Disarmament Diplomacy
Issue No. 34, February 1999
The Human Rights Agenda: The Further Development of Arms
Control Regimes
By E. J. Hogendoorn
Introduction
Civilians are the principal victims of modern war. (1) Human Rights
Watch field investigations in Africa, Asia, Latin America, Europe
and the Middle East show that civilians are targeted deliberately
by abusive forces, fall victim to indiscriminate fire, or are
attacked with indiscriminate or excessively injurious weapons. To
combat this alarming trend, Human Rights Watch calls for stricter
adherence to, and an enlargement of, international humanitarian
law, the "laws of war," and for stricter controls on transfers of
arms to regions where human rights are being violated. Greater
respect for the protection of civilians, including an expansion of
bans and regulations on indiscriminate or excessively injurious
weapons, and a prohibition on the supply of weapons to abusive
forces, are central goals of our organization and many human rights
groups.
There is much work to be done. The development of international
humanitarian law is outstripped by the blistering pace of weapons
development and rapidly changing ways wars are fought. Modern
warfare - the fielding of huge armies, the production of enormous
quantities of weapons, the introduction of aircraft, helicopters
and remotely-delivered weapons, and the rapid development of newer
weapons with enhanced firepower and lethality - has vastly expanded
the battlefield and increased the scope and destructiveness of war.
This has serious humanitarian repercussions, and the advent of
modern warfare in the nineteenth century has been accompanied by
periodic attempts to regulate the conduct of combat and to restrict
or ban the use of certain weapons in order to reduce the suffering
inflicted by war.
There are two well-established rules of international humanitarian
law that apply to arms control. First, the parties to the conflict
must distinguish between combatants and noncombatants. Second, it
is prohibited to cause superfluous injury or unnecessary
suffering.
One of the earliest statements of modern international humanitarian
law, the 1868 St. Petersburg Declaration to the Effect of
Prohibiting the Use of Certain Projectiles in Wartime, declared:
"...
(2) that the only legitimate object which States should endeavor to
accomplish during war is to weaken the military forces of the
enemy;
(3) that for this purpose it is sufficient to disable the greatest
possible number of men;
(4) that this object would be exceeded by the employment of arms
which uselessly aggravate the sufferings of disabled men, or render
their death inevitable;
(5) that the employment of such arms would therefore be contrary to
the laws of humanity."
The principles of distinction between combatants and noncombatants
and the prohibition on causing superfluous injury or unnecessary
suffering have been reiterated in every major international
humanitarian convention this century, and form the basis for all
new humanitarian arms control initiatives.
Outlawing or Restricting Indiscriminate or Excessively
Injurious Weapons
In the last century, the international community agreed to ban or
regulate a number of weapons. Early bans include the 1899 Hague
Declaration concerning the Prohibition of Dum-Dum Bullets and the
1925 Geneva Protocol for the Prohibition of the Use of
Asphyxiating, Poisonous or Other Gases, and Bacteriological Methods
of Warfare.
After World War II progress was slower, in part because during the
Cold War governments were reluctant to forsake weapons they thought
gave them a military advantage - even if their use had serious
humanitarian repercussions. Thus, despite widespread concerns about
the increasing brutality of war, little was accomplished. Even the
renegotiation of prohibitions on chemical and biological weapons
(the 1972 Biological Weapons Convention and the 1993 Chemical
Weapons Convention) dragged on for decades.
A noteworthy exception was the negotiation of the 1980 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 (Convention on Conventional Weapons, or
CCW). Beyond explicitly restating the general principle that the
use of excessively injurious or indiscriminate weapons should be
banned or restricted, the Convention also annexed three Protocols
that prohibited the use of weapons with nonmetallic fragments
(Protocol I); prohibited or restricted the use of mines,
booby-traps and other devices (Protocol II); and restricted the use
of incendiary weapons to avoid indiscriminate effects (Protocol
III). The CCW also included a mechanism that provides for periodic
review conferences where amendments to protocols or additional
protocols banning or regulating weapons can be proposed.
Encouragingly, the first Review Conference of the CCW, held in 1995
and 1996, adopted amendments to Protocol II regulating the use of
landmines, and negotiated Protocol IV banning the use of and trade
in blinding laser weapons. This was first time since the 1899
prohibition on dumdum bullets that the use of a particular weapon
was prohibited, and in this case before the weapon had actually
been deployed on the battlefield.
