A History of the Laws of War, Volume 3: The Customs and Laws of War with Regards to Arms Control [3] 1849462062, 9781849462068

Table of contents :
Cover
A History of the Laws of War: Volume 3: Weapons
A History of the Laws of War: Volume 3
Table of Contents
Treaties and Sources
Introduction
1. The Conversation on Sunday Afternoon
2. Progress, Utopia and Warfare
3. Facts
4. Progress in the Area of Arms Control
I. Conventional Weapons
1. The Beginnings of Arms Control
2. Gunpowder
3. Trade and Control
4. Superfluous Injury
5. Indiscriminate Injury
6. After the First World War
A. Forced Arms Reductions
B. The Naval Conventions
C. Controlling the Arms Trade
D. Indiscriminate Conventional Weapons: Sea Mines
7. After the Second World War
A. The Spread of Conventional Weapons
8. After the Cold War
A. Superfluous Injury
B. Indiscriminate Injury
C. The Trade in Conventional Weapons
II Weapons of Mass Destruction
1. Chemical Weapons
A. Poison and Other Chemicals in the History of Warfare
B. The Convention on Chemical Weapons
2. Biological Weapons
A. Disease and the History of Warfare
B. Between the 1925 Protocol and the 1972 Convention
C. The 1972 Convention on the Prohibition of the Development, Productionand Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction
3. Nuclear Weapons
A. Controlling Nuclear Weapons During the Cold War
B. The End of the Cold War
C. The New Conventional Threats
D. The New Unconventional Threats
Conclusion
1. Has the Stockpiling and Flow of Weaponry to Places Where it Inflames Conflict Improved?
2. Are Weapons which Cause Unnecessary Pain Restricted
3. What are the Customs and Practices with Indiscriminate Weapons?
Index

Citation preview

A History of the Laws of War: Volume 3: Weapons This unique work of reference traces the origins of the modern laws of warfare from the earliest times to the present day. Relying on written records from as far back as 2400 BCE, and using sources ranging from the Bible to Security Council Resolutions, the author pieces together the history of a subject which is almost as old as civilisation itself. The author shows that as long as humanity has been waging wars it has also been trying to find ways of legitimising different forms of combatants and ascribing rules to them, protecting civilians who are either inadvertently or intentionally caught up between them, and controlling the use of particular classes of weapons that may be used in times of conflict. Thus it is that this work is divided into three substantial parts: Volume 1 on the laws affecting combatants and captives; Volume 2 on civilians; and Volume 3 on the law of arms control. This third volume deals with the question of the control of weaponry, from the Bronze Age to the Nuclear Age. In doing so, it divides into two parts: namely, conventional weapons and Weapons of Mass Destruction. The examination of the history of arms control of conventional weapons begins with the control of weaponry so that one side could achieve a military advantage over another. This pattern, which only began to change centuries after the advent of gunpowder, was later supplemented by ideals to control types of conventional weapons because their impacts upon opposing combatants were inhumane. By the late twentieth century, the concerns over inhumane conventional weapons were being supplemented by concerns over indiscriminate conventional weapons. The focus on indiscriminate weapons, when applied on a mass scale, is the core of the second part of the volume. Weapons of Mass Destruction are primarily weapons of the latter half of the twentieth century. Although both chemical and biological warfare have long historical lineages, it was only after the Second World War that technological developments meant that these weapons could be applied to cause large-scale damage to non-combatants. Nuclear weapons are a truly modern invention. Despite being the newest Weapon of Mass Destruction, they are also the weapon of which most international attention has been applied, although the frameworks by which they were contained in the last century, appear inadequate to address the needs of current times. As a work of reference this set of three books is unrivalled, and will be of immense benefit to scholars and practitioners researching and advising on the laws of warfare. It also tells a story which throws fascinating new light on the history of international law and on the history of warfare itself.

A History of the Laws of War: Volume 3 The Customs and Laws of War with Regards to Arms Control

Alexander Gillespie

OXFORD AND PORTLAND, OREGON 2011

Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © Alexander Gillespie 2011 Alexander Gillespie has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84946-206-8 Typeset by Hope Services, Abingdon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall

This book is for my children, Jamie, Conor and Renée with the wish that they never have to endure any of the horrors I have recorded in these pages.

Table of Contents Treaties and Sources ix Introduction 1 1. The Conversation on Sunday Afternoon 1 2. Progress, Utopia and Warfare 1 3. Facts 3 4. Progress in the Area of Arms Control 4 I. Conventional Weapons 7 1. The Beginnings of Arms Control 7 2. Gunpowder 13 3. Trade and Control 16 4. Superfluous Injury 22 5. Indiscriminate Injury 25 6. After the First World War 29 A. Forced Arms Reductions 29 B. The Naval Conventions 30 C. Controlling the Arms Trade 35 D. Indiscriminate Conventional Weapons: Sea Mines 41 7. After the Second World War 42 A. The Spread of Conventional Weapons 43 8. After the Cold War 50 A. Superfluous Injury 50 B. Indiscriminate Injury 52 (i) Seamines 52 (ii) Additional Protocol I and the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons 53 (iii) Explosive Remnants 55 (iv) Landmines 58 (v) Cluster-bombs 64 C. The Trade in Conventional Weapons 68 (i) Europe 69 (ii) Plastic Explosives, MANPADS and the Wassenaar Arrangement 71 (iii) Arms Embargoes 73 (iv) Between Preventing Illegal or Irresponsible Trade in Small Arms 78 II. Weapons of Mass Destruction 85 1. Chemical Weapons 85 A. Poison and Other Chemicals in the History of Warfare 87 B. The Convention on Chemical Weapons 95

viii  Table of Contents

2.

