1 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, Oct. 10,1980,1342 UNTS 137,19 ILM 1523 (1980) (entered into force Dec. 2,1983) [hereinafter CCW]. Key CCW documents, including the Convention and its Protocols, the final documents from the First and Second Review Conferences, and statements and presentations made by the U.S. delegation during the 2001 review process, may be found at the delegation’s Web site, <http://www.ccwtreaty.org>. The Convention and Protocols are also available at <http://www.icrc.org>. An excellent overview of the CCW, the U.S. proposals, and other issues may be found in Michael, J. Matheson, Filling the Gaps in the Conventional Weapons Convention, Arms Control. Today, Nov. 2001, at 12 Google Scholar, available at <http://www.armscontrol.org/act/2001_11/mathesonnov01.asp>.

2 Second Review Conference of the States Parties to the 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, Final Document, Doc. CCW/CONF.II/2, at 4 (2001) [hereinafter Final Document]. Participants included sixty-five states parties (out of a total of eighty-eight), four signatory and eighteen observer states, the International Committee of the Red Cross, and other nongovernmental organizations (NGOs).The U.S. delegation was led by Department of State Assistant Legal Adviser Edward R. Cummings and included Representatives from other State Department bureaus, the Office of the Secretary of Defense, the Joint Chiefs of Staff, and the military services. The Second Review Conference was chaired by Ambassador Les Luck of Australia, a diplomat with considerable experience in security affairs. The governmental experts process under way this year is being presided over by the Indian diplomat and disarmament expert, Ambassador Rakesh Sood.

2 See Meron, Theodor, The Humanization of Humanitarian Law, 91 AJIL 239, 260-63 (2000)Google Scholar. In April 2001, during the second preparatory committee meeting for the Review Conference, Professors Meron and Georges Abi-Saab participated in an informal panel discussion on the extension of the scope of application of the Convention, providing delegates with an academic framework for understanding the con text of expanding the scope of the CCW’s application.

4 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 36 ILM 1507 (1997) [hereinafter Ottawa Convention]. The Ottawa Convention, unlike the Amended Mines Protocol, infra note 11, deals only with antipersonnel land mines, though it does so by comprehensively banning their use, stockpiling, production, and transfer. Some states and NGOs regard the Ottawa Convention as encompassing any mine “capable” of being detonated by a person, including certain “sensitive” antivehicle mines; others regard its scope as limited to those mines “designed” to be detonated by a person and not to mines designed to counter vehicles, even where the latter may be detonated by a person in some circumstances.

5 CCW, supra note 1, preambular para. 3. The language quoted echoes, inter alia, Article 22 of the 1907 Hague Regulations, annexed to Convention [IV] on the Laws and Customs of War on Land, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague IV] (“The right of belligerents to adopt means of injuring the enemy is not unlimited.”); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3 [hereinafter Additional Protocol I], Article 35(1) (“In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.”), and Article 35(2) (“It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.”). See generally Cassese, Antonio, Means of Warfare: The Traditional and the New Law, in The New Humanitarian Law of Armed Conflict 161 (Cassese, Antonio ed., 1979)Google Scholar; Robert, W. Tucker, Weapons of Warfare, in Law and Responsibility in Warfare: The Vietnam Experience 161 (Peter, D. Trooboff ed., 1975)Google Scholar.

6 See especially Additional Protocol I, supra note 5, Arts. 35, 36, 48-52. The rules relating to the methods and means of warfare—i.e., tactics, weapons, and targeting issues—are primarily derived from Articles 22 through 41 of Hague IV, supra note 5. Methods and means rules constitute one of two principal prongs within the law of war, and are found in Hague IV; the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 UNTS 240 [hereinafter 1954 Hague Convention]; the Second Protocol to the Hague Convention of 1954, Mar. 26, 1999, 38 ILM 769 (1999) [hereinafter Hague Second Protocol]; and the CCW. The other prong is focused on certain, mostly nonderogable protections for the “victims of war,” exemplified by the four Geneva Conventions of 1949. Notably, these two prongs intersect in the 1977 Additional Protocols to the Geneva Conventions, which represent a mix of both rules on methods and means and provisions dealing with the protection of the victims of war.

7 International Committee of the Red Cross [ICRC], The 1980 Convention on Certain Conventional Weapons (May 31, 2001), at <http://www.icrc.org/icrceng.nsf>.

