The design, implementation and effectiveness of global landmine regimes

1     The design, implementation and effectiveness of global landmine regimes


Introduction


Two treaties have emerged under international humanitarian law (IHL) in response to the humanitarian scourge of landmines.


Situating the landmine treaties within the wider body of IHL is essential in order to develop a contextualized understanding of regimes that have emerged only relatively recently. However, despite a considerable body of related literature, clear understandings have not been established on the effectiveness of these international legal frameworks in meeting the challenges that prompted their creation. This book seeks to address this lacuna. In particular, it applies a regime theory framework in order to explore the hypothesis that design factors, and their relationship to subsequent implementation, are critical to the effectiveness of these regimes. IHL is based on the premise that the legitimate means of warfare are not unlimited and that a balance must be struck between humanitarian concerns and the onus of military necessity. The body of IHL treaty law and custom attempts to reconcile conflicting interests from the security concerns of authoritarian governments to the aspirations of peace advocates, humanitarian and development workers. The range of actors involved is thus extremely diverse. Primary stakeholders are states, service personnel and civilians caught up in armed conflict and its aftermath. However, other interested parties may include international organizations, commercial companies, the media, international lawyers, academics and civil society more broadly. Even within national governments, contradictory responsibilities and interests that touch on IHL are sometimes found within foreign and defence ministries, development agencies and trade and industry departments. This multiplicity of issues, interests and actors provides a complex basis from which to analyse IHL effectiveness.


The complexities of IHL are particularly apparent in the international treaties that address landmines. The existence of two treaties with the common goal of alleviating the human suffering caused by these weapons1 suggests that the international community recognises the importance of this issue. According to the prevalent narrative on the mine ban treaty2 it represents, in both process and substance, a novel and effective approach to IHL that has created an international norm against the use of anti-personnel mines (APMs). The corollary to this argument is that the ‘other’ landmine treaty, Amended Protocol II (APII) to the Convention on Certain Conventional Weapons (CCW),3 is the ineffective outcome of a slow and inadequate process. In reality, certain mine action practitioners are sceptical about the effectiveness of both regimes.


Concerns over the utility of the landmine regimes can only be addressed through a rigorous focus on their effectiveness. Regime theory provides a useful framework to understand why, during the shift from policy goals to their application, theoretically sound principles often come unstuck when faced with challenging real world situations. This approach unpacks the principles, norms, rules, procedures, actors and issue areas that have shaped the design, implementation and effectiveness of multilateral regimes. It seems particularly appropriate to the study of landmine regimes, because effectiveness not only involves addressing complex technical problems, but also coming to terms with dilemmas and obstacles of an inherently political nature.


The landmines issue in context


IHL, also known as the ‘laws of war’, is intended to minimize the suffering caused in armed conflict. It refers to rules between states governing armed conflict (jus in bello) but not the resort to armed conflict (jus ad bellum). The origins of IHL can be traced back almost as far as warfare itself: the Greeks and the Romans customarily prohibited the use of poison or poisoned weapons in combat.4 There is an extensive body of literature on IHL in general, as well as on particular treaty regimes. This includes negotiating histories and other commentaries,5 as well as numerous works looking at the impact of IHL within the broader framework of international relations.


IHL can be divided into two branches. ‘Geneva law’ deals with the treatment of combatants, non-combatants and civilians caught up in armed conflict, while ‘Hague law’ regulates the means and methods of warfare. Geneva law includes Conventions drawn up in 1864, 1906, 1929 and 1949 with the Geneva Conventions of 1949 replacing the previous ones. The two Additional Protocols of 1977 to the 1949 Geneva Conventions, are considered to combine both Geneva law and Hague law in that they govern the treatment of individuals caught up in war, but also prohibit weapons that cause ‘unnecessary suffering’ or ‘superfluous injury’.6 The restrictions and regulations on the means and methods of warfare found in Hague law are most applicable to the landmines issue. An important distinction should be made between binding international treaties and customary rules of warfare. Custom complements treaty law, because any treaty provision which embodies customary law is binding on all states whether or not they are parties to the treaty in question. From a regime perspective this adds the complicating factor that obligations are not simply laid down in a specific treaty, but also derive from a much wider corpus of international law and practice.