Biological Weapons A. Disease and the History of Warfare B. Between the 1925 Protocol and the 1972 Convention C. The 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction 3. Nuclear Weapons A. Controlling Nuclear Weapons During the Cold War B. The End of the Cold War C. The New Conventional Threats D. The New Unconventional Threats Conclusion 1. Has the Stockpiling and Flow of Weaponry to Places Where it Inflames Conflict Improved? 2. Are Weapons which Cause Unnecessary Pain Restricted? 3. What are the Customs and Practices with Indiscriminate Weapons?

100 102 105 110 116 124 137 144 150 154 154 155 156

Index 159

Treaties and Sources The 188 BCE Peace Treaty with Antiochus III of Syria in Lewis, N and Reinhold, M (eds) Roman Civilisation: Records, Vol 1 (Columbia, Columbia University Press). The 196 BCE Peace Treaty with Philip V in Lewis, N and Reinhold M (eds) Roman Civilisation: Records, Vol 1 (Columbia, Columbia University Press) 174. The 201 BCE Peace Treaty with Carthage in Lewis, N, Roman Civilisation: Records, Vol 1, (Columbia, Columbia University Press) 171. The 1856 Convention Limiting Naval Force in the Black Sea in Albrecht-Carrie, R (ed) (1968) The Concert of Europe (NYC, Harper) 190. The 1899 Hague Convention on the Laws and Customs of War on Land (Section II). Full texts of the Hague Conventions can be found at Yale Law School ‘The Avalon Project’ http://avalon.law.yale.edu/subject_menus/lawwar.asp. The 1907 Convention on Contact Mines. Full text of the Convention on Contact Mines can be found at Yale Law School ‘The Avalon Project’ http://avalon.law. yale.edu/subject_menus/lawwar.asp. The 1907 Hague Convention on the Laws and Customs of War on Land (Section IV). Full texts of the Hague Conventions can be found at Yale Law School ‘The Avalon Project’ http://avalon.law.yale.edu/subject_menus/lawwar.asp. The 1918 Treaty of Brest-Litovsk in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol I (NYC, Facts on File) 419. The 1919 Treaty of Versailles in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol I (NYC, Facts on File) 425. The 1919 Convention on the Control of Trade in Arms and Ammunition in Hudson, R (ed) (1950) International Legislation: 1919–1921, Vol I (NY, Oceana) 322. The 1920 Treaty of Sevres in Lawrence, M (ed) (2007) The Treaties of Peace, 1919–1923, Vol II (NY, Carnegie Endowment for International Peace) 789–945. The 1922 Treaty of Washington. Full text of the Treaty of Washington can be found at Yale Law School ‘The Avalon Project’ http://avalon.law.yale.edu/subject_ menus/lawwar.asp. The 1925 Convention on the Supervision of International Trade in Arms and Ammunition and in the Implements of War in Hudson, R (ed) (1950) International Legislation: 1925–1927, Vol III (NY, Oceana) 1634. The 1933 Agreement on Understanding and Cooperation in Keith, K (ed) International Affairs: 1918–1937, Vol I (Oxford, Oxford University Press) 232. The 1935 Anglo/German Naval Agreement (1935) No 22 British Treaty Series. The 1936 Treaty for the Limitation of Naval Armament USTS, No 919 in Hudson, R (ed) (1950) International Legislation: 1935–1937, Vol VII (NY, Oceana) 262. The 1937 Convention for the Prevention and Punishment of Terrorism in Hudson, R (ed) (1950) International Legislation: 1935–1937, Vol VII (NY, Oceana) 862. The 1938 Draft Convention for the Protection of Civilian Populations Against New Engines of War, Amsterdam in Schindler, D and Toman, J (1988) The Laws of Armed Conflicts (The Netherlands, Martinus Nihjoff) 223–29.

x  Treaties and Sources

The 1942 Lend-Lease Agreement in Axelrod, A (ed) Encyclopedia of Historical Treaties and Alliances, Vol II (NYC, Facts on File) 631. The 1942 Treaty of Alliance Between the Soviet Union and Britain in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol II (NYC, Facts on File) 600. The 1959 Antarctic Treaty in Bastmeijer, K (2003) The Antarctic Environmental Protocol and its Domestic Legal Implementation (The Hague, Kluwer Law International). The 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, Outer Space and Under Water, 480 UNTS 43. The 1968 Treaty on the Non-Proliferation of Nuclear Weapons, UNGA Resolution 2375 (XXII). Also 7 ILM (1968) 809. The 1972 Treaty on the Limitation of Anti-Ballistic Missile Systems, 11 ILM (1972) 784. 1973 Agreement on the Prevention of Nuclear War in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol II (NYC, Facts on File) 771. The 1973 Agreement on the Establishment of a Standing Consultative Commission to Promote the Implementation of Certain Arms Controls Agreements, 12 ILM (1973) 46. The 1974 Treaty Between the United States and the Soviet Union on the Limitation of Underground Nuclear Weapons Tests, 13 ILM (1974) 906. The 1975 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (The Bioweapons Convention), UNGA Resolution 2826 (XXVI) annex. 1976 Treaty Between the USA and USSR on Underground Nuclear Explosions for Peaceful Purposes, 15 ILM (1976) 891, 893. The 1979 Treaty Between the United States and the Soviet Union on the Limitation of Strategic Offensive Arms (SALT II), 18 ILM (1979) 1138. The 1985 South Pacific Nuclear Free Zone Treaty, 24 ILM (1985) 1442. The 1988 Agreement Between the United States and the Soviet Union on Notifications of Launches of ICBMs and Submarine Launched Ballistic Missiles, 27 ILM (1988) 1176. The 1988 Treaty on the Elimination of Intermediate and Shorter–Range Missiles, Bassiouni, MC (2000) A Manual on International Humanitarian Law and Arms Control Agreements (NY, Transnational Publishers Inc) 781. The 1989 Treaty for the Prohibition of Nuclear Weapons in Latin America, Protocols I and II, 28 ILM (1989) 1400. The 1989 USSR–US Agreement Regarding Bilateral Verification Experiment and Data Exchange, 28 ILM (1989) 1438. The 1989 Agreement on the Prevention of Dangerous Military Activities, 28 ILM (1989) 877. The 1989 Agreement on Reciprocal Advance Notification of Major Strategic Exercises, 28 ILM (1989) 1436. The 1991 Plastic Explosives Convention, 30 ILM (1991) 721. The 1994 North Korean Agreement for the Application of Safeguards in Connection With the Proliferation of Nuclear Weapons, 33 ILM (1994) 315. The 1994 Strategic Arms Reduction Treaty (START I) 33 ILM (1992) 196. The 1995 Agreement on the Establishment of the Korean Peninsula Energy

