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Convention on Certain Conventional Weapons (CCW)
Background
Treaty Text
Meeting of States Parties 7-13 November 2007
Meeting of Group of Governmental Experts (GGE) 2007
Third Review Conference 2006
Other documents
Summary
Conventional weapons, or weapons which are not derived from chemical, nuclear, or biological sources, are the most common type of weapon employed in armed conflict and are responsible for untold injuries, deaths, and human suffering. The 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, or the Convention on Certain Conventional Weapons (CCW), sometimes called the Inhumane Weapons Convention (IWC), seeks to remedy the use and effects of several types of these weapons. Adopted 10 October 1980, the Convention codifies two fundamental customary principles of international humanitarian law applicable in armed conflict: the prohibition on the use of weapons which have indiscriminate effects and the prohibition on weapons which are “of a nature to cause superfluous injury or unnecessary suffering.” The primary intention of the CCW is to protect civilians, as well as combatants, in situations of armed conflict, from excessive suffering not necessitated by a legitimate military objective. To achieve these aims, the CCW contains only general rules in order to allow for flexibility and longevity. It is designed to be expanded and updated to encompass new technological and methodological developments in warfare. The Convention is unusually structured in the form of a chapeau (or umbrella) convention with more specific provisions contained in annexed protocols.
The original Convention with three annexed protocols was open for signature for one year following 10 April 1981. A total of 50 States signed the Convention, which entered into force on 2 December 1983. Currently there are one hundred States Parties to the treaty, with six additional signatories that have not yet ratified the Convention. These six countries are Afghanistan, Egypt, Iceland, Nigeria, Sudan and Vietnam. The Convention is now closed for signature, although in accordance with Article 4(1), a State, which has not signed the Convention, may accede to it. Pursuant to Article 10, the instrument of accession shall be deposited with the Secretary-General of the United Nations.
The three original protocols annexed to the Convention regulate weapons producing fragments in the human body not detectable by X-ray (Protocol I), mines, booby-traps, and other devices (Protocol II), and incendiary weapons (Protocol III).The Convention is, as Kofi Annan said, "a living instrument that can be modernized to meet new security challenges." Protocol IV was adopted 13 October 1995 to prohibit the use of blinding laser weapons and Protocol V, adopted 28 November 2003, prohibits and regulates explosive remnants of war. The Convention will be updated again at the Third Review Conference, held from 7-17 November 2006 in Geneva. Discussions focused on cluster munitions, anti-vehicle mines (AVM), and implementing compliance mechanisms to the convention.
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Summary
History
Structure and Contents of the Treaty
Other Documents
Background
International humanitarian law (IHL) has attempted throughout its evolution to regulate the conduct of warfare and ameliorate its effects. Several fundamental principles have persisted and developed throughout the past centuries, such as the notion that military objectives cannot aim for the total destruction of an enemy, excessive cruelty and suffering should not be inflicted on any party, weapons cannot be used indiscriminately, and civilians should be protected and separated from active combatants. In a greater sense, the Convention can be seen as a convergence between international humanitarian law and arms control. It reflects the tensions between these two concepts, as arms control centers upon states and security concerns, while IHL is humanitarian in nature and focuses on the individual. Reconciling these two approaches is, in many ways, one of the underlying challenges of the Convention.
Attempts to create a legal regime of “humanitarian arms control,” as one author termed the union of IHL and arms control, primarily originated in the St. Petersburg Declaration of 1868. At the bequest of Russian Tsar Alexander II, 17 states adopted a declaration designed to reconcile “laws of war with laws of humanity.” The Declaration produced the first prohibition on the use of excessively cruel weapons in the form of explosive projectiles. It also codified many customary principles of IHL that form the backbone of the CCW. It mandated that in warfare, one can only seek to “weaken” an enemy and not strive for their total annihilation. Military objectives should look to disable the greatest number of men, realizing that it is often unnecessary to kill a soldier in order to render him (or her) incapable of participating in battle. It also affirmed that a distinction must be made between combatants and civilians, and that the latter may not be targeted by military objectives. Of fundamental importance to the CCW, the St. Petersburg Declaration also prohibited weapons that “uselessly aggravate the sufferings of disabled men or render their death inevitable.” (One scholar explained the rationale behind this principle very succinctly. His explanation for the idea is if you use a projectile weapon and knock out an enemy, there is no reason to then have the weapon explode and burn him or her.) Stemming from the St. Petersburg Declaration, the basic criteria for determining the illegality of a weapon implicit in the CCW and other subsequent arms prohibitions are 1) if the weapon causes unnecessary suffering, 2) if it has indiscriminate effects, and 3) whether the weapon kills through treachery. Although the Declaration contains only 17 official signatories, it is now considered to be customary international law and thus universally applicable.
The First Hague Peace Conference in 1899 undertook further steps to prohibit excessively injurious weapons. It prohibited the use of ‘dum-dum’ or expanding bullets and repeated the principle that states do not have unlimited choice in the means and methods of warfare they employ. The principle against the use of weapons that cause unnecessary suffering was again reiterated at the Second Hague Peace Conference in 1907. The Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed 17 June 1925, continued the development of IHL prohibiting the use of certain types of weapons, although its provisions deal with weapons non-conventional in nature. In the following century, the experiences of WWI and WWII would have catalytic effects for increasing and extending the codification of these general principles of IHL.
