[Senate Executive Report 106-2] [From the U.S. Government Publishing Office] 106th Congress Exec. Rpt. SENATE 1st Session 106-2 ====================================================================== AMENDED MINES PROTOCOL _______ May 13, 1999.--Ordered to be printed _______ Mr. Helms, from the Committee on Foreign Relations, submitted the following R E P O R T [To accompany Treaty Doc. 105-1(A)] The Committee on Foreign Relations to which was referred the Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-traps and Other Devices (Protocol II or the Amended Mines Protocol), to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Convention Weapons which May Be Deemed to be Excessively Injurious or to have Indiscriminate Effects, having considered the same, reports favorably thereon with 1 reservation, 9 understandings and 13 conditions and recommends that the Senate give its advice and consent to the ratification thereof as set forth in this report and the accompanying resolution of ratification. CONTENTS Page I. Background.......................................................1 II. Implications of the Amended Mines Protocol.......................3 III. Future Land Mine Arms Control Issues.............................6 IV. Committee Action.................................................8 V. Resolution of Ratification......................................19 VI. Article-by-Article Analysis.....................................34 I. Background Introduction The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (also known as the ``Convention on Conventional Weapons'') was concluded at Geneva on October 10, 1980, was signed by the United States on April 8, 1982, entered into force on December 2, 1983, and was ratified by the United States on March 24, 1995. The Convention included three protocols, one of which (Protocol II) is the Protocol on Mines. U.S. adherence to the Protocol on Mines was approved in the resolution of ratification of the Convention itself. When the Senate considered whether to give its advice and consent to ratification of the Convention on Conventional Weapons (CCW), it found serious deficiencies in the Mines Protocol. The President shared the Senate's concerns, and the resolution of ratification of the CCW therefore included the following condition: Statement.--The Senate recognizes the expressed intention of the President to negotiate amendments or protocols to the Convention to carry out the following objectives: (A) An expansion of the scope of Protocol II to include internal armed conflicts. (B) A requirement that all remotely delivered mines shall be equipped with self-destruct devices. (C) A requirement that manually emplaced antipersonnel mines without self-destruct devices or backup self-deactivation features shall be used only within controlled, marked, and monitored minefields. (D) A requirement that all mines shall be detectable using commonly available technology. (E) A requirement that the party laying mines assumes responsibility for them. (F) The establishment of an effective mechanism to verify compliance with Protocol II. The above concerns were raised by the United States in the First Review Conference for the CCW. On May 3, 1996, the CCW Review Conference adopted the amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (also known as the ``Amended Mines Protocol''). On January 7, 1997, the President submitted the Amended Mines Protocol to the Senate for its advice and consent to ratification. Roughly two weeks after the adoption of the Amended Mines Protocol at the Review Conference, President Clinton announced a new anti-personnel land mine (APL) policy and pledged to ``lead a global effort to eliminate these terrible weapons and to stop the enormous loss of human life.'' At that time, he restated the continuing U.S. commitment to help many afflicted nations with demining their lands and he imposed a unilateral moratorium on the use of most types of APL by U.S. forces. He also pledged to work towards an international treaty for a global APL ban. In November 1996 the United States introduced a resolution in the United Nations General Assembly urging ``states to vigorously pursue an effective, legally-binding international agreement to ban the use, stockpiling, production and transfer of anti-personnel Land Mines (APL) with a view to completing the negotiations as soon as possible.'' The resolution passed by 185-0 (with 10 abstentions) and land mines thus became a matter of concern for the 1997 Conference on Disarmament. During the same timeframe, the Canadian Government organized a coalition of like-minded states and interested international and non-governmental organizations to pursue a global land mine ban. The Canadian goal was to initiate a fast- track effort to achieve an APL ban--the so-called ``Ottawa Process.'' The Senate's consideration of the Amended Mines Protocol has thus occurred in the midst of a larger and more widely noted controversy over the Ottawa Convention and U.S. policy regarding that Convention. The Ottawa Convention is separate from the Convention on Conventional Weapons, and the Committee agrees with the Administration that the existence of the Ottawa Convention, which neither the United States, China, Russia, nor several other major land mine producers elected to sign, does not obviate the need to act on the Amended Mines Protocol. The Committee recommends adoption of the Amended Mines Protocol to the Convention on Conventional Weapons (CCW). Wide adherence to, and full implementation of, the Amended Mines Protocol will help reduce civilian casualties resulting from land mines until a truly global agreement to ban APL enters into force. II. Implications of the Amended Mines Protocol The Committee commends the Administration for its conduct of negotiations leading to the Amended Mines Protocol to the Convention on Conventional Weapons (CCW). Throughout these negotiations, the Administration maintained firm focus on essential national security factors, while working to create meaningful restrictions on the use of long-duration anti- personnel mines. As a result, the Amended Mines Protocol, while having little or no impact on the United States Armed Forces, will, if implemented, bring about a substantial decrease in civilian casualties caused by non-self-disarming/self- deactivating anti-personnel land mines. Moreover, unlike numerous other proposals, the Amended Mines Protocol will be widely ratified--both by ``right-minded countries'' and by proliferant nations such as Russia and China. This, too, contributes to the positive humanitarian effects of the Protocol. Military Implications of the Amended Mines Protocol The Amended Mines Protocol is not a ban on U.S. land mines. It does ban the use of some types of devices, such as undetectable mines and mines