The emergence of the landmine regimes

3     The emergence of the landmine regimes

Introduction

In the case of APII, the ‘closed’ nature of the process and its low public profile has resulted in a lack of knowledge on the emergence and design of this treaty. As was acknowledged by one US negotiator in 1980, while verbatim accounts exist for the plenary sessions, ‘the real negotiations took place in unrecorded private discussions and in the many sessions of the three working groups’.¹ In contrast, the Ottawa Process is commonly characterized as highly participatory and has generated an extensive body of writing. However, there is very little critical analysis of the regime or its origins. Bringing together insights from IHL and mine action within a regime framework enables us to fill some of these gaps. It is particularly important to consider the extent to which obligations placed on members take into account both the technical and political challenges associated with this issue.

From a design perspective, effectiveness is understood in terms of how landmine regime obligations relate to key mine action objectives. In order to capture this, it is necessary to address the extent to which the regimes, individually and collectively, confront the core problems they were set up to meet. A degree of consonance between regime and mine action priorities would seem to be necessary in order to bridge design and implementation concerns. Effectiveness may also be impacted – positively or negatively – through unforeseen consequences provoked by the political dynamics of regime formation. Given the apparent dislocations between different stakeholders, cognitive dissonance may be one factor affecting regime effectiveness.

The emergence of both treaties marks important steps in the development of IHL. Protocol II sets an important standard as the first codification of IHL specifically regulating landmines,² while the mine ban treaty constitutes the first formal ban on a conventional weapon to be adopted by the international community since the 1899 Hague Declaration on dum dum bullets.³ This underpinning humanitarian imperative that situates the landmine regimes within the broader normative framework of IHL is doubly important. First, it can shed light on how far support for regime formation derives from a quality of nesting that draws on deeper IHL trends, encouraging stakeholders to stay on the right side of a compelling humanitarian issue. And second, it allows a critical examination of claims that they represent a new departure in the practice of IHL. In order to address these related issues, this chapter critically assesses the origins and processes leading to the formation of the two landmine regimes. It then analyses the roles of different actors in shaping regime design and considers the significance of norms to landmine regime emergence and formation.

The ICRC began preparing Draft Rules4 from the early 1950s for the protection of civilians from weapons deemed to have uncontrollable effects. Beginning in the mid 1960s, the use in Indochina of tear gases and other weapons perceived to be excessively injurious or indiscriminate led to a number of resolutions within the UNGA, as well as studies commissioned by the UN Secretary-General, on the effects of various weapons.⁵ In 1971 and 1972, the ICRC convened Conferences of Government Experts to consider proposals for prohibitions or restrictions on certain conventional weapons. These conferences, informed by studies commissioned by the Swedish government in which military and medical experts examined recently developed weapons, produced a report that proposed language for several anti-personnel weapon bans.

Growing concern over the use of certain anti-personnel weapons in contemporary conflicts led the ICRC in 1973 to establish an expert working group, which met in Lucerne in September 1974, then in Lugano in January 1976. As a result of these meetings, consensus emerged around proposals relating to undetectable fragments, incendiary weapons, restrictions and recording requirements for remotely-deliverable mines.⁶ Discussions continued in an ad hoc committee on conventional weapons formed as part of a Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (CDDH), held in Geneva in 1976 and 1977. The CDDH was convened by the Swiss government as the depository of the Geneva Conventions, in order to prepare for the negotiation of the Additional Protocols to the Geneva Conventions. The CDDH could not reach agreement on the types of weapon to be included, whether prohibitions or restrictions should be pursued, or if battlefield use or the protection of civilians should be the focus. As shown in Table 3.1, positions were broadly divided between clusters of neutral and developing states on the one hand and ‘militarily-significant’ states⁷ on the other.

Table 3.1  Alignment of states within the CDDH

The concluding session of the CDDH recommended that these issues be addressed in a UN framework. As a result, after preparatory meetings in 1978–1979, which used as their basis the texts prepared in the CDDH ad hoc Committee, the CCW conference was held in 1979–1980.

Additional Protocol IV, on blinding laser weapons, was agreed relatively easily. This ban was particularly significant in demonstrating a link between the CCW and the broader framework of IHL. For the first time since the 1868 St. Petersburg Declaration on exploding bullets, a weapon had been banned before ever being deployed in battle. On the landmines issue, two distinct sets of interests (supporters of a total prohibition on APMs versus advocates of strengthening Protocol II’s restrictions) led to a more challenging negotiating process. A number of states vacillated between these two positions, supporting a ban in principle, but recognizing that such an outcome would not be achieved in consensus-bound negotiations. Accordingly, tortuous discussions meant the deadline for concluding the review conference was twice pushed back, from October 1995 to January 1996 and then from 22 April to 3 May, before agreement on APII was finally reached.