In the 1950’s and the aftermath of WWII, the International Committee of the Red Cross (ICRC) began drafting measures to protect civilians from the cruelties of warfare. In 1957, at the 19th International Conference of the Red Cross in New Delhi, the ICRC presented the Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Times of War, which contained various proposals prohibiting weapons with uncontrollable effects or which pose undue harm to civilians, such as chemical, biological, radioactive, incendiary, and delayed-action weapons. The Draft Rules were an early attempt in the long and arduous process to accomplish a prohibition on excessively cruel conventional weapons, but received no governmental support to formalize the proposal into a treaty.
The atrocities witnessed in the Korean and Vietnam Wars reinvigorated efforts to prohibit certain conventional weapons. Concerns grew about the usage of herbicides, tear gas, and incendiary weapons like napalm. In the late 1960s the ICRC began working on draft treaty texts and in May 1971, formed the Conference of Governmental Experts to review the drafts . Shortly thereafter, the Swiss government founded the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (CDDH). The CDDH met periodically from 1974-77 and convened the ad hoc Committee on Conventional Weapons in February 1974, to focus on indiscriminate weapons and weapons with excessively injurious effects. The group met two times, once in Lucerne in 1974 and again in Lugano in 1976. The first signs of the divisions which would plague future attempts at prohibiting the use of certain conventional weapons became apparent at the CDDH conferences. One group of experts advocated a total ban on specific weapons while others thought that an absolute ban would be unattainable and instead favored more pragmatic objectives in the form of restrictions on the use of certain weapons. Sweden, Norway, Switzerland, Yugoslavia, Egypt, and Mexico formed a core group of states pressing for an absolute prohibition, while the major military powers like the US, USSR, and larger NATO and Warsaw Pact members either opposed a total prohibition or argued that the UN Conference on Disarmament (CD) would be a more appropriate forum to consider the issue. The ICRC supported this more limited approach, but in the last session of the CDDH it was clear that no consensus would be reached, as the parties could not agree on what weapons would be included in the text or if the prohibitions would apply to any use of such weapons in combat or merely their use against civilians. Finally, in 1977 the UN General Assembly called together the Conference on Conventional Weapons, which in 1980, produced the text of the CCW.
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Review Conferences
At the request of France, in 1995/6, the First Review Conference for the Convention was convened. The review conference produced future Protocol IV, which prohibits the use of blinding laser weapons and amended Protocol II, strengthening its regulations and providing for an annual conference for the States Parties to confer and discuss issues pertaining to the Protocol. Amended Protocol II also extended the scope of applicability of the Protocol to include internal armed conflicts. This was a critically important measure, as the original protocol and Convention related only to international conflicts. This meant that the CCW did not apply to the majority of hostilities occurring at the time, as most were primarily internal in nature.
In December of 2001, a Second Review Conference was called to deal further with issues surrounding the scope of application of the Convention, and resulted in the amendment of Article 1 to apply the Convention in its entirety to internal armed conflicts. It also established an open-ended Group of Governmental Experts (GGE) to address and report on specific issues of concern such as explosive remnants of war (ERW), mines other than anti-personnel mines, compliance with the Convention, small caliber weapons, and ammunition. On 28 November 2003, the States Parties to the Convention adopted Protocol V, “the first multilaterally negotiated instrument to deal with the problem of unexploded and abandoned ordnance.” Protocol V aims to protect civilians and combatants from explosive remnants of war, extending the Convention’s scope of applicability to post-conflict situations.
The Third Review Conference for the CCW was held from the 7th-17th November 2006 in Geneva and discussed compliance with the Convention and issues surrounding cluster munitions and mines other than anti-personnel mines (MOTAPM).
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The Convention
The preamble of the CCW reiterates the customary rules and general principles of IHL supporting the treaty provisions. It enumerates the following rules of customary international law: the prohibition on the “threat or use of force against the sovereignty, territorial integrity or political independence of any state;” the general principle that civilians are to be protected against the effects of hostilities; that parties in an armed conflict do not have unlimited choice in the means or methods of warfare; weapons which cause unnecessary suffering or superfluous injury are prohibited; and methods or means of warfare which are intended or expected to cause “widespread, long-term and severe damage to the natural environment” are also prohibited.
Article 1 deals with the scope of application of the Convention. Article 1(2) specifically designates that the treaty does not apply to “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature, as not being armed conflicts.” The text reaffirms the principle of state sovereignty and the right of each state to use all legitimate means to defend its territorial and political integrity (Art 1 (4)). Article 1(5) holds that states can’t use the Convention or its protocols to justify intervention into armed conflicts. Articles 2 through 5 specify the ratification process, while Article 6 stipulates that states have an obligation to disseminate the Convention in their respective countries. Article 8 deals with review and amendment procedures and Article 9 dictates that states may denunciate the treaty, but will not be released from their obligation until one year has passed.
Protocol I
Protocol I “prohibits the use of any weapon, the primary effect of which is to injure by fragments that are not detectable in the human body by X-rays.” This protocol specifically addresses weapons which are deemed to cause unnecessary suffering, as doctors cannot treat their victims because the minute particles they produce in the human body cannot be located or removed.
Protocol II
Protocol II was negotiated from a proposal brought forth by France, the Netherlands and the UK, and prohibits or restricts the use of landmines, booby-traps and certain other devices. In the original protocol, a mine is defined as “a munition placed under or on the ground and is designed to be exploded by the presence, proximity or contact of a person or vehicle.” Anti-personnel mines (APM), however, are not defined.