designed to explode from proximity to mine detection equipment; however, these systems are not-- and never have been--employed by the United States. Rather, the Protocol establishes clear and reasonable requirements for the use of mines. These requirements, such as the obligation to mark and monitor minefields, will provide important protections for civilian populations. Few militaries aside from the U.S. Armed Forces take the rigorous steps necessary to ensure the safety of noncombatants when engaging in military action. In agreeing to this Protocol, other countries will, in effect, be agreeing to bring their military standards for land mine use up to par with those of the United States. The Committee was assured on numerous occasions by the executive branch that the provisions of the amended Protocol reflect the practices already adopted by the U.S. military. In those areas where the possibility for degradation of U.S. military capabilities exists (through misinterpretation of the Protocol), the Committee has recommended understandings to preclude this from happening. Taken together, the provisions of the resolution of ratification are designed to ensure that the United States military will not incur any reduction in fighting power or alteration in operating practice. The executive branch repeatedly assured the Committee that, since the U.S. Armed Forces already observe the practices and obligations required of land mine use under the Amended Mines Protocol, ratification of the Protocol would have no implications for U.S. military effectiveness. These assurances were central to the Committee's decision to recommend ratification. Significant Features of the Protocol The Amended Mines Protocol includes provisions that achieve the first five of the six objectives noted in the March 1995 resolution of ratification of the CCW. Only limited progress was made toward establishing a verification mechanism, although it was agreed in Article 14 that High Contracting Parties should ``consult each other and . . . cooperate with each other . . . to resolve any problems that may arise with regard to the interpretation and application of this Protocol.'' In his letter of transmittal of the Amended Mines Protocol to the Senate, President Clinton pledged to ``pursue these issues in the regular meetings that the amended Protocol provides [in Article 13] for review of its operation.'' A. Short-duration Mines The Protocol properly differentiates between long-duration anti-personnel land mines (APL), which do not self-destruct or self-deactivate and are therefore a grievous humanitarian problem around the world, and short-duration APL, which self- destruct and self-deactivate rapidly and reliably, and therefore have not been a humanitarian problem. Short-duration APL are a carefully-devised military capability. In modern maneuver warfare, military forces invariably will emplace a mine field but later find the requirement to move through it themselves. Short-duration mines are not designed to be long-lived enough to pose a major impediment to U.S. military planners, and their defensive benefits for U.S. forces are unquestionable. Unless an APL is used in areas marked and monitored to effectively exclude civilians, the Protocol requires the APL in question to be capable of self-destructing within 30 days of emplacement and of self-deactivation within 120 days of emplacement. The Amended Mines Protocol specifies that the APL must accomplish these tasks with 90 percent reliability in the case of self-destruction, and 99.9 percent reliability for self-deactivation and self-destruction combined. Because long- duration APL typically have a thirty-year active ``laid'' life span, the Protocol requires that active laid life be reduced by roughly 99 percent. All United States short-duration anti-personnel land mines meet the Protocol's technical criteria. The term ``self- destructing,'' when used in conjunction with land mines, means that the mine blows up automatically at a preset time. ``Self- deactivating'' means that the mine can no longer function because an internal mechanism, such as power supplied by a battery, runs out. U.S. self-destructing mines can be set to one of three durations: 4 hours; 48 hours; or 15 days. (Only 5 percent of the inventory can be set for 15 days, and the vast majority of the ``smart'' mines in the inventory are set to last 4 hours.) United States mines self-destruct before or on the preset time with 99.99 percent reliability. Of 32,000 mines tested, only one missed its self-destruct time (and it was only one hour late in destructing). All U.S. self-destructing land mines are also self-deactivating. The reliability rate for self-deactivation within 120 days is 99.9999 percent. In other words, U.S. short-duration mines exceed the Protocol's self-destruction/self-deactivation requirement by at least two orders of magnitude on the basis of self-destruction alone. Accordingly, U.S. mines so-equipped are physically incapable of presenting a long-lived hazard. The mines cannot be re-used, and the minefield poses no threat once self- destructed or de-activated. Finally, the U.S. military only employs mines if combat operations are imminent. It is for this reason that no one credibly alleges that U.S. ``smart'' mines have contributed to the humanitarian problem. If other countries adhere to the Amended Mines Protocol, its technical limitations will make a substantial contribution to international efforts to reduce death and injury resulting from long-duration land-mine use. Indeed, if the Protocol had been in force and fully observed for the past thirty years, there would be little or no humanitarian APL problem today from the world's remaining unexploded mines. The Committee recognizes that the Protocol's specifications, including the original concept of self-deactivation, were created by the United States and regards this as cause for particular commendation. The Committee notes that the requirement for self- deactivation is particularly valuable with respect to low-cost mines which may be manufactured by low-technology countries. The simplest form of self-deactivation is simply a mine which relies upon a battery as a power source; thus, once the battery is exhausted, the mine is rendered inert. By consequence, poor production quality will not create a humanitarian problem, but simply will cause the mine to stop functioning sooner than expected. By restricting the use of long-duration APL while allowing full military use of short-duration APL, the Protocol strikes an appropriate balance between humanitarian concerns and military requirements for short-duration APL (as well as long- duration APL in static and closely-controlled environments such as Korea). This is the principal reason why the Committee recommends the Protocol's