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SUMMARY The 1980 Convention on Certain Conventional Weapons (CCW) is an instrument of international humanitarian law that regulates the use, and in certain circumstances also the transfer, of specific conventional weapons. In addressing landmines, booby-traps and other devices, CCW Protocol II, adopted in 1980, reflected customary law by limiting the use of mines to military objectives. The 1996 Amended Protocol II strengthened, in particular, the rules governing anti-personnel mines, although it did not include the total prohibition that a significant number of States had been supporting. Protocol V, which entered into force on 12 November 2006, allocates responsibilities for the clearance, removal or destruction of explosive remnants of war (ERW), defined as unexploded ordnance and abandoned explosive ordnance. The Protocol also calls for all feasible precautions to be taken to protect civilians from the risks and effects of ERW. INTRODUCTION The background to the 1980 Convention on Certain Conventional Weapons (CCW), 1 and the negotiation of Amended Protocol II to the Convention during the First CCW Review Conference, have already been described in Chapter 3. In this chapter, we look at the core provisions in the Convention, particularly Protocol II and Amended Protocol II, and how they are to be implemented by the States Parties. 2 Finally, the chapter considers the universalisation of the Convention how widely it has been accepted by States. Appendix 4 contains the text of the CCW, Amended Protocol II and Protocol V, and Appendix 5 lists the High Contracting Parties to the CCW, Protocol II, Amended Protocol II and Protocol V. THE ADOPTION AND ENTRY INTO FORCE OF THE CONVENTION AND PROTOCOLS The CCW with its original three annexed Protocols 3 was adopted by consensus on 10 October 1980 and opened for signature for one year from 10 April 1981. 4 A total of 51 States signed the Convention, which entered into force on 2 December 1983. As of 1 March 2007, there were 102 States Parties to the Convention. Protocols I (non-detectable fragments), II and III (incendiary weapons) entered also into force on 2 December 1983. Protocol IV (blinding lasers) entered into force on 30 July 1998. Amended Protocol II entered into force on 3 December 1998. Protocol V entered into force on 12 November 2006, six months after its ratification by 20 States Parties to the CCW. Becoming a State Party to the Convention The standard method to become a party to an international treaty is to sign and then ratify it. This is how the majority of States have become party to 70
the Convention on Certain Conventional Weapons. A State becomes party to the Convention sixth months to the day after it deposits its instrument of ratification with the treaty depositary 5 the Secretary-General of the United Nations (UN). 6 Any State that did not sign the Convention must now accede directly a one-stop process that has the same effect as signature and ratification all in one. A State that accedes to the treaty also becomes party six months after it deposits its instrument of accession with the Secretary-General of the UN. The nature of the Convention under international law The Convention is an instrument of international humanitarian law as it focuses on the use of weapons in situations of armed conflict, although both Amended Protocol II and Protocol IV (on blinding laser weapons) have provisions prohibiting transfer in certain circumstances. The structure of the CCW a chapeau Convention and annexed Protocols is rather unusual. It was drafted in this way to ensure future flexibility indeed, as mentioned, two protocols have already been adopted since the conclusion of the Convention. Those were Protocol IV in October 1995 and then in November 2003, States adopted Protocol V on Explosive Remnants of War. THE CORE PROVISIONS OF THE CONVENTION AND THE PROTOCOLS The application of the Convention and the Protocols The CCW as a whole, including all the annexed Protocols, applies to international (inter-state) armed conflicts, including conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in exercise of their right of self-determination. In addition, at the Second Review Conference of the Convention in December 2001, States Parties adopted an amendment to Article 1 whereby States may extend the scope of the Convention to include internal armed conflicts. As of 1 March 2007, 50 States had ratified the amendment to Article 1 of the CCW: Albania, Argentina, Australia, Austria, Belgium, Bulgaria, Burkina Faso, Canada, China, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Holy See, Hungary, India, Ireland, Italy, Japan, Korea (Republic of), Latvia, Liberia, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Moldova, Montenegro, Netherlands, Norway, Panama, Peru, Poland, Romania, Russian Federation, Serbia, Sierra Leone, Slovakia, Spain, Sri Lanka, Sweden, Switzerland, Turkey, Ukraine and the UK. 71
