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JRS ethical reflection on landminesAn Ethical Preparation for the 2004 Nairobi Summit on a Mine-Free WorldFrank Brennan SJ AO
The little girl in the picture is Srey Neang. She is 10 years of age. She is one of the many land mine victims in Cambodia. The war is over, but every day another three Cambodians lose a limb when they step on a landmine outside their house, in their paddy field, or on the way to market or school. Neang lives in the small village of Prey Thom at the end of one of the worst stretches of road you could imagine. By four-wheel drive you can make it there. In January 2004, Neang was returning home to her family from the Arrupe Centre in Battambang where the local Catholic Church provides a home and training for disabled children. The Centre is named after Fr Pedro Arrupe SJ who established the Jesuit Refugee Service when he was Superior General of the Jesuits. The Centre was established by Kike Figeredo SJ who, like Arrupe, was born in the north of Spain and then came to Asia on mission. I was privileged to share the homecoming with Neang and Kike. Neang's extended family, including her grandparents were there to greet us. Any ethical reflection on land mines has to take into account the perspective of Neang, her family, her village and her country. Not only did Neang lose a limb. Her village has for years been deprived much needed land for agriculture. It will be many more years before all such land in Cambodia will be demined. Can more be done in terms of international agreement, solidarity and co-operation to ensure that fewer innocents like Neang will lose life or limb and to ensure that fewer villagers like those from Prey Thom will be deprived their land and security for some long lost, or at least long forgotten, military objective? In August 1949, the International Conference of the Red Cross concluded the four Geneva Conventions dealing with the treatment of wounded and sick armed forces on land and sea, the treatment of prisoners of war and the protection of civilian persons in time of war. Our starting point is that innocent civilians deserve protection in times of conflict. In its 23rd session the UN General Assembly on 19 December 1968 passed Resolution 2444 dealing with respect for human rights in armed conflicts affirming resolutions of the International Conference of the Red Cross which set down three principles for observance by all governmental and other authorities responsible for action in armed conflicts:
On 8 June 1977 the International Conference of the Red Cross passed the First Protocol additional to the four Geneva Conventions. This protocol was more specific in setting down basic rules to prohibit attacks on civilian populations. Article 35 provides:
Accepting that civilian populations should enjoy protection against dangers from military operations, the Protocol (Article 51) set down rules of international law to be observed in all circumstances. Civilians cannot be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. Indiscriminate attacks are prohibited. Indiscriminate attacks are those of such a nature as to strike military objectives and civilians or civilian objects without distinction. The protocol specifies that an indiscriminate attack includes "an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." With these developments in international law, there has been an emerging codification of principles for military engagement aimed at protecting citizens and the natural environment. Warring parties should avoid superfluous injury, unnecessary suffering and indiscriminate injury of civilians. This amount of codification has won acceptance from the community of nations, including the largest and most powerful nations such as the United States, Russia and China. On 2 December 1983, the Convention on Conventional Weapons (CCW) came into force. The High Contracting parties confirmed that the principles of international humanitarian law are derived from:
The CCW includes a protocol on prohibitions or restrictions on the use of mines, booby traps and other devices. However the CCW applies only to international conflicts. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia has said, "Elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife." At the 2001 review conference on the CCW, the US was prepared to back calls that the convention and its protocols apply to internal as well as international conflicts. The CCW prohibits states from directing mines or booby traps against citizens. It also prohibits indiscriminate use of such weapons. However it permits the placement of such weapons on or directed at a military objective. It also permits placement where incidental loss of civilian life might be expected, provided only that the loss is not excessive when considered "in relation to the concrete and direct military advantage anticipated". Mines are not to be placed in areas where there is a high concentration of civilians and where there is not an imminent prospect of combat between ground forces. State parties to a conflict are supposed to record the location of all mine-fields.
The International Red Cross and Red Crescent Movement have long been concerned about the devastation caused by landmines subject only to the constraints set down in the CCW. The Red Cross has campaigned strongly with the assistance of many non-governmental organizations attempting to have nation states prohibit the use, stockpiling, production and transfer of anti-personnel mines. The Red Cross and the International Campaign to Ban Landmines has had great success in having 147 states sign up to the mine ban treaty which was opened for signature on 3 December 1997. These states have pledged to destroy their stocks of anti-personnel mines within four years of signing. They pledge never to use or transfer these devices. They may retain only sufficient mines for training in mine detection, mine clearance and destruction techniques. States with mined areas are to de-mine within ten years if at all possible. This treaty is now to be reviewed for the first time at Nairobi in November 2004. The bad news is that the 47 countries which so far have refused to sign this convention include the United States, Russia and China, as well as long time border rivals Pakistan and India, North and South Korea. President Clinton delayed US consideration of compliance until 2006, in part because the US administration defended the wholesale use of landmines by South Korea in "defence" of its border. Clinton had said, "There is a line I simply cannot cross." He claimed land mines were an integral part of Washington's defence strategy on the North-South Korean border, and did not pose any threats to civilians since the land mines were in a clearly marked zone. In February 2004, President George W Bush announced a policy that in future all U.S. land mines would be made detectable to American forces and timed to self-destruct. The US continues to claim that "smart" land mines with timing devices are relatively safe and "have some continuing utility for our armed forces around the world". Both Republican and Democrat US Administrations have said they could not agree to sign the mine ban treaty unless there were a provision permitting use of landmines when one's country is attacked. The Democrat Senator Patrick Leahy, a strong backer of the International Campaign to Ban Landmines , says President Bush's decision "backs away from the progress we have pledged to rid the world of these indiscriminate weapons. Others will ask why they, with their much weaker armies, should stop using them." Ten years ago, Jef Van Gerwen SJ concluded his JRS ethical reflection on anti-personnel landmines with the observation:
Established custom, the principles of humanity and the dictates of public conscience have led the international community to give notional assent to restrictions on the use of land mines in international conflicts. Notions of sovereignty still preclude the international community from enforcing such restrictions on warring parties involved in internal state conflicts. Is it not time for innocent life to take precedence over state sovereignty? Or more accurately, is it not time for all governments to exercise their sovereignty responsibly permitting international scrutiny and action if persons, with or without state approval, within state borders are using landmines in a manner excessively injurious or with indiscriminate effects? The NGO sector has worked well with co-operative governments obtaining
147 signatures to a Mine Ban Treaty, but without ratification from
key countries, and without universal compliance by signatories.
Despite written commitments of international solidarity and co-operation,
mine clearance and victim assistance are often considered the responsibility
of poor, mine-affected countries (such as Cambodia) rather than
the shared responsibility of those who created and distributed the
landmines. Is it not time for all countries, including the United
States, to concede that innocent human life and limb are best protected
by good governments giving the lead to bad governments ridding the
world of land mines? Is it not time to concede that the efficient
use of smart land mines even on the North-South Korean border comes
at too high a price in other parts of the world where less discriminating
governments decide that efficient military strategy with persistent
landmines justifies the inevitable loss of life and limb to those
like Neang, even years after hostilities have ceased?
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