approval. B. Detectability A second important feature of the Amended Mines Protocol is its prohibition (in Article 4, and in paragraph 2 of the Technical Annex) on the use or transfer of APL that are less detectable than 8 grams of iron in a single coherent mass. The Department of Defense determined that 8 grams of iron created a magnetic signature sufficiently strong to stand out against normal background noise as seen by a common metal detector. Nonmetallic mines, which are prohibited if they do not meet the Protocol's technical requirements for detectability, offer no military advantage. But they greatly complicate the task of humanitarian demining. One of the more important deficiencies of the 1980 Mines Protocol is that it does not prohibit the use of non-detectable mines. A number of countries, such as China, have produced or deployed large numbers of non-detectable plastic mines which present a serious threat to civilians, peacekeepers, relief missions and mine-clearance personnel. The Amended Mines Protocol eliminates this earlier deficiency with respect to anti-personnel mines. The Committee urges the President to continue to seek the extension of this provision to ban non- detectable anti-tank mines, as well. C. Transfer Restrictions A third commendable feature of the Protocol is its restriction (in Article 8) on APL transfers. Parties to the Protocol are barred from transferring APL to governments that have not committed to observe the obligations of the Protocol themselves. Transfer of prohibited (e.g. nondetectable) mines is banned altogether. Many of the land mine tragedies around the world are caused by imported mines rather than those that are indigenously constructed. The Amended Mines Protocol outlaws the most undesirable aspects of the worldwide APL trade. And because a number of countries which have refused to take part in other land mine negotiations (but which are key suppliers of land mines around the globe) are now taking steps to join the Protocol, the restrictions on transfer will make an important contribution to reductions in civilian casualties. D. Scope of Application Article 1 of the Amended Mines Protocol enlarges the scope of application of the Protocol to include armed conflict that occurs within the territory of a High Contracting Party. Given the terrible contribution that civil wars have made to the humanitarian land mine crisis (e.g., in Afghanistan, Angola, Mozambique and Cambodia), the extension of the Protocol's application to those wars is a major accomplishment. The Amended Protocol will apply to all parties to such a conflict within the territory of a High Contracting Party, not just to established governments. This aspect of the Amended Mines Protocol is, in fact, a step forward in the development of the rules of war, which generally have applied only to war among states (even though the United States has considered them applicable to all its own military operations). The Amended Protocol is the first treaty to accept the reality that internal armed conflicts are as deadly as inter-state wars, and therefore deserving of limitation through international rules. III. Future Land Mine Arms Control Issues A. Differentiation Between Short-Duration and Long-Duration Systems The majority of the Committee hopes that the Administration will re-emphasize the distinctions drawn in the Amended Mines Protocol by making distinctions between short- and long- duration devices. The Protocol makes a clear and reasonable distinction between mines which destroy themselves or deactivate (such as the Pursuit Deterrent Munition) and those which do not. The majority of the Committee recommends that future U.S. policy on land mine issues capitalize on terms set forth in the Technical Annex to the Protocol. B. Future Negotiations on an Export Ban The Administration has refocused its attention on achieving a global anti-personnel land mine (APL) ban through the Conference on Disarmament (CD). By negotiating a treaty through the CD, consensus will be required of several countries that refused even to participate in the Ottawa process. The significant roster of countries that have not signed the Ottawa Convention includes Russia, India, China, Israel, Egypt, Finland, Cuba, Iran, Iraq, Kuwait, Saudi Arabia, and the two Koreas. It is the hope of the Administration that agreement can be reached in the CD with these countries on curtailing exports of APL. Following this first step, the Administration intends to launch additional negotiations for a comprehensive ban. Over the past two decades the United States has produced several varieties of reliable and effective short-duration mines. Because large-scale production of these mines has already occurred, further production for export is possible at relatively low cost. It is in the security interest of the United States that our allies be well equipped to defend themselves and to participate in joint operations. It is in everyone's interest that long-duration mines be replaced by short-duration mines, if reliance on such a capability is not to be eliminated altogether. Thus a strong argument can be made that the United States should export short-duration mines to allies requesting them so as to end their use of long-duration mines. For several years, the United States has adopted a unilateral ban on all anti-personnel mine exports. Yet, as has been noted elsewhere in this report, U.S. land mines, because of their sophisticated disarming and de-activation safeguards, do not contribute to the land mine crisis. Accordingly, many of the members of the Committee urge the Administration to differentiate, in future negotiations on a land mine export ban, between short-duration (e.g. ``smart'') and long-duration (e.g. ``dumb'') mines. The impetus behind the land mine issue is the grave international humanitarian crisis caused by ``dumb'' land mines scattered indiscriminately around the globe, not by ``smart'' mines (such as ADAM), which disarm in such a short period of time with such reliability as to pose no long-lasting threat to innocents. Insofar as the Administration has stated that negotiations on an export moratorium will serve as the ``first step'' towards negotiations on a comprehensive ban within the Conference on Disarmament, the approach taken in the export treaty likely will set the stage for all future negotiations. In the view of many members, unless the Administration is able to distinguish in a transfer ban between munitions which pose no threat to innocents and those which do, the United States will once again be placed in the situation of negotiating a treaty which will not serve the national security interests of the United States. The minority of the Committee, while in agreement that U.S. short-duration mines are of much less concern than