Opening Statement to the Third Review Conference of the Convention on Certain Conventional WeaponsRonald Bettauer, Deputy Legal Advisor, U.S. Department of State, U.S. Head of Delegation
November 7, 2006
Thank you, Mr. President.
First, let me thank you for your tireless efforts in guiding our work this year. I also want to thank Ambassadors Paranhos, Borisovas, and Markotic, and their predecessors as coordinators, for their efforts in preparing the way for this conference.
As I noted at our March meeting of Governmental Experts, the 1974 Lucerne Conference of Government Experts began the work that led to the Convention on Certain Conventional Weapons and its protocols. Fifty one states sent representatives to Lucerne, and among those in attendance were leaders in the field such as Jean Pictet, Hans Blix, and Frits Kalshoven. I led the U.S. delegation.
One type of weapon we considered was landmines, under the category of "Delayed Action and Treacherous Weapons." In my report on the Conference, I noted that many countries argued strongly for the general military utility of landmines, but there "appeared to be fairly widespread interest in establishing some controls over land mine warfare, possibly to include requirements to mark all mine fields, keep accurate records of such mine fields and insure self-destruction of mines."
Cluster munitions were considered under the category of "Blast and Fragmentation Weapons." Some criticized these weapons as indiscriminate and inhumane, but military experts from many countries explained that these weapons are needed because of their increased area of effectiveness and the reduced logistical burdens. States noted that the alternative was to use an increased number of high explosive rounds with more devastating effects on personnel and buildings.
After 32 years of discussion of these weapons, the overall assessment of our task remains the same. In 1974, I said: "Our task is a humanitarian one – to find feasible restrictions for weapons shown to cause unnecessary suffering or to be indiscriminate in their effects. To accomplish this, we need sufficient information to permit us to make sound judgments. That does not mean exhaustive data is required, but rather that there must be a reasonably persuasive case. If we do not have such a case, we could end up making conflict less humane instead of more humane. To restrict a weapon not adequately shown to merit such restriction, may result in the use of weapons which could well lead to more suffering and less discrimination."
This remains true today, and it underlies my Government’s approach. We have worked hard over the years to find the appropriate balance for humanitarian and military interests, to clarify the facts, and to seek consensus for appropriate restrictions on conventional weapons where that is warranted. The United States has actively participated in all meetings convened by CCW states parties and we have submitted all of the amendments and protocols to the U.S. Senate for its advice and consent to ratification.
I want to make a brief comment on explosive remnants of war. Let me say that we are pleased that Protocol V to the CCW, which can help reduce the humanitarian risk to civilians in the aftermath of conflict, is entering into force. When this protocol is widely adhered to and implemented, it should go a long way toward mitigating the suffering and injury caused by explosive remnants of war. If states follow the guidance contained in the Protocol’s technical annex, this will help reduce the creation of ERW in the first place by improving the reliability of munitions. Further, we are grateful to Professor McCormack for his thoughtful report, and to the states that responded to his questionnaire, permitting him to assess the state of the law of war with regard to critical issues like targeting and proportionality. The United States believes that CCW states parties have considered the issue of ERW in a careful and comprehensive way across a broad range of weapons systems. The law in the field has been shown to be adequate.
Yesterday the ICRC released a press statement calling for a new agreement to address the problem of cluster munitions. While we share the ICRC’s abiding interest in humanitarian goals, we believe that the best way for states to achieve this goal now is to apply the law rigorously, not to begin talking about new rules at a time when Protocol V is just coming into effect. Rather than continue government experts’ discussion of the issue at this time, let us look to the first conference that may be convened by states parties to the ERW protocol as the proper venue to begin to review the operation and implementation of that protocol’s provisions.
I turn now to what the United States considers the most important topic at this conference – indeed what will be the measure of the Review Conference’s success or failure – anti-vehicle mines.