Treaties and Sources xi

Development Organisation, 34 ILM (1995) 608. The 1995 Dayton Agreement for Peace in Bosnia and Herzegovina 33 ILM (1996) 170. The 1996 Treaty on the Southeast Asia Nuclear Weapons Free Zone, 35 ILM (1996) 635. The 1996 Strategic Arms Reduction Treaty (START II) 87 American Journal of International Law (1993) 258. The 1997 Chemical Weapons Convention, adopted by the General Assembly in Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (A/RES/47/39). The 1998 Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives and Other Related Materials, 37 ILM (1998) 143. The 1998 Agreement Between the United States and Russia on Scientific and Technical Cooperation in the Management of Plutonium That Has Been Withdrawn from Nuclear Military Programmes, 37 ILM (1998) 1296. The 2002 Strategic Offensive Reductions Treaty (SORT), 41ILM (2002) 799. The 2006 ECOWAS Convention on Small and Light Weapons, Their Ammunition and Other Related Material. Full text is available at the International Action Network on Small Arms website. http://www.iansa.com. The 2010 Convention on Cluster Munitions (CCW/MSP/2009-II/2) annex 1, available at United Nations Office of Geneva http://www.unog.ch/ccw. The 2010 Strategic Arms Reduction Treaty (New START) signed in 2010. Full text is available at the US Department of State website. http://www.state.gov/ documents/organization/140035.pdf.

Introduction 1. The Conversation on Sunday Afternoon

T

he topic of this book is the customs and laws of war with regards to arms control. The broad question of this book is whether the patterns of arms control have changed over the last 5,000 years, and if so, how. From these pat­ terns, the question can be asked, has the situation improved or not, with regards to both conventional weapons and weapons of mass destruction? This book is accom­ panied by two other books, which deal with the customs and laws of war with regards to civilians, combatants and captives. All three of these books began with a discussion I had with my mother over 12 years ago towards the end of the twentieth century, on whether the practices of humanity were better or worse than in the past. Simply put, ‘was humanity making progress or not?’ Whilst I argued in the affirmative, my mother argued in the negative. As with many such lunch-time discussions on Sunday after­ noons, trying to find robust benchmarks was (and is) very difficult, if not impossible. Although the conversation on this particular Sunday afternoon moved on to other topics, this question of ‘progress’ caught me. 2.  Progress, Utopia and Warfare

There are many philosophical discussions around the idea of ‘progress’.1 These discus­ sions are often linked to various forms of Utopian thinking.2 I struggle to think of an appropriate figure for how many gallons of ink have been expended in debates on this question, or suggestions of the correct path to Utopia, where the difficulties of the past are bypassed and a bright future awaits humanity. There is no monopoly on these plans, and the libraries are looking rather full on these the variations of themes which run for thousands of miles of shelving, from theology to ideology, cross referenced with a bewildering collection of historical epochs and philosophical musings. These ques­ tions have received a great deal of attention since the end of the Cold War, and the triumph of liberal democracies and limited forms of free market capitalism. Despite the attractiveness of such a thesis, this book is not about such questions. For me, to 1   Doren, V (1969) The Idea of Progress (NYC, Praeger); Hiderbrand, G (ed) The Idea of Progress: A Collection of Readings (Los Angeles, California University Press); Melzer, A (ed) (1995) History and the Idea of Progress (NYC, Cornell University Press); Marx, L (ed) Progress: Fact or Fiction (NYC, Michigan University Press). 2   Manuel, F (1979) Utopian Thought in the Western World (NYC, Harvard University Press); Manuel, F (ed) (1969) Utopias and Utopian Thought (NYC, Condor); Buber, M (1949) Paths in Utopia (London, Routledge); Mumford, L (1962) The Story of Utopias (NYC, Viking); Bernini, M (1950) Journey Through Utopia (London, Routledge).

