Certain Conventional Keapons Conbention: Arms Control or Humanitarian Law?

• Author: by Captain J. Ashley Roach
• Pages: 02

I. INTRODUCTION

This article examines the 1980 Conventional Weapons Conrention1 and the first protocol annexed thereto relating to nondetectable fragments The second protocol to this treaty, regarding mines. booby traps and similar devices. is analyzed by Lieutenant Colonel Burrua M. Carnahan. USA€. of the International Law Division, Office of The Judge Advocate General, U.S Air Force. who was also a member of the American delegation to the United Nations Conference on Prohibitions or Restrictions on Use of Certain Conventional Weapons which may be deemed to beercessirely injuriousortohave indiscriminate effects. Geneva 1979-1980 (CC\I')

The conventional negotiations combined both humanitarian and arms control efforts, although the mixture was not equally balanced. This article describes and attempts to explain bath the mixture and its causes and effects. It also preserves some of the negotiating history of this new multilateral treaty

There is hardly any meaningful public record of the negotiationsof this convention There are verbatim records available only of the

-AB 1960 JD 1963. Unlieriith of Penniiliania LL hl 1971 George Washington Lni\ers#t? Caprain. Judge Advocate Generals Carps OS Xaiy Head Lsu ai Armed Canfliet Branch. lnfeinational Law Division. Office of the Judge Advocate General Department ai the Nar)

Captain Roach u as a member of the United Stater Delegation to the rnired Nailanr Conference on Prahhfloni or Restnetions of use of Certatn Convenrlonal U'eapans uhich may be deemed to be excessii~el~

~ ~ J Y I I O Y I or ta hare mdmrlmlnafe effeetl

Geneia 1979-80

The author uishei toexmess hisIhank.farrhemoirhDlofulcommenisIn rerlewnm the manuseripr to Lieutenant Colonel Burrvi Carnahan 'U S Am Farce. Lieutenan; Colonel James C Moore. U S Air Force Professor George K Walker. and Michael John Mathasan The iieisexoreised an this articleare. hou,rrer hisoan anddonot necesrarili represenr rhase of the Department of the Faiy the U S Departmentof Defense or the U S Goiernment

'Canrsnfmn on Prohibitions 01 Rerfrictioni on the Cse of Certain Conventional W e a ~ o n ~

Which Ma, be Deemed tobe Exeesrireli ~ ~ I U P ~ O U I D ~

tohaw Indiscriminate Effeite. with annexed Pratocolr o p m d io? iig,m;iurs April 10. 1981 U \I Doc A CONF95 15.AnnexI.at20119801 ,iy""'~dr,i19Int'lLep Mat 162411980) 1981 Int'l Rer Red Crass 20 U S Deu't of Air Force Parnnhlet No llu-20 Selected International .4greements 3-177 i19611 [hereinafter ctted as .AFP 110-201

>IILITARY LAW REVIEW [Vol. 105 twlve plenar) sessions of the conference yet the real negotiations took place in unrecorded private discusmni and ~n the many E~S-smns of the three ivorkinggroups. As to these aorking groups there are only the slim reports of their chairmen. There are no summary records of the working groups' meetings as are available for exam-ple. for the 19i4-19i'i Diplomatic Conference on Humanitarian Lam (CDDHI Accordingly, I t is hoped that these articles by t

United States' negotiators nil1 assist in fleshing out the record.

During the 197Os, the United States was not particularly desirous of concluding a aeapans agreement and neither promoted nor opposed the multilateral negotiating process. This neutral position had been taken during the CDDH partly because of a II

idely shared skepticism about both the humanitarian aspects of some of the proposals advanced and the prospects far SUCCBSI in prohibiting or restricting conventional weapons, and partly because of the concern that certain other countries might succeed in de\elaping broad support for prohibitions and restrictions inimical to United States security interests. The United Stateeultimatelypartlclpated fully ~n the weapons negotiations with a view to shaping the results.

The United States entered the CCW negotiations 8s a holding action. The first session, in 1979, was, from the United States'perspectire. spent mostl) in Identifying others' objectives and in pursu-

~ n g a few ideas which seemed appropriate at the time The second

sess~un.in 1980,nasdewted to inauringthatItwasthelastsessionof

multilateral negotiations far restrictions on the use of conventional weapons I" armed conflict.