The 1980 Protocol II applies only in international armed conflicts, unless a State Party has decided to apply it more widely. 1996 Amended Protocol II, on the other hand, also applies specifically to internal armed conflicts, but not to internal disturbances or tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature. 7 It governs all landmines, although there are additional prohibitions or restrictions on certain antipersonnel mines. It is possible to make reservations to the provisions of the Convention and annexed protocols. According to international treaty law, it is not possible to make a reservation that is incompatible with the object and purpose of the Convention. In contrast, and as mentioned in Chapter 4, the Anti-Personnel Mine Ban Convention does not allow any reservations to its provisions. The negotiation of 1980 Protocol II The protocol was negotiated based on a working proposal by France, the Netherlands, and the U.K. The agreement was not particularly contentious, although there was some discussion of the need to prohibit remotely-delivered mines. Most of the negotiations were concentrated on incendiary weapons, especially napalm, following the experiences in the Vietnam war. The provisions of 1980 Protocol II Definitions Anti-personnel mines are not defined in the original protocol as all provisions governing mines apply equally to both anti-personnel and anti-vehicle landmines. A mine is defined as a munition placed under or on the ground and designed to be exploded by the presence, proximity or contact of a person or vehicle. Remotely-delivered landmines are defined as those delivered by artillery, rocket, mortar or similar means or dropped from an aircraft. General rules In accordance with customary international law (applicable to all States), mines, booby-traps or other devices must not be targeted against civilians or civilian objects, or used indiscriminately. In addition, all feasible precautions must be taken to protect civilians from mines. Protocol II only requires parties to the conflict to record all pre-planned minefields and to endeavour to ensure the 72
recording of all other minefields and mines laid by them. States Parties should whenever possible, by mutual agreement, provide for the release of information concerning the location of minefields, mines and booby-traps, particularly in agreements governing the cessation of hostilities. Specific rules The use of manually-emplaced mines is prohibited in any city, town, village or other area containing a similar concentration of civilians unless a combat between ground forces is taking place or appears imminent, or b either the mines are placed on or close to a military objective belonging to the enemy, or measures are taken to protect civilians from their effects. Remotely-delivered mines may only be used within an area which is itself a military objective or which contains military objectives and must either be recorded or contain an effective neutralising mechanism. Effective advance warning must be given of any delivery or dropping of remotely delivered mines which may affect the civilian population, unless circumstances do not permit. THE NEGOTIATION OF AMENDED PROTOCOL II In 1993, following pressure from NGOs and the International Committee of the Red Cross (ICRC) to tackle the growing problem of landmines, France initiated a call for a first review conference of the CCW. A series of four intergovernmental experts meetings took place in 1994 and early 1995 leading to a review conference in Vienna in September - October 1995. The failure to reach an agreement on amendments to the protocol on mines resulted in two further originally unscheduled sessions of the conference in Geneva and on 3 May 1996, Amended Protocol II was finally adopted by consensus. The provisions of Amended Protocol II The definition of an anti-personnel mine and other weapons Amended Protocol II defines an anti-personnel mine as a mine primarily designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill a person. The insertion of the word primarily, which was debated at length, suggests that anti-vehicle mines that can also be detonated by persons, including those equipped with anti-handling devices, are not to be considered anti-personnel mines. Anti-vehicle mines are referred to in the protocol as mines other than anti-personnel mines and are regulated under its general rules. A booby-trap is defined as any device designed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object (e.g. opens a door). Other devices are manually 73