The general rules of the original protocol requires that mines, booby-traps, or other devices cannot be used indiscriminately or intentionally target civilians. The language of the general rules is vague and seemingly lenient in certain instances—for example, it only requires States to record all “pre-planned minefields,” and “endeavor to insure” recording of other minefields, “ ‘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.’”
The specific rules of the original protocol prohibit the use of manually-placed mines amidst areas of high civilian concentration, “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 an enemy, or measures are taken to protect civilians from their effects.” The provisions regulating remotely-placed mines differ slightly, specifying that they 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 neutralizing 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 original Protocol II fell short of the expectations of many parties, who would push to amend the protocol in the future. Following further disappointment with the results of amended text, concerned parties concluded a separate treaty containing an absolute ban on the use of APM, or the Ottawa Treaty.
Amended Protocol II
Dissatisfied with the text of the original Protocol II, France, the ICRC, and many NGOs pressured for the amendment of the protocol and convoked the First Review Conference for the Convention in Vienna, from September to October 1995. The negotiations were laborious and two additional sessions had to be convened in Geneva after the first failed to produce a consensus. Finally on 3 May 1996, the Amended Protocol II was adopted.
Unlike the original protocol, Amended Protocol II provides a definition of an anti-personnel mine (APM) as a “mine primarily designed to be exploded by the presence, or contact of a person that will incapacitate, injure or kill a person.” The insertion of the word ‘primarily’ is contentious, as it suggests that anti-vehicle mines (AVM) may also be detonated by persons, but are not considered to be anti-personnel mines. Amended Protocol II also contains more extensive general provisions which declare that the use of mines is prohibited if they are designed in a manner to cause unnecessary suffering, made to explode in the presence of mine detection equipment, used indiscriminately, or directed against civilians or civilian objects. The protocol is not an absolute ban on the use of mines, but places restrictions and obligations for their use. States Parties are required to remove all mines at the end of hostilities, take “all feasible precautions” to protect civilians, give advance warning to civilians at risk, maintain records on the locations of mines, and protect humanitarian missions.
In addition to the general rules, Protocol II contains specific rules pertaining to the use of mines. Anti-personnel mines must be detectable by mine-detection equipment and contain an internal 8 gram metallic signature. In addition, they must contain self-destruction and self-deactivation mechanisms, unless they are placed in a marked area which is monitored by military personnel and fenced in to keep out civilians. The area must also be cleared before it is abandoned. The same provisions apply to remotely-delivered APM, and remotely-delivered AVM must also “to the extent feasible” contain the same self-destruct and self-deactivation mechanisms. The protocol stipulates that prohibited mines cannot be transferred and that no mine may be transferred to a non-state entity. States not bound by the Protocol are prohibited from receiving mines, unless they agree to accede to the Convention.
Booby-traps are 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.” Booby-traps may not take the form of an apparently harmless object and may not be used in civilian areas away from the areas where conflict is occuring. The protocol specifies that booby-traps may not be attached to certain subjects like protective emblems, sick, wounded or dead persons, medical equipment, toys, food, animals, or historic monuments.
Protocol II contains a general obligation for states to take “all appropriate steps, including legislation and other measures, to prevent and suppress violations of the protocol by persons or on territory under its jurisdiction or control.” It also requires states to submit annual reports and attend annual meetings about the implementation of the Protocol.
Issues pertaining to Protocol II
Protocol II, even after its amendment, fell far short of producing an absolute ban on the use of landmines. Many parties felt the provisions were too lenient and lacked rigorous obligations or compliance measures. One example of an objection is that even though Amended Protocol II requires mines to contain a self-destruction and self-deactivation feature, a mine which possesses both and still fails to detonate poses the exact same danger to civilians and mine clearance groups as any ordinary mine. In addition, the US estimates that the cost of a self-destruction and self-deactivation mechanism would be $20 per mine. Intense dissatisfaction with Amended Protocol II by parties advocating for stricter regulations or an absolute ban on the use of landmines instigated the creation of the Ottawa Landmine Convention. The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, or Ottawa Treaty, entered into force on 1 March 1999 and bans all use of anti-personnel landmines. The Ottawa Convention enjoys wide compliance, with 122 States Parties, although the US refuses to join. The CCW continued considering the hazards caused by the use of mines and will discuss the use of mines other than APM in the Third Review Conference in 2006.
Protocol III
Protocol III addresses the use of incendiary weapons, defined as “any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat or combination thereof, produced by a chemical reaction of a substance delivered on the target.” It lists examples of incendiary weapons such as flame throwers, rockets, grenades, mines, or bombs. It prohibits the use of these weapons against civilians in all circumstances and stipulates that they cannot be used or delivered by air against a military target in the midst of a civilian population. Protocol III also prohibits the use of incendiary weapons against forests or plants unless used to conceal combatants or military targets. Weapons that “ignite fires or burn as a side effect are not subject to the protocol.”
Protocol IV
Protocol IV prohibits the use of blinding laser weapons, defined as weapons “specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices.” This is an unusual prohibition as it bans the use of weapons that have never been employed in combat. Blinding laser weapons were developed by several countries and even produced, but thankfully, have never been used. Fears over the extremely devastating effects of these weapons led to the imposition of a prohibition preemptively. Laser weapons inflict injury very quickly and over a large range. They “concentrate light’s energy up to 100,000 times” in the optic system, causing vitreous hemorrhaging and permanent, irreversible blindness. The continuous sweep of a laser beam greatly increases the probability that the weapons will find their victims, who can be affected even without looking directly at the beam. The Protocol prohibits the use or trade of blinding laser weapons, but not their development or stockpiling.
