JRS ethical reflection on landmines
An Ethical Preparation for the 2004 Nairobi Summit on a Mine-Free
Frank 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,
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:
- That the right of the parties to a conflict to adopt means
of injuring the enemy is not unlimited.
- That it is prohibited to launch attacks against the civilian
populations as such.
- That distinction must be made at all times between persons
taking part in the hostilities and members of the civilian population
to the effect that the latter be spared as much as possible.
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:
- It is prohibited to employ weapons, projectiles and material
and methods of warfare of a nature to cause superfluous injury
or unnecessary suffering.
- It is prohibited to employ methods or means of warfare which
are intended, or may be expected, to cause widespread, long-term
and severe damage to the natural environment.
SJ and Neang
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:
- Established custom
- Principles of humanity
- Dictates of public conscience
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
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 Neang family
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
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:
The key moral issue here is whether we are prepared, as citizens
of a global community, to take responsibility for the total effects
of our actions. If we assume such responsibility, world opinion
regarding anti-personnel mines will certainly shift toward a total
ban. Harm inflicted on the innocent, and the human costs of de-mining,
clearly outweigh the usefulness of mines for military purposes.
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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