8 Protocol on Non-Detectable Fragments (Protocol I), Oct. 10, 1980, 1342 UNTS 168, 19 ILM 1529 (1980). At the time of its submission by President Clinton to the Senate for advice and consent to ratification, the U.S. government indicated that “[w]e are not aware of any significant current attempt to develop or produce such a weapon, but the prohibition is in principle desirable from a humanitarian viewpoint and in no way constrains U.S. military options.” U.S. Secretary of State Warren Christopher, Letter of Submittal [of the CCW], S. Treaty Doc:. No. 103-25, at VI (1994).

9 Protocol on Blinding Laser Weapons (Protocol IV), Oct. 13, 1995, Art. 1, 35 ILM 1218 (1996).

10 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Protocol II), Oct. 10, 1980, 1342 UNTS 168, 19 ILM 1529 (1980).

11 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), as Amended, May 3, 1996, 35 ILM 1206 (1996) [hereinafter Amended Mines Protocol]. For a discussion of the key provisions and negotiating history of the Amended Mines Protocol, see Michael, J. Matheson, The Revision of the Mines Protocol, 91 AJIL 158 (1997)Google Scholar.

12 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), Oct. 10, 1980, Art. 1, 1342 UNTS 171, 19 ILM 1534 (1980). See generally Message from the President Transmitting Protocols to the Convention, S. Treaty Doc. No. 105-1, at 37-40 (1997).

13 CCW, supra note 1, Art. 8.

14 See Matheson, note 11 supra, at 159; Review Conference of the States Parties to the 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, Final Document, Doc. CCW/CONF.I/16 (Part I), at 4 [hereinafter First Review Report].

15 First Review Report, supra note 14, at 38.

16 See, e.g., Messing, Andy Jr., Bush Faces World of Conflict—68 Countries Suffer Rebels, Drug Wars and Other Unrest, Wash. Times, Jan. 1, 2001, at A4 Google Scholar.

17 Compare Hague IV, supra note 5, with Geneva Conventions Relative to the Protection of the Victims of War, Aug. 12, 1949, Arts. 2, 3 (common), 6 UST 3114, 3217, 3316, 3516, & 75 UNTS 31, 85, 135, 287 [hereinafter Geneva Conventions]; Additional Protocol I, supra note 5; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12,1977,1125 UNTS 609 [hereinafter Additional Protocol II].

18 In addition to the instruments noted in note 17 supra, see 1954 Hague Convention, supra note 6, Arts. 18-19; Rome Statute of the International Criminal Court July 17,1998, Art. 8, UN Doc. A/CONF.183/9* (1998), 37ILM 999 (1998), corrected through May 8, 2000, by UN Doc. CN.177.2000.TREATIES-5, available at <http://www.un.org/law/icc> (entered into force July 1, 2002) [hereinafter Rome Statute].

19 CCW, supra note 1, Art. 1.

20 Geneva Conventions, supra note 17, Art. 2 (common). Article 1(4) of Additional Protocol I, supra note 5, essentially designates what might otherwise constitute noninternational armed conflicts as international armed conflicts where “peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination.” The U.S. rejection of Article 1(4) maybe found in Message of the President Transmitting Additional Protocol II, S. Treaty Doc. No. 100-2, at IV (1987).

21 Geneva Conventions, supra note 17, Art. 3 (common). As this Note points out, in the case of all the instruments applicable to such wars that have been elaborated since 1977, the specific criteria and high threshold of applicability established by Additional Protocol II have been dropped in favor of the more broadly applicable threshold of common Article 3—a threshold that does not permit the armed forces of a state or an insurgent group to disregard international law requirements as long as a state of armed conflict exists. That is to say, since 1977, there have been no serious efforts to impose the more stringent threshold of applicability established by Additional Protocol II, a threshold that requires, among other things, control of territory by rebel forces.

22 Baxter, R. R., Some Existing Problems of Humanitarian Law, 14 Revue de Droit Pénal Millitaire et de Droit de La Guerre 297, 300-01 (1975)Google Scholar.

23 Joint Committee, Report to the Plenary Assembly, 2 Final Record of The Diplomatic Conference of Geneva of 1949, sec. B, at 128, 129 (1949).

24 Plenary Meeting of June 2, 1977, Doc. CDDH/SR.49, Reprinted in The Law of Non-International Armed Conflict 4 (Howard, S. Levie ed., 1987)Google Scholar. An overview of the negotiations on this point may be found in Ingrid Detter De Lupis, The Law of War 170-74 (1987).

