. In a trip-wired mode, the
Claymore is not excluded from the restrictions applicable to
anti-personnel mines by reason of the definition in paragraph
3. Specifically, such mines, when used in a trip-wired mode,
are covered by the definition but special, less restrictive
rules in Article 5 apply to their use for a limited time--72
hours--from their emplacement.
Finally, the term ``anti-tank mine'' is not used or defined
in the amended Protocol; such mines are referred to by the use
of the phrase ``mines other than anti-personnel mines,'' which
includes all mines designed to be exploded by the presence,
proximity or contact of a vehicle. This formulation flows from
the definitions for ``mine'' and ``anti-personnel mine'' when
read in light of each other. Throughout this analysis mines
other than anti-personnel mines are also referred to as anti-
tank mines.
Paragraph 4 defines ``booby trap'' as any device or
material which is designed, constructed, or adapted to kill or
injure, and which functions unexpectedly when a person disturbs
or approaches an apparently harmless object or performs an
apparently safe act. This is the same definition used in the
1980 Protocol. It is understood to include, for example, a
hand-grenade when attached to a door and rigged to explode when
the door opens, as well as devices designed in advance to
function as booby-traps.
The Committee recommends that the Senate adopt a formal
understanding that a trip-wired hand grenade shall be treated
under the Amended Mines Protocol solely as a ``booby-trap'' and
not as a ``mine'' or an ``anti-personnel mine.'' It could be
argued that such a device fit these latter definitions, and
thus was subject to the relevant restrictions. Without this
clarification, the Amended Mines Protocol could be misconstrued
as prohibiting the use of trip-wired grenades unless, for
example, these devices were clearly marked and visible. The
negotiating record clearly supports the view that trip-wired
hand grenades should be considered as ``booby traps'' for the
purposes of the Protocol's application.
Paragraph 5 defines ``other devices'' as manually-emplaced
munitions and devices, including improvised explosive devices
designed to kill, injure or damage and which are actuated
manually, by remote control or automatically after a lapse of
time. An example of such a device would be a Claymore-type
munition in a command-detonated mode.
Hand-grenades, other than trip-wired hand grenades (as
discussed previously) are not covered by the Amended Mines
Protocol at all. Because some might argue that a hand-grenade
is manually-emplaced (e.g. thrown) and actuated automatically
after a lapse of time, the Committee recommends that the Senate
clarify, in a formal understanding in the resolution of
ratification, that the term ``other devices'' does not refer to
a grenade.
Specific prohibitions on the use of booby-traps and other
devices are found in Article 7.
Paragraph 6 defines ``military objective'' as, so far as
objects are concerned, any object which by its nature,
location, purpose or use makes an effective contribution to
military action and whose total or partial destruction, capture
or neutralization, in the circumstances ruling at the time,
offers a definite military advantage. This is the same
definition used in the 1980 Protocol and reflects a well-
settled understanding of the term. The Committee recommends
that the Senate adopt a formal understanding as part of the
resolution of ratification clarifying the fact that land, in
and of itself, can be a legitimate military objective. Thus the
use of mines to neutralize or deny access to a piece of land is
not prohibited under the Amended Mines Protocol.
Paragraph 7 defines ``civilian objects'' as objects which
are not military objectives as defined in paragraph 6 of
Article 2. Paragraph 6 and 7, therefore, read together, are
exhaustive.
Paragraph 8 defines ``minefield'' as a defined area in
which mines have been emplaced and ``mined area'' as an area
which is dangerous due to the presence of mines. Although the
terms are different, the provisions that apply to
``minefields'' and ``mined areas'' are the same in the
Protocol.
Paragraph 8 also defines ``phoney minefield'' as an area
free of mines that simulates a minefield. Such phoney
minefields are subject to all the provisions relevant to
minefields and mined areas generally; there are no special
rules for phoney minefields.
Paragraph 9 defines ``recording'' as a physical,
administrative and technical operation designed to obtain, for
the purpose of registration in official records, all available
information facilitating the location of minefields, mined
areas, mines, booby-traps and other devices. This is a slight
modification of the definition of ``recording'' in the 1980
Protocol, adding references to ``mined areas'' and ``other
devices.'' The reference to ``other devices'' is significant.
The 1980 Protocol did not include such devices in its recording
scheme. The amended Protocol has more rigorous recording
requirements than the 1980 Protocol and expands the material
scope of the recording requirements to include ``other
devices''.
Paragraph 10 defines ``self-destruction mechanism'' as an
incorporated or externally attached automatically-functioning
mechanism which secures the destruction of the munition into
which it is incorporated or to which it is attached. Self-
destruction (SD) mechanisms are required for all anti-personnel
mines that are not marked and monitored in accordance with
Article 5, as well as, under Article 6, all remotely-delivered
anti-personnel mines. Detailed reliability and timing
requirements for self-destruction mechanisms are specified in
the Technical Annex.
Paragraph 11 defines ``self-neutralization mechanism'' as
an incorporated automatically-functioning mechanism which
renders inoperable the munition into which it is incorporated.
The term is used in Article 6 in relation to remotely-delivered
mines other than anti-personnel mines. There are no technical
specifications for self-neutralization mechanisms in the
Technical Annex.
Paragraph 12 defines ``self-deactivating'' (SDA) as
automatically rendering a munition inoperable by means of the
irreversible exhaustion of a component, for example, a battery,
that is essential to the operation of the munition. Self-
deactivation features are required as a backup for the self-
destruction mechanisms required for all anti-personnel mines
that are not marked and monitored in accordance with Article 5,
as well as, under Article 6, all remotely-delivered anti-
personnel mines. Detailed reliability and timing requirements
for self-deactivation features are specified in the Technical
Annex.
Paragraph 13 defines ``remote control'' as control by
commands from a distance.
Paragraph 14 defines ``anti-handling device'' as a device
intended to protect a mine and which is part of, linked to,
attached to or placed under the mine and which activates when
an attempt is made to tamper with the mine. A limited
restriction concerning mines with such devices appears in
Article 3(6).
Paragraph 15 defines ``transfer'' as involving, in addition
to the physical movement of mines into or from national
territory, the transfer of title to and control over the mines,
but does not involve the transfer of territory containing
emplaced mines. This definition makes clear, therefore, that
the transfer of areas of land (for example, in a peace
agreement) is not constrained by the transfer restrictions of
Article 8, even though mines may be present in the area. The
Administration further clarified with the Senate its
understanding of related issues in two classified memoranda and
a letter to Chairman Helms that was received on July 23, 1998.