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Protocol V
Background
Protocol V pertains to explosive remnants of war (ERW). It delineates two types of ERW; unexploded ordnance (UXO), which is explosive ordnance that has been fired or prepared and should have exploded but has failed to do so; and abandoned explosive ordnance (AXO), or explosive ordnance which has not been used in combat and has been left behind by a party to an armed conflict. The term ERW refers to both types and covers weapons that may become ERW in the future as well as existing ERW prior to the entry into force of Protocol V. The protocol applies to weapons not already covered by Protocol II, such as mines, booby-traps, and other devices specified therein.
Protocol V arose out of international concern over the pressing need to prevent the unnecessary harm caused to civilian populations from ERW and the difficulties they pose to war-torn societies by impeding the delivery of essential foods, medical care, supplies, and general reconstruction and development. Surprisingly, despite the considerable amount of attention paid to the problems of landmine use, little notice has been given to the devastating effects of submunitions, even though they have been shown to be the primary cause of civilian deaths and injuries in recent conflicts such as Kosovo. ERW affect 82 countries and 10 territories worldwide and continue to pose a dramatic threat to reconstruction and assistance efforts, local farming and economic redevelopment, and the return of displaced peoples. In Iraq, one NGO reported clearing over 1 million pieces of UXO and another study conducted by Human Rights Watch states that tens of thousands of submunitions from the Coalition in Iraq are now UXO and must be cleared. ERW are becoming an increasingly grave problem as the mass production of cluster munitions intensifies. Extremely sensitive micro-electronic devices are commonly utilized in fuses and munitions, which heightens the likelihood of weapon malfunction. The quality of munitions is further degraded by military budget constraints and escalating competition in the international arms market.
The UN Environmental Program provided the motivation to take action on the issue of ERW with the publication of a report about their impacts in 1983. This spurred the creation of several UN General Assembly resolutions, but no new international law pertaining to ERW was adopted. After the ICRC and the UK NGO Landmine Action met to discuss the usage of cluster bombs, UXO, and AXO, it was decided that ERW would be discussed at the Second Review Conference of the CCW. The ICRC study on Kosovo, which revealed that more than two-thirds of civilian casualties resulted from munitions other than anti-personnel mines, was another impetus to action. In September 2000, the ICRC succeeded in securing ERW onto the agenda of the CCW Second Review Conference, albeit after some resistance, as a few states believed the issue would be too lengthy and complicated to address and instead should be treated separately after anti-personnel mines (APM). Other states were more supportive, such as Switzerland, which offered a proposal that all new submunitions should be required to contain self-destruction and self-deactivation devices.
The Second Review Conference of the CCW was held from 11-21 December 2001. It established the Group of Governmental Experts (GGE) who appointed two coordinators to work on ERW and AVM. After controversy over the nature and categorization of anti-vehicle mines (AVM), it was decided to treat them as a separate issue. The outcome of the Second Review Conference was a consensus that a new protocol should be adopted containing general rules applying to all UXO after conflicts. Proposals were also made suggesting that the new protocol should contain measures designed to prevent weapons from becoming UXO, such as implementing standards for production, transport, and storage. Submunitions proved to be a contentious issue at the Conference. Switzerland led a group of states advocating regulations on submunitions such as requiring self-destruction and self-deactivation devices, but China, Russia, and Pakistan opposed Switzerland’s proposal as the cost of destroying old weapons or updating them would be prohibitive. Russia and the US maintained that international humanitarian law (IHL) as it already exists mandates the protection of civilians, and “in their view, better implementation of the existing rules, rather than new rules, was needed.”
Negotiations on Protocol V took place in March, June, and November 2003, with Ambassador Chris Sanders of the Netherlands acting as chairperson. During the negotiations, conflict emerged over the intended legal nature of the Protocol. It was uncertain if the text should be formulated as a “legally binding protocol or as a less legally binding text (e.g. a political declaration or a statement of best practices).” Although the US desired a quick political instrument, the majority consensus was to produce a legally binding protocol.
Contents of the Protocol
Adopted on 28 November 2003, Protocol V obligates States Parties to mark and clear explosive remnants of war (ERW) after the cessation of armed conflicts, provide technical, material, and financial assistance for their removal in areas not in its direct control, or through a third party such as the UN or NGO. States must take “all feasible precautions” to protect civilians from the effects of ERW, provide warnings and risk education, and record and share information on ERW with the UN and other organizations. They must also provide assistance to the victims of ERW.
Protocol V is the only protocol to the CCW that contains a preamble. It enumerates the motivations of the instrument and its two principle goals; to make a legal instrument applicable to general post-conflict situations and to attempt to produce general preventive measures ensuring reliability (although these ended up being voluntary best practice measures only). The preamble was created to resolve the contention over the legal nature of the Protocol as it states that the Protocol will employ both legally binding provisions and voluntary best practice preventive measures.
Article 1 addresses the scope of application of the Protocol. It applies to both international and internal armed conflicts, but only to ERW created from conventional weapons, excluding chemical or biological weapons originating ERW. Resolving a contentious issue, Article 1(4) specifies that the Protocol applies only to ERW in future conflicts, although Article 1(7) provides for assistance in dealing with existing ERW. Austria, Brazil, China, and Pakistan had promoted a retroactive protocol, but were opposed by Italy, France, and Japan.