There are multiple links between rules governing the conduct of armed conflict and controls and prohibitions on specific weapons systems. The 1925 Gas Protocol, like the CCW and mine ban treaty, falls into both categories: containing strong elements of IHL and arms control. However, the differences between these two branches of international law are equally important. In particular, there is a clear shift in discourse between arms control frameworks that take into account the military utility of a given weapon, and the humanitarian perspective of IHL, premised squarely on alleviating the human suffering caused by certain means and methods of warfare.


The weight that the respective regimes accord to these two approaches can be a major influencing factor on how rules, norms and actors influence treaty design and implementation. The quality of ‘nesting’ within a wider normative framework is an important distinguishing feature between IHL and ‘hard’ security regimes. It is thus important to take into account how far the landmine regimes, individually and collectively, engage with the broader framework of treaty law and IHL norms that all states are bound to observe, regardless of their respective membership choices.


Landmines and IHL


Given the relatively short period since APII and the mine ban treaty entered into force, examining relevant historical case studies can permit a more mature critique of regime implementation from a longer historical perspective. Thinking about earlier IHL treaties as regimes can also help to situate landmines within this broader framework of efforts to ban or restrict the use of weapons. Are regime characteristics – constellations of actors, interests and norms – specific to this issue area or can they be linked to dynamics found in other IHL regimes? This approach also tests the frequent claim that the Ottawa Process represents a new and unprecedented departure in the field of IHL. More generally, case studies can inform our understanding of how IHL regimes develop over time. This enables us to identify trends, processes and influences that, if not visible to primary stakeholders, may nevertheless be highly influential in shaping treaty design, implementation and effectiveness.


The 1899 Hague Declaration 3 Concerning Expanding Bullets (Hague Declaration 3) and the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (the 1925 Gas Protocol) offer particularly relevant cases in relation to the landmine regimes. Hague Declaration 3 is the only IHL treaty prior to the mine ban treaty that prohibits a conventional weapon in widespread use. Like APMs, expanding bullets – commonly known as dum dum rounds – were condemned by medical practitioners who had witnessed at first hand the effects of these weapons.7 The international advocacy campaign that generated widespread public support for Hague Declaration 3 bears comparison with the Ottawa Process. While the latter is often highlighted by supporters as a unique example of international civil society and media mobilization, these same factors would seem to have proved influential in building support to pressure governments to adopt a ban in 1899. A gap of nearly one hundred years between the two treaties represents a lengthy period over which to trace implementation dynamics and assess regime effectiveness. Hague Declaration 3 therefore provides an important comparative case study in order to understand how far the two landmine regimes represent continuity or change within the corpus of IHL.


The 1925 Gas Protocol is one of the earliest binding legal restraints on a specific weapon. As with Hague Declaration 3, this case provides a number of significant parallels to the processes surrounding the design and implementation of the landmine regimes. The regime formation process tapped into strong public concern over the horrifying human costs of trench warfare in the First World War. Like landmines, a major impression was made by evidence of victims left alive to suffer from terrible injuries after exposure to these weapons. The 1925 Gas Protocol offers an early example of civil society exerting pressure to outlaw a weapon, resulting in an international norm against their use. Significantly, the negotiating process that led to its agreement was marked by the exclusion of states from the developing world.


Considering Hague Declaration 3 and the 1925 Gas Protocol through the lens of regime theory, offers an opportunity to develop new insights into their interplay and the factors that have contributed to their effectiveness over time. Analysis of the shifting clusters of actors involved in design and implementation allows us to identify how these processes resonate with APII and the mine ban treaty. The weapons addressed by these regimes share the quality of having been stigmatized in the international public consciousness. Consequently, important issues for the landmine regimes such as norm-building, spillover effects and regime nesting can only be understood through situating this analysis within its broader historical context.


