[Senate Executive Report 106-2]
[From the U.S. Government Publishing Office]



106th Congress                                               Exec. Rpt.
                                 SENATE
 1st Session                                                   106-2

======================================================================



 
                         AMENDED MINES PROTOCOL

                                _______
                                

                  May 13, 1999.--Ordered to be printed

                                _______


          Mr. Helms, from the Committee on Foreign Relations,

                        submitted the following

                              R E P O R T

                  [To accompany Treaty Doc. 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 Convention 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 13 
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.......................3
III. Future Land Mine Arms Control Issues.............................6
 IV. Committee Action.................................................8
  V. Resolution of Ratification......................................19
 VI. Article-by-Article Analysis.....................................34

                             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, which neither the United States, China, Russia, nor 
several other major land mine producers elected to sign, does 
not obviate the need to act on the Amended Mines Protocol.
    The Committee recommends adoption of the Amended Mines 
Protocol to the Convention on Conventional Weapons (CCW). 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, if implemented, 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 ratified--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 of 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.
    Unless an APL is used in areas marked and monitored to 
effectively exclude civilians, the 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 Amended Mines 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 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 requirement 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 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. nondetectable) mines 
is banned altogether. Many of the land mine 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. And 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 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 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. 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 by making distinctions between short- and long-
duration devices.
    The Protocol makes a clear and reasonable distinction 
between mines which destroy themselves or deactivate (such as 
the Pursuit Deterrent Munition) and those which do not. The 
majority of the Committee recommends 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

    The Administration has refocused its attention on achieving 
a global anti-personnel land mine (APL) ban through the 
Conference on Disarmament (CD). 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 have not signed 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 United States has adopted a 
unilateral ban on all anti-personnel mine exports. Yet, 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.
    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. In the view of 
many members, 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 a treaty which will 
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, as well as to the use of 
APL in mixed munitions. 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.
    Furthermore, the minority does not regard short-duration 
mines as a panacea. If produced or exported widely, these mines 
could also pose grave humanitarian problems. They are dispersed 
by air in large numbers over wide areas, and verification of 
deployed mines' compliance with self-destruct/self-deactivation 
requirements would be virtually impossible. This is among the 
reasons why the executive branch has expressed support for a 
global ban, and an intention to sign the Ottawa Convention if 
suitable alternatives to APL, including those used in mixed 
munitions, are developed.

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 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.

                          IV. 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 
Mines Protocol and land mine issues generally.

February 25, 1998 (open session)

    Robert Grey, then-nominee for the rank of Ambassador during 
his tenure of service as U.S. Representative to the Conference 
on Disarmament

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.

    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 rollcall vote of 14-4. Those members 
voting in the affirmative were Helms, Lugar, Coverdell, Hagel, 
Smith, Thomas, Grams, Ashcroft, Frist, Brownback, Biden, Dodd, 
Kerry, and Robb. Those members voting in the negative were 
Sarbanes, Feingold, Feinstein, and Wellstone.
    The resolution of ratification was reported to the full 
Senate, together with Executive Report 105-21, but was not 
acted upon during the 105th Congress. At a markup on March 23, 
1999, the Committee considered a resolution of ratification 
including 1 reservation, 9 understandings, and 13 conditions. 
The resolution was agreed to by voice vote.

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 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 falls 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 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 authorizes 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 military 
capability.

Condition 2: 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 developed and shared 
critical demining technology with other countries, and 
continues to expand its demining program.

Condition 3: 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 of 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 4: 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 provide any 
assistance or payment under Article 11 or Article 13(3)(d) of 
the Protocol. Accordingly, this condition prohibits the use of 
reprogrammed funds 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.

Condition 5: Future Negotiation of Withdrawal Clauses

    This provision expresses the sense of the Senate that 
treaties containing arms control provisions should 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 to self-defense.
    The underlying treaty to the 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.
    This condition states the view of the Senate that future 
U.S. negotiators should 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 6: Land Mine Alternatives

    This condition requires the President to assure the Senate, 
before moving forward with ratification of the Amended Mines 
Protocol, that he will not seek to limit the consideration of 
alternatives to anti-personnel and mixed anti-tank systems too 
narrowly. To do so would mean that the Administration would 
preclude exploration of alternative technologies which might be 
safer to use, or pose even less of a risk to noncombatants, 
than U.S. short-duration mines.
    The Committee is very concerned with indications that the 
Administration may intend 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. For this reason, 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 (8), this is unlikely to be 
acceptable.
    Additionally, this Condition 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 or 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 intended 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.
    Finally, the Committee notes that 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 certification prohibits an unreasonable 
narrowing of the scope of the search for alternatives; 
nevertheless 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 7: Certification With Regard to International Tribunals

    Condition (7) 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 (7) 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 protocols or amendments 
thereto, the United States shall not recognize the jurisdiction 
of any international tribunal over the United States or any of 
its citizens.

Condition 8: Tactics and Operational Concepts

    Condition (8) operates in tandem with Condition (6). 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 (8) 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 (6) 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 9: Finding Regarding the International Humanitarian Crisis

    Condition (9) makes clear that United States short-duration 
anti-personnel land mines have not contributed to the 
international humanitarian problem posed by the 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 Protocol, U.S. short-duration mines cannot be credibly 
alleged to have contributed to the humanitarian crisis created 
by long-duration mines.
    Further, the Committee notes that 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.

Condition 10: 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 urges the executive branch to reject any 
effort 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 11: 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 12: 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 13: 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.

                     V. Resolution of Ratification



                                  
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