Taking the Next Step: An Analysis of the Effects the OTTAWA Convention May Have on the Interoperability of United States Forces With the Armed Forces of Australia, Great Britain, and Canada

• Author: Major Christopher W. Jacobs1
• Pages: 03

2004] U.S. INTEROPERABILITY & OTTAWA CONVENTION 49

TAKING THE NEXT STEP: AN ANALYSIS OF THE EFFECTS THE OTTAWA CONVENTION MAY HAVE ON THE INTEROPERABILITY OF UNITED STATES FORCES WITH THE ARMED FORCES OF AUSTRALIA, GREAT

BRITAIN, AND CANADA

MAJOR CHRISTOPHER W. JACOBS1

The International Campaign to Ban Landmines (ICBL) continues to believe the legality of State Party participation in joint operations with an armed force that uses antipersonnel mines is an open question, and that participation in such operations is contrary to the spirit of the treaty. The ICBL has called on States Parties to insist that non-signatories not use antipersonnel mines in joint operations, and to refuse to take part in joint operations involving use of antipersonnel mines.2

1. Introduction

   The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on Their Destruction [hereinafter Ottawa Convention]3 opened for signature on 3 December 1997, and entered into force on 1 March 1999.4 As of 1 February 2004, one month shy of the Ottawa Convention's five-year anniversary, 141

   1. Judge Advocate, U.S. Army. Professor, Administrative and Civil Law, The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia. LL.M. 2004, The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia; J.D. 1994, Marquette University School of Law; B.A., 1991, Marquette University. Previous assignments include Chief, Administrative Law, Combined Arms Center, Fort Leavenworth, Kansas, 2001-2003; Trial Counsel, First Infantry Division, Wuerzburg, Germany, 2000-2001; Deputy Legal Advisor, Task Force Falcon, Kosovo, Yugoslavia, 1999-2000; Chief, Claims, First Infantry Division, Wuerzburg, Germany, 1999; Legal Assistance Attorney, First Infantry Division, Kitzingen, Germany, 1998-1999; Trial Defense Counsel, Eighth United States Army, Yongsan, Republic of Korea, 1997-1998; Trial Defense Counsel, Second Infantry Division, Camp Red Cloud, Republic of Korea, 1996-1997; Soldiers' Legal Counsel, Walter Reed Army Medical Center, Washington, D.C., 1995-1996. Member of the bars of Wisconsin, the Eastern District of Wisconsin, and the Supreme Court of the United States. This article was submitted in partial completion of the Master of Laws requirements of the 52d Judge Advocate Officer Graduate Course.

   2. International Campaign to Ban Landmines, Landmine Monitor Report 2001: Toward a Mine-Free World (Aug. 2001), available at http://www.icbl.org/lm/2001/ [hereinafter ICL Landmine Report 2001].

      states are parties and an additional nine have signed but have yet to ratify

      the convention.5

      Each State Party to the Ottawa Convention "undertakes never under any circumstances: to use anti-personnel mines; to develop, produce, or otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines; to assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention."6 Furthermore, "each State Party undertakes to destroy or ensure the destruction of all anti-personnel mines in accordance with the provisions of th[e] Convention."7 In short, the Ottawa Convention bans States Parties8 from using anti-personnel landmines (APL).

      Major powers, including the United States, Russia and China, have not signed the Ottawa Convention. A few countries, however, in regions of tension-the Middle East and South Asia-opted to participate.9 In explaining why the United States was unable to ratify the Ottawa Convention, President Clinton declared, "As Commander-in-Chief, I will not send our soldiers to defend the freedom of our people and the freedom of others without doing everything we can to make them as secure as possible."10 In

      negotiations preceding the signing of the Ottawa Convention, the United States sought inclusion of two specific measures for the benefit of U.S. forces: an adequate transition period for U.S. forces to phase out the use of APL in favor of to-be-devised alternative technologies and a modification of the definition of "anti-handling device" to encompass the U.S. arsenal of anti-tank (AT) mines.11 The United States refused to sign the Ottawa

   3. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Sept. 18, 1997, 2056 U.N.T.S. 211 [hereinafter Ottawa Convention].

   4. Arms Control Association, The Ottawa Convention at a Glance (April 2004) at http://www.armscontrol.org/factsheets/ottawa.asp.

   5. Id.

   6. Ottawa Convention, supra note 3, art. 1.

   7. Id.

   8. The Ottawa Convention refers to the parties as "States Parties" or "State Party." See generally id.

   9. Arms Control Association, http://www.armscontrol.org/factsheets/ottawa.asp, supra note 4.

   10. See Press Conference, The White House Office of the Press Secretary, Remarks by the President on Landmines (Sept. 17, 1997), available at http://www.fas.org/asmp/ resources/govern/withdrawal91797.html [hereinafter Press Conference].