2  Introduction

answer a question about progress required an examination of a topic somewhat more concrete, and somewhat more difficult. The topic I settled on was warfare, and in par­ ticular, those who fight, those who do not fight but are caught up in the conflict, and the weapons that are utilised. I settled on these three themes by which to measure progress because, to me, to find advancement when humanity is at the lowest point of its relationships is a much more honest test, than studies of when everything is going well. The other reason I decided to examine the topic of warfare was because the ques­ tions humans faced in this area are remarkably constant and consistent. The term ‘human’ in the context of human evolution refers to the genus Homo, and the subspe­ cies, sapiens, (meaning ‘wise man’ or ‘knowing man’). Anatomically modern humans appear from about 200,000 years ago, and started to move out of Africa between 100,000 and 50,000 years ago. During this process, it appears that our direct ancestors gradually marginalised the ‘archaic’ homo varieties. It is possible that this ‘wise’ or ‘knowing’, species, in combination with natural factors like climate change, systematic­ ally drove our closest genetic relatives such as the Neanderthals, to extinction, with the process only ending perhaps 10,000 years ago.3 Our victorious stone-age ancestors then went on to develop agricultural systems between 8500 and 7000 BCE and civili­ sations around 3000 BCE, which were leaving written records. This epoch, known as the Bronze Age is the starting point of this book. The end point of this book is 5,000 years later, which is the Nuclear Age. Throughout this period, warfare has been a con­ sistent pattern in human history. I am of the belief that the people who formed these countless generations, although different in terms of technology and social organisa­ tion, are essentially the same as their descendants today. Anatomically, and I expect emotionally, the people of the twenty-first century are probably much closer to our historic cousins than we care to admit. This contention is important for this book, as many of the practices examined and questions raised by them allow me to pose the question of whether we, as a species, have progressed over the last 5,000 years when dealing with essentially the same issues, albeit in different historical epochs and with different technologies. That is, the human context on whether to intentionally kill civil­ ians, torture prisoners, or use indiscriminate or unusually cruel weapons in times of war, whether thousands of years ago, or three days ago, is essentially the same. However, in the topic of weapons, it is important to recognise the limits of historical comparison. That is, whilst the moral debate about killing non-combatants 3,000 years ago in Ancient Greece is essentially the same discussion about killing non-combatants in modern day Sudan, the debate about controlling weapons is not. This is because technology has continually evolved, and the debates about controlling crossbows as opposed to controlling cluster bombs, have fundamentally different angles to them. This is especially so when dealing with weapons which are profoundly indiscriminate. This debate only began in the nineteenth century, before peaking with the advent of weapons of mass destruction. In this area, there are often no historical comparisons.

3   Wong, K (2010) ‘Twilight of the Neanderthals’ in Selections on Evolution (NYC, Scientific American) 23–29; Keegan, J (1993) A History of Warfare (London, Hutchinson) 116–22.

Facts 3

3 . Facts

As I began this project, it quickly became apparent that is was near impossible to answer these questions as there was no cumulative history on all of the acts which I wished to examine. Whilst there are between dozens and thousands of studies on each topic at hand, there was no comprehensive collection of the evidence and facts from which analysis could begin. For example, whilst there is a lot written about the destruc­ tion of cultural property in war, most of the work focuses on one particular period. Such a study will typically be about the law, or the particular history, of an episode at hand. Rarely will a study look at the way the same issue has been dealt with, in custom and law, over the last 5,000 years, through different ages. This rationale applies to every theme in this book. As such, the collection of this evidence and facts, became the foundation of this book. This is an important point, for a large part of my thinking in this book is the Latin principle, res ipsa loquitur (the facts speak for themselves). That is, the thematic practices of 5,000 years of warfare should allow the reader to make up their own minds on whether there has been success, or failure, in some of these areas. My interpretations at the end are only the way that I see the evidence. I have no doubt that others will see it differently. Before I go on, it is necessary to underline two points about ‘the facts’. The first concerns the question of numbers. All numbers in this book should be treated with caution. I have tried at all points to give the best figures that are possible, often after looking at examples from multiple sources. Nevertheless, historians and commentators make mistakes for all sorts of reasons, which appear to range from simple mistakes to pure political manipulation. This is especially the case relating to contemporary issues (for any generation) pertaining to the ownership, impact and/or transfer of weapons. In this regard, the goal of a free and independent reporting of military hardware must always be highlighted. Although all governments at times despise this principle, I can think of few times more important for citizens to be able to obtain full and frank infor­ mation, than that about what weapons exist, what their potential impacts are, who possesses them, and who trades them. Despite the desirability of this goal, the fact remains that in most contemporary situations, the certainty in terms of numbers over the impacts, possession and transfer of weaponry is less than ideal, and secrecy, not transparency, is more often than not, the rule in this area. The second point on ‘facts’ relates to the sources that are used in this book. The methodology of this book is somewhat complicated. The skeleton on which it is built is treaties. I place a great weight on the bilateral and international instruments of each age, as despite all of the difficulties of different languages and different ages, treaties and/or agreements reflect in the clearest way possible how different nations see a shared problem and shared solution. As the reader will see, I also try to directly quote the applicable law in each instance. For the purpose of this study it is important to show that the governing rules are often much easier to understand (even if unpaleta­ ble) than many commentators pretend them to be. As such, at each point, the law on the question has been set out as simply as possible. In places where there were no treaties, the bones are taken from the practice of key players of the period, which often became custom. In each epoch I have attempted to read and quote the original sources. These have often been supplemented by the best

4  Introduction

monographs I can find on each epoch. After the Enlightenment, the modern literature is much more plentiful and it is much easier to identify and trace important interna­ tional events in treaties, custom and literature. This is especially so with events since the beginning of the twentieth century, and more so, since the Second World War. With regard to the later epoch, I have been able to find, read and incorporate, inter alia, every Security Council resolution which is related to the topics at hand. I have done this because the Security Council, in the absence of clear international rules or rulings by the International Court of Justice, is the next best source for obtaining a definitive interpretation on an area. Although the information on conflicts of the twentieth century is in relative abun­ dance, the same cannot be said for many contemporary conflicts, where reliable sources can be quite patchy, and it is not until a few years have past, that good analysis of an area can be achieved. Of course, this is not always the case, as in some instances, some non-governmental sectors provide excellent, up-to-date analysis on a number of contemporary issues involving the control of arms. The source I have adopted most frequently in this regard for the conflicts since the 1990s has been Human Rights Watch, which I have found to be most reliable. 4.  Progress in the Area of Arms Control