Article 3 focuses on the clearance and destruction of ERW, addressing an issue previously underdeveloped in international law. Historically, states were responsible for clearing mines only within their own territory, but the Protocol acknowledges the reality that often countries lack the means to do so or may not be a party to the conflict. Article 3 is the first instance of codified international law explicitly requiring the clearance of explosive munitions. Each state is obligated to clear affected territory under its control, “as soon as feasible,” or as soon as active conflict ends, not just when peace accords officially conclude hostilities. Article 3(1) contains the compulsion for States Parties to provide assistance to help mark and clear territory outside of their control, either through providing technical, material, or financial aid, or personnel, or through third party help. The wording of Article 3(1) strengthens this obligation, as older drafts held that states had a responsibility to clear their own territory, but merely ‘cooperate’ with others to clear territory outside of their control.
Article 4 tackles the procurement and transmission of information regarding the whereabouts of ERW, another major component of efforts of alleviate the effects of ERW. It mandates that states must record and retain information on the use or abandonment of unexploded ordnance (UXO) “to the maximum extent possible and as far as practicable” and relay this information to others affected and the UN, although with the qualifier, “subject to these parties’ legitimate security interests.” The types of information to be provided are specified in Part 1 of the Technical Annex of the Protocol, which is a voluntary best practice measure, although the requirements outlined in Article 4 are legally binding.
Article 5 refers to precautions taken for the protection of civilians, such as risk education, warnings, and marking, fencing, and monitoring contaminated areas. It too contains the qualifier that these provisions should be considered “feasible precautions,” which are “those precautions which are practicable or practicably possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” Article 6 provides similar regulations designed to protect humanitarian organizations, including safe passage through dangerous areas, clearing of roads for access, and revealing safe routes through affected locations.
Articles 7 and 8 focus on assistance and cooperation to implement the Protocol. Article 7 covers existing UXO, offering a compromise to states concerned about retroactive effects of the Protocol by giving each party the “right to seek and receive assistance, where appropriate” from other states and international organizations, while at the same time requiring them to provide assistance, “as necessary and feasible.” This article is also an incentive for states in need of assistance to become party to the Convention. Article 8 contains broad measures on assistance implementing the Protocol for future ERW situations. Specifically, it enumerates an obligation to provide assistance to victims of ERW, in the form of care and rehabilitation, as well as socioeconomic reintegration. South Africa lobbied for the inclusion of this requirement, as it is an essential element to remedying the effects of ERW.
Article 9 provides generic preventive measures designed to stop the creation of ERW and ensure proper functioning of weaponry through regulating production, storage, transport, handling, and training for users. Article 10 and 11 address implementation—requiring parties to consult and cooperate with each other—and compliance—requiring parties to issue instructions and procedures to train their personnel. Overall, Protocol V produced a major achievement for IHL through extending its legal regime to post-conflict situations. It will help organizations act more efficiently to remove ERW, make it easier for them to allocate resources, and save many civilian lives. The obligations requiring mine clearance may provide incentives for states to take preventive action, as complying with the spirit of the Protocol will be less costly than clearing mines after a conflict.
In many ways, Protocol V fell short of many parties' aspirations. The frequent use of qualifying phrases like “where feasible” and “as practicable,” although intended to make the Protocol flexible and accommodate pragmatic matters of military necessity, may weaken compliance and implementation of the Protocol. It also failed to consider implementation by non-state actors and compliance of organized armed groups. Yet despite potential weaknesses in the Protocol, “As pointedly observed by a representative of the United Nations Mine Action Service, ‘It will no longer be permissible for the parties to a conflict to fire and forget.’”
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In many important ways, the CCW represents a major advancement for international humanitarian law (IHL) and for the alleviation of dangers presented by the use of conventional weapons. Yet many critics view the CCW “as a very modest achievement. Indeed, the final outcome was a major disappointment for its proponents who felt that military considerations had been given a much greater priority than humanitarian concerns.” This is a valid criticism as even the fundamental principle behind the convention—the prohibition on weapons which cause unnecessary suffering or superfluous injury—contains an inherent contradiction. On one level, all war is ultimately unnecessary suffering, but on another level, the prohibition implies a rule of proportionality, balancing between what is seen as militarily necessary and that which is deemed excessive. One must ask just how much suffering is justifiable to achieve a given military goal. This tension creates a significant hurdle for the Convention and contributes to making it appear weak in places.
Two primary objections to the Convention are its lack of absolute prohibitions on the use of many hazardous conventional weapons and its need for compliance measures. “Consequently very limited attention was given to the CCW during the 1980s—it was a neglected treaty, with many developing countries considering it not worth ratifying and a number of ‘military significant States’ not wishing to be bound by its provisions.” The major shortcomings of the CCW, however, are not primarily faults within its text, but its lack of implementation and adherence in practice by State Parties and its need for greater universalization. Future tasks for the CCW will be to review its provisions, make them more effective in practice, reaffirm the overall value of the Convention, and promote universality and compliance.
Several impediments hinder these objectives. Some states and NGOs have expressed a preference for the Ottawa Convention and the perception that it replaces the CCW. The Ottawa Convention contains its own limitations, however, as many countries which produce, use, and export anti-personnel mines (APM) are not party to it. The CCW “consequently retains a necessary role as an instrument to regulate the use and transfer of such mines by those States which have decided that their security interests will not at present allow them to ratify the Ottawa Treaty.” The CCW is also much broader in scope and involves the major military powers.
