Two posts on the Just Security blog earlier this year, by distinguished legal scholar and Retired U.S. Air Force Major General Charles Dunlap, raised some interesting questions concerning the utility of banning specific types of weapons.
In “Is it Really Better to be Dead than Blind?” (January 2015) and, “To Ban New Weapons or Regulate Their Use?” (April 2015) it is argued that specific weapons bans, such as those on landmines and cluster munitions, are counter-productive and that certain prohibited weapons or methods of warfare, such as blinding lasers and ‘tear gas’, can be more “humane” than other lawful alternatives available during armed conflict.
This post presents the ICRC’s perspective, drawn from many decades of operational experience, on the benefits of specific weapons prohibitions for the victims of armed conflict, both civilians and combatants.
The ICRC’s unequivocal view is that weapons prohibitions and restrictions can, and have, saved many civilian lives, and reduced suffering among combatants, while striking the proper balance between military necessity and the principle of humanity. Over time States have recognized the need to supplement the core rules of IHL through negotiation of treaty prohibitions of specific weapons due to their unacceptable human costs.
In addition, the suggestion that certain prohibited weapons or methods of warfare would be used as “humane” alternatives to other weapons does not reflect historical experience. Take, for example, the use of riot control agents - ‘tear gas’ - in armed conflict. During the First World War, the use of tear gas quickly escalated to the use of other methods of chemical warfare, including chlorine and mustard gas. The same pattern occurred in Yemen in the 1960s and during the Iran-Iraq War in the 1980s. While this sort of escalation was not inevitable, it was foreseeable. And during the Vietnam War, tear gas found its military utility as a force-multiplier to increase the lethality of conventional weapons, and not as an alternative to them. Again and again tear gas devastatingly escalated the humanitarian toll of armed conflict, and these experiences formed the rationale behind the Chemical Weapons Convention’s prohibition of riot control agents as a method of warfare.
The weapon ban treaties addressed in more detail in the rest of this post — on anti-personnel mines, cluster munitions and blinding lasers — reflect a similar experience. These bans exist because these weapons, by design, are prone to having indiscriminate effects on civilians or causing unnecessary suffering to combatants, and therefore to falling foul of the core rules of IHL.
The Anti-Personnel Mine Ban Convention (“Ottawa Convention”)
Unlike most other weapons of war, which must be aimed and fired, anti-personnel mines are “victim-activated”, meaning they are designed to be detonated by the presence, proximity or contact of a person. Inherently, they cannot distinguish between a soldier and a civilian. Decades of widespread use of these weapons, in virtually every armed conflict from the mid-to-late 20th century, has led to an epidemic of civilian mine casualties and catastrophic social and economic costs in affected countries. Indeed, anti-personnel mines provide an excellent example of the dissonance between military doctrine governing the use of a weapon and military practice borne out by operational realities. In the mid-1990s, research (see, for example, Conclusions on page 71) conducted on behalf of the ICRC by military experts showed that in 26 armed conflicts since the beginning of the Second World War, anti-personnel mines were only rarely deployed in accordance with existing legal and military requirements. The study found that even well-trained professional armies have found it extremely difficult to use mines correctly in combat situations.
In 1997, many States and organizations recognized that earlier efforts to reduce the impact of anti-personnel mines on civilians (including CCW Protocol II) did not adequately address the significant humanitarian problem posed by these weapons. The Anti-Personnel Mine Ban Convention (the “Ottawa Convention”) was a step forward. It prohibits States Parties from using, developing, producing, stockpiling or transferring anti-personnel mines or helping anyone else to do so. Now, more than three-quarters of the world's countries (162 States) have joined the Convention. Anti-personnel mine use and annual casualty rates have dropped dramatically as a result.
The successes of the Anti-Personnel Mine Ban Convention are due in part to the positive obligations the treaty sets out to protect civilians from existing dangers posed by landmines. States Parties commit to clearing anti-personnel mines already in the ground, providing assistance to mine victims and destroying stockpiled mines. Mine-affected States have a right to seek and receive such assistance directly from other Parties to the treaty and through the United Nations, regional or national organizations, components of the International Red Cross and Red Crescent Movement or non-governmental organizations. The success of the Convention has also focused attention on the post-conflict consequences of other weapons, in particular on explosive remnants of war, including cluster munitions.