This book on warfare deals with the broad question of whether the patterns of arms control have changed over the last 5,000 years, and if so, how. ‘Arms’ is a somewhat meaningless term relating to the hardware by which humans do violence to each other. Humanity has a long-standing relationship with such hard­ ware. Evidence suggests humans began using spears about 400,000 years ago. By 50,000 years ago, javelins were in existence, and 17,500 years ago there were also atlatls. These weapons could throw a dart more than 200 metres. Most experts date the earliest unambiguous evidence of bows and arrows at 10,000 to 12,000 years ago in the late Paleolithic Age. This date coincides with the extinction of the close relative of the homo-sapien, the Neanderthal, in a process which ended perhaps 10,000 years ago. The fact that the first revolution in weapons technology occurred around the same period, with the bow, sling, dagger and mace all appearing at the same time, coupled with the evidence of a number of Neanderthal skeletons with unmistakable traces of deep penetration from projectile points, does not point to a kind ending for our closest relatives.4 Chemical and biological weapons are recorded from 800 BCE. The first siege engines appeared around 460 BCE. Catapults appeared in 399 BCE. The trebuchet, which managed to smash walls or to throw projectiles over them, emerged in the middle of the first millennium AD.5 Gunpowder arrived around the year 1000, and an evolution was underway from around 1300, for this substance would go on to spawn thousands of different ways of causing damage. Nearly 1,000 years after the advent of gunpowder, the age of weapons of mass destruction arose, to sup­ plement the military landscape. 4   Wong, K (2010) ‘Twilight of the Neanderthals’ in Selections on Evolution (NYC, Scientific American) 23–29; Keegan, J (1993) A History of Warfare (London, Hutchinson) 11–122. 5   Van Wees, H (2009) Greek Warfare: Myths and Realities (London, Duckworth) 140–43; Dawson, D (1996) The Origins of Western Warfare (NYC, Westview) 39; Crosby, A (2002) Throwing Fire: Projectile Technology Through History (Cambridge, Cambridge University Press) 85, 87.

Progress in the Area of Arms Control 5

The term Weapons of Mass Destruction (WMD) eventuated after the Second World War. Whilst there may be new types of weapons of mass destruction in the future (despite the exhortations of the international community not to develop such weap­ ons), currently, the WMD platform only covers weapons which are chemical, biologi­ cal or nuclear.6 Whilst the types are easy to define, the exact nature of these weapons is hard to define. Whilst the words ‘weapons’ and ‘destruction’ are easy to understand, the defining part of the phrase – ‘mass’ – is not. The best-fitting alternative meaning of the word ‘mass’ is ‘large’. Thus, mass destruction weapons are those which kill large quantities of people. The problem is that many weapons can, or have, been responsi­ ble for the killing of large numbers. Firearms have been responsible for the deaths of tens of millions of humans, yet these are not viewed as WMD. In large part, this is because in times of warfare, most of the victims of firearms are combatants. Chemical weapons during the First World War killed hundreds of thousands of combatants, but these were not condemned as WMD. Rather, they were condemned because they were considered to be inhumane. As such, part of the thinking about WMD is about their impact on non-combatants. Yet when dealing with even less technologically advanced weapons, such as the machetes which were a primary weapon in the Rwandan geno­ cide, few would ascribe to these the nomenclature of WMD. The Rwandan example was not about WMD because the majority of the deaths were intentional, and not indiscriminate. Every blow that resulted in death was planned and intentional. As such, the core part of the thinking about WMD is about killing large numbers of non-combatants in relatively indiscriminate ways. However, it is possible to kill large numbers of non-combatants in relatively indiscriminate ways without chemical, biological or nuclear weapons. Few would suggest that the intentional creation of large-scale starvation of civilian populations is a weapon of mass destruction, although some did suggest around the Second World War that the indiscriminate bombing of civilian populations was using weapons of mass destruc­ tion. However, when the Second World War ended with the use of single radiological weapons on Hiroshima and Nagasaki, commentators generally stopped suggesting that conventional bombing, despite causing mass destruction, was actually using weap­ ons of mass destruction. As such, from 1945 onwards, WMD became associated with particular types of weapons that destroyed civilians indiscriminately, rather than just the indiscriminate destruction of large numbers of civilians. When the modern chem­ ical and biological weapons are added to the nomenclature, due to the large risks to non-­combatants that they pose, they too, became recognised as WMD. This new classification was despite the fact that both biological and chemical weapons have a lineage in human warfare dating back to antiquity. The difference in the modern world is that contemporary chemical and biological weapons, like nuclear weapons, have the capa­city to kill millions of human beings in a single utilisation. If used cumulatively, unlike all other weapons, they may have the capacity to destroy the entire species and the ecosystem we exist in. This is unlike conventional weapons, which may range from swords to jet aircraft which can fly faster than the speed of sound. These weapons are, in theory, much more limited in their impact and capable of much greater accuracy. In theory, conventional weapons are all weapons of precision with limited impacts. 6   UNGA Resolution (2006) 51/37 Prohibition on the Development and Manufacture of New Types of Weapons of Mass Destruction.