Beyond complications with the overlap between the CCW and the Ottawa Convention, the largest issue facing the CCW is its lack of compliance measures. The Convention needs to address how it intends to monitor compliance and deal with violations. Some scholars advocate that attending to these issues will be facilitated by amending the CCW in its entirety, rather than by amending each Protocol, in order to expedite the adoption of changes by States Parties. Additional help should be provided to developing and small states which lack the means to implement the Convention’s requirements, or whose national language is not an official UN language.
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Many proposals addressing the issue of compliance to the CCW have been prepared. The US favors the adoption of a protocol which would allow parties to convene compliance meetings, fact-finding missions, and investigate violations. The EU desires a broader approach proposing more meetings, and South Africa has advocated for a lesser proposal, calling for fewer meetings, the submission of annual reports, and national preventive measures. Switzerland is working to garner support for its proposal on explosive remnants of war (ERW), requiring submunitions to be held to a 98% reliability standard through the use of a primary fusing mechanism and back-up self-destruction device.
Switzerland is also leading a proposal on small caliber weapons, in an attempt to update the 1899 Hague Peace Conference prohibition on the use of expanding or dum-dum bullets. Small caliber weapons are not included in its definition of prohibited bullets, but produce similar effects on the human body. They are deemed excessively injurious as they ricochet inside the body, causing major internal injuries. The US and Denmark have put forth a proposal to limit the use of anti-vehicles mines (AVM) and require that they be equipped with self-destruction and self-deactivation devices, although China currently objects because this would duplicate Amended Protocol II and be very expensive. The ICRC has also raised concerns about the use of “multipurpose explosive bullets” as a violation of the 1868 St. Petersburg Declaration.
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Third Review Conference
The Third Review Conference of the CCW took place 7-17 November 2006 in Geneva, with Ambassador Francois Rivasseau of France as President-designate. Recently, in the UN General Assembly First Committee on Disarmament and International Security meetings, many states have discussed their intentions regarding the CCW. In the 2005 session, Norway ratified Protocol V, Sri Lanka acceded to the Convention and Amended Protocol II, Protocol III, and IV, Russia ratified Amended Protocol II, and as of March 2005, Turkey became party to the Convention and Protocols I, II, and IV. In 2006, Ambassador Rivasseau made a statement praising the benefits of the CCW, its flexibility, and evasion of severe polarization which has crippled other disarmament fora, while criticizing the Convention’s legal complexity, requiring states to become parties by ratifying two protocols, meaning that they incur different levels of commitment and obligation. He mentioned the then upcoming Third Review Conference and the EU, China, Switzerland, New Zealand, Canada, Japan, Republic of Korea, Russia, South Africa, and Turkey all made statements recognizing the importance of the CCW. Switzerland, New Zealand, and the Republic of Korea indicated their intent to discuss mines other than APM (MOTAPM), while Switzerland again mentioned submunitions, and Russia stated it desired a “detailed and balanced review of the fulfillment of the convention, as well as for elaboration of realistic and balanced solutions.”
For more information on the events and outcomes of the Third Review Conference of the CCW, click here.
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Cluster bombs and submunitions
In the General Assembly First Committee on Disarmament and International Security meetings 16-20 October 2006, Austria, on behalf of the Holy See, Ireland, Mexico, New Zealand, and Sweden indicated its desire to address cluster munitions in the upcoming Third Review Conference. It did not propose a total ban, but advocated a prohibition on their use in proximity to civilian populations in armed conflicts. New Zealand and Norway support negotiation on a legally binding instrument pertaining to cluster munitions, advocating that 5 key elements be addressed: the persistent failure of cluster munitions, their use in civilian areas, indiscriminate use, the means by which they kill civilians, and proliferation and retention of these weapons. Currently, Belgium has banned the use of cluster munitions entirely, Norway has placed a moratorium on their use, and Germany has declared that it will stop acquiring them and phase out its stock by 2015.
The growing use of cluster munitions presents an increasingly serious humanitarian issue. These weapons are specifically designed “to have an effect over a wide area and are often inaccurate and unreliable.” Cluster bombs deliver and disperse submunitions areas as large as 100,000 square meters and an estimated average of 10-20% of submunitions fail to explode as intended. They are also vulnerable to wind and air density and any imprecision or mistake in targeting results in far worse effects than with traditional ordnance. Cluster munitions have been used in combat in 21 countries, while 34 countries are known producers, and 73 (or nearly 40% of the world’s nations) possess stockpiles. “Worldwide, stockpiled submunitions number in the billions,” and pose a threat of proliferation to rogue states and non-state actors.
“Unlike landmines, cluster submunitions are designed to kill. As such, those that survive are likely to suffer severe injuries, such as loss of limbs, loss of sight, or metal fragments in the torso or internal organs.” Beyond the physical effects, the intangible consequences can be equally devastating. The use of these weapons produces psychological trauma, prevents victims from returning to work, children from attending school, and results in a wider loss of income and education that has opportunity costs effecting the family, community, and local economy for years to come. UNIDIR recently published a study on the effects of cluster weapons use in Lao PDR and Albania, demonstrating that in Lao, effects of large-scale use have continued for more than 30 years and in Albania, recent, limited use has had devastating effects, harming rural areas just as much as densely populated ones. The report reveals that many people interact with the unexploded, volatile munitions because they become accustomed to seeing them or are unaware of the dangers they pose. Others interact with them out of economic necessity. Having lost the use of critical farming land because of the presence of cluster ERW (explosive remnants of war), they deliberately handle the unexploded ordnance (UXO) to harvest scrap metal and explosives to sell on the black market. There is a pressing need for more accurate data on the use of cluster munitions and the development of more effective, less expensive methods for clearing them.