long- duration mines from the humanitarian standpoint, shares the Administration's goal that an export ban be undertaken as a further step toward an effective world-wide APL ban. These members believe that the crucial purpose of negotiations in the CD should be to determine how extensive an export ban the world's major land mine producing countries can agree to accept. They sincerely hope that current efforts to find alternatives to APL will bear fruit and that such alternatives will afford a long-term answer to the problem of fortified border regions such as that in Korea, as well as to the use of APL in mixed munitions. In their view, while it might be possible in the context of a world-wide export ban to craft exemptions for some transfers of short-duration mines to replace long-duration mines, any U.S. interest in allowing such transfers to South Korea must be balanced against the broader humanitarian objective of moving all countries away from APL. Furthermore, the minority does not regard short-duration mines as a panacea. If produced or exported widely, these mines could also pose grave humanitarian problems. They are dispersed by air in large numbers over wide areas, and verification of deployed mines' compliance with self-destruct/self-deactivation requirements would be virtually impossible. This is among the reasons why the executive branch has expressed support for a global ban, and an intention to sign the Ottawa Convention if suitable alternatives to APL, including those used in mixed munitions, are developed. C. Other Issues Relating to Land Mine Negotiations Many members of the Committee strongly recommend that the United States follow the model used in crafting the Protocol in all future land mine negotiations. Specifically, mines that cause a significant humanitarian problem should be tightly restricted, though care must be taken to preserve U.S. security obligations in Korea and the potential for similar requirements to emerge elsewhere in the future. Mines that do not cause such a problem should not be captured by future agreements, nor should the United States agree to any prohibition on use, production, stockpiling or transfer of short-duration anti- personnel land mines, in the view of these members. The Committee recommends that the United States explore future modifications to the Protocol to raise the reliability requirement for self-destruction and self-deactivation, and to provide for improved verification. IV. Committee Action The Amended Mines Protocol together with its Technical Annex was adopted at Geneva on May 3, 1996. It was submitted to the Senate on January 7, 1997, and referred on the same day to the Committee on Foreign Relations. The Committee held two hearings related to the Amended Mines Protocol and land mine issues generally. February 25, 1998 (open session) Robert Grey, then-nominee for the rank of Ambassador during his tenure of service as U.S. Representative to the Conference on Disarmament February 3, 1998 (open session) General Carl E. Mundy, former Commandant of the United States Marine Corps; General Frederick Kroesen, former Commander of the United States Army, Europe, and Vice Chief of Staff for the United States Army; General Raymond Davis, former Assistant Commandant of the Marine Corps and Congressional Medal of Honor recipient. At a markup on July 23, 1998, the Committee considered a resolution of ratification including 1 reservation, 9 understandings, and 14 conditions. The resolution was agreed to by the Committee by a rollcall vote of 14-4. Those members voting in the affirmative were Helms, Lugar, Coverdell, Hagel, Smith, Thomas, Grams, Ashcroft, Frist, Brownback, Biden, Dodd, Kerry, and Robb. Those members voting in the negative were Sarbanes, Feingold, Feinstein, and Wellstone. The resolution of ratification was reported to the full Senate, together with Executive Report 105-21, but was not acted upon during the 105th Congress. At a markup on March 23, 1999, the Committee considered a resolution of ratification including 1 reservation, 9 understandings, and 13 conditions. The resolution was agreed to by voice vote. Reservation In its examination of the Amended Mines Protocol, the Committee became concerned that subparagraph 1(f) of Article 7 precluded the use of certain munitions against military establishments, such as supply depots, which are legitimate military targets. Specifically, Article 7 of the Amended Mines Protocol bans the use of ``booby traps and other devices'' in any manner that is ``in any way attached to or associated with'' ten different categories of items, one of which is ``food and drink.'' This is an expansion of the prohibition contained in the original 1980 Protocol, to which the United States is already a party; the original provision barred only the use of booby traps against such targets. Under the Protocol, the definition of ``other devices'' is broad, covering everything from special demolition munitions to satchel charges (such as C-4 with a timer). Moreover, the term ``food and drink'' is undefined, and therefore might be construed broadly to include all nature of food and drink, including supply depots and other logistics dumps. Because Article 7 prohibits the use of ``other devices'' in a manner that is ``in any way attached to or associated with . . . food or drink'', the Protocol threatens to make it far more difficult, or impossible, for the United States Armed Forces to accomplish certain types of missions. A variety of U.S. military units train to use specialized explosive charges against a wide range of legitimate military targets, including depots and enemy supply dumps. As written, the Article 7 creates the potential that military personnel could be accused of ``war crimes'' under the CCW and the Protocol for legitimate military actions (for instance, if they were to drop a satchel charge under a truck carrying crates of rations). Likewise, the use of a demolition charge to destroy a mountain of ammunition and fuel barrels would be precluded if that mountain also contained crates of food. Consequently, a reservation to the Protocol is necessary to ensure that this provision does not tremendously complicate mission accomplishment, and ultimately lead either to increased U.S. casualties or to a command decision not to employ the U.S. Armed Forces against supply dumps, depots, or other military locations containing ``food or drink.'' Such a reservation is also necessary to make clear that the Senate will not agree to the use of Article 7(f) of the Amended Mines Protocol (or like provisions in the Convention on Conventional Weapons) as a precedent for future ``laws of war'' treaties. The reservation clarifies the fact that stocks of ``food or drink,'' if judged by the United States to be of potential military utility, will not be