Article 3--General Restrictions on the use of mines, booby-traps and
other devices
Article 3 consists of 11 paragraphs and sets forth both
general rules and a number of specific prohibitions regarding
weapons to which the amended Protocol applies. It is a
significant improvement over Article 3 of the 1980 Protocol,
from which it is derived.
Paragraph 1 sets forth the material scope of the Article.
In contrast to a number of other articles of the Protocol,
Article 3 applies to all mines, both anti-personnel and anti-
tank, booby-traps and other devices.
Paragraph 2 places the responsibility for these weapons on
the party that employed them and obligates that Party to clear,
remove, destroy or maintain them as specified in Article 10.
This provision, in conjunction with paragraph 2 of Article 5
and the whole of Article 10 of the amended Protocol, establish
a comprehensive set of procedures for fulfilling this
responsibility both during and after armed conflict. These
procedures are explored in detail in the discussion of Article
10.
Paragraph 3 prohibits the use of mines, booby-traps or
other devices which are designed or of a nature to cause
superfluous injury or unnecessary suffering. This rule is
derived from Article 23 of the Annex to Hague Convention No.
IV, 18 October 1907, embodying the Regulations Respecting the
Laws and Customs of War on Land. It thus reiterates a
proscription already in place as a matter of customary
international law applicable to all weapons. It also implicitly
makes clear that mines, booby-traps and other devices are not,
per se, of a nature to cause unnecessary suffering, for if that
were considered to be the case, no such rule would be necessary
and they would be prohibited entirely.
Which types of such weapons might cause ``unnecessary
suffering'' can only be determined on a case-by-case basis,
weighing the suffering caused against the military necessity
for its use. One example of a prohibited device might be a mine
or booby-trap that is filled with shards of glass. Such a
weapon would likely be regarded as unnecessarily injurious
because the shards would be undetectable by X-ray in the
victim's body, and this would cause suffering that would be
wholly unnecessary for its military purpose. (In any case, the
device would be prohibited by Protocol I of the Convention on
non-detectable fragments).
Paragraph 4 makes clear that mines, booby-traps and other
devices must be used in compliance with the provisions of the
Technical Annex and must themselves meet the technical
specifications set forth therein. For example, anti-personnel
mines used outside marked and monitored fields must be both
self-destructing and self-deactivating in accordance with the
precise timing and reliability standards set out in the
Technical Annex.
Paragraph 5 prohibits the use of mines, booby-traps and
other devices specifically designed to detonate by the presence
of commonly available mine detectors as a result of their
magnetic or other non-contact influence during normal use in
detection operations. This provision is a result of concern
with the possible development and proliferation of mines
designed to impede demining activity. Although no state claimed
to field such devices, in theory, mines could be adopted to
detonate when a common mine detector is passed over them.
The provision clearly excludes situations where actual
physical contact with mine detectors or abnormal use of mine
detectors is required to detonate the mine. For example, a
mine's trip-wire or tilt-rod (a type of vertical trip-wire) may
be pulled or pushed in a sweep of a mine-detector, setting off
the mine. This would not constitute the use of a mine in
contravention of this provision.
Paragraph 6 prohibits the use of a self-deactivating mine,
either anti-personnel or anti-tank, that is equipped with an
anti-handling device capable of functioning after the mine has
deactivated. The intent is to avoid situations where a self-
deactivating mine, the ``life'' of which is normally limited by
the life of its battery is dangerous indefinitely as a result
of a long-lived anti-handling device. This would defeat the
purpose of the self-deactivation function by leaving a
hazardous mine in place.
All remotely-delivered anti-personnel mines and all anti-
personnel mines used outside of marked and monitored fields
must include a self-deactivation feature and therefore would be
subject to this rule. Anti-tank mines that are remotely-
delivered may be self-deactivating, although there is no
absolute requirement that such mines have such a feature. (The
U.S. had strongly supported a requirement in this regard but no
consensus was possible.) In any case, where anti-tank mines are
equipped with a self-deactivation feature, they may not have an
anti-handling device capable of functioning after the mine has
deactivated.
This provision was the result of lengthy discussion on
anti-handling devices generally. During those discussions, the
U.S. had proposed a ban on the use of all anti-handling devices
on long-lived anti-personnel mines, that is, anti-personnel
mines without SD/SDA. This was objectionable to many states. In
the final analysis, the proscription on anti-handling devices
that would outlive the self-deactivation feature for mines with
a self-deactivation feature was the only proposal in this area
that commanded consensus. It is a useful addition as it
prevents, for example, the employment of anti-lift devices (a
type of anti-handling device) that outlive the self-
deactivation feature on self-deactivating mines.
Paragraph 7 codifies within Protocol II a well-established
customary principle of the law of war prohibiting the targeting
of the civilian population as such, or individual civilians or
civilian objects. It also prohibits the use of such weapons in
reprisals against civilians.
Paragraph 8 prohibits indiscriminate use of mines, booby-
traps and other devices and defines such use as placement
which: (a) is not aimed at a military objective as defined in
Article 2, or (b) employs a method or means of delivery which
cannot be directed at a specific military objective, or (c) may
be expected to cause incidental loss of civilian life or damage
to civilian objects excessive in relation to the direct
military advantage anticipated. This prohibition is already a
feature of customary international law that is applicable to
all weapons. Insofar as the United States considers land--
including the neutralization or denial of access to a piece of
land--to be a legitimate military objective, paragraph 8 in no
way restricts the use of remotely delivered ``mixed'' munitions
containing both anti-personnel and anti-tank mines.
Paragraph 9 provides that several clearly separated and
distinct military objectives located in a city, town, village
or other area containing a similar concentration of civilians
or civilian objects are not to be treated as a single military
objective. This provision is derived from Article 51(5)(a) of
Additional Protocol I to the 1949 Geneva Conventions. However,
Article 51(5)(a) is limited in its application to attacks by
bombardment, prohibiting the indiscriminate shelling of an
entire city, town or village on the basis of the presence of
several distinct military objectives. It states, when so
limited, a principle that the United States supports and
regards as customary international law.
However, when applied to mine warfare, this article could
leave the misleading impression that it is illegal to use mines
to deny enemy access to or use of an area containing civilians
or civilian objects. Thus, throughout the negotiations and at
the final plenary of the Review Conference, the United States
made clear its understanding that, with respect to this
provision, an area of land can itself be a legitimate military
objective for the purpose of the use of land mines, if its
neutralization or denial, in the circumstances ruling at the
time, offers a definite military advantage. The Committee
recommends that the Senate declare this understanding, as well,
at the time of its consent to the amended Protocol.