The Review Conference became an important forum for the advancement
of international humanitarian law when the end of the Cold War
opened the door for more meaningful discussion on the humanitarian
impact of weapons. In addition, participation in the humanitarian
debate has widened and non-governmental organizations (NGOs) have
begun to play a much more active role in suggesting and pushing
arms control initiatives. In doing this NGOs are working with, and
building on the accomplishments of, humanitarian organizations,
such as the International Committee of the Red Cross (ICRC), which
have worked long and tirelessly to promote and advance
international humanitarian law regulating the conduct of war. This
coalition is a powerful and dynamic alliance. The International
Campaign to Ban Landmines (ICBL), a coalition of more than 1,000
non-governmental organizations, played a key role in the
negotiations of the 1997 Convention on the Prohibition of the Use,
Stockpiling, Production and Transfer of Anti-Personnel Mines and on
Their Destruction.
Many more challenges lie ahead. Because of the extremely rapid pace
of weapons development a number of weapons systems have been
fielded without an adequate review of their humanitarian impact. It
is time that they are reevaluated and that the humanitarian impact
of these weapons is honestly judged against their military utility.
Likewise, new weapons systems continue to be developed without an
adequate assessment of the humanitarian consequences of their
use.
The next Review Conference of the CCW is scheduled to be held no
later than 2001. Some of the older weapons systems that Human
Rights Watch thinks need to be discussed at this conference are
cluster munitions, fuel-air explosives, and depleted uranium
munitions. Some other organizations and governments are also
debating whether the dumdum bullet ban should be updated to limit
the destructive effect of modern military ammunition, and concerns
have been raised about the use of antitank mines and naval
mines.
Cluster munitions, essentially big bombs with lots of little
bomblets (submunitions) inside, are creating an unprecedented
unexploded ordnance (UXO) problem. (2) This presents a serious and
indiscriminate hazard to both combatants and civilians. It also
creates an enormous task for deminers who must treat every
unexploded submunition as potentially explosive and lethal.
The dispersion of great numbers of explosive munitions can render
huge areas unsafe for civilians long after a war has ended. In Laos
alone, between 1973 and 1996, UXO (a large percentage of which are
US cluster submunitions dropped during the Vietnam war) killed
5,894 persons and injured a further 5,522. (3)
The UXO problem is only increasing as more countries obtain and/or
produce cluster munitions. For example, it has been estimated that
at least 24,000,000 bomblets and mines were dropped from cluster
weapons during the 1991 Gulf War, which lasted a little more than
three months. A five per cent UXO rate would mean that this short
war left more than a million unexploded munitions. (4) More can and
should be done to ensure that cluster weapons are not used
indiscriminately and that the submunitions are rendered safe if
they fail to explode.
Another Vietnam-era weapon of concern is the fuel-air explosive
(FAE), or "enhanced-blast munition." In this weapon, the explosive
material is dispersed in the atmosphere before the process of
detonation is complete. This creates an enormous explosion that can
level huge areas. Because of its large area effect, the Soviets
considered FAE munitions weapons of mass destruction. (5)
The kill mechanism of fuel-air explosives, according to the US
Defense Intelligence Agency, "is unique - and unpleasant... What
kills is the pressure wave and, more importantly, the subsequent
rarefaction, which ruptures the lungs... If the fuel deflagrates
but does not detonate, victims will be severely burned and will
probably also inhale the burning fuel. Since the most common FAE
fuels, ethylene oxide and propylene oxide, are highly toxic,
undetonated FAE should prove as lethal to personnel caught within
the cloud as most chemical agents." (6) These characteristics make
fuel-air explosives excessively injurious and potentially
indiscriminate.
FAE technology is proliferating. They were used by the Soviet Union
in Afghanistan, by the United States in the Gulf War, and
reportedly by mercenaries in Angola and Sierra Leone. The use of
FAEs needs to be re-evaluated and their use prohibited or sharply
regulated.
Another weapon of concern is depleted uranium (DU) ammunition.
Depleted uranium is a "low-level" waste, and US domestic
regulations require cleanup (at great expense) of areas where the
munitions were tested. The US military does recognize that DU is
hazardous, but dismisses its long-term human health impact as
unimportant compared to its military utility; the edge it gives US
forces. Regulations require troops to avoid DU-contaminated areas.
When it is necessary to cross a "radiation contamination control
line," soldiers are instructed to wear protective overalls, gloves,
rubberized boots, protective masks with filters, and accompanying
head covers.