25 Norway staked out the most radical position when it proposed

an overall approach to the development of humanitarian law which would no longer distinguish international armed conflicts from non-international armed conflicts based on purely humanitarian ideas, i.e., that victims in all situations of armed conflict, whatever their nature, are subject to the same suffering and should be helped in the same way.

ICRC, Commentary on the Additional Protocols of 8 June 1977 to The Geneva Conventions of 12 August 1949, at 1328 & n.31 (Yves Sandoz, Christophe Swinarski, & Bruno Zimmermann eds., 1987). The United States took a less far-reaching view, noting that “it should be possible to add considerably to the specific requirements for humane treatment contained in common Article 3 by referring to the types of outrages that have become all too common, particularly the taking of hostages, terroristic violence, and cruel treatment of all sorts.” Noninternational Armed Conflicts, 1973 Digest §2, at 501, 502 (address by U.S. State Department Deputy Legal Adviser George Aldrich).

28 ICRC, Geneva Convention Relative to the Protection of Civilian Persons in Time of War: Commentary 44 (Jean S. Pictet gen. ed., 1958) (noting that paragraph 4 “meets the fear—always the same one—that the application of the Convention, even to a very limited extent, in cases of civil war may interfere with the de jure Government’s lawful suppression of the revolt, or that it may confer belligerent status, and consequently increased authority and power, upon the adverse Party”).

27 Id. The question of status in the law of armed conflict is one of central importance. The international law of armed conflict recognizes certain combatants as “hav[ing] the right to participate directly in hostilities.” Additional Protocol I, supra note 5, Art. 43(2); see also Waldemar, A. Solf & Edward, R. Cummings, A Survey of Penal Sanctions Under Protocol I to the. Geneva Conventions of August 12, 1949, 9 Case W. Res. J. Int’l L. 205, 212-13(1977)Google Scholar. Two benefits of consequence flow from this “right.” Those who hold it are entitled, first, to prisoner-of-war status and its attendant rights and protections. Second, they are immune from criminal prosecution for their belligerent acts that would otherwise constitute serious crimes under domestic law. Combatants who are thus privileged have “combatant immunity,” in effect a limited license to take life and cause destruction. (It is limited in the sense that the denial of life and destruction caused must be consistent with the law of armed conflict.) Those who participate in hostilities without such a right, i.e., those who fail to meet the relevant criteria established under international law, are deemed unlawful or unprivileged combatants and may be prosecuted for their belligerent actions. States facing domestic insurgencies or threats from combatants who otherwise fail to meet the criteria for privileged status have an obvious interest in ensuring that their rights to prosecute and sentence opponents not be compromised by the concept of combatant immunity; thus, the insistence in 1949 on the inclusion of paragraph 4 of common Article 3 and on its Repetition in all of the recent efforts to expand the scope of the law of armed conflict. Insurgents have also claimed such immunity in an effort to avoid punishment for hostile acts undertaken in noninternational situations. For instance, Timothy McVeigh, convicted of the bombing of the Murrah Federal Building in Oklahoma City, allegedly claimed status as a privileged combatant. Picked up for Speeding, Economist, Apr. 29, 1995, at 28. It is accordingly not surprising that states have perceived a risk that in extending the law of armed conflict to noninternational situations, the question of belligerent status under the law could be prejudiced.

28 See, e.g., Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674, paras. 42-44; Waldemar, A. Solf, The Status of Combatants in Non-International Armed Conflicts Under Domestic Law and Transnational Practice, 33 Am. U. L. Rev. 53 (1983)Google Scholar.

29 See supra note 11.

30 See supra note 18.

31 See supra note 6.

32 Article 1 (2) of the Amended Mines Protocol, supra note 11, provides that” [t] his Protocol shall apply, in addition to situations referred to in Article 1 of this Convention, to situations referred to in Article 3 common to the Geneva Conventions of 12 August 1949.”

33 Rome Statute, supra note 18, subparagraphs 2(a)-(b) of Article 8 deal with international armed conflicts, while subparagraphs 2(c) and (e) of Article 8 deal with “serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law.”

14 Hague Second Protocol, supra note 6, Art. 22(1).

35 Doc. CCW/CONF.II/PC.1/WP.2 (2000).

36 Edward R. Cummings, head of U.S. delegation, Statement to the Second Preparatory Committee Meeting of the 2001 Review Conference of States Parties to the Convention on Certain Conventional Weapons (Apr. 3,2001), at <http://www.ccwtreaty.com/statements.html>.

37 Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT-94-1-A72, para. 119 (Oct. 2, 1995), reprinted in 35 ILM 32 (1996).

