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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Disarmament Diplomacy

The Human Rights Agenda: The Further Development of Arms Control Regimes By E. J. Hogendoorn

The Human Rights Agenda: The Further Development of Arms Control Regimes
By E. J. Hogendoorn