Nevertheless, several thousand incidents occur each year in the over 60 States and areas still affected by anti-personnel mines. The vast majority - 79% - of recorded landmine/ERW casualties are civilians. In 2013, child casualties accounted for almost half - 46% - of all civilian casualties where the age was known. The ICRC remains convinced, through its first-hand experience, that the only way to protect civilians from the threat of landmines is to completely remove them from the ground.
After “robust discussion of the national security team”, the United States is now taking steps toward ratification of the Anti-Personnel Mine Ban Convention. The U.S. announced new policy measures in 2014 to ban the production and acquisition of anti-personnel landmines, to destroy stockpiles, and to prohibit their use except on the Korean Peninsula, as part of “diligent efforts to pursue solutions that would be compliant with and ultimately allow [the U.S.] to join the Ottawa Convention.” This change in policy aims to “bring U.S. practice in closer alignment with a global humanitarian movement that has had a demonstrated positive impact in reducing civilian casualties” caused by anti-personnel mines. The change enjoyed the full support by senior civilian and military leadership with former U.S. Secretary of Defense Chuck Hagel “at the top of that list”.
The Convention on Cluster Munitions
Likewise, it is the reality of how cluster munitions were being used and how they actually functioned in the real world that led to the agreement of an instrument to prohibit them. After decades of witnessing civilians suffer with each new use of cluster munitions, due to their inaccuracy and unreliability, the Convention on Cluster Munitions was negotiated and adopted in 2008.
Cluster munitions are designed to disperse explosive submunitions over very wide areas; some models can scatter more than 600 submunitions across thirty thousand square meters (several football fields). Since these submunitions are generally free-falling, incorrect use, wind, and other factors can cause them to strike well outside the intended target area. Additionally, practice has shown that many submunitions fail to detonate as intended, meaning that these pieces of unexploded ordnance continue to kill, maim and hamper agricultural and economic activity for decades after the conflict has ended. (See the ICRC 2008 Convention on Cluster Munitions Factsheet).
Given the large numbers of cluster munitions that are often used, the amount of unexploded submunitions left behind after the conflict can be enormous. By some estimates, Laos and Vietnam still have millions of unexploded submunitions waiting to be cleared from conflicts of the 1960s and 1970s. According to the Cluster Munition Monitor (2015), the all-time number of cluster munition casualties, based on the total of country estimates, comes to more than 55,000 (even though only a small portion of the accidents involving these weapons are ever recorded.) Civilians accounted for “the vast majority” of casualties – 92% where the status was recorded from 2010-14 – and half of those victims were children. The 2014 report estimates that from 2012–13, 97% of the people killed by cluster munitions in Syria were civilians.
It is worth noting that not all weapons that release explosive submunitions are banned by the Convention on Cluster Munitions. The treaty exempts some weapons, including those that contain fewer than 10 explosive submunitions when each of these submunitions: (a) is designed to locate and engage a “single target object” (or “point target”); and (b) is equipped with an electronic self-destruction and self-deactivating feature. In the view of over 115 States, including 16 former State producers of cluster munitions, this exemption represents the proper balance between military necessity and humanitarian concerns. The U.S. is not a party to the Convention on Cluster Munitions, but has recognized the need to minimize the unintended harm to civilians and civilian objects, and has committed to eliminating its use of the worst of these weapons.
The ICRC works directly with affected populations in over 40 countries to prevent accidents caused by cluster munitions and to reduce the grave risks borne by civilians from unexploded submunitions. The ICRC “Mine Action Sector” undertakes data gathering and analysis, risk reduction, risk education and survey and clearance activities. Based on direct experience in affected areas, the ICRC remains convinced that the Convention on Cluster Munitions benefits humanity while accounting for the military needs of modern armed conflict.
CCW Protocol IV on Blinding Lasers
Protocol IV to the Convention on Certain Conventional Weapons (CCW) prohibits the use of blinding laser weapons that are “specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision…”.
