[Senate Executive Report 106-2]
[From the U.S. Government Publishing Office]
106th Congress Exec. Rpt.
SENATE
1st Session 106-2
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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