emplaced munitions and devices, including improvised explosive devices, which are designed to kill or injure and which are actuated manually, by remote control or automatically after a lapse of time. General rules It is prohibited to use mines that are designed to explode when mine detection equipment is passed over them. In accordance with customary law, mines, booby-traps or other devices must not be targeted against civilians or civilian objects or used indiscriminately. States and other parties to conflict who use such weapons must: > Remove them following the end of active hostilities; > Take all feasible precautions to protect civilians from their effects; > Give effective advance warning of any emplacement of these weapons that may affect the civilian population; > Maintain records concerning the locations of such weapons; > Take measures to protect forces and peacekeeping missions of the UN, ICRC missions and other humanitarian missions against the effects of these weapons. Specific rules All anti-personnel mines must be detectable using commonly-available metal detection equipment. This means that 8 grams of metal must be incorporated in the mine. 8 Manually-emplaced anti-personnel mines must be equipped with self destruction and self-deactivation mechanisms as specified in the Technical Annex unless they are: placed within a perimeter-marked area monitored by military personnel and protected by fencing or other means, to ensure the effective exclusion of civilians from the area; and cleared before the area is abandoned. Remotely-delivered anti-personnel mines must both self-destruct and selfdeactivate to a combined success rate of 999 in 1,000. Remotely-delivered anti-vehicle mines must, to the extent feasible, be equipped with an effective self-destruction or self-neutralisation mechanism and have a back-up selfdeactivation feature. The transfer of prohibited mines is unlawful. No mine may be transferred to an entity other than a State, and it is prohibited to transfer anti-personnel mines to States that are not bound by the Protocol, unless the recipient State agrees to apply it. 74
Booby-traps and other devices may not: > Take the form of any apparently harmless portable object; > Be used in an area containing a concentration of civilians and in which combat is not taking place; > Be attached to or associated with a range of items, including: recognised protective emblems or signs; sick, wounded or dead persons; medical equipment; toys; food or historic monuments. The implementation of the Protocol States Parties hold annual meetings to discuss the functioning of the Protocol and submit annual reports. These annual reports are not publicly available without the consent of the State Party. States Parties must also take all appropriate steps, including legislative and other measures, to prevent and suppress violations of the Protocol by persons or on territory under its jurisdiction or control. 9 THE NEGOTIATION AND THE ENTRY INTO FORCE OF PROTOCOL V Following two years of negotiations, in November 2003 a meeting of States Parties to the CCW adopted a new protocol: Protocol V on Explosive Remnants of War. The preamble to the Protocol (recognised) the serious postconflict humanitarian problems caused by explosive remnants of war. Protocol V entered into force as new international law on 12 November 2006. As of 1 March 2007, 32 States Parties to the CCW had ratified it. 10 The provisions of Protocol V Definitions The Protocol defines explosive remnants of war as covering unexploded ordnance (UXO) and abandoned explosive ordnance (AXO). Article 2, paragraph 2 of CCW Protocol V defines unexploded ordnance as meaning explosive ordnance that has been primed, fused, armed, or otherwise prepared for use and used in an armed conflict. It may have been fired, can be dropped, launched or projected and should have exploded but failed to do so. Typical UXO can be a hand grenade, mortar shell, submunition or bomb that has been used but has not detonated as intended. It may remain dangerous. According to Article 2, 75
paragraph 3 of CCW Protocol V, AXO means explosive ordnance that has not been used during an armed conflict, that has been left behind or dumped by a party to an armed conflict, and which is no longer under control of the party that left it behind or dumped it. Abandoned explosive ordnance may or may not have been primed, fused, armed or otherwise prepared for use. General rules The Protocol allocates primary responsibility for the clearance, removal or destruction of ERW to the party that is in control of the affected territory 11 and calls for all feasible precautions to protect civilians from their risks and effects. 