The Ottawa Convention: The first step towards humanitarian - - PDF document

1 “The Ottawa Convention: The first step towards humanitarian disarmament”, Colloquium, Brussels, 28 March 2013 Your Royal Highness, Excellencies, Ladies and Gentlemen, The ICRC’s mandate as promoter and guardian of international humanitarian law (otherwise known as IHL or the law of armed conflict) was given to it by the States Parties to the Geneva Conventions in the ICRC’s Statutes.1 The aim of IHL is to limit the effects of armed conflict for humanitarian reasons. The underlying premise is that wars are probably inevitable but that their effects can be mitigated, including through restrictions on certain weapons. The premise of IHL is therefore different to that of disarmament, namely that reducing national military capabilities and weapons will reduce the likelihood of armed conflict and therefore ultimately contribute to world peace.2 This is not the goal of IHL. IHL is also conceptually different from arms control, which aims to limit the arms race and maintain an effective balance of power between rival States in the interests of national security.3 The boundaries between the three concepts are sometimes not this clear, however,4 and there has been increasing interaction between IHL and disarmament over recent years. Several key rules of IHL are relevant to controls on weapons. The overarching principle is that in an armed conflict, the right of the Parties to choose methods or means of warfare is not unlimited. Two specific rules are also highly relevant. First, it is prohibited to employ weapons of a nature to cause superfluous injury or unnecessary suffering. This rule aims to protect combatants from the effects of particularly horrific weapons. Secondly, it is prohibited to employ weapons that are inherently indiscriminate or the effects of which cannot be limited as required by IHL. This rule is designed to limit the suffering of civilians. Weapons that have been restricted or banned as a result of the prohibition on superfluous injury and unnecessary suffering5 include exploding bullets (St Petersburg Declaration 1868), expanding bullets (Hague Declaration 1899), poison (Hague Convention IV 1907, Geneva Gas Protocol 1925), fragments that are not-detectable in the human body (CCW Protocol I,

1 The Statute of the ICRC includes “to work for the faithful application of international humanitarian law” … “and to

prepare any development thereof.” It also is “to endeavour at all times … to ensure the protection of and assistance to military and civilian victims of [armed conflicts or internal strife].” (Statutes of the International Red Cross/Red Crescent Movement, Article 5(2)(c), (g) and (d).

2 UNIDIR, Coming to terms with Security: A Lexicon for Arms Control, Disarmament and Confidence Building,

2003, p8.

3 Steven Haines, The Developing Law of Weapons: Humanity, Distinction and Precautions in Attack, prepared for

inclusion in A Clapham and P Gaeta (eds.), Oxford Handbook of International Law in Armed Conflict. Strategic deterrence is aligned with the concept of arms control.

4 Steven Haines (ibid) considers that “of course, total bans on specific weapons or means of warfare may well be

referred to as a form of disarmament, although they are, for reasons to do with their humanitarian motive in jus in bello terms, more appropriately regarded as part of LOAC.” On the other hand, McCormack and Mathews contend that most weapons treaties can be classified as “arms-control” agreements. See Tim McCormack & Robert Mathews, The Influence of humanitarian principles in the negotiation of arms control treaties, IRRC no. 34, 30.06.1999. Bonnie Doherty classifies these same treaties as “disarmament” treaties. See Bonnie Doherty, Ending civilian suffering: The purpose, provisions and promise of humanitarian disarmament law, Austrian Review

• f International and European Law 15, 2010.

5 When considering which weapons cause “superfluous injury or unnecessary suffering”, States have taken a

number of factors into account. These include whether the expected injury or suffering is out of proportion to the military advantage sought; if alternative means are available, and if serious permanent disability or death is inevitable.