38 The ICRC took the initial view that adopting a protocol on the scope of application would be the optimal mechanism to expand the scope of the CCW. ICRC, Report to the Preparatory Committee for the 2001 Review Conference, Doc. CCW/CONF.II/PC. 1 /WP.1, at 3 (2001) [hereinafter ICRC Report]. ICRC participants saw the amendment of Article 1 as a “re-opening” of the Convention that could put other provisions at risk. Eventually, however, the ICRC expressed its support for expanding the scope of the Convention through amending the main Convention itself. In fact, a straightforward amendment of the main body of an international instrument has limited precedent in international humanitarian law treaty practice, but the success of the effort in this case is indicative of states’ willingness to consider more flexible legislative approaches to incorporating changes in existing instruments.

39 Edward R. Cummings, head of U.S. delegation, Intervention to the First Preparatory Committee Meeting of the 2001 Review Conference of States Parties to the CCW (Dec. 14, 2000), in 2000 Digest 757.

40 Final Document, supra note 2, at 34-35.

41 The language thus corresponds exactly with the language on applicability of common Article 3 such that if common Article 3 applies, so too will the CCW, for parties to the amendment. As a result, there may be cases where armed forces engaged in internal armed conflict will be subject to the requirements of common Article 3 and the CCW, but not to the requirements of Additional Protocol II.

42 See also Message of the President, supra note 12, at 3.

43 See Additional Protocol II, supra note 17, Art. 3 (“Non-intervention”).

44 See also Additional Protocol I, supra note 5, Art. 4 (“Legal status of the Parties to the conflict”).

45 Final Document, supra note 2, at 81.

46 The Russian delegation intervened near the close of the negotiations to insist that the amendment not be construed as preventing states from taking legitimate measures to suppress terrorism. To the extent that acts of terrorism may not qualify as armed conflict, the Russian intervention would be unobjectionable. However, a large number of delegations construed the intervention as suggesting an exception to the amendment for certain kinds of noninternational armed conflicts, in a way that would be contrary to the amendment itself. Thus, paragraph 4 of the amendment provides, “Nothing in this Convention or its annexed Protocols shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the Government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.” A number of states, including Mexico, Belgium, Sweden, the Netherlands, and the United States, as well as the ICRC, reaffirmed that the term “legitimate,” as used in paragraph 4, quoted in text supra at note 40, and the Amended Mines Protocol (to characterize the means states may use to maintain or reestablish law and order or defend national unity and territorial integrity), means “in accordance with international humanitarian law and other international norms.” Statement of Mr. Peter Herby of the ICRC, Final Document, supra note 2, at 101; see Message of the President, supra note 12, at 4 (explaining that paragraph 4 means that “even imperative needs of state security may not be invoked to justify breaches of the rules” of the Amended Mines Protocol).

47 Amended Mines Protocol, supra note 11, Art. 6(3).

48 Id.

49 ICRC Report, supra note 38, at 6. The ICRC Report points out that disruption of normal food distribution can persist long after a conflict has ended as a result of antivehicle mining. According to the Report:

A survey of ICRC and National Red Cross and Red Crescent Society operations reveals a total of 20 incidents involving anti-vehicle mines in 11 countries during the 1990s. Each of these incidents resulted in the cancellation of relief operations for already vulnerable populations. A total of 16 staff were killed and 63 injured in these incidents. When relief had to be delivered by air due to mined roadways the financial costs to the ICRC increased between 10 and 20 times.

Id.; see also Col. Tom Stott, deputy director, humanitarian assistance and landmine policy, Office of the Secretary of Defense, Dealing with Unexploded Ordnance (July 5,2001), at <http://www.ccwtreatyxom/uxopresentation.html>.

50 General Robert Gard, Vietnam Veterans of America Foundation, Statement, in Final Document, supra note 2, at 96.

51 Alone among the states Represented at the Review Conference, Mexico called for the total prohibition of “the productions, storage, use and proliferation of all types of mines,” including antivehicle mines. Id. at 89. The Mexican proposal received no support and was never formally submitted.

52 Matheson, supra note 11, at 164.

53 Id.

54 Technical Annex, Part Two: Proposal Submitted by the United States, Doc. CCW/CONF.II/PC.1/WP.7 (2000).

56 The first proposal of the United States also proposed an increase in the reliability standards for self-destruction and self-deactivation of antipersonnel land mines, steps which could have further protected civilians from long-lived land mines. See id. However, some states parties to the Ottawa Convention objected to any steps that would appear inconsistent with their goal of a global ban on antipersonnel land mines. See, e.g., Statement of the Delegation of Norway, Doc. CCW/CONF.II/PC.1/1, at 68 (2000). As a result, the possibility of increasing the restrictions on land mines for those states that continue to use them was dashed not only by the mine-using states (which did in fact object to the increased reliability standards), but also by the mine-banning ones.