12 In addition, in cases where the user of explosive ordnance which has become ERW does not exercise control of the affected territory, that party is required, after the cessation of active hostilities, to provide where feasible technical, financial, material or human resources assistance either bilaterally or through a mutually agreed third party. Further, under Article 8 of the Protocol, each State Party in a position to do so is required to provide assistance for the marking and clearance, removal or destruction of explosive remnants of war, and for risk education to civilian populations and related activities. The principal obligations under the protocol do not, however, cover ERW existing on the territory of a State before it became a party to Protocol V. Specific rules Among the measures laid down by the Protocol that would help alleviate the humanitarian impact of ERW are specific obligations on recording, retaining and transmission of information, which is critical for effective mine action. Thus, States Parties and parties to an armed conflict shall to the maximum extent possible and as far as practicable record and retain information on the use of explosive ordnance or abandonment of explosive ordnance. 13 These obligations are supplemented by a non-legally-binding technical annex, which stipulates that regarding explosive ordnance which may have become UXO, a State should endeavour to record the following information as accurately as possible: > the location of areas targeted using explosive ordnance; > the approximate number of explosive ordnance used in the areas targeted; > the type and nature of explosive ordnance used in areas targeted; and > the general location of known and probable UXO. Where a State has been obliged to abandon explosive ordnance in the course of operations, it should endeavour to leave AXO in a safe and secure manner and record information on this ordnance as follows: 76
> the location of AXO; > the approximate amount of AXO at each specific site; and > the types of AXO at each specific site. 14 The implementation of Protocol V At the Third Review Conference of the CCW in November 2006, States Parties decided to convene a first Conference of the High Contracting Parties to Protocol V. This Conference was scheduled to take place in November 2007. REVIEW CONFERENCES AND MEETINGS OF STATES PARTIES The First CCW Review Conference was held in 1995-1996 and the Second CCW Review Conference was held in Geneva in December 2001. The Third CCW Review Conference, which was held in November 2006, again in Geneva, decided to establish a Sponsorship Programme to be managed by the GICHD to promote the attendance and participation of developing nations in the work of the Convention. Review conferences and meetings of States Parties are convened by the United Nations. Discussions were due to continue in 2007 within the CCW on possible measures to reduce the humanitarian impact of munitions, particularly submunitions. In February 2007, frustrated by the slow pace of talks within the CCW the government of Norway decided to convene a meeting in Oslo of selected States and concerned organisations to discuss the negotiations of an international legal treaty governing cluster munitions. 15 77
Universalisation of the Convention As at January 2007, there were 89 States Parties to 1980 Protocol II and 87 States Parties to 1996 Amended Protocol II. Most major military powers that are not bound by the Anti-Personnel Mine Ban Convention are States Parties to the CCW, including China, India, Israel, Pakistan, the Russian Federation and the United States. All of these are party to 1996 Amended Protocol II. At the Third CCW Review Conference, States Parties also adopted a Compliance mechanism and an Universalisation Action Plan for the Convention and its five annexed protocols. ENDNOTES 1 As was seen in Chapter 3, the full title of the instrument is the United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects. The simplified formulations, Convention on Certain Conventional Weapons or CCW, which have no formal legal status, are used in this work for the sake of brevity. 2 A country that is formally and legally bound by the provisions of the Convention is referred to as a State Party or High Contracting Party. 3 Protocol on Non-Detectable Fragments (Protocol I); Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II); and Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III). 4 Article 3, Convention on Certain Conventional Weapons. 5 Article 5, Convention on Certain Conventional Weapons. 6 Article 10, Convention on Certain Conventional Weapons. 7 Article 1, paragraph 2, 1996 Amended Protocol II. 8 Article 4 and the Technical Annex, 1996 Amended Protocol II. 9 Article 14, 1996 Amended Protocol II. 10 Albania, Australia, Bulgaria, Croatia, Czech Republic, Denmark, El Salvador, Estonia, Finland, France, Germany, Holy See, Hungary, India, Ireland, Liberia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, the Netherlands, Nicaragua, Norway, Sierra Leone, Slovakia, Slovania, Spain, Sweden, Switzerland, Tajikistan, and Ukraine. 11 Article 3, paragraphs 1 and 2, CCW Protocol V. 12 Article 5, paragraph 1, CCW Protocol V. 13 Article 8, paragraph 1, CCW Protocol V. 14 Article 1(a), Technical Annex to CCW Protocol V. 15 See, for example, Dates for Oslo conference seeking ban on cluster bombs set, Agence France Presse, Oslo, 22 January 2007. 78