Paragraph 10 builds on a provision from the 1980 Protocol
regarding precautions for the protection of civilians. Like the
1980 version, it requires taking all feasible precautions to
protect civilians from the effects of weapons to which the
amended Protocol applies. The amended provision includes four
examples of circumstances which should be taken into account
when considering such precautions. They are: (a) the effect of
mines upon the local civilian population for the duration of
the minefield; (b) possible measures to protect civilians; (c)
the availability and feasibility of alternatives; and (d) the
military requirements for a minefield.
These general considerations are relevant to all mines,
both anti-personnel and anti-tank, as well as the other weapons
to which the amended Protocol applies.
Paragraph 11 provides that effective advance warning be
given of any emplacement of mines, booby-traps and other
devices which may affect the civilian population, unless
circumstances do not permit. This provision is drawn from the
1980 Protocol, although there it applied only to the use of
remotely-delivered mines. It now applies to the use of all
weapons to which the amended Protocol applies.
Article 4--Restrictions on the use of anti-personnel mines
One of the more important deficiencies of the 1980 Protocol
is that it does not prohibit the use of non-detectable mines. A
number of states have produced or deployed large numbers of
non-detectable plastic mines which present a serious threat to
civilians, peacekeepers, relief missions and mine-clearance
personnel. Article 4 is designed to eliminate that deficiency
with respect to anti-personnel mines.
This article consists of a single paragraph prohibiting the
use of anti-personnel mines which are not detectable as
specified in the Technical Annex. Specifically, paragraph 2 of
the Technical Annex requires that anti-personnel mines have
attached or incorporated material ``that enables the mine to be
detected by commonly-available technical mine detection
equipment and provides a response signal equivalent to a signal
from 8 grams or more of iron in a single coherent mass.'' This
means that all anti-personnel mines must be as detectable as an
8-gram lump of iron. Eight grams was chosen because it produces
a metallic signature of a strength that will help mitigate
factors that complicate clearance such as operator fatigue and
background noise from soil with high-metallic content. Mines
produced after 1 January 1997 must have the required material
or device incorporated in their construction; mines produced
before that date may, in the alternative, be modified to comply
with this requirement by having the material or device attached
to the mine, in a manner not easily removable, prior to its
emplacement. (For example, this could be done through the use
of durable clamps, wiring or special metallic adhesive tape
that is designed to resist environmental deterioration.)
To secure this strict requirement, it was necessary to
provide parties an option to defer compliance for up to nine
years from entry-into-force of the Protocol to allow states
with large inventories of non-detectable mines to modify or
replace them. If a state determines that it cannot immediately
comply with the requirements and elects to defer, it must
declare its intention to do so and, to the extent feasible,
minimize use of anti-personnel mines that do not comply.
Importantly, transfers of such non-compliant mines are
prohibited, notwithstanding any deferral of compliance with
other provisions. Moreover, a party may defer compliance only
with respect to anti-personnel mines produced prior to January
1, 1997. Anti-personnel mines produced after January 1, 1997
must meet the detectability requirement or they cannot be
lawfully used; there is no deferral option for newly-produced
mines. This has much the same effect as a production ban on
non-detectable mines, since there is no economic utility in
producing a mine which can neither be used nor transferred.
It is also important to note that the Conference did not
agree to the position of the states which wanted this deferral
option to run from the entry into force of the Protocol for the
particular state in question. This would have allowed states to
defer the period indefinitely simply by postponing their own
ratifications. Instead, the period runs from the overall entry
into force of the Convention, which will occur when 20 states
ratify and which should occur in a reasonably short period.
Article 5--Restrictions on the use of anti-personnel mines other than
remotely-delivered mines
Another of the more important deficiencies of the 1980
Protocol is that it provides little effective protection for
the civilian population against anti-personnel mines that
remain active and dangerous for long periods. Such mines often
cause civilian casualties for decades after they are laid.
Articles 5 and 6 are designed to deal with that deficiency.
Article 5 consists of six paragraphs and contains key
improvements over the 1980 Protocol regarding restrictions on
anti-personnel mines that are not remotely-delivered.
The effect of the first four paragraphs is to require that
all anti-personnel mines be kept within marked and protected
minefields or be equipped with self-destruction (SD) mechanisms
and self-deactivation (SDA) features in accordance with the
Technical Annex to safeguard the civilian population.
With respect to the requirements to mark and protect
minefields, paragraph 2 requires that all anti-personnel mines
without SD/SDA be placed ``within a perimeter marked area which
is monitored by military personnel and protected by fencing or
other means, to ensure the effective exclusion of civilians
from the area.'' The marking must be of a distinct and durable
character and must at least be visible to a person who is about
to enter the perimeter-marked area. Paragraph 4 of the
Technical Annex contains detailed specifications for the
markings to be used, as well as an example of a readily-
understood warning sign.
In essence, the mine-laying party has the responsibility to
take whatever measures are necessary under the specific
circumstances to keep civilians out of the minefield. The U.S.
military has maintained minefields for a number of years in
Guantanamo and Korea that meet these standards, and is
confident that these requirements are feasible and realistic.
Mines in such an area must be cleared before the area is
abandoned unless the area is turned over to a state which
accepts responsibility for the required protections and
subsequent clearance. With respect to this aspect of paragraph
2 on turning over territory containing mines, there was concern
about potential unintended consequences in connection with
peace treaties or similar arrangements. For example, it was
feared that this requirement could impede negotiations where a
party to the amended Protocol is negotiating the transfer of
territory containing mines with a state not party.
It was widely understood, however, that this paragraph does
not preclude agreement among concerned states, in connection
with such arrangements, to allocate responsibilities under this
paragraph in another manner which respects the essential spirit
and purpose of the Article. This interpretation of the
provision was made part of the negotiating record through a
statement by the Australian delegation at the final plenary
session on behalf of 16 other delegations, including the U.S.
delegation. No other delegation contested this statement on the
record. The Committee recommends that the Senate attach a
formal understanding to the resolution of ratification making
clear that the Protocol does not preclude agreement among
states as long as responsibilities relating to mines are
allocated in a manner which reflects the spirit and purpose of
Article 5.
Paragraph 3 states the only exception to the marking,
monitoring, protection and clearance requirement: when
``compliance is not feasible due to forcible loss of control of
the areas as a result of enemy military action.'' For the party
that laid the mines, regaining control of the area means a
renewed obligation to comply with the requirements to mark,
monitor, protect and clear. If another party gains control of
the area, paragraph 4 makes clear that it is obliged to meet
such requirements to the maximum extent feasible.
Paragraph 5 imposes a requirement to take all feasible
measures to prevent removal or degradation of the perimeter
markings.