In the late 1980s and early 1990s, anti-personnel blinding lasers were being designed for use in addition to (not instead of) other means of warfare. In 1994, just prior to the agreement of Protocol IV, the U.S. was conducting advanced tests on blinding lasers that would clip on to a standard military rifle. The ICRC convened a series of four expert meetings between 1989 and 1991 that accumulated evidence of the horrific effects that blinding laser weapons would have on victims and society, and on the likelihood that blinding laser systems, being small arms, would proliferate widely.
Following these meetings, the ICRC, together with many States, felt compelled to work towards a prohibition. Although there was a division of opinion as to whether the use of blinding lasers would already be illegal, given the prohibition of weapons causing superfluous injury and unnecessary suffering, the vast majority of participants took the view that specific prohibition would be advisable and proposed an additional Protocol to the 1980 CCW. Ultimately Protocol IV prevented these weapons from ever being used in conflict (to the ICRC’s knowledge). Without the treaty, the ICRC predicted just as many deaths, and many more blind, in the wake of armed conflict.
The U.S., likewise, eventually concluded that the world is better off without blinding laser weapons. Indeed, the Department of Defense’s (DoD) own policy against their use formed the “principal basis” for Protocol IV. In 1997 President Clinton asserted that “[B]linding lasers are not needed by our military forces… The United States is committed to preventing their emergence and use.” And in 2008 Charles A. Allen, Deputy General Counsel of International Affairs at the DoD again reaffirmed that the U.S. military “does not have any plans or desire to develop and use blinding laser weapons”.
Stemming the proliferation of blinding lasers was another rationale behind the adoption of Protocol IV, especially given the increasing humanitarian consequences that would have resulted as these weapons made their way into the hands of an ever wider range of conflict parties. As the ICRC argued in 1994 – a concern that was shared by the U.S. – the ease and low cost of acquiring laser technology meant that blinding lasers would have quickly proliferated, including among non-state armed groups.
US Military Support for Weapons Bans
Although the U.S. is not a party to the Anti-Personnel Mine Ban Convention and the Convention on Cluster Munitions, U.S. civil and military leaders frequently emphasize their commitment to balancing humanity with military necessity, and these leaders recognize the positive role that weapons treaties can play in this regard.
For example, John B. Bellinger, Legal Adviser at the State Department, said during a Congressional hearing in 2008:
“The CCW establishes scope and procedural provisions … for particular type[s] of conventional weapon that may be deemed to pose special risks of having indiscriminate effects or causing unnecessary suffering, or a problem common to certain weapons. We believe that the CCW is a particularly valuable framework, because it … advances the U.S. national objective of preserving humanitarian values in times of armed conflict.”
An exchange during that hearing between Senator Casey and Brigadier General Johnson of the Joint Staff on whether the U.S. should ratify the CCW Protocol III on Incendiary Weapons, Protocol IV on Blinding Laser Weapons and Protocol V on Explosive Remnants of War was also illuminating:
“Senator Casey: Do you have any--and this, I guess, is a question that a lot of people would ask that aren't intimately familiar with the necessity and the rationale behind these treaties--but do these treaties in any way limit the flexibility of our military?
General Johnson: No; actually it does not provide an adverse effect on our operations; again, because we operate in compliance with them already, and also because of what's been cited by my colleagues, in terms of our ability to respond to military necessity in any situation, we can apply and balance the military utility with the humanitarian considerations, as well.
Senator Casey: So, you can strike that balance.
General Johnson: Absolutely.”
Brigadier General Johnson went on to add that “[A]nything that other countries can do in signing up to adhere to these treaties would be a benefit to our service members, because it would protect them from excessive injury. And by ratifying it ourselves, we set the example of what responsible militaries do, that we follow these rules.”
The ICRC’s work, in advocating for States to prohibit specific weapons that have serious humanitarian consequences, is informed by over 150 years of experience working in armed conflicts and a continuous dialogue with States. This experience and dialogue has shown to the ICRC the clear benefits, in humanitarian terms, of the prohibition by States of unacceptable weapons.