6  Introduction

There are three questions with which form the basis on this study, with regards to ‘progress’ in the control of weaponry. Has the flow of weaponry to places where it inflames conflict improved? The first idea I had in this area was that in the right circumstances, multilateral reductions in conventional weapons helps reduce tensions between countries and regions. The supplementary idea I had in this area was that an uncontrolled trade in weaponry is likely to increase, not decrease warfare. Allowing fewer weapons to peo­ ple who are prone to use them wrongfully, in terms of against their neighbours or own citizens, seems like a noble goal. Are weapons which cause unnecessary pain restricted? The humane basis of my thinking in this area is that whilst it may be necessary to kill opponents in times of war, this should not be done with gratuitous violence. Unnecessary cruelty to any animals, especially fellow humans, is a particularly repug­ nant trait. Are weapons which are indiscriminate restricted? This marker of progress relates to the idea that the military weapons should only kill those opposing combatants. They should not be indiscriminate and impact upon those non-combatants either during the conflict or after it has ended.

I Conventional Weapons 1.  The Beginnings of Arms Control

T

he first attempts at controlling arms were probably linked to the first acts of disarmament, where defeated opponents had their weapons removed. This was often a difficult task, since as early as 2400 BCE, kingdoms were spending fortunes on the creation and stockpiling of the best weapons of the age. This practice developed because the early Sumerians believed: ‘The State weak in armaments – the enemy will not be driven from its gates’.1 To facilitate strength, states made their own weapons and imported them from elsewhere. The first recorded instances of the trade in weapons that I am aware of occurred around 1417 BCE, when weapons of Egyptian manufacture were exchanged with neighbours in the region of Punt for gold, ivory, and a number of exotic animals such as apes and cheetahs. However, it is likely that the trade in weaponry, especially with the advent of the Bronze Age (and an entire new class of daggers, swords and shields) predates these events. In some instances, such as with the war chariot, it appears that sovereigns, in attempting to build up chariot fleets to numbers of up to thousands of units, in addition to manufacturing domestically, made exchanges between, inter alia, Egypt, Israel, Assyria and possibly even as far afield as China.2 A trade in weapons such as swords, spears, bows and arrows and body armour – and especially the raw materials that made them such as base metals and particular barks – is much harder to trace. Nevertheless, early records suggest that the vast majority of countries in the possession of copper would not freely trade this metal, due to its weapon-making potential. This approach became even more entrenched when iron weapons came to replace bronze ones. This is particularly interesting as it likely that the development of these weapons, especially the iron sword (redesigned for slashing, not stabbing), which was stronger, sharper and more durable than weapons of bronze, when combined with armies of mass infantry in the thousands, may have been directly influential in the ending of the Bronze Age.3 The point of interest is that whilst Bronze Age weapons are similar in all cultures of that age and widely distributed, the same cannot be said with early age iron swords. That is, although these weapons were also all very similar, they are found in many fewer locations. The implications of this is that   Kramer, S (1956) History Begins at Sumer (Philadelphia, Pennsylvania University Press) 122.   Cotterell, A (2005) Chariot. The Rise and Fall of the World’s First War Machine (London, Pimlico) 64–65, 80, 95–96, 201–202; Edwards, I (ed) (1973) The Cambridge Ancient History. History of the Middle East and Aegean Region 1800–1380 BCE, 3rd edn, Vol II(1) (Cambridge, Cambridge University Press) 330; Keegan, J (1993) A History of Warfare (London, Hutchinson) 162–68. 3   Drews, R (1993) The End of the Bronze Age: Changes in Warfare and the Catastrophe of 1200 BCE (New Jersey, Princeton University Press) 73–76, 147–57, 192–208; Saggs, H (1989) Civilisation Before Greece and Rome (New Haven, Yale University Press) 40–42, 131, 137, 154. 1 2

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weapons, if not the base material of bronze, were exchanged by the peoples of the Bronze Age, despite the restrictions, while the new and presumably more efficient weapons and base material of iron were jealously protected and reserved for the use of a military elite. This appears to have coincided with the development of state monopolies over the locations where iron was found.4 The first active removal of weapons of the defeated come from the same period, with both Thutmose III (1504 –1450 BCE) and Ramses II (1279 –1213 BCE) leaving records of such actions. From such battles, the victors would claim as booty all of the weapons of the defeated. Thus, at the battle of Merneptah in 1208, 12 chariots of the defeated were collected, in addition to 9,111 swords.5 In some instances, such as with the Philistines and the Jewish people, the control of weapons also came to include those who could make weapons. Thus, the book of Samuel records, ‘Now there was no smith found throughout all the land of Israel: for the Philistines said, Lest the Hebrews make them swords or spears’.6 The control of smaller weapons, either domestically or internationally, appears not to have even been considered as an explicit policy, although many of this epoch viewed with disdain ‘covert missiles’ or ‘long-range projectiles’ as opposed to weapons used in hand-to-hand close range combat. This view is clear in the Iliad (as with missiles called a ‘blank weapon of a useless man’) and the siege of Troy. Tentative evidence suggests that the Chalcis and Eretria agreed that such missiles would be banned in times of conflict between them during the Lelantine war (c 700 BCE). The view was later clearly stated by Euripides (c 480–406 BCE) who added ‘the bow is no proof of manly courage, no, your real man stands firm in the ranks and dares to face the gash the spear makes’.7 However, the bow and the javelin only increased in popularity as the once noble and invincible phalanx were destroyed from a distance, without any clashing of swords. As such, apart from these ethical concerns, swords, armour, shields and spears were available freely in relatively large quantities in most marketplaces. This was unlike larger weapons, like catapults and triremes, which were constructed in State-owned arsenals and shipyards. These State-based weapons were commonly confiscated from the defeated by the victors after a war was concluded.8 The Romans had a different approach to the Greeks on arms control within their borders. Although the State provided standardised equipment, and manufactured it and stored it in 40 arms’ factories scattered throughout the Empire, it was expected that Roman civilians (and other civilians under occupation) would not carry weapons, especially after the Republic had fallen and regular soldiers were meant to hand their 4   Oakeshott, R (1996) The Archaeology of Weapons: Arms and Armour from Prehistory to the Age of Chivalry (NY, Dover) 38, 39. 5  Ramses II and Thutmose III in Breasted, J (ed) Ancient Records of Egypt, 1988 edn, Vols II and III (London, Histories and Mysteries) 209, 250. 6   I Samuel 13:19. 7  Euripides, noted in Robinson, P (2006) Military Honour and the Conduct of War (London, Routledge) 28. See also Plutarch Moralia 191e and Polybius 12.3.1.–8; O’Connell, R (1989) Of Arms and Men: A History of War, Weapons and Aggression (Oxford, Oxford University Press) 48–49; Lendon, J (2005) Soldiers and Ghosts, A History of Battle in Classical Antiquity (NYC, Yale University Press) 17, 32–34, 47–48. 8  Tacticus, The Histories trans Ash, R (2007) (London, Penguin) 30.1–2. Xenophon Hellenica trans Carleton, LB (1866) (NYC, Brownson) 3.3.7. Thucydides The History of the Peloponnesian War: Revised Edition trans Warner, R (1999) (London, Penguin) iii, 98; Dawson, D (2001) The First Armies (London, Cassell) 111; Adcock, F (1959) The Greek and Macedonian Art of War (California, University of California Press) 6–10; O’Connell, R (1989) Of Arms and Men: A History of War, Weapons and Aggression (Oxford, Oxford University Press) 64–66; Bury, J (ed) (1969) The Cambridge Ancient History. Athens, Vol V (Cambridge, Cambridge University Press) 53–54, 218, 364.