With respect to the self-destruct/self-deactivation (SD/
SDA) requirement for anti-personnel mines used outside of
marked, monitored and protected fields, paragraph 3 of the
Technical Annex provides detailed specifications to ensure that
such mines do not pose a long-term threat to the civilian
population. At least 90 percent of anti-personnel mines
equipped with SD/SDA features must destroy themselves within 30
days of emplacement and no more than 1 in 1000 may be capable
of functioning as mine within 120 days after emplacement. Put
another way, the overall reliability of the two systems working
together meets the same reliability standard--99.9 percent--
that the United Nations uses as its standard for deeming a
field cleared in a humanitarian demining context. In practice,
the safety of compliant mines will be even higher, since the
design of a self-deactivating mine will inevitably render all
mines inoperative within a brief period (typically, through the
exhaustion of the battery powering the mine).
To secure these strict requirements and technical standards
for SD/SDA it was again necessary to provide parties an option,
tightly limited, to defer compliance with the self-destruct
element for up to nine years from entry-into-force of the
Protocol to permit states with large inventories of non-
compliant mines to bring themselves into conformity with the
new rules.
As with the option related to detectability, if a state
determines it cannot immediately comply with the SD requirement
for non-remotely-delivered anti-personnel mines used outside of
marked and monitored fields, it may declare, with respect to
mines produced prior to entry-into-force of the amended
Protocol, that it will defer compliance. To the extent
feasible, it must then minimize use of anti-personnel mines
that do not comply. It must, however, with respect to such
mines, comply with the requirements for self-deactivation.
In other words, for a limited time, a deferring party may
use anti-personnel mines without SD outside of marked and
monitored fields, provided such mines self-deactivate within
120 days in accordance with the requirements of the Technical
Annex. By the end of the deferral period, and sooner if
possible, any anti-personnel mine used outside of marked and
monitored fields must be both self-destructing and self-
deactivating. Moreover, because the deferral option only
applies to mines produced prior to entry-into-force, there is a
strong disincentive to produce such non-compliant anti-
personnel mines after entry-into-force since such newly-
produced mines may not be lawfully used outside of marked and
monitored fields under any circumstances. Finally, as noted
above, the deferral period runs from the overall entry to force
of the amended protocol, rather than the date on which it
enters into force for the particular state in question.
The last paragraph of Article 5 deals with ``Claymore''
type mines when used in a trip-wired mode. It establishes an
exemption from the marking and protection requirements of
subparagraph 2(a) of the Article for such mines, defined as
anti-personnel mines ``which propel fragments in a horizontal
arc of less than 90 degrees and which are placed on or above
the ground.'' The exemption is restricted to a period of 72
hours from emplacement, at which point such mines are subject
to the full set of protections required by subparagraph 2(a).
(Typically, the personnel using the device will deactivate it
and take it with them for protection at their next deployment
point.) Furthermore, the exemption is contingent on (a) such
mines being located in ``immediate proximity'' to the military
unit which emplaced them and (b) the area of their emplacement
being monitored by military personnel to ``ensure the effective
exclusion of civilians.'' This is consistent with the practice
of U.S. and other western military forces, which have safely
used the Claymore for unit protection in the field for many
years. (Claymores used in a command-detonated mode do not fall
within the definition of ``anti-personnel mines'' and are
therefore not covered by Article 5.)
The Committee recommends that the Senate adopt a formal
understanding of the term ``effective exclusion of civilians''
to ensure that the Protocol will not be construed as placing
impractical requirements on U.S. military personnel. The
requirement for U.S. military personnel to ensure the
``effective exclusion of civilians'' when using Claymore mines
is satisfied as long as the unit so using the mine keeps
overview of the various avenues of approach. No question of
compliance with this paragraph will arise, even if a civilian
is killed or injured by a trip-wired Claymore, if the military
unit in question posted sentries or otherwise was maintaining
overview of the area where the mines were emplaced.
Article 6--Restrictions on the use of remotely-delivered mines
Article 6 consists of 4 paragraphs and deals with
restrictions on the use of remotely-delivered mines (those
delivered by aircraft or artillery). It is a significant
improvement over the requirements of the 1980 Protocol,
particularly with respect to remotely-delivered anti-personnel
mines, the use of which is banned unless equipped with SD/SDA
features as specified in paragraph 3 of the Technical Annex.
Paragraph 1 requires that all remotely-delivered mines,
both anti-personnel mines and anti-tank mines, have their
locations recorded in accordance with specifications set forth
in the Technical Annex.
Paragraph 2 bans the use of long-lived remotely-delivered
anti-personnel mines, that is, anti-personnel mines that are
not self-destructing and self-deactivating in accordance with
the specifications of the Technical Annex. This provision
reinforces the Article 5 restrictions on anti-personnel mines,
in effect prohibiting all use of long-lived anti-personnel
mines outside of marked, monitored and protected areas.
Again, to secure this strict requirement, it was necessary
to provide parties an option to defer full compliance for up to
nine years from entry-into-force of the amended Protocol; the
intent being to enable states with large inventories of non-
compliant mines to bring themselves into compliance with the
new rules.
Thus, in the case of remotely-delivered anti-personnel
mines, if a state determines that it cannot immediately comply
with either the SD or SDA requirement, it may declare, with
respect to such mines produced prior to entry-into-force of the
amended Protocol, that it will defer compliance and, to the
extent feasible, minimize use of such mines that do not comply.
During the deferral period, it must, however, with respect to
such remotely delivered anti-personnel mines, comply with
either the Technical Annex requirements for self-destruction or
self-deactivation.
Put another way, for a limited time, a deferring party may
use remotely-delivered anti-personnel mines without both SD and
SDA (it must have one or the other). By the end of the deferral
period, and sooner if possible, all such mines must be both
self-destructing and self-deactivating.
Significantly, transfers of remotely-delivered anti-
personnel mines without both SD and SDA are immediately
prohibited regardless of any deferral, in accordance with
Article 8(2). Moreover, because the option to defer compliance
only applies to remotely-delivered anti-personnel mines
produced prior to entry-into-force, such mines produced after
entry-into-force cannot lawfully be used or transferred unless
they meet all requirements of the amended Protocol. Like the
parallel detectability provision, this has much the same effect
as a production ban on long-lived remotely-delivered anti-
personnel mines (i.e. those without both SD and SDA) since
there is no economic utility in producing such a mine which can
neither be used nor transferred.