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Conclusions
The CCW has made significant achievements in ameliorating the effects of certain conventional weapons and protecting human beings from their devastating consequences. It has furthered the development of international humanitarian law applicable to armed conflict and extended its scope to include post-conflict situations. It inspires confidence that states are willing to take arms control initiatives and reveals the role that a convention can play in regulating warfare. Concurrently, the CCW falls short of the stringent prohibitions many hoped would ban the use of certain conventional weapons in their entirety and often seems to favor military necessities over humanitarian concerns. Another major detraction from the Convention is its lack of a compliance mechanism. “Despite the disappointments, the CCW still represents an achievement, and the main problem has been due to a lack of respect for and adherence to it, and to any deficiencies in its actual provisions. If those provisions had been effectively implemented and fully respected, they would have greatly reduced the suffering caused by ‘inhumane’ weapons.” The Third Review Conference of the CCW sought to address these issues and strengthen the viability of the Convention for the future.
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skip to related documents
“Convention on Conventional Weapons (CCW),” www.fas.org/nuke/control/ccw/
CCW, Preamble.
“1980 Convention on Certain Conventional Weapons,” ICRC Advisory Service on International Humanitarian Law, 2004.
“The Convention on Certain Conventional Weapons,” The United Nations Office at Geneva, http://www.unog.ch/80256EE600585943/(httpPages)/4F0DEF093B4860B4C1257180004B1B30?OpenDocument
Ibid.
“Convention on Certain Conventional Weapons is ‘Living Instrument’ that Can Be Modernized to Meet New Challenges, Secretary-General Tells Geneva Meeting,” United Nations Information Service, Vienna. http://www.unis.unvienna.org/unis/pressrels/2004/sgsm9603.html
Ove Bring. “Regulating Conventional Weapons in the Future – Humanitarian Law or Arms Control?” Journal of Peace Research 24 (Sept. 1987) no.3: 276.
Ibid., 276.
Ibid., 276-277.
Richard Lloyd. “Strengthening the Inhumane Weapons Convention: Second Review Conference of the Certain Conventional Weapons Convention,” ISIS Policy Paper on Qualitative Arms Control (Dec. 2001) no.2.
Bring, “Regulating Conventional Weapons in the Future,” 277, R.R. Baxter, “Conventional Weapons Under Legal Prohibitions,” International Security 1 (Winter, 1977) no.3: 42.
Ibid., 44.
Ibid., 43.
Bring, “Regulating Conventional Weapons in the Future,” 276.
Ibid., 276.
“Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925,” ICRC, http://www.icrc.org/ihl.nsf/FULL/280?OpenDocument
Robert J. Mathews. “The 1980 Convention on Certain Conventional Weapons: A useful framework despite earlier disappointments,” IRRC 83 (Dec. 2001) no. 844: 992.
Ibid., 992.
Ibid., 993.
Ibid., 994.
Ibid., 995
Ibid., 995.
“Chapter 5: The Convention on Certain Conventional Weapons,” A Guide to Mine Action, 2nd ed. Geneva International Centre for Humanitarian Demining, Geneva, 2004, 56.
“The Convention on Certain Conventional Weapons,” The United Nations Office at Geneva, http://www.unog.ch/80256EE600585943/(httpPages)/4F0DEF093B4860B4C1257180004B1B30?OpenDocument
Ibid.
Ibid.
CCW, preamble.
“Convention on Certain Conventional Weapons (CCW) At a Glance,”Arms Control Association Fact Sheet, Sept. 2005. http://www.armscontrol.org/factsheets/CCW.asp
A Guide to Mine Action, 57
Ibid., 57
Ibid., 57
Ibid., 57
Ibid., 57-58.
Ibid., 58
Ibid., 58.
Ibid., 58.
Ibid., 59.
Ibid., 59
Ibid., 59
Lloyd, “Strenghtening the Inhumane Weapons Convention.”
Ibid.
Ibid.
“The Convention on Certain Conventional Weapons,” The United Nations Office at Geneva, http://www.unog.ch/80256EE600585943/(httpPages)/4F0DEF093B4860B4C1257180004B1B30?OpenDocument
CCW, Protocol III.
“Convention on Certain Conventional Weapons (CCW) At a Glance,”Arms Control Association Fact Sheet, Sept. 2005. http://www.armscontrol.org/factsheets/CCW.asp
CCW, Protocol IV
Mathews, “1980 Convention on Certain Conventional Weapons,” 999.
Ibid., 999 n24.
Bring, “Regulating Conventional Weapons in the Future.” 277.
“Convention on Certain Conventional Weapons (CCW) At a Glance,”Arms Control Association Fact Sheet, Sept. 2005. http://www.armscontrol.org/factsheets/CCW.asp
“1980 Convention on Certain Conventional Weapons,” ICRC Advisory Service on International Humanitarian Law, 2004.
CCW, Protocol V, Art 2
Roman Hunger, “The Convention on Certain Conventional Weapons: Or, How to Reduce Human Suffering by Prohibiting or Restricting the Use of Certain Conventional Weapons,” Strategic Insights 2 (March 2003) no.3.