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weapons back at the end of a tour of duty. This was unlike the practice before Rome became an empire, where the sale and purchase of infantry weapons was relatively unrestricted. In some instances this was the cause of problems. For example, a Roman knight named Vettius, who was hopelessly in debt, brought 500 suits of armour and swords on credit, and equipped his own 3,500 slaves for war.9 The opponents of Rome, although often preferring to keep their men armed at all times, also preferred to have distinctive centres for the manufacture of weaponry. With the Celts, this meant that all of their arms, no matter where they were in Europe were very much alike. This appears to be due to the fact that the majority of them were made in the same few centres of production and most were decorated with similar art forms and techniques. Thereafter, they were probably traded between the various Celtic communities. At other times, the exchange of such weapons was utilised to build alliances. Theodoric the Ostrogoth (454–526), responded to a gift of a rich treasure of swords sent to him by the king of Vandals, Thrasamund (450–523) in the following terms: ‘You have sent us swords capable even of cutting through armour. They are more precious for the iron of which they are made than for the gold that enriches them.’10 Large and strategic weapons that allowed walls to be breached or broken were commonly restricted in the peace treaties imposed by Rome on their conquered enemies. Spears and swords that did most of the damage on the battlefields, were usually collected afterwards from the battlefield, but were rarely restricted by treaty.11 However, in certain instances, weapons smaller than the largest of strategic weapons were also controlled. For example, after the final defeat of Carthage in the third Punic War (149–146 BCE), Carthage was obliged to surrender all of its arms, burning its remaining fleet before their own city walls, and handing over no less than 200,000 sets of armor and 2,000 catapults. The surrender of these arms did not placate Rome, and when the time was right, Rome laid siege to a city which had handed over most of its armaments. When the first Dacian war ended around 101 AD, the losers were not only obliged to hand over all of their siege engines, but also their engineers. This was not a completely novel situation, as by the end of the second century the Romans had worked out that Roman artisans involved in the manufacture of small weapons, and engineers involved in the manufacture of strategic weapons, who sought refuge with their allies, were quickly being utilised to build armaments to be used against Rome.12 Thus, in 419 the Romans passed an edict which proscribed death as the punishment to any Roman who taught ship-building skills to any Barbarian tribes.13 9   Cook, S (ed) (1966) The Cambridge Ancient History. The Roman Republic 1st edn (Cambridge, Cambridge University Press) 153. 10   Letter of Theodoric, reprinted in Oakeshott, R (1996) The Archaeology of Weapons: Arms and Armour from Prehistory to the Age of Chivalry (NY, Dover) 93. See also 86–87. 11  Livy The History of Rome trans McDonald, A (1946) (London, Penguin) 1.37.5; Caesar’s War Commentaries trans Warrington, J (1955) (London, Dent) 34–35, 41. 12   Also, Goldsworthy, A (2003) The Fall of Carthage (London, Cassell) 338; O’Connell, R (1989) Of Arms and Men: A History of War, Weapons and Aggression (Oxford, Oxford University Press) 66–69; Wallace, J (1962) The Barbarian West: The Early Middle Ages (NYC, Harper) 38; Cook, S (ed) (1969) The Cambridge Ancient History. The Imperial Peace, 1st edn (Cambridge, Cambridge University Press) 229. Also The Imperial Crisis and Recovery, Vol XII 8–9. 13  Elton, H (1997) Warfare in Roman Europe (Oxford, Oxford University Press) 102; Contamine, P (1984) War In the Middle Ages (Oxford, Blackwell) 5; Laing, J (2000) Warriors of the Dark Ages (London, Sutton) 82; Webster, G (1978) Boudica: The British Revolt Against Rome AD 60 (London, Anchor Press) 59; Man, J (2005) Attila the Hun (London, Bantam) 149.