Paragraph 3 applies to remotely-delivered mines that are
not anti-personnel mines. It prohibits the use of such mines,
unless, to the extent feasible, they are equipped with
``effective'' self-destruction or self-neutralization
mechanisms and back-up self-deactivation features. (The United
States took the position that such mines should be equipped
with self-deactivation and either self-destruction or self-
neutralization, but many other delegations were unwilling to go
so far with respect to anti-tank mines.) Unlike SD and SDA for
anti-personnel mines, which are subject to strict technical
specifications, there are no specific reliability standards and
no timing requirement other than that these features be
designed such that the anti-tank mine, if so equipped, will
cease to function as a mine when it no longer serves the
military purpose for which it was placed in position.
Paragraph 4 carries forward a provision from the 1980
Protocol, requiring advance warning of any deployment of
remotely-delivered mines which may affect the civilian
population unless circumstances do not permit.
Article 7--Prohibitions on the use of booby-traps and other devices
Article 7 consists of three paragraphs and concerns the use
of booby-traps and ``other devices''. It builds upon the booby-
trap article of the 1980 Protocol, extending its prohibitions
to ``other devices'' and providing additional limitations aimed
at safeguarding civilians.
Paragraph 1 prohibits booby-traps or other devices 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.
In its examination of the Amended Mines Protocol, the
Committee became concerned that subparagraph 1(f) of Article 7
precluded the use of certain munitions against military
establishments, such as supply depots, which are legitimate
military targets. Specifically, Article 7 of the Amended Mines
Protocol bans the use of ``booby traps and other devices'' in
any manner that is ``in any way attached to or associated
with'' ten different categories of items, one of which is
``food and drink.'' This is an expansion of the prohibition
contained in the original 1980 Protocol, to which the United
States is already a party; the original provision barred only
the use of booby traps against such targets.
Under the Protocol, the definition of ``other devices'' is
broad, covering everything from special demolition munitions to
satchel charges (such as C-4 with a timer). Moreover, the term
``food and drink'' is undefined, and therefore might be
construed broadly to include all nature of food and drink,
including supply depots and other logistics dumps. Because
Article 7 prohibits the use of ``other devices'' in a manner
that is ``in any way attached to or associated with... food or
drink'', the Protocol threatens to make it far more difficult,
or impossible, for the United States Armed Forces to accomplish
certain types of missions.
A variety of U.S. military units train to use specialized
explosive charges against a wide range of legitimate military
targets, including depots and enemy supply dumps. As written,
the Article 7 creates the potential that military personnel
could be accused of ``war crimes'' under the CCW and the
Protocol for legitimate military actions (for instance, if they
were to drop a satchel charge under a truck carrying crates of
rations). Likewise, the use of a demolition charge to destroy a
mountain of ammunition and fuel barrels would be precluded if
that mountain also contained crates of food.
Consequently, a reservation to the Protocol is necessary to
ensure that this provision does not tremendously complicate
mission accomplishment, and ultimately lead either to increased
U.S. casualties or to a command decision not to employ the U.S.
Armed Forces against supply dumps, depots, or other military
locations containing ``food or drink.''
Such a reservation is also necessary to make clear that the
Senate will not agree to the use of Article 7(f) of the Amended
Mines Protocol (or like provisions in the Convention on
Conventional Weapons) as a precedent for future ``laws of war''
treaties. The reservation clarifies the fact that stocks of
``food or drink,'' if judged by the United States to be of
potential military utility, will not be accorded special or
protected status.
Some have argued that ``food and drink''--regardless of
whether it is in a military establishment or not--is
particularly attractive to civilians. For this reason, the
proposed reservation requires that ``due precautions are taken
for the safety of the civilian population.'' However, in
providing for the use of ``other devices'' to destroy any stock
of food judged ``likely to be used by an enemy military
force,'' the Committee implicitly rejects the argument that
munitions cannot be used against supply depots because
civilians might be present. According to the same logic,
neither cruise missiles nor gravity bombs should be used
against supply depots. The Committee reservation makes clear
that the Amended Mines Protocol may not be construed as a
precedent for seeking to ban the use of other types of weaponry
against these legitimate military targets in further
negotiations associated with the ``laws of war.''
In making this reservation, the United States in no way
diminishes the protections afforded civilians under the Amended
Mines Protocol. Numerous other overlapping provisions of the
Protocol eliminate all concerns over the appropriate employment
of various munitions by the Armed Forces of the United States.
Additionally, the use of booby-traps and other devices is
forbidden in connection with historic monuments, works of art,
or places of worship ``which constitute the cultural or
spiritual heritage of peoples.'' The Committee is concerned
that some might argue that this paragraph, as written, applies
to an extremely large category of buildings and items. To
protect U.S. military personnel from erroneous accusations of
noncompliance, the Committee recommends that the Senate adopt a
formal understanding making clear that only a very limited
class of objects (which have clearly and widely recognized
cultural or spiritual importance) fall within this category.
Further, the Committee notes that unless information about the
cultural or spiritual significance of the object in question
can be assessed as having been reasonably available to U.S.
military personnel, the question of compliance does not arise.
Paragraph 2 prohibits the use of any booby-trap or other
devices in the form of an apparently harmless portable object
which is specifically designed and constructed to contain
explosive material. This does not prohibit expedient adaptation
of objects for use as booby-traps or other devices that are not
designed or constructed for such use, and an 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.
The Committee recommends that the Senate include a formal
understanding in the resolution of ratification making clear
that the prohibition against the deliberate construction of
booby-traps in the form of apparently harmless objects does not
preclude U.S. military personnel from booby-trapping items
either in advance, or in the field, as long as those items are
not specifically designed and constructed to serve as booby-
traps. Paragraph 2 was not meant to capture the ad hoc
adaptation of devices, for example, by U.S. special operations
forces.
Paragraph 3 restricts the use of booby-traps and other
devices. Use in cities, towns, villages or other areas
containing a similar concentration of civilians is permitted
only if combat between ground forces is taking place or appears
imminent and (1) these weapons are placed in the close vicinity
of a military objective or (2) measures are taken to protect
civilians, such as the posting of warning sentries; the
issuance of warnings or the erection of fences. Again, the
Committee notes that land, in and of itself, is considered a
legitimate military objective.
Article 8--Transfers
Article 8 consists of three paragraphs and deals with the
transfer of mines. The proliferation and easy availability of
these weapons significantly increases the threat to the
civilian population. Although transfer restrictions in a law of
war convention are uncommon, it was, in the U.S. view,
essential to address this aspect of the problem as a means of
further reducing indiscriminate and irresponsible use. The
Administration further clarified with the Senate its
understanding of issues related to Article 8 in two classified
memoranda and a letter to Chairman Helms that was received on
July 23, 1998.