Louis Maresca. “A new protocol on explosive remnants of war: The history and negotiation of Protocol V to the 1980 Convention on Certain Conventional Weapons,” Revue Internationale de la Croix Rouge no. 856: 816.
Ibid., 816.
Hunger, “Convention on Certain Conventional Weapons.”
Marcesa, “New protocol on explosive remnants,” 817.
Ibid., 817
Ibid., 817
Ibid., 818-820.
Ibid., 820
Ibid., 821.
Ibid., 821
Ibid., 821
Ibid., 823.
“1980 Convention on Certain Conventional Weapons,” ICRC Advisory Service on International Humanitarian Law, 2004.
Marcesa, “New protocol on explosive remnants,” 823.
Ibid., 824.
Ibid., 826.
Ibid., 826.
Ibid., 827.
Ibid., 827-828.
Ibid., 829.
Ibid., 829.
Ibid., 830.
Ibid., 831.
Ibid., 832.
Ibid., 832-833.
Ibid., 833.
Ibid., 834.
Ibid., 834.
Ibid., 833.
Mathews, “1980 Convention on Certain Conventional Weapons,” 996.
Hunger, “Convention on Certain Conventional Weapons.”
Mathews, “1980 Convention on Certain Conventional Weapons,” 997.
Ibid., 1008.
Ibid., 1004.
Ibid., 1004-1005.
Ibid., 1005.
Ibid., 1005.
Ibid., 1006.
Ibid., 1008.
Louis Maresca. “Second Review Conference of the Convention on Certain Conventional Weapons,” International Review of the Red Cross no. 845.
Maresca, “Second Review Conference.”
Ibid.
“Convention on Certain Conventional Weapons (CCW) At a Glance,”Arms Control Association Fact Sheet, Sept. 2005. http://www.armscontrol.org/factsheets/CCW.asp
Ibid.
Maresca, “Second Review Conference.”
The First Committee Monitor: NGO Reporting on the General Assembly First Committee on Disarmament and International Security. 1st-4th ed. (2006) www.reachingcriticalwill.org.
The First Committee Monitor: NGO Reporting on the General Assembly First Committee on Disarmament and International Security. Final Edition (2005) www.reachingcriticalwill.org
The First Committee Monitor: NGO Reporting on the General Assembly First Committee on Disarmament and International Security. 2nd ed. (Oct 9-12, 2006): 10.
The First Committee Monitor: NGO Reporting on the General Assembly First Committee on Disarmament and International Security. 1st ed. (Oct 2-6, 2006): 15.
Ibid., 15.
The First Committee Monitor: NGO Reporting on the General Assembly First Committee on Disarmament and International Security. 3rd ed. (Oct 16-20, 2006): 10.
The First Committee Monitor: NGO Reporting on the General Assembly First Committee on Disarmament and International Security. 2nd ed. (Oct 9-13, 2006): 10.
The First Committee Monitor: NGO Reporting on the General Assembly First Committee on Disarmament and International Security. 3rd ed. (Oct 16-20, 2006): 10.
Rosy Cave, Anthea Lawson, and Andrew Sherriff. “Cluster Munitions in Albania and Lao PDR; The Humanitarian and Socio-Economic Impact.” UNIDIR (2006) no.16: 1.
Maresca, “Second Review Conference.”
Ibid.
Cave, “Cluster Munitions in Albania and Lao PDR,” 1.
Ibid., 1.
Ibid., 1.
Ibid., 2.
Ibid., 2
Ibid., 3.
Maresca, “Second Review Conference.”
Mathews, “1980 Convention on Certain Conventional Weapons,” 1008.
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- Baxter, R.R. “Conventional Weapons Under Legal Prohibitions,” International Security 1 (Winter, 1977) no.3: 42-61.
- Bring, Ove. “Regulating Conventional Weapons in the Future – Humanitarian Law or Arms Control?” Journal of Peace Research 24 (Sept. 1987) no.3: 275-286.
- Cave, Rosy, Anthea Lawson, and Andrew Sherriff. “Cluster Munitions in Albania and Lao PDR; The Humanitarian and Socio-Economic Impact.” UNIDIR (2006) no.16.
- “Chapter 5: The Convention on Certain Conventional Weapons,” A Guide to Mine Action, 2nd ed. Geneva International Centre for Humanitarian Demining, Geneva, 2004, 55-61.
- Hunger, Roman. “The Convention on Certain Conventional Weapons: Or, How to Reduce Human Suffering by Prohibiting or Restricting the Use of Certain Conventional Weapons,” Strategic Insights 2 (March 2003) no.3.
- Lloyd, Richard. “Strengthening the Inhumane Weapons Convention: Second Review Conference of the Certain Conventional Weapons Convention,” ISIS Policy Paper on Qualitative Arms Control (Dec. 2001) no.2.
- Luck, Les. "New Hope for Restricting Certain Conventional Weapons," United Nations Chronicle XXXVIII (2001) no.4.
- Maresca, Louis. “Second Review Conference of the Convention on Certain Conventional Weapons,” International Review of the Red Cross no. 845:255-262.
- Maresca, Louis. “A new protocol on explosive remnants of war: The history and negotiation of Protocol V to the 1980 Convention on Certain Conventional Weapons,” Revue Internationale de la Croix Rouge no. 856: 815-835.
- Mathews, Robert J. “The 1980 Convention on Certain Conventional Weapons: A useful framework despite earlier disappointments,” IRRC 83 (Dec. 2001) no. 844: 991-1012.
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--Report by Katherine Harrison November 2006
last updated November 2007
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