accorded special or protected status. Some have argued that ``food and drink''--regardless of whether it is in a military establishment or not--is particularly attractive to civilians. For this reason, the proposed reservation requires that ``due precautions are taken for the safety of the civilian population.'' However, in providing for the use of ``other devices'' to destroy any stock of food judged ``likely to be used by an enemy military force,'' the Committee implicitly rejects the argument that munitions cannot be used against supply depots because civilians might be present. According to the same logic, neither cruise missiles nor gravity bombs should be used against supply depots. The Committee reservation makes clear that the Amended Mines Protocol may not be construed as a precedent for seeking to ban the use of other types of weaponry against these legitimate military targets in further negotiations associated with the ``laws of war.'' In making this reservation, the United States in no way diminishes the protections afforded civilians under the Amended Mines Protocol. Numerous other overlapping provisions of the Protocol eliminate all concerns over the appropriate employment of various munitions by the Armed Forces of the United States. Understanding 1: United States Compliance This understanding states the view of the United States that U.S. military personnel may not be prosecuted for a violation of the Amended Mines Protocol unless they knowingly and intentionally kill or cause serious injury to a civilian. Further, the actions of U.S. military personnel can only be assessed in light of information that was reasonably available at the time. In other words, U.S. military personnel cannot be judged on the basis of information which only subsequently comes to light. Taken together, these two provisions erase the danger that U.S. military personnel will be at risk of being ``second guessed'' with respect to land mine use. Understanding 2: Effective Exclusion Understanding (2) states the view of the United States that the Amended Mines Protocol's requirement for U.S. military personnel to ensure the ``effective exclusion'' of civilians when using a Claymore mine is satisfied as long as the unit using the mine monitors various avenues of approach where the mines are deployed. United States military personnel have not violated the Amended Mines Protocol if a civilian is killed or injured by a trip-wired Claymore, provided that those personnel had posted sentries, or were maintaining overview of the area where the mines were emplaced. This understanding is important to ensure that small units of the U.S. Armed Forces (such as reconnaissance teams) will not find the requirements of Article 5(6)(b) impractical to fulfill. It is the understanding of the Committee that the U.S. Armed Forces already are trained to maintain appropriate safeguards in the employment of Claymores, and therefore that no changes to current operating procedures will need to be made. Understanding 3: Historic Monuments The Amended Mines Protocol contains a prohibition on the use of booby-traps and other devices in connection with historic monuments, works of art, or places of worship ``which constitute the cultural or spiritual heritage of peoples.'' As written, this might apply to an extremely large category of buildings and items. Understanding (3) states the view of the United States that Article 7(1)(i) will be interpreted as having a restrictive meaning. This understanding protects U.S. military personnel from accusations of violation of the Protocol by making clear that only a very limited class of objects having clearly and widely recognized cultural or spiritual importance falls within the purview of Article 7(1)(i). Further, with respect to questions of compliance with respect to the use of booby-traps or other devices, Understanding (1) also applies. In other words, unless information about the cultural or spiritual significance of the object in question can be assessed as having been reasonably available to U.S. military personnel, the question of compliance does not arise. Understanding 4: Legitimate Military Objectives This understanding states the view of the United States that land, in and of itself, can be a legitimate military objective. Thus the use of land mines and other devices and munitions to neutralize or deny access to a piece of land is not prohibited under the Amended Mines Protocol. This understanding is fundamental to the application of the Protocol's requirements in a reasonable, militarily-sound manner, as is made clear in numerous instances within the article-by-article analysis. Understanding 5: Peace Treaties This understanding states the view of the United States that the Amended Mines Protocol requirement which allocates responsibility for turning over territory for mine clearance, or for the maintenance of protections (such as the marking and monitoring of minefields), will not have unintended consequences in connection with peace treaties or similar arrangements. In particular, without this understanding, the Amended Mines Protocol could be construed to impede negotiations where a party to the Amended Mines Protocol is negotiating the transfer of territory containing mines with a state that is not a party. This understanding makes clear that no agreement among states is precluded as long as responsibilities are allocated in a manner which reflects the essential spirit and purpose of Article 5. Understanding 6: Booby-Traps and Other Devices This understanding states the view of the United States that the prohibition against the deliberate construction of booby-traps in the form of apparently harmless objects does not preclude U.S. military personnel from booby-trapping items, either in advance or in the field, as long as those items are not specifically designed and constructed to serve as booby- traps. It is the mass production of apparently harmless portable objects specifically designed as booby traps (such as those used by Soviet forces in Afghanistan) toward which this provision is directed--not towards the ad hoc adaptation of devices, for example, by U.S. special operations forces. Understanding (6) also states the view of the United States that a trip-wired hand grenade shall be treated under the Amended Mines Protocol only as a booby-trap, and not as a ``mine'' or an ``anti-personnel mine.'' This clarification is necessary to prevent future confusion over whether a trip-wired hand-grenade (or any similar device) might also fit the definitions of mine and anti-personnel mine, and thus also be subject to the relevant restrictions on such mines. Without this clarification, the Amended Mines Protocol could be misconstrued as preventing the use of trip-wired grenades unless, for example, these devices