Troops can be protected, but local civilians must live and work in
these former battlefields. DU munitions were widely used in the
Gulf War, but in Iraq most civilians are unaware of the health
threat DU presents, and Iraqi children have been seen to be
climbing on tanks struck by DU munitions and playing with DU
bullets fired from US aircraft. It is clear that DU munitions were
fielded without any clear consideration for the civilians who
continue to live in the areas of battle after the cessation of
hostilities. DU munitions should not be used again until their
long-term health impact is adequately understood, and if found to
be harmful should be banned.
As mentioned above, there is also an attempt underway to update the
prohibition on dumdum bullets. The 1899 Hague Declaration
concerning the Prohibition of Dum-Dum Bullets banned "bullets which
expand or flatten easily in the human body." As a consequence, all
modern military rifle bullets are fully enclosed in a hard metal
jacket that prevent it from expanding on hitting the body. But
weapons designers have been able to increase the injuriousness of
modern bullets - by designing the bullet to tumble and often
fragment on impact - while technically adhering to the ban. A US
military expert on wound ballistics wrote in 1991 that "in a very
real sense, M16 ammunition is the contemporary equivalent of a
nineteenth-century dumdum." (7) Similar concerns have been raised
about the AK-47 bullet developed by the then-Soviet Union.
In addition, research and development of the next-generation
infantry weapon is well advanced in a number of countries and all
the emphasis is on greater lethality. This is despite new research
by the US Army demonstrating that greater lethality is superfluous
and that it is militarily more practical to incapacitate a soldier
than to try and kill him. (8)
In August 1994, at the third session of the group of governmental
experts to prepare the first Review Conference of the CCW,
Switzerland introduced a proposal for a new protocol to the
Convention aimed at prohibiting the use of excessively injurious
small-caliber arms and ammunition. The Review Conference did not
take action on the Swiss proposal - largely because of US
opposition, but in the Final Declaration it proposed that a new
protocol on small-caliber weapons and ammunition be considered at
the next Review Conference of the CCW.
New Weapons and Emerging Weapons Technologies
In addition to these older weapons, Human Rights Watch is also
monitoring the development of new weapons and emerging weapons
technologies. Many weapons using new technologies are being
developed for "less-than-lethal" applications. Some of these
weapons may in fact reduce the use of deadly force, but frequently
weapons developers give little, if any, consideration to the
potential humanitarian impact (as in the case of blinding laser
weapons). One such weapon being developed uses infrasound (low
frequency sound), which can cause discomfort, disorientation and
nausea. It is intended for use in crowd control and for area denial
purposes, but there has been little testing of its long-term
effects on the human body or adequate legal review.
Other less-than-lethal weapon systems using new technology are also
reported to be under development. US researchers are working on
microwave, thermal, and magnetophosphene guns. Microwave weapons
would direct microwave energy that can cause progressive
incapacitation by increasing the body temperature. (High-frequency
microwaves could also enter structures through cracks and seams.)
The developers of a thermal gun are proceeding on a similar
principle of progressive incapacitation. The magnetophosphene gun
is designed around a biophysical mechanism that evokes a visual
response, known as magnetophosphenes. This effect is experienced
when someone received a blow to the head and sees "stars." Like
infrasound weapons, these weapons systems are being developed
without a clear understanding of their bio-effects or assessment of
how they can be misused.
Research is also being conducted on new less-than-lethal biological
and chemical weapons. US scientists are developing biodegrading
microbes, irritants, calmatives and tranquilizers, adhesives,
antitraction agents, bonding agents, combustion modifiers, and
metal embrittlements and caustics, yet there has been little known
discussion about the potential for misuse of any of these agents or
the effect their use would have on prohibitions on biological and
chemical weapons.
In addition, conventional weapons continue to be improved. While
Human Rights Watch favors development that increases the accuracy
of weapons, we are troubled by separate trends to increase the area
coverage (raising concerns of indiscriminateness) and lethality of
weapons. Conventional weapons development therefore also needs to
be closely monitored by the humanitarian community.
Denying Weapons to Abusive Forces
Conventional weapons are used by both government and guerrilla
forces to kill indiscriminately or to target civilians
deliberately. Often this has sparked international outrage, but
rarely has it compelled these abusive forces to discipline their
soldiers or prevented them from obtaining more weapons. The human
rights community therefore also calls for more stringent and
responsible arms export controls and greater international
cooperation to prevent arms from going to gross violators of human
rights. Because most humanitarian law violations are committed with
small arms and light weapons, a coalition of NGOs created the
International Action Network on Small Arms (IANSA) in 1998, which
is campaigning to stop the misuse and proliferation of small
arms.