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What was more common in Antiquity, in terms of international attempts to control conventional weapons, was a focus upon the largest of strategic weapons such as large naval vessels. This focus can be traced to Thucydides (460–395 BCE), who was the first to suggest that the inter-state competition in the build-up of strategic weapons, such as triremes was one of the causes of the Pelonnesian wars.14 Whether this was entirely correct in this instance is a matter of debate. What is not a matter of debate is that the raw material necessary for these weapons – timber – and the resultant vessels were both subject to international controls. In terms of the control of timber (which was usually under State monopoly during Antiquity), two treaties exist where timber became a prohibited material to trade. This first occurred with the Peace Treaty with Philip V in 196 BCE, where the Romans restricted Philip’s ability to harvest timber within his own territory.15 The second example involved the Roman peace treaty with Rhodes in 168 BCE, whereby Rhodes (who was guilty of providing timber for the navies of the enemies of Rome) was forbidden to allow anyone other than citizens of Rhodes, to cut their timber for the purpose of making ships.16 Variations of this theme where the trade in timber for ship building purposes is evident, can be found in treaties which favoured one Party over another. For example, in the text of an alliance between Amyntas King of Macedon (d 373 BCE) and the Chalcidians in the early fourth century BCE: ‘The Chalcidians may export pitch, all building timbers, and all ship-timbers except firs unless their government requires them. The Chalcidian government may take out firs, provided that they report first to Amyntas and pay the prescribed dues’.17 Similarly, when Perdiccas King of Macedon (d 413 BCE) made an alliance with Athens he undertook not to export Macedonian oars to anyone but the Athenians.18 In addition to attempted controls in the trade of timber for the building of navies, treaties also exist where the navies of the defeated were severely curtailed. Thus, when Carthage had been crushed in the second Punic War, in addition to Carthage forfeiting all of her elephants, Rome also restricted Carthage’s fleet to 10 ships and these were to be triremes (not the larger quinqueremes).19 Similarly, with the Roman Peace treaty with Philip V in 196 BCE, the Romans removed all of his war elephants and all but five of his triremes.20 Very similar terms were imposed in the 188 BCE Peace Treaty with Antiochus III of Syria, of which Antiochus (241–187 BCE), who once

14  Thucydides, The History of the Peloponnesian War: revised edn trans Warner, R (1999) (London, Penguin) 1.101 and 3.50. 15  Peace Treaty With Philip V, 196 BC in Lewis, N and Reinhold, M (eds) (1951) Roman Civilization: Selected Readings, Vol 1 (NYC, Columbia University Press) 174. Also, Livy The History of Rome, Book XLV trans McDonald, A (1946) (London, Penguin) xxix. 16  Meiggs, R (1982) Trees and Timber in the Ancient Mediterranean World (Oxford, Oxford University Press) 146. 17  This treaty with the Chalcidians is reprinted in Meiggs, R (1982) Trees and Timber in the Ancient Mediterranean World (Oxford, Oxford University Press) 118–19. 18  See Meiggs, R (1982) Trees and Timber in the Ancient Mediterranean World (Oxford, Oxford University Press) 119, 126–28. 19  Peace Treaty With Carthage, 201 BC in Lewis, N and Reinhold, M (eds) (1951) Roman Civilization: Selected Readings, Vol 1 (NYC, Columbia University Press) 171. 20  Peace Treaty With Philip V, 196 BC in Lewis, N and Reinhold, M (eds) (1951) Roman Civilization: Selected Readings, Vol 1 (NYC, Columbia University Press) 174. Also, Livy The History of Rome, Book XLV trans McDonald, A (1946) (London, Penguin) xxix.

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possessed a fleet of 100 warships and a large number of auxiliary vessels was reduced to 10 undecked ships.21 As Europe entered the Early Middle Ages, the various kings, in attempts to gain control over the emerging feudal age from the eighth century onwards, would conduct censuses on the weapons within their kingdoms and ensure that stockpiles were secure within the armouries of the sovereign and that their manufacture and trade were controlled. For example, the first military ordinance of Charles the Great (742–814) in 779 ordained that no merchant should dare to export coats of mail. This order, which was reiterated in 805, was supplemented by the prohibition of any and all types of weaponry to the Wends and Avars, with whom he was at war. Such rules became standard as the sovereigns of Europe began to solidify their power. For example, the Assize of Arms of 1181 issued by Henry II (1133–89) stipulated: 8. No one shall carry arms out of England except by the command of the lord king: no one is to sell arms to another to carry out of England; nor shall a merchant or any other man carry them out of England . . . 12. The justices shall command through all the counties that no one, as he loves his life and all that he has, shall buy or sell any ship to be taken away from England, and that no one shall carry any timber or cause it to be carried out of England.22

At the same time, such measures were supplemented by laws that attempted to preempt the forming of rebellions by being increasingly vigilant on the formation of castles that were built or maintained without royal authority.23 Thus, a Norman document from the time of William the Conqueror, stated in its fourth article: No-one in Normandy may dig a ditch in open country unless from the bottom of this ditch the earth may be thrown out without the aid of a ladder, nor may anyone build a fortification on a rock or on an island, nor raise a castle in Normandy.24

Similarly, a little later, the Assize of Northhampton in 1176 iterated the importance of ensuring that ‘the castles which have been destroyed are utterly demolished, and those that are due for destruction, are razed to the ground’.25 However, whilst sovereigns slowly managed to gain control over castle building, the extent of such controls with regards to the manufacture of arms, especially during the Early Middle Ages, was haphazard and it was clear that there was a strong trade in some weaponry. For example, the arms of the Franks appear to have been exported as