   11. Id.

       Convention when neither of these measures was included in the final draft.12

       Despite the U.S.'s decision, many of its allies either ratified or acceded to the Ottawa Convention. For example, within the only security alliance that links the United States and Canada with their European Allies-the North Atlantic Treaty Organisation13-the United States is the only member not to ratify or accede to the Ottawa Convention.14 This article outlines procedures for analyzing issues that may arise during joint operations with armed forces of nations that have signed, ratified, or acceded to the Ottawa Convention. In addition, this article offers three case studies as examples. The three countries studied are Australia, the United Kingdom, and Canada.15 While these nations all ratified the Ottawa Convention, they do not implement it in the same manner, deepening interoperability issues. Utilizing the procedures detailed in this article,

   12. Id.

       Now, we were not able to gain sufficient support for these two requests. The final treaty failed to include a transition period during which we could safely phase out our antipersonnel land mines including in Korea. And the treaty would have banned the antitank mines our troops rely on from the outskirts of Seoul to the desert border of Iraq and Kuwait--and this, in spite of the fact that other nations' antitank systems are explicitly permitted under the treaty.

       Id.

   13. See North Atlantic Treaty Organisation, Welcome to NATO, at http:// www.nato.int/ (providing background information on NATO). Various NATO members focus on the effect the Ottawa Convention will have on their ability to participate in NATO operations, rather than focusing on the ability to operate with U.S. forces. This article is not limited to joint operations in a NATO context, however, the Ottawa Convention may also affect reciprocal security commitments established between the United States and its NATO allies.

   14. On 25 September 2003, Turkey acceded to the Ottawa Convention, becoming the last member of the North Atlantic Treaty Alliance (NATO), aside from the United States, to submit to the landmine ban. See Lieutenant Colonel Barfield, Antipersonnel Land Mines Law and Policy, ARMY LAW., Dec. 1998, at 25 n.133; see also Vahit Bora, Turkey and Greece Ban Landmines, SOUTHEAST EUROPEAN TIMES, Oct. 23, 2003, available at http://

       www.balkantimes.com/html2/english/031023-VAHIT-001.htm.

   15. Canada ratified the Ottawa Convention on 3 December 1997, the same day the convention opened for signature. The United Kingdom ratified the convention on 31 July 1998. Australia ratified the convention on 14 January 1999. ICBL, Ratification Updates, at http://www.icbl.org/ratification (last visited Mar. 15, 2004) (listing countries that have signed, ratified or acceded to the Ottawa Convention).

       military personnel can better analyze and plan for interoperability effects resulting from differing interpretations of the Ottawa Convention.

2. Background

   1. Current U.S. Anti-Personnel Landmine Policy

   Landmines have had a devastating effect on individuals and communities around the world.16 As a result, the international community has taken steps to reduce the damage caused by landmines. In 1999, Captain (CPT) Andrew C.S. Efaw, Judge Advocate, U.S. Army, authored an article entitled The United States Refusal to Ban Landmines: The Intersection Between Tactics, Strategy, Policy, and International Law.17 In that article, CPT Efaw provides an excellent overview of the lingering problems created by APL use,18 the tactical and strategic need for APL by the U.S. military,19 and efforts by the international community to restrict landmine use through international legislation.20

   Captain Efaw discusses "three attempts . . . to control the landmine crisis through international agreement."21 The three attempts are: the

   16. See generally United Nations Mine Action, Advocacy and Conventions, Statement of United Nations Secretary General Kofi Annan, (Apr. 1999), at http://www.mineaction.org/misc/dynamic_overview.cfm?did=317.

       From my experience in peacekeeping, I have seen first-hand the literally crippling effects of landmines and unexploded ordnance on people and communities alike. Not only do these abominable weapons lie buried in silence and in their millions, waiting to kill or maim innocent women and children; but the presence - or even the fear of the presence - of a single landmine can prevent the cultivation of an entire field, rob a whole village of its livelihood, place yet another obstacle on a country's road to reconstruction and development.

       Id.

   17. Captain Andrew C.S. Efaw, The United States Refusal to Ban Landmines: The Intersection Between Tactics, Strategy, Policy, and International Law, 159 MIL. L. REV. 87 (1999).

   18. "[T]he problem of landmines claiming unintended victims remains serious and tragic, 'a pandemic of global proportions.'" Id. at 94 (citing Office of Humanitarian Demining Programs...