Paragraph 1(a) prohibits the transfer of all mines the use
of which is prohibited by the amended Protocol, for example,
anti-personnel mines which do not meet the detectability
standards of the Technical Annex, remotely-delivered anti-
personnel mines which do not have SD/SDA features in accordance
with the Technical Annex, and anti-personnel mines and anti-
tank mines that are specifically designed to be detonated by
the presence of common mine detectors.
Moreover, in paragraph 3 a political commitment is included
to refrain from actions inconsistent with this subparagraph
starting from the adoption of the Protocol (which occurred on
May 3rd of this year). Although such a political commitment
does not legally bind the United States or prejudice the
consideration of the amended Protocol by the United States
Senate, it is in fact U.S. policy, pending entry into force, to
observe all of the restrictions of the amended Protocol to the
fullest extent possible from the time of adoption. This policy
governs, as well, our observance of the provisions of Article
8.
Paragraph 1(b) prohibits the transfer of mines to
recipients other than states or state agencies authorized to
receive such transfers.
Paragraph 1(c) requires that parties exercise restraint in
the transfer of mines to all states and, with respect to any
state not bound by the amended Protocol, prohibit all transfers
of anti-personnel mines, unless such a state agrees to apply
the amended Protocol. This provides assurance that such
transfers will only be made to states that are committed to
observing all the use restrictions of the amended protocol.
Paragraph 1(d) requires parties to ensure that any
transfers made within the limitations of the Article otherwise
comply with applicable norms of international law.
Paragraph 2 makes clear that a party's decision to defer
compliance with certain provisions (as permitted in limited
cases under the Technical Annex) does not release it from the
transfer prohibition in subparagraph 1(a). Thus, as earlier
discussed, a party may elect to continue to use, for example,
non-detectable anti-personnel mines for up to nine years from
entry into force of the Protocol, but that party remains bound
not to transfer such mines during that period.
Article 9--Recording and use of information on minefields, mined areas,
mines, booby-traps and other devices
This article consists of 3 paragraphs and deals with the
recording and use of information on all weapons subject to the
Protocol, substantially improving the regime established by the
1980 Protocol.
Paragraph 1 requires parties to record all information on
such weapons in accordance with the provisions of the Technical
Annex. This is more expansive than the 1980 Protocol which
imposed such a requirement only on minefields and booby-traps
that were ``pre-planned''. Paragraph 1 of the Technical Annex
provides specific guidelines for such recording. The party
laying mines is required, among other things, to record the
location, perimeter and extent of minefields, and mined areas;
the exact location of every mine, where feasible; and the type,
number, emplacing method, type of fuse and life time, date and
time of laying, anti-handling devices (if any) and other
relevant information.
Paragraph 2 requires that records of all such information
be retained. Immediately after the cessation of active
hostilities, parties must take ``all necessary and appropriate
measures, including the use of such information'' to protect
civilians from these weapons in areas under their control. At
the same time, parties must also make such information
available to other appropriate parties, including the Secretary
General of the United Nations, unless, in cases where forces of
a party are in the territory of an adverse party, security
interests require withholding the information.
Paragraph 3 clarifies that this Article is without
prejudice to other Articles of the amended Protocol which deal
with information about and removal of weapons subject to the
Protocol.
Article 10--Removal of minefields, mined areas, mines, booby-traps and
other devices and international cooperation
Article 10 consists of 4 paragraphs and concerns the
clearance or maintenance of minefields, as well as the
disposition of other weapons subject to the Protocol. It also
apportions responsibility for these obligations and constitutes
a major improvement over the 1980 Protocol.
Paragraph 1 requires the clearance, removal, destruction or
maintenance of protections for all such weapons without delay
after the cessation of active hostilities.
Paragraph 2 of Article 10 imposes this responsibility on
the party in the best position to fulfill the responsibility--
that is, the party in control of the area containing the
weapons.
Paragraph 3 requires that, if a party employed weapons in
an area that, after the cessation of active hostilities, is
under the control of another party, the party which employed
the weapons has an obligation to provide certain limited
assistance to the party in control of the area with respect to
the safeguarding or removal of those weapons. For example, if a
party laid mines in an area over which it lost control, it is
required to provide to the party in control of the area,
``technical and material assistance necessary to fulfil'' the
removal or safeguarding responsibility set out in paragraph 1
of this Article. The provision of assistance is limited to that
permitted by the party in control of the area and its scope and
nature are unspecified.
Paragraph 4 requires that the parties endeavor to reach
agreement ``at all times necessary'' on the provisions of
technical and material assistance to fulfill removal and
safeguarding responsibilities for mines, booby-traps and other
devices.
Article 11--Technological cooperation and assistance
Article 11 consists of 7 paragraphs and deals with the
exchange of equipment, material and information on the
implementation of the amended Protocol and mine clearance.
These provisions are designed to encourage these exchanges,
which are necessary for prompt and effective mine-clearance
operations and protocol implementation. No specific obligation
exists to provide any particular type of assistance.
Paragraph 1 provides that each High Contracting Party
undertakes to facilitate and has the right to participate in
the fullest possible exchange of equipment and information
concerning the implementation of the Protocol and mine
clearance, and to refrain from ``undue'' restrictions on the
provision of mine clearance equipment and information for
humanitarian purposes. The U.S. and other western delegations
made clear that this would not affect the discretion of states
to restrict or deny permission to export such items for
national security or other valid reasons. The Committee
recommends that the Senate clarify this shared understanding
with the Executive branch in a formal understanding in the
resolution of ratification for the Amended Mines Protocol. The
Committee further recommends that such an understanding make
clear that other countries may not legitimately use the Amended
Mines Protocol as a pretext for the transfer of militarily
significant assistance or equipment under the guise of
providing simple humanitarian assistance.
Paragraph 2 provides that each High Contracting Party
undertakes to provide information for the mine clearance data
base established within the UN system. Each party retains the
right to determine the extent and type of information that it
will provide.
Paragraph 3 provides that each High Contracting Party ``in
a position to do so'' shall provide assistance for mine
clearance on a bilateral or multilateral basis. This language
was specifically designed by western delegations to reserve to
contributing states the determination of whether, how, and how
much to contribute. Paragraph 4 and 5 describe procedures by
which High Contracting Parties may request assistance for these
purposes.
Paragraph 6 provides that High Contracting Parties
undertake, ``without prejudice to their constitutional and
other legal provisions,'' to transfer technology to facilitate
implementation of the Protocol. Once again, this language was
specifically designed by western delegations to reserve to
contributing states the ability to limit technology transfers
in accordance with their laws.
The final paragraph notes the right of parties, where
appropriate, to seek and receive, as necessary and feasible,
technical assistance on relevant non-weapon technology as a
means of reducing deferral periods.