All states w"1l need the next two decades to understand fully the implications of and to implement the truly major developments inthe law of armed conflict represented by the two protocols of 1977 to the 1949 Geneva Comentions for the Protection of War Victimsland the 1980 Con\entianal Keapans Convention. This will require lengthy and detailed military assessments of their prov~s~ons, redm

tic appraisal of haw well their humanitarian purposes can be achieved and informed judgments B.,ta like11 adherence ta their requirements in actual combat between anticipated opponents. Only to the extent their terms can and will be complied with by ai1 parties, in the heat and fag of battle as well as in peacetime. IS 111 there be respect for these new rules and for the law of armed conflict as a whole. Current examples of warfare in Afghanistan, Laos. and Kampuchea caution against further comprehensive development of the law regulating the means and methods of warfare until there is greater acceptance of its terms and adherence to its requirements, notwithstanding the generally good record of compliance in the Falklands:Malrinaa war. This body of law should never be codified or develapedfar itsown sake hutrathertaaffeecttheactuai conductof States and their armed forces in warfare. Until there 1s substantial evidence that potential opponents are likely to abide by existing law gorerning the conduct of warfare. the utilityof new rules isquestionable Simply stated. what is now needed 1s implementation of existIng law. not further development of that law3

With the Pratocols of 1977 and the instruments adopted ~n 1980 ~t appearathat inlernatlonal hvmanitarianlau hasatfainad the lhmitafirs possibilities True the uae of wms ueapms could probablv be still further restricted and otherweaponseovld perhapsbeaddedtothethree catsgor.ereoiersd by the Proiacolsof 1980 h"L10fBralItrprinclplelare concerned international humanitarian law could hardls dewlop an)further wihaur 'prevenring' armed conflictr from faking place at all which IS not )ti function The P'op"'(ionioitheconflictPnoweoineonand abm e all of the nulentis1 eoniliets which threaten UI all I" vie% aifhe

I" the United rations Charter may at IBL be truk applied It IS clear

11. BACKGROUND OF THE NEGOTIATIONS

Modern efforts IO restnet or prohlbit the use of conventmnai iwa-ns in reaction to the well-publicized apona such as Incendiary weapons.

land mines. and small calibre high telocity bullets ~n the Indochina aar. These efforts inralred parallel. and not alivays coordinated. irork b! the United Kations General Assembly and Seeretanat the International Committee of the Red Cross (ICRC) and a few countries. notably Saeden and \lenco. These actions purported to be rnati5ated bs purely humanitarian concerns. but the subject matter necessarily involved political view about the Yiernam confllct and questions of national security. The negotiations and resulting treaty restricting the use of certain conventional iveapans had to take into account these frequently opposed conslderatlons. The successor fall-UPP of the treaty depends on the acceptability of that balance 7

The modern attempts to impose International rertrmons on the use of aeapons did not begin in earnest until after efforts5 isere well underway to modernize and update the 1949 Genera Conientlonsfor

19841 COYVENTIOSAL WEAPONS COYVENTION

rhe Protection of TYar Victims.'

The weapons efforts can be said to have begun atthe International Conference on Human Rights. Tehran, from April 22 to May 13, 1968. That conference had been convened by the United Kations ~nobservance of the "Internatma1 Year for Human Rlphts,'' on the 20th anniveriars of the 1948 Universal Declaration of Human Rights Resolution XXIII of that Conference requested the General Assembly to invite the Secretarg.General to study, infer altn, "the need for additional humanitarian international Conventions., ,to ensure the prohibition and limitatmn of the use of certain methods and means of warfare

By Resolution 2444 (XXIII), 19 December 1968,'O the General Assembly invited the Secretarp-General to undertake thls study. Submitted on Sovember BO. 1969, the study's sections on wueapons~~ summarized previous efforts at imposing legal restrictions an the use of iveapans and suggested the necesiltrforasrudyon thelegalityof the use of napalm.12

B Toman, sup?" note 2 at 196

Reiolution XI11 had taken noteaftheICRC'r 1916"DraftRulerforthoL~m~tst~onof the Danger3 incurred bi the Clrilian Papulsllon~nTimeafl~ar."andaikedrhelCRC to submit them to gowinmenu for them consideration Sehmdler & Toman, ~upra note 2 at 187 Although mait of rhase rules \lele not related to the me af weapons Article 14 would have prohlblted certain uses of mendlanes and delayed amon"eapans and Article 15 uould hare reswed charring of mlneflelds and the use of self neutralimg meehmms on mmes It thui can be s a d that themlns? and >nee"-diaries profoeals to the 1920 Camentmal Ueaponr Con\entlan orlgsnated here Hawver. since there WVBS wtuall) no reaetlon from governments LO the Draft Rule8 "nofurth~racrionuastakenu.irhsriextoadootrnnaianrenriannn thehaiiinfrhi-

~~~~ ~

draft' Schindler g. Toman. supra note 2, lnrrd Nofe at 187

The inter la betieen the United Narmni and the ICRC 15 candidly described I"

Toman. Supra note 2. at 197

)*Id, para 200. at 62 63.

At the same time, the ICRC. in its report an the reaffirmation and development of the law and customs applicable in armed conflict. v hich It submitted ta the XXht International Conference of the Red Cross Istanbul. 1969, referred in connection with the different ftelds ~n which international humanitarian lau should bedewlaped. to rhe "prohibition of 'non-directed' xeapans or weapons cawing unnecessary suffering." The XXIst...