As a minimum, governments should enact and enforce legislation
requiring all arms export applications to be reviewed for their
humanitarian impact. Requirements that weapons may not be
re-exported without permission should also be vigorously enforced.
If it is suspected that the weapons may end up with forces that
violate international humanitarian law, the application should be
denied.
However, not all States exercise strict arms export controls, and
untrammeled arms flows are a global problem that must be addressed
internationally. Therefore, we support international initiatives
such as the UN Conventional Arms Registry; the European Code of
Conduct on Arms Transfers; the Inter-American Convention Against
the Illicit Manufacture of and Trafficking in Firearms, Ammunition,
Explosives, and Other Related Material; the Wassenaar Arrangement
on Export Controls for Conventional Arms and Dual-Use Goods and
Technologies; and the imposition of UN and regional arms embargoes.
But many of these initiatives are limited, operate on the good will
of the participants, or impose few binding restraints.
New arms control initiatives must impose strict standards and
require compliance with provisions in the treaty. Currently there
is a great deal of laudable interest among States to tackle the
problem of small arms proliferation, but few hard choices have been
made. The United States and other governments prefer to approach
the problem of small arms proliferation as a law enforcement issue,
and they have proposed a global arms trafficking treaty to be
negotiated by 2001. However, governments also play an important
role in arms transfers to forces that violate human rights. Thus,
any "solution" to the proliferation of small arms will need to
include greater controls over government-sponsored arms exports as
well. It will be up to the new campaign to ensure that additional
mechanisms controlling the "legal" trade are enacted.
Conclusion
Most attempts to ban or regulate the use of certain weapons, or to
impose legal restrictions on arms transfers, will be challenged by
governments and arms manufacturers motivated only by their vested
interests. Yet bans and restrictions are attainable. Five years
ago, few people thought that anti-personnel landmines would be
outlawed, or that the use of a blinding laser weapon would be
prohibited. If the negative humanitarian impact of a weapon system
is clearly demonstrated and its military utility is shown to be
limited, governments and their military advisors will listen.
Likewise, few people dispute that unrestricted arms sales to
Afghanistan, Angola, the Great Lakes region of Africa, Sierra
Leone, and Sudan have exacerbated the humanitarian crises there. Up
till now, little has been done to control the international trade
in small arms. For most countries these crises are far away and few
arms-producing governments have the political will to control a
lucrative industry that employs large numbers of people. This
trade, however, often results in large-scale civilian suffering
(and perversely costs the developed world hundreds of millions of
dollars in humanitarian aid). It is up to the non-governmental
community to make it clear that this is unacceptable.
Notes and References
1. Reliable casualty figures are difficult to come by, especially
for internal conflicts (most of the wars fought today), but some
experts maintain that nearly 90 percent of the victims of recent
wars are civilians. See for example, Michael Klare, "The
Kalashnikov Age," Bulletin of the Atomic Scientists,
January/February 1999, and Michael Renner, "Small Arms, Big Impact:
The Next Challenge of Disarmament," Worldwatch Paper 137, October
1997.
2. It is estimated that anywhere from 5 to 30 percent of all
submunitions fail to explode on impact. In the case of a single
CBU-59/CBU-71 bomb, with 650 submunitions, there may therefore be
anywhere from 32 to 185 unexploded bomblets. These bomblets can
later be set off by contact or vibration.
3. Jim Moran, "Curse of the Bombies: A Case Study of Saravan
Province, Laos," Oxfam Hong Kong, 1998.
4. Eric Prokosch, "Cluster Weapons," Papers in the Theory and
Practice of Human Rights, No. 15, 1995.
5. US Defense Intelligence Agency, US Army Foreign Science and
Technology Center, "Fuel-air and enhanced-blast explosives
technology - foreign," DST-1850S-207-93, Washington, April 1993,
p.3.
6. Ibid., p.2.
7. Ronald F. Bellamy and Russ Zattchuk, eds., Conventional
Warfare: Ballistic, Blast, and Burn Injuries (Walter Reed Army
Medical Center: Washington D.C., 1991).
8. Virginia Hart Ezell, "Forget Whites of His Eyes; Shoot If You
Can Hit Him," National Defense, November 1998.
E. J. Hogendoorn is a Researcher in the Arms Division of
Human Rights Watch .
© 1999 The Acronym Institute.
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