Origins and emergence of the landmine treaties


The use of landmines in armed conflict can be traced back as far as the nineteenth century, although the practice only became widespread during the Second World War.8 The specific regulation of these weapons under IHL began in 1980 with the agreement of Protocol II to the CCW. The protocol not only covers APMs, but also anti-vehicle mines (AVMs) as well as booby traps and ‘other devices’. Growing international recognition in the early 1990s of the effects of APMs in contemporary conflicts and the inadequacies of the existing regulatory framework to protect both combatants and, in particular, civilians, led to the convening of a review conference. This involved eight months of negotiations between 1995–1996. The rules of procedure for the conference limited participation to government representatives. This prevented many other interested stakeholders from playing a direct role in the shaping of the treaty, and contributed to a lack of public interest in the negotiations except through criticism of the process from a vociferous pro-ban lobby. The resulting ‘amended’ Protocol II provides for a number of more stringent restrictions on the design of landmines than is contained in the original protocol.


A significant element of those excluded from the CCW negotiations comprised the non-governmental organizations (NGOs) and other civil society actors that between 1992–1993 began to coordinate a campaign to ban APMs. This group formed the nucleus of an International Campaign to Ban Landmines (ICBL) which, by 1995, incorporated some 350 different NGOs. Support for a ban also came from the International Committee of the Red Cross (ICRC) as well as the United Nations, with UN Secretary-General Boutros Boutros-Ghali highlighting the issue in his 1992 Agenda for Peace.9 At a conference held in Ottawa during October 1996, Canadian Foreign Minister Lloyd Axworthy took the initiative to set a date for formal negotiations with the goal of agreeing a complete ban on APMs. Following a year-long, two-track process that combined state-level discussions with an extensive civil society-driven advocacy campaign, the negotiating conference took place in Oslo over a three-week period in September 1997. A wide range of states from both the developed and developing world participated while numerous NGOs, international organizations and mine action practitioners were given full access. Decision-making was by two-thirds majority and lengthy position statements were prohibited in order to achieve an agreed treaty text within as short a timeframe as possible. The resulting mine ban treaty provides for a complete ban on the use, production, transfer and stockpiling of APMs.


APII pursues ways to minimize the effects of landmines through regulating their use while balancing these restrictions against concerns of military utility. A number of criticisms are levelled at this approach. In particular, it is claimed that through applying a logic that draws heavily on arms control antecedents, the humanitarian impact of these weapons is not directly acknowledged. A temporal consideration is also highlighted. APII does not reflect the reality that landmines may pose a danger to both communities and individuals decades after conflicts have ended. A further criticism is that APII essentially proposes technical fixes that presuppose a technological and resource base out of reach for many developing countries. In other words, the regime may have limited relevance in the very countries that suffer the most from landmines. The counterpoint to criticism of APII is that a restrictions-based approach, developed through consensual negotiations, draws landmine producers and users that would not consider an outright ban into a constructive arms control process. While the mine ban treaty has a considerably wider membership than APII,10 many militarily-significant states including China, India, Pakistan, Russia and the United States (that are members of APII) have not signed up to the ban.


The mine ban treaty has generated a great deal of analysis and commentary in a relatively short period. In contrast, APII has attracted little attention outside of governmental circles. Yet much existing work on the evolution of the former focuses narrowly on the achievements of the coalition of like-minded states and civil society organizations. This narrative, encapsulated in Cameron, Lawson and Tomlin’s seminal volume on the subject, To Walk Without Fear, the Global Movement to Ban Landmines,11 emphasises the unique nature of this process. It starts from the position that the Ottawa Process is fundamentally ‘a good thing’ that has re-written the rules for the design and implementation of IHL treaties. This perspective sees international civil society, in conjunction with like-minded states, successfully pressuring sometimes reluctant states to be bound to new humanitarian treaty obligations through the medium of coordinated, well-targeted advocacy.12 The flipside of this narrative casts APII as an ineffectual response to the global landmine problem from states unwilling to ban these weapons.