Article 12--Protection from the effects of minefields, mined areas,
mines, booby-traps and other devices
Article 12 consists of 7 paragraphs and improves provisions
in the 1980 protocol on the protection of international forces
and missions from land mines and other covered weapons.
Paragraph 1 makes clear that these provisions do not
obviate the need for host-state consent to the entry of such
missions into their territory (with the exception of UN
peacekeeping forces and similar missions as provided in the UN
Charter), do not change the legal status of the territories or
parties affected, and are without prejudice to any higher level
of protection granted by international law, including decision
of the UN Security Council.
Paragraph 2 applies to UN forces or missions, and to
regional peacekeeping forces established pursuant to Chapter
VIII of the Charter. Each High Contracting Party is required,
so far as it is able, to take such measures as are necessary to
protect such forces and missions from the effects of mines in
any area under its control (including their removal if
necessary), and to provide information on such mines to the
head of the force or mission. Paragraphs 3, 4 and 5 provide
similar protections for international humanitarian and fact-
finding missions, and for the International Red Cross and
national Red Cross or Red Crescent societies.
Paragraph 6 requires that such information provided in
confidence not be released without the express authorization of
the provider. Paragraph 7 requires respect for the laws of the
host state, without prejudice to the requirements of the duties
of such forces and missions.
Article 13--Consultations of High Contracting Parties
Article 13 consists of 5 paragraphs and provides for
regular meetings of parties to consider further improvements to
the Protocol, exchange information and annual reports and
review other issues related to the operation of the Protocol.
This adds a vital element to the 1980 regime, which
contained no mechanism for consultations other than the complex
review process which applies to the Convention as a whole.
Meetings under this Article will concern only the Protocol
itself, assuring that the Parties take responsibility for
keeping it effective and up-to-date with respect to the
problems it is meant to address.
Specifically, paragraph 1 and 2 provide for annual
conferences of parties. Paragraph 3 describes the work of the
conferences, including a review of the operation of the
Protocol, preparation for review conferences, and consideration
of the development of technologies to protect civilians.
Paragraph 4 provides for annual reports by High Contracting
Parties on these and other matters to advance of each annual
conference. Paragraph 5 deals with the allocation of costs of
these meetings.
Article 14--Compliance
Article 14 consists of 4 paragraphs and is modeled on
provisions of the Geneva Conventions of 1949.
Paragraph 1 calls upon parties to ``take all appropriate
steps, including legislative and other measures, to prevent and
suppress violations'' of the amended Protocol. The imposition
of such a responsibility is an important element in promoting
compliance with the Protocol.
Paragraph 2 requires High Contracting Parties to impose
penal sanctions against persons who violate provisions of the
Protocol and in doing so, wilfully kill or cause serious injury
to civilians, and to bring such persons to justice. This
obligation might be implemented, with respect to such persons
found on the territory of a party, either by prosecuting the
offender or extraditing him to another appropriate state for
prosecution. To ensure that the United States is able to carry
out fully its obligations in this regard, the Executive branch
has already submitted legislation to Congress, providing
jurisdiction to U.S. courts to enforce penal sanctions against
such persons.
Paragraph 3 requires appropriate instruction and training
for armed forces personnel on their obligations under the
Protocol. Paragraph 4 requires consultation and cooperation
among parties to resolve any problems that may arise with
regard to the interpretation and application of the Protocol.
The Committee recommends that the Senate adopt a formal
understanding in the resolution of ratification making clear
that U.S. military personnel may be prosecuted for a violation
of the Amended Mines Protocol only if they knowingly and
intentionally kill or cause serious injury to a civilian.
Further, the Committee notes that the actions of U.S. military
personnel can only be assessed in light of information that was
available at the time. In other words, U.S. military personnel
cannot be judged on the basis of information which only
subsequently came to light. Taken together, these two
provisions erase the danger that U.S. military personnel will
be at risk of being ``second guessed'' with respect to land
mine use.
In addition the Committee recommends that the Senate make
clear that Article 14 permits only domestic penal sanctions for
violations of the Protocol. Ratification of this Protocol,
therefore, in no way authorizes the trial of any person before
an international criminal tribunal for violations of either
this Protocol or the Convention on Conventional Weapons. The
Committee further recommends that the Senate formally state the
view of the United States that, if such an effort were made to
misinterpret the scope of Article 14, the United States would
not recognize the jurisdiction of any international tribunal to
prosecute a U.S. citizen for a violation of this Protocol or
the Convention on Conventional Weapons.
In order to fully clarify the shared understanding between
the Executive and the Senate on the means by which the United
States will enforce the provisions of both the Protocol and the
CCW, the Committee recommends that a certification be required
of the President as a condition of ratification. Specifically,
the Committee recommends that, prior to the deposit of the
United States instrument of ratification for this Protocol, the
President certify to the Congress that with respect to this
Protocol, the Convention on Conventional Weapons, or any future
protocols or amendments thereto, that the United States shall
not recognize the jurisdiction of any international tribunal
over the United States or any of its citizens.
Technical Annex
The Technical Annex consists of 4 paragraphs and an
attachment. It provides substantial improvements over the
current provisions on recording and marking of mines, including
a requirement that mine records be kept at a level of command
sufficient to ensure their safety, as well as a requirement
that all mines produced after entry-into-force be marked to
indicate, among other things, their country of origin and date
of production.
It also provides detailed specifications for SD and SDA
features and detectability, as well as their respective
transition periods. It establishes specifications for
internationally recognized signs for minefields and provides an
example of an easy-to-understand international mine warning
sign.
These provisions are described in detail above in
connection with the relevant substantive provisions of the
Protocol.
IX. Additional Views of Chairman Helms
The Committee on Foreign Relations approved by a vote of
14-4 a resolution of ratification for the Amended Mines
Protocol on July 23, 1998. The resolution included 1
reservation, 9 understandings, and 14 conditions. Every
provision was painstakingly negotiated with, and agreed to in
full by, the Ranking Minority Member and the Administration.
Indeed, even ``sense of the Senate'' language was discussed and
modified at Administration request.
Whereas the Executive branch rarely comments or takes a
position on ``sense of the Senate'' language, in the case of
the Amended Mines Protocol, the Administration noted that, with
respect to Condition (2), ``we believe that the scope of the
expression of views contained is far too narrow and we urge the
Committee to modify it.'' The Administration then proposed
alternative, non-binding language. Because of Administration
opposition to the first version of the condition on the
negotiation of an export moratorium, that provision was
substantially re-worked, and little resembles today its earlier
form.
Moreover, additional conditions expressing the sense of the
Senate did not exist prior to the initiation of negotiations on
the resolution with the Administration. Because the
Administration objected to early iterations of Conditions (1)
and (7), compromise was reached which resulted in significant
changes to those conditions and in the creation of Condition
(9), which expresses the sense of the Senate regarding
technological alternatives to land mines. The Executive branch,
in achieving its objectives of altering those two conditions,
explicitly agreed to the new formulations and to the creation
of Condition (9). At the completion of negotiations on the
resolution, all parties involved made clear that the final
product was fully supported by the Chairman and Ranking
Minority Member, and the Administration. As in all things in
the Senate, the document was the product of compromise.
Many on the Committee therefore were shocked when the
Administration repudiated the compromise. The following day, at
a business meeting convened to consider and approve the
resolution of ratification for the Amended Mines Protocol
(among other things), Administration officials declared that
they do not ``take a position'' on sense of the Senate
provisions, that they had several problems with the resolution,
and that Condition (1) remained of particular concern to them.
Despite these statements (which clearly distorted the truth and
contradicted the assurances given the previous night), the
resolution passed 14-4. The Committee's confidence in the
Administration's trustworthiness was shaken, however, as a
result of these events. It is regrettable that, in the
intervening two months, the Administration has not retracted
the comments made at the business meeting and reassured the
Committee that the executive branch did, in fact, support all
provisions of the resolution, as was agreed initially. The
absence of this reassurance has delayed transmittal of the
resolution to the Senate for consideration.
That said, both Senator Biden and I have remained steadfast
in our support for the resolution as negotiated and approved by
the Committee. However, because the Senate is now faced with
relatively few legislative days remaining, we judged it
necessary to engage in further discussions with Senators who
are deeply concerned with the land mine issue, but who are not
members of the Foreign Relations Committee, with the objective
of securing consensus on the provisions of the resolution of
ratification.
What follows is a specific identification of those changes
to the resolution of ratification which I, together with
Senator Biden, have agreed to propose if and when the Amended
Mines Protocol is brought before the Senate for consideration.
Following each substantive change is an explanation of its
implications.
Condition 1: Pursuit Deterrent Munition
The phrase ``and which constitutes an essential military
capability for the United States Armed Forces.'' shall be
deleted. Deletion of this phrase in no way affects the
operation of the condition, which--as has been discussed in the
report--requires Presidential agreement that the PDM will be
retained at least until January 1, 2003, unless an effective
alternative to the munition becomes available before then (such
alternative not being a change purely of a tactic or
operational concept). In other words, it matters little what
the Senate calls the PDM, ``essential'' or not, so long as the
Administration is precluded from destroying the PDM stockpile
and the capability remains available for use by the U.S. Armed
Forces.
Condition 2: Export Moratorium
The condition will be struck from the resolution. The
significance of this deletion is that the full Senate will not
have expressed its view on the wisdom of negotiating an export
ban in general, or on any particular aspect of that ban. The
Committee's views, however, remain unchanged from those views
expressed in this report.
Condition 3: Humanitarian Demining Assistance
The word ``substantial'' in Condition (3)(A)(ii), the word
``significantly'' in (3)(A)(iii), and the entirety of (3)(B)
are to be deleted. The significance of this deletion is that
the full Senate will not have expressed its view on the extent
to which the Administration should be commended for the support
it has provided to date for demining projects, or on the extent
to which other countries should do more themselves. The
Committee's views, however, remain unchanged from those views
expressed in this report.
Condition 6: Future Negotiation of Withdrawal Clause
The word ``inhibiting'' is to be replaced with
``prohibiting''. This change is a useful clarification, but
does not substantively affect the condition. The concern which
gave rise to Condition (6) is the withdrawal clause of the
Convention on Conventional Weapons (to which the Amended Mines
Protocol is appended). That withdrawal clause, which has now
been mimicked in the Ottawa Convention, would prohibit the
United States from withdrawing from the treaty even if the
United States' supreme national interests were threatened, if
the U.S. were engaged in armed conflict at the time. As the
report notes, such a prohibition may make sense for ``laws of
war'' treaties, but it is unacceptable when applied to arms
control limitations.
Condition 7: Prohibition on de facto Implementation of the Ottawa
Convention
The title of this condition is amended to read: ``Land Mine
Alternatives''. Further, subparagraph (A) is replaced with the
following:
the President, in pursuing alternatives to United
States anti-personnel mines or mixed anti-tank systems,
will not limit the types of alternatives to be
considered on the basis of any criteria other than
those specified in subparagraph (B) of this paragraph;
and
While this reformulation of the condition removes any explicit
reference to the Ottawa Convention, it does not alter the
substance of what the President must certify to Congress. As
the report makes clear, the intent of this provision was to
ensure that the Administration did not frame its conception of
``alternatives'' to APL too narrowly. To do so would have meant
that the Administration would have precluded exploration of
alternative technologies which, though not ``Ottawa-
compliant,'' nevertheless might be safer to use, or pose even
less of a risk to noncombatants than do U.S. short-duration
mines.
However, this change does require additional clarification.
The concept of ``alternatives to United States anti-personnel
mines, or mixed anti-tank systems,'' as contained in
subparagraph (B), by its very nature entails considerations
regarding safety of use, risks to non-combatants, and possibly
other humanitarian requirements. Indeed, the only reason the
United States is engaging in a search for alternatives is to
determine whether a ``more humanitarian'' capability can be
economically fielded without any reduction in military
effectiveness.
Thus, this altered certification will continue to prohibit
a narrowing of the scope of the search for alternatives to just
those that are Ottawa Convention-compliant. But the criteria
which may inform the President's decision about any particular
alternative, both implicitly and explicitly, remain questions
of ``equivalent'' military effectiveness, affordability,
safety, and the aforementioned humanitarian considerations.
Condition 10: Finding Regarding the International Humanitarian Crisis
The word ``indiscriminate'' will be deleted. This change is
consistent with the Committee's view that long-duration mines,
which are not used by the United States outside of Korea, are
to blame for nearly all of the civilian injuries and casualties
caused by land mines. Condition 10 makes clear that short-
duration mines are not part of the problem. Further, as the
Committee report makes clear, a principal advantage of the
Amended Mines Protocol is that it establishes tight
restrictions on the use of long-duration mines. This, in turn,
will reduce the human suffering associated with these weapons,
since a number of countries which have not, to date, agreed to
a comprehensive ban, will be bound by the Protocol's
limitations.
Definition 4: Ottawa Convention
Definition of this term is no longer necessary given the
change to Condition (7), so this provision will be deleted.