are clearly marked and visible. This would defeat the military utility of such a device in the first place and is not what the Amended Mines Protocol intended. Finally, Understanding (6) also makes clear that hand- grenades, other than trip-wired hand grenades, are not covered by the Amended Mines Protocol at all. Concern arose that, without this clarification, the term ``other devices'' might be argued to capture a grenade, since it is manually-emplaced (e.g. thrown) and actuated automatically after a lapse of time. This provision makes clear that the Amended Mines Protocol's restrictions on ``other devices'' do not apply to hand grenades or similar devices. Understanding 7: Non-Lethal Capabilities This understanding states the United States' view of the definition of an anti-personnel mine. Specifically, Article 2, paragraph 3 of the Amended Mines Protocol leaves the possibility that a device designed to incapacitate a person might be considered an anti-personnel mine. This understanding makes clear that the United States does not consider the Amended Mines Protocol to be relevant to non-lethal devices designed to temporarily incapacitate or otherwise affect a person, but not to cause permanent incapacity. Understanding 8: International Tribunal Jurisdiction Understanding (8), regarding the jurisdiction of any international tribunal, states the view of the United States that Article 14 authorizes only domestic penal sanctions for violations of the Protocol. Ratification of this Protocol, therefore, in no way authorizes the trial of any person before an international criminal tribunal for violations of either this Protocol or the Convention on Conventional Weapons. If such an effort were made to misinterpret the scope of Article 14, this understanding makes clear that the United States would not recognize the jurisdiction of any international tribunal to prosecute a U.S. citizen for a violation of this Protocol or the Convention on Conventional Weapons. Additionally, and in relation to Understanding (8), the Committee notes that the executive branch agreed that the new requirements of the Amended Mines Protocol are not part of generally-recognized customary law and, therefore, that the United States does not consider that the International Criminal Court may assert jurisdiction over these matters. Understanding 9: Technical Cooperation and Assistance This understanding makes clear that the United States may refuse to provide assistance to a country for any reason, and that other countries may not legitimately use the Amended Mines Protocol as a pretext for the transfer of militarily significant assistance or equipment under the guise of providing simple humanitarian assistance. The Committee is increasingly concerned with the inclusion of treaty language which seeks to give countries the ``right'' to participate in the ``fullest possible exchange'' of technical information, equipment, and other forms of assistance. While well-intentioned countries, such as the United States, have agreed to such provisions in the past in order to obtain support for treaties of universal application, the Committee notes the risk posed to nonproliferation and arms control regimes by treaty language purporting to entitle countries to trade in sensitive technologies. Numerous countries have in the past, and will continue in the future, to cite these types of provisions to justify their illegitimate trade in dangerous, militarily-significant technologies. Accordingly, the Committee urges the executive branch, in future negotiations, either to refrain from agreeing to the inclusion of such provisions, or to make clear within the treaty text that such provisions may not be used as a pretext for the transfer of weapons technology or other militarily- significant assistance. Condition 1: Pursuit Deterrent Munition Condition (1) makes clear that nothing in the Amended Mines Protocol restricts the possession or use of the Pursuit Deterrent Munition (PDM) since that mine is considered a short- duration (or ``smart'') mine fully in compliance with the provisions on self-disarming, self-deactivation, and detectability contained in the Amended Mines Protocol's Technical Annex. The PDM is a manually-activated mine with a hand grenade release. As such, it is primarily useful for small force protection. Light infantry, Ranger, light combat engineers, and special operations forces train to employ the PDM under circumstances (such as hostage rescue or the retrieval of a nuclear device) where capture of the unit would mean the failure of the mission. The United States has not developed any alternative technology to replace the PDM. Accordingly, given the fact that the Protocol in no way affects the use of this munition, and the unique nature of the device, this condition requires the President to agree that the United States will retain the PDM for use by the Armed Forces at least until January 1, 2003, unless an effective alternative to the munition becomes available. This certification will not keep the executive branch from eliminating the PDM as of that date, but it is intended to prompt careful thought before such an action if an effective alternative to the PDM has not been developed. Further, in meeting Condition (1)'s certification requirement, the President must agree that a mere change in a tactic or an operational concept, in and of itself, will not constitute an ``effective alternative'' to the PDM. By clear implication, then, any replacement to the PDM likely must revolve around the application of an alternative technology. While tactics and operational concepts may be adapted or conformed to capitalize upon a new, technological alternative, the Committee does not agree that manipulation of doctrine alone is sufficient to justify the abandoning of this military capability. Condition 2: Humanitarian Demining Assistance This condition expresses the views of the Senate on the extent to which the United States leads the international effort to address the problems posed by the indiscriminate use of anti-personnel land mines. It recognizes the fact that the United States has contributed more to the global demining effort than any other country, has developed and shared critical demining technology with other countries, and continues to expand its demining program. Condition 3: Limitation on the Scale of Assessment This provision addresses the fact that the United States is scheduled to pay for implementation of this Protocol at the same rate of assessment that it pays to the United Nations (i.e., 25 percent). The Senate has already made clear that the United States should not be assessed to pay any more than 20 percent of the U.N. assessments. The current U.S. assessment is nearly double the assessment rate of any other country. In contrast, Russia--one