2 1980), blinding laser weapons (CCW Protocol IV 1995) and incendiary weapons (CCW Protocol III).6 The prohibition of indiscriminate weapons received relatively less attention. At the height of the Cold War during the 1970s and 1980s, security interests and a concern to limit the “arms race” around weapons of mass destruction also restrained developments in weapons law. Nuclear weapons became the focus of much attention, as did biological and chemical weapons. While the Biological Weapons Convention (1972) and the Chemical Weapons Convention (ultimately adopted in 1993, after 23 years of negotiations) both aim to restrict weapons “for the sake of all mankind”, those Conventions were as much driven by strategic national security concerns, including fears about potential proliferation, as they were by humanitarian interests.7 Meanwhile, the horrific impact of landmines was being witnessed around the world. A number of States, working through the framework of the CCW, tried to limit the indiscriminate effects of these weapons on civilians, consistent with the rules of IHL. Protocol II to the CCW

• n mines, booby traps and other devices (as amended in 1996) took an important step but

was considered by many to be a complicated, overly technical and ultimately inadequate response to the humanitarian problems caused by anti-personnel mines. The tide turned in 1997 with the adoption of the Ottawa Treaty to ban anti-personnel mines. Thanks to an incredible partnership between States, civil society, the ICRC and the UN, for the first time a weapon already in widespread use was banned for purely humanitarian

• reasons. The Treaty is firmly grounded in IHL. Both IHL rules I have mentioned are cited in

the Preamble as legal bases for this Treaty: the prohibition on weapons that cause superfluous injury or unnecessary suffering, and the obligation to distinguish between civilians and combatants. Yet the emphasis was clearly on the second rule. The desire to “put an end to the suffering and casualties caused by anti-personnel mines, that kill or maim hundreds of people every week, mostly innocent and defenceless civilians,” squarely put the emphasis on the protection of civilians. Disarmament was not a stated goal of the Ottawa Treaty, even though its provisions include a total ban on use of anti-personnel mines, as the destruction of stockpiles. In the ICRC’s view, these “disarmament” elements help in the implementation of IHL, as there can be no temptation to use a weapon that is no longer available. (On the other hand, a total ban is not the only option under IHL to minimise civilian casualties. For example, the current negotiations on the Arms Trade Treaty are not aimed at eradicating all conventional weapons but at ensuring responsible transfers that are not likely to contribute towards violations of IHL, among other criteria.) The IHL basis for the 2008 Convention on Cluster Munitions, which was negotiated through similar processes to the Ottawa Treaty, was again cited in the Preamble to that Convention. This Preamble reiterates the principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited, and specifically refers to IHL rules on indiscriminate attacks. The prohibition on weapons that cause superfluous injury or unnecessary suffering is not mentioned, as the nature of the injuries from cluster munitions was considered no more horrific from that of fragmentation wounds by other weapons with similar effects (such as hand grenades). The CCM does not mention disarmament at all and

6 The Saint Petersburg Declaration, for example, specified that weapons that “uselessly aggravate the sufferings

• f disabled men, or render their death inevitable” (in that case, exploding bullets) would be “contrary to the laws of

humanity.” All of the weapons cited were banned by the relevant instruments, except for incendiary weapons, which were subject to restrictions.

7 Both treaties cite in their Preambles the desire “to achiev[e] effective progress towards general and

complete disarmament”. The BWC adds the desire “to contribute to the strengthening of confidence between peoples and the general improvement of the international atmosphere.” McCormack & Edwards

(above) argue that the lack of an overriding humanitarian motivation in the BWC weakened the treaty, in particular because it lacks a verification mechanism. Also see Doherty, above.

3 at the opening of the Dublin Conference on cluster munitions, the President-Designate of the Conference, Ambassador O’Ceallagh of Ireland, said the Conference “would not be a disarmament conference but a humanitarian one with a humanitarian purpose.” Like the Ottawa Treaty, the prohibition of use and the eradication of stockpiles in the CCM can nevertheless be seen as disarmament elements, as well as satisfying IHL. Finally, once traditionally in the domain of “disarmament” and “arms control”, nuclear weapons are also being reconsidered in light of IHL. Serious questions have been raised, including by the ICRC, as to whether nuclear weapons are able to distinguish between civilians and combatants in accordance with the prohibition on indiscriminate attacks.8 Discussions on this and other questions appear to be set to continue. In conclusion, international humanitarian law remains a fundamental basis for restrictions on

• weapons. As consensus builds around the need to put civilians at the forefront of

developments, the IHL rule against indiscriminate attacks – including prohibitions on weapons that are inherently indiscriminate or that have indiscriminate effects - has gained increasing importance. While the Ottawa Treaty may be viewed by some as a step towards “humanitarian disarmament”, its origins in IHL should also be recognised.

8 ICRC, Information Note No. 4, Nuclear Weapons and International Humanitarian Law, February 2013.