56 Statement by South Africa on Behalf of the States Parties of Amended Protocol II of NAM and Other Countries, at the Second Preparatory Committee of CCW, Doc. CCW/CONF.II/PC.2/1, at 17 (2001).

57 Draft Protocol on Prohibitions or Restrictions on the Use of Mines Other Than Anti-Personnel Mines, Doc. CCW/CONF.II/PC.2/WP.6 (2001). One of the arguments against a new protocol was that the Convention itself would permit additional protocols to focus only on “other categories of conventional weapons not covered by the existing annexed Protocols.” CCW, supra note 1, Art. 8(2) (a). Most delegations accepted the argument that “covered” was intended to address those weapons comprehensively governed by existing protocols and that the provision was not designed to hinder progress of a humanitarian nature.

58 During the Review Conference, the proposal was commonly referred to as “the 12-nation proposal” and was jointly cosponsored by Denmark, Finland, Germany, Guatemala, Hungary, Japan, the Republic of Korea, Poland, Romania, Slovakia, the United Kingdom, and the United States.

59 Position of the Chinese Delegation on the Issue of Anti-Vehicle Landmines, Doc. CCW/CONF.U/PC.3/1, at 55 (2001).

60 Id. at 56.

61 About Necessity of Elaboration of Common Procedures for Testing Reliability of Self-Destruct Mechanisms and Self-Deactivation Elements of Antipersonnel Mines, Russian Federation, id. at 57.

62 Id. at 58-59.

63 Final Document, supra note 2, at 35.

64 ICRC, A Summary Report: Expert Meeting on Explosive Remnants of War, 18-19 September 2000, Nyon, Switzerland (n.d.) (on file with authors); see also ICRC, Explosive Remnants of War: A Study on Submunitions and Other Unexploded Ordnance (2000); ICRC, Explosive Remnants of War: Cluster Bombs and Landmines in Kosovo (rev. ed. 2001).

65 Human Rights Watch, Statement: Second Review Conference of the Convention on Conventional Weapons (Dec. 21, 2001), available at <http://hrw.org/backgrounder/arms/ccwl201.htm>.

66 Final Document, supra note 2, at 35-36.

67 In January of 2001, for example, the U.S. Secretary of Defense directed that, in the future acquisition of cluster munitions, the U.S. goal will be to attain a reliable functioning rate of at least 99%. Edward R. Cummings, head of U.S. delegation, Statement to the Second Preparatory Conference of the 2001 CCW Review Conference (Apr. 5, 2001), at <http://www.ccwtreaty.com/statements.html>. Such a goal would include not only working to ensure, as much as feasible, that such munitions function as intended. It would also mean that, where such munitions fail to function as intended, they would be reliably incapable of causing an explosive problem once their intended use has concluded. Meanwhile, Switzerland submitted a proposal dealing with reliability that adds to the proposals put forward by the ICRC, which focus primarily on nontechnical measures. Working Paper Submitted by Switzerland, Doc. CCW/ CONF.II/PC.1/WP.4 (2000); Working Paper Submitted by Switzerland, Doc. CCW/CONF.II/PC.3/WP.4 (2001).

68 Matheson, supra note 11, at 164-65.

69 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10,1972, 26 UST 583,1015 UNTS 163; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13,1993, S. Treaty Doc. No. 103-21 (1993), 32 ILM 800 (1993).

70 Amended Mines Protocol, supra note 11, Art. 13.

71 Id., Art. 14. Violations of the Amended Mines Protocol are criminalized under U.S. domestic law. War Crimes Act of 1996, as amended, 18 U.S.C. §2441 (2000).

72 Final Report of the Group of Governmental Experts, Doc. CCW/CONF.I/GE/23, App. I (1995).

73 Compliance Annex: Proposal Submitted by the United States, Doc. CCW/AP.II/CONF.2/WP.2 (2000).

74 Compliance, France, Doc. CCW/CONF.II/PC.2/1, at 20 (2001).

75 Additional Articles on Consultations and Compliance, South Africa, Doc. CCW/CONF.II/PC.3/1, at 40 (2001).

76 Final Declaration, in Final Document, supra note 2, at 8, 13.