of the countries directly responsible for the transfer of long-duration mines and the resultant, indiscriminate carnage and human suffering--pays less than 5.67 percent. Pursuant to this provision, the United States shall not pay more than $1 million per year (adjusted for inflation) for the implementation of the Amended Mines Protocol, unless the President first certifies that more funds are required and Congress enacts a joint resolution approving the President's certification. Condition 4: United States Authority for Technical Cooperation and Assistance This provision makes clear that the executive branch must first obtain both statutory authorization and appropriation before funds are withdrawn from the Treasury to provide any assistance or payment under Article 11 or Article 13(3)(d) of the Protocol. Accordingly, this condition prohibits the use of reprogrammed funds for any payment or assistance, including the transfer of in-kind items, under Article 11 or Article 13(3)(d) of the Amended Mines Protocol. Condition 5: Future Negotiation of Withdrawal Clauses This provision expresses the sense of the Senate that treaties containing arms control provisions should allow a party to withdraw from such provisions when that party's supreme national interests are threatened, regardless of whether the party is engaged in armed conflict, provided that an appropriate period of advance notice has been given. Prohibiting withdrawal from arms control limitations during wartime--obviously the period in which a country's supreme interests are most likely to be jeopardized--unduly infringes on the sovereign right of a country to self-defense. The underlying treaty to the Protocol (the Convention on Conventional Weapons) contains a withdrawal clause that bars the United States from withdrawing, even after the period of advance notice has expired, if the United States is engaged in armed conflict at that time. When the Senate gave its advice and consent to ratification of the CCW, that treaty was properly characterized as a ``law of war'' convention. As such, the withdrawal clause was appropriate since the CCW did not ban a class of weapons; it simply regulated their use as a legitimate defensive measure. Obviously, a treaty establishing rules for conduct of warfare is most relevant in time of armed conflict. However, the Amended Mines Protocol contains provisions, such as Article 8, which are, on their face, not of a ``law of war'' nature. Thus, Article 8, which restricts the transfer of mines, would appear to be an arms control provision. Moreover, the President has asked the Senate to approve other protocols to the CCW that appear to be at least partly of an arms control nature. The proposed Protocol on Blinding Laser Weapons, for instance, includes a ban on the use of blinding laser weapons and on their transfer. If the CCW is to evolve into an arms control treaty, serious concern will arise with respect to its withdrawal clause. This condition states the view of the Senate that future U.S. negotiators should reject the inclusion of withdrawal provisions akin to the CCW's in any treaty if they would apply to an arms control provision. As the Administration noted in response to questions for the record regarding the Amended Mines Protocol: ``there should be appropriate provision for timely withdrawal from any international agreement affecting U.S. armaments, regardless of how it is characterized, if there is a genuine risk of a situation arising where a more limited right to withdraw could jeopardize U.S. supreme national interests.'' Condition 6: Land Mine Alternatives This condition requires the President to assure the Senate, before moving forward with ratification of the Amended Mines Protocol, that he will not seek to limit the consideration of alternatives to anti-personnel and mixed anti-tank systems too narrowly. To do so would mean that the Administration would preclude exploration of alternative technologies which might be safer to use, or pose even less of a risk to noncombatants, than U.S. short-duration mines. The Committee is very concerned with indications that the Administration may intend to limit consideration of non-APL solutions to those alternatives which are compliant with the Ottawa Convention. Specifically, the Committee suspects that very few ``technological'' alternatives would meet this narrow compliance requirement. For this reason, a search for APL alternatives which precludes anything but Ottawa-compliant systems may well be steered towards doctrinal or operational changes, rather than technological fixes. As the Committee makes clear in Condition (8), this is unlikely to be acceptable. Additionally, this Condition requires the President to certify to the Congress that, in pursuing alternatives to anti- personnel mines and mixed anti-tank systems, the United States will only pursue those technologies which are affordable and which will provide a level of military effectiveness ``equivalent'' to that currently provided by the mine or mixed system in question. The Committee agreed to the use of the term ``equivalent'' with the understanding that the Joint Chiefs of Staff will reject any alternative unless it offers a military capability that is at least equal to the capability provided by the relevant mine or mixed system. It is on the basis of its confidence that the Administration can be trusted to apply this common-sense definition of ``equivalent'' that the Committee is willing to accept the President's certification under paragraph (B) of this Condition. For the Administration to argue any other definition of the term ``equivalent'' would necessarily mean that it intended to pursue alternatives less effective than the mines they seek to replace. Obviously, the Committee would reject such an approach given the heightened risk at which this would place U.S. soldiers. Finally, the Committee notes that the concept of ``alternatives to United States anti-personnel mines, or mixed anti-tank systems,'' as contained in subparagraph (B), by its very nature entails considerations regarding safety of use, risks to non-combatants, and possibly other humanitarian requirements. Indeed, the only reason the United States is engaging in a search for alternatives is to determine whether a ``more humanitarian'' capability can be economically fielded without any reduction in military effectiveness. Thus, this certification prohibits an unreasonable narrowing of the scope of the search for alternatives; nevertheless the criteria which may inform the President's decision about any particular alternative, both implicitly and explicitly, remain questions of ``equivalent'' military effectiveness, affordability, safety, and the aforementioned humanitarian considerations. Condition 7: Certification With Regard to International