Anti-vehicle mines were discussed as a distinct subset of landmines during the negotiation of the Amended Mines Protocol in 1995 and 1996. In 1995, the United States and Denmark proposed that CCW States Parties adopt restrictions on the use of not only anti-personnel landmines but also other landmines - that is, anti-vehicle mines. Thus was born the phrase "mines other than anti-personnel mines" and the acronym "MOTAPM." Although the U.S.-Danish proposal formed the basis for the Amended Mines Protocol, the amended protocol ultimately did not include the rigorous restrictions on anti-vehicle mines because of lack of consensus.
The MOTAPM discussions since 2001 have provided an opportunity to determine whether issues that remained unresolved in 1996 can be resolved now, including by taking advantage of improvements in technology and practices. You may recall that developing appropriate restrictions on the use of anti-vehicle mines has been the most important issue for the United States, and for many other countries, at most of the CCW meetings since 2001. We and the other countries that co-sponsored the original proposal were persuaded that these mines posed a real humanitarian threat to civilians and that it would be possible to achieve consensus on regulation of their use consistent with all legitimate military interests.
As I noted earlier, landmines were discussed in 1974 as a potential issue because of the possibility that civilians might activate them. The original Mines Protocol, adopted over 26 years ago, has many elements familiar to our discussions of the past five years on MOTAPM. There are the requirements for an "effective neutralizing mechanism" and for restrictions to ensure that mines did not continue to pose a threat to civilians when their military purpose is no longer being served. And even a cursory reading of the Amended Mines Protocol and the Coordinator’s paper demonstrates a substantial degree of congruence. Since these elements are by now so familiar, it should not be difficult for governments to appreciate that they should be applied to anti-vehicle mines.
After 32 years of discussion about landmines, after 26 years since the original Mines Protocol was adopted, and after working on the anti-vehicle mine problem intensively for the last 5 years, it is time to find consensus or to admit that we cannot find it. We have had exhaustive discussions and know what is now technically and politically feasible. It is time to stop repeating the same discussions and bring them to a conclusion. We must find the political will to do that. Success here is not measured by whether we hold another meeting. It is measured by whether we are able to come to a consensus on the adoption of a protocol. If we are not able to, we should not spend our governments’ money on meetings that are not achieving a humanitarian goal.
The United States believed that consensus on an anti-vehicle mine – or MOTAPM – protocol was possible last year, but we were mistaken. Despite our statements to the contrary, we decided that one more year of intensive effort would be warranted. I believe that every delegation here will recognize the level of commitment the United States team has brought to this.
We would have preferred a consensus based on the 31-nation proposal, but that was not to be. Last year, Ed Cummings told me that he was confident that a consensus would be possible based on the excellent work done under Ambassador Reimaa. Ed was ever the optimist and he fought for international humanitarian law until his last days. We all miss him, and in March everyone spoke his praise. One of Ed’s dreams has come true: Protocol III to the 1949 Geneva Conventions has been adopted. Ed’s prediction of success in 2005 on a MOTAPM protocol did not come true, but it is time to achieve that success now.
Despite the U.S. preference for the original 30-nation text or the Reimaa text, we have worked very hard to develop compromise options that could satisfy the various concerns that have been expressed. These options, while perhaps not optimal for any one state, could become the basis for consensus. The approach of incorporating certain key provisions on detectability and active life in optional annexes, which is reflected in option 2 in the document that Ambassador Paranhos put forward in September, seems to my delegation a possible basis for consensus. It would give those governments that insist on strong, binding legal restrictions on these mines a way to have them. But it would also afford those governments not prepared to accept such restrictions an avenue to adopt the other provisions of the protocol without any onus, and they could consider in the future whether they are in a position to agree to more. It would, if adopted, constitute a positive contribution to improving protections under the law of war, since even states that do not accept the optional annexes would be bound by provisions on cooperation and by transfer restrictions. Moreover, those states that are willing to be bound by the provisions on detectability and active life would have accepted strong, new obligations. This compromise approach mirrors the mechanism of the CCW itself, where a different number of states are parties to each of its protocols and only 18 states so far are parties to all five protocols. The optional annex approach appears to be the only way to reconcile the different perspectives to the MOTAPM protocol that we now confront. We should consolidate our advances thus far to make this Review Conference a true success.
Thank you, Mr. President.