The 1979–1980 negotiations had been broadly split between what Roach terms the ‘prohibitionists’ and the ‘realists.’8 In 1995–1996, the same basic positions applied with prohibitionists unable to meet their goal due to entrenched realist opposition within a consensus framework. The United States played a proactive role in the negotiations, keen to demonstrate leadership on the issue, but with the same underlying assumption that the forum could be managed in line with US policy objectives. While knowledge and concern over the issue of landmines had evolved significantly in the fifteen years between conferences, the same regime rules constrained the progress that could be achieved to ‘more of the same’ technical restrictions. If this reality was reassuring for US security interests, it did not placate those who wished to address the humanitarian costs of landmines. Chairman of the review conference Johan Molander, acknowledged the link between regime rules and the outcome of the negotiations when he stated that results reflected as much as could be achieved on the basis of consensus.⁹

If the APII outcome represented a tactical victory for those that sought to limit their liability, it should also be understood as a strategic error from the perspective of those same interests. It was now undeniable that the only way to achieve a ban was via a distinct regime framework. The measured CCW approach jarred with the recognition of a humanitarian crisis caused by APMs, and thus rendered transparent the inherent tension between arms control and IHL imperatives. The ICRC in particular made a direct linkage between the nine-year period allowed for implementation of APII’s detectability and self-destruction provisions, and the human cost of mines already in the ground or that would be laid during that period.¹⁰ This mirrors similar complaints raised in 1980 at the insistence of certain states, to set a high number of ratifications as the trigger for entry into force – effectively a delaying tactic to prevent early review of the convention.¹¹ On the outcome of the review conference, United Nations Secretary-General Boutros Boutros-Ghali echoed a widespread view that progress had fallen short of expectations and did not reflect the groundswell of international public opinion in favour of a ban on APMs. Unsurprisingly, the review conference was condemned as a failure by the ICBL¹² and this message was picked up by the international news media in its reporting of the conference. The leitmotif of the Ottawa Process, coined by ICBL Coordinator Jody Williams, stemmed from these partial results and was unambiguous: ‘no exceptions, no reservations, no loopholes’.¹³

The need for greater progress was also felt by states. Canada convened a meeting that brought together pro-ban states, international organizations and NGOs in Ottawa between 3–5 October 1996. Spurred by a perception that momentum was being lost, Canadian Foreign Minister Lloyd Axworthy made a surprise announcement during the conference’s closing address. Cutting through the tangle of proposal and counter-proposal, he asked states to return to Ottawa by the end of 1997 to sign a treaty banning APMs. This drew support from the ICRC and ICBL, as well as the UN Secretary-General, but caused consternation at the bilateral level as a radical breach of diplomatic practice. At this stage, only some 50 governments had publicly declared themselves in favour of a ban so Canada had taken a real political risk.

Events moved quickly. The Austrian Government circulated a first draft treaty that drew heavily on disarmament law – notably the Chemical Weapons Convention14 – only a few weeks after the Ottawa conference. They then hosted a meeting in Vienna between 12–14 February 1997 to exchange views on the draft treaty. It was attended by representatives of 111 governments, with the ICRC providing a lead on substantive issues. A revised text, issued on 14 March, was to remain relatively unchanged throughout the process. A subsequent meeting in Bonn between 24–25 April focused specifically on the issue of verification. A total of 121 governments participated in this meeting which was followed, between 24–27 June, by a conference in Brussels attended by 156 states. This meeting adopted a declaration forwarding the third Austrian draft to the diplomatic conference scheduled for September in Oslo. The ninety-seven states that signed the Brussels Declaration endorsed the central elements of the ban treaty and reaffirmed their commitment to sign a treaty in Ottawa before the end of the year. Such extensive support only nine months after the Ottawa conference, provides strong evidence of a norm bandwagon. This effect is perhaps best exemplified by the very undiplomatic behaviour of many states in showing their hand before the start of the negotiating conference. This allowed the core group to focus on the uncommitted.

The momentum of the government-focused process was reinforced by ICRC and ICBL-led workshops, and related advocacy efforts across the globe. NGO-driven conferences and events in mine-affected states created a powerful push factor for states to embrace the anti-APM norm. In March 1997, the Tokyo Conference on Anti-Personnel Landmines, hosted by the Japanese Government, was attended by twenty-seven States, the EU, and ten international organizations. Other national and international conferences took place in East, Central and South Asia, Australia, New Zealand and throughout Europe. Press conferences were deliberately held jointly with pro-ban states to underline the collaborative nature of the process.¹⁵ In the same way, comments were sought from the ICBL on the treaty drafts and the ICBL was represented in each of the conferences in the governmental strand of the process. Following the Oslo negotiating conference, a further round of demarches, lobbying at the 1997 UN General Assembly and NGO-sponsored media activities, were geared to encouraging wavering states to sign the treaty in Oslo.

From a regime perspective, the parallel state and civil society-driven strands of this process demonstrate a number of important characteristics. The momentum provided by the short deadline until the negotiating conference is particularly significant. This meant that discussions were never bogged down in the details. That technical issues were considered secondary to the political imperative driving the process is evident in the rapidly growing list of states indicating their support just a few months after the Ottawa conference. Stakeholder clustering dynamics are also crucial during this phase. Governmental and civil society initiatives were closely coordinated and created important synergies that swiftly built up political momentum behind the process. Many of the same states were also involved in the CCW process. However, a combination of different rules of the game with a partnership-based approach reaching across stakeholder groups, led to a significantly different outcome.