Tribunals Condition (7) is directly related to Understanding (8) (which makes clear that no international tribunal or similarly constituted body shall have jurisdiction over the United States or any of its citizens with respect to the Amended Mines Protocol or the Convention on Conventional Weapons). In order to fully clarify the shared understanding between the Executive and the Senate, Condition (7) requires a certification by the President as a condition of ratification. Specifically, prior to the deposit of the United States instrument of ratification for this Protocol, the President shall certify to the Congress that with respect to this Protocol, the Convention on Conventional Weapons, or any future protocols or amendments thereto, the United States shall not recognize the jurisdiction of any international tribunal over the United States or any of its citizens. Condition 8: Tactics and Operational Concepts Condition (8) operates in tandem with Condition (6). It makes clear that the Senate is unlikely to regard as acceptable any claim that a change in tactics or operational concepts would be sufficient, in and of itself, to constitute an effective alternative to mines. The Administration has repeatedly declared its intent to eliminate unilaterally U.S. APLs and mixed anti-tank systems. As National Security Advisor Sandy Berger committed in a May 15, 1998 letter to Senator Leahy: The United States will search aggressively for alternatives to our mixed anti-tank systems by (a) actively exploring the use of APL alternatives in place of the self-destructing anti-personnel submunitions currently used in our mixed systems, and (b) exploring the development of other techniques and/or operational concepts that result in alternatives that would enable us to eliminate our mixed systems entirely. Mr. Berger's letter is of concern to the Committee insofar as it suggests that the development of ``techniques and/or operational concepts'' could constitute, in the Administration's mind, an acceptable form of APL alternative. The Administration may well find it difficult to identify acceptable ``technological'' alternatives to land mines and mixed systems. Thus, if it fails to find a credible, technological offset to replace land mines or mixed systems, the Administration may be tempted to argue that changes in ``techniques and/or operational concepts'' have eliminated the military's need for APL. Condition (8) makes clear the view of the Senate that the Administration is unlikely to argue successfully that a new tactic or operational concept can replace APL or mixed systems. Moreover, the Committee expects that the Department of Defense will not expend scarce resources on researching new tactics or operational concepts that are not associated with new technological alternatives to APL. As Condition (1) makes clear, the Committee considers an ``effective alternative'' (for the Pursuit Deterrent Munition) to require more than a change in tactics or operational concepts, thereby implicitly suggesting the requirement for a ``technological'' remedy. Moreover, as the discussion of Condition (6) makes clear, the President may not limit the pursuit of alternatives to Ottawa Convention-compliant remedies because of the Committee's concern that such a limitation would threaten to push the alternatives considered towards changes of a purely tactical or doctrinal nature. Condition 9: Finding Regarding the International Humanitarian Crisis Condition (9) makes clear that United States short-duration anti-personnel land mines have not contributed to the international humanitarian problem posed by the use of land mines. As has been noted, the large majority of U.S. short- duration mines are designed to self-destruct 4 hours after emplacement. The longest-lived of this type of U.S. mine is designed to self-destruct in 15 days. Because of the short- lived nature of these systems, and the fact that U.S. self- destruct reliability is 100 percent within the 30 days allowed by the Protocol, U.S. short-duration mines cannot be credibly alleged to have contributed to the humanitarian crisis created by long-duration mines. Further, the Committee notes that a principal advantage of the Amended Mines Protocol is that it establishes tight restrictions on the use of long-duration mines. This, in turn, will reduce the human suffering associated with these weapons, since a number of countries which have not, to date, agreed to a comprehensive ban, will be bound by the Protocol's limitations. Condition 10: Approval of Modifications This condition reaffirms that no amendment or modification of the Amended Mines Protocol or the Technical Annex, other than a minor technical or administrative change, shall enter into force for the United States unless the advice and consent of the Senate, pursuant to Article II, section 2, clause 2 of the Constitution, has first been obtained. The Committee urges the executive branch to reject any effort to turn the Protocol into an Ottawa-like ban. As the Committee has noted throughout its report on the Protocol, such is not the purpose of this treaty. Moreover, the Committee cautions that, due to the complex, interlocking nature of the various Articles of the Protocol and the detailed discussions held with the Senate on the meaning and effect of every provision, even a seemingly minor change to the Protocol might constitute a substantive modification requiring the further advice and consent of the Senate. Condition 11: Further Arms Reductions Obligations This condition affirms the Committee's intention to consider agreements between the United States and other countries involving militarily significant obligations on U.S. forces only as treaties. Some in the executive branch persist in the mistaken belief that it is constitutionally acceptable to undertake militarily significant international accords by Executive agreement, approved by a simple majority vote of both Houses. Condition 12: Treaty Interpretation The Committee condition on Treaty Interpretation affirms that the constitutionally-based principles of treaty interpretation, set forth in Condition (1) of the Senate's resolution of ratification of the INF Treaty (May 27, 1988) and Condition (8) of the resolution of ratification of the CFE Flank Document (May 14, 1997), apply to all treaties. These principles apply regardless of whether the Senate chooses to say so in its consideration of any particular treaty. Condition 13: Primacy of the United States Constitution This condition affirms that nothing in the Amended Mines Protocol shall be construed to require or authorize legislation, or the taking of any other action, by the United States, that is prohibited by the Constitution of the United States, as interpreted by the United States. V. Resolution of Ratification![]()