[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.


                             
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