The Oslo Diplomatic Conference took place between 1–18 September, concluding with the adoption of the treaty. Ninety states were registered as full participants and thirty-two attended as observers, as did representatives of the ICRC, various UN agencies and hundreds of NGOs. The main sticking point in agreeing the text proved to be a package of five ‘non-negotiable’ changes required by the US delegation. When initial lobbying met with failure these were eventually whittled down to three (see Table 3.2).

An exemption for anti-handling devices was intended to save US ‘smart’ mine systems, in which the primary weapon targeting vehicles is protected by APMs to avoid tampering by enemy forces. However, it was widely recognized that this was an attempt at reclassification since these weapons had already been defined as APMs during the APII negotiations. This is significant. A move to undermine the treaty was foiled due to parallel negotiations in the other landmine regime framework.

In the end, fierce lobbying by the US was resisted. The majority of states – backed up by the ICBL – refused to dilute a straightforward ban as the price for US signature. A twenty-four-hour delay, requested by the US on the final day of negotiations, saw President Clinton and various senior officials lobby fruitlessly for support. The nature of the process had drawn out their red line issues and effectively isolated the US delegation from the rest of the negotiating conference. The proposals were eventually withdrawn, paving the way for the conclusion of the conference and the adoption of the treaty. Subsequently, 122 States signed the mine ban treaty in Ottawa between 2–4 December 1997.¹⁶

The shortcomings of APII in the eyes of major international actors provided a strong argument to advance the agenda by other means. This feeling was magnified by civil society actors, denied space within the CCW process, who networked in order to lobby effectively through the Ottawa Process. APII did exert a pull factor on states through pressure to adhere to any regime addressing landmines. However, compromise between military utility and humanitarian concerns was an insufficient position from which to demonstrate responsible international conduct. As Prokosch notes, the CCW approach ‘seemed to be intended to satisfy the needs of military forces, which may later have to occupy a mined area, rather than to protect civilians’.17 On this level, the CCW was in the shadow of the pro-ban agenda from the outset. In tandem, the lack of political space for civil society within the CCW framework meant that there was no safety valve for their concerns. This gave both a legitimate platform and a raison d’être for the ICBL and the Canadians to promote an alternative track.

Table 3.2  US negotiating red lines in Oslo

While both regimes pursue the same headline objective, approaches, actors and rules are distinct. Similarities and distinctions are summarised in Table 3.3.

The mine ban treaty negotiations were founded on principles of transparency and majority decision-making. This was reflected in an open approach to participation and flexible rules of procedure with decisions requiring a two-thirds majority. In contrast, the narrow state-based eligibility criterion meant that, within a consensus-bound framework, the CCW negotiations were shaped by national militaries and arms control experts. The point of departure for the negotiation of Protocol II was that landmines are necessary, defensive weapons whose use needs to be restricted in order to minimize collateral risk. This emphasis on technical criteria, as opposed to humanitarian impact, is a direct result of the background and expertise of the negotiators. In the absence of any evidence to the contrary from affected states or mine action practitioners, the longevity and nature of the post-conflict landmine threat and its socio-economic consequences were not discussed.¹⁸ Specifically, the restrictions and prohibitions found in Protocol II and APII fail to take into account the indefinite time period during which the weapons can remain ‘live’. The temporal nature of the hazard after the cessation of hostilities as a mine action issue and the resulting humanitarian cost was not acknowledged except obliquely through an unsuccessful, politically motivated attempt by Libya to include an obligation on the former belligerents to clear mines placed in previous conflicts such as the Second World War.19

Table 3.3  Key features of APII and the mine ban treaty

Protocol II and APII, like any negotiated treaty, reflect a number of compromises found in the permissive language which qualifies various obligations. Under Protocol II, parties to a conflict must ‘endeavour to ensure’ that non-pre-planned minefields are recorded (Article 7(2)), while the seemingly stronger obligation requiring recording of all ‘pre-planned’ minefields (Article 7(1a)) is rendered irrelevant by the lack of such planning in how the majority of the world’s landmines are laid. Indeed, the term minefield implies that the weapon is deployed to a recognized military pattern for specific tactical or strategic reasons. This does not conform to the ‘nuisance’ mine use employed by state and non-state forces in many developing world conflicts. The terminology used is particularly revealing because it demonstrates that the regime and its stakeholders were neither informed by, nor focused on, the realities of contemporary conflict. The input of developing countries can be discerned: forbidding the use of animals or their carcasses as booby traps in Article 6 of the protocol stems from the concerns of Mongolia for their population of nomadic herders.20 However, this remains a point of detail rather than any robust attempt to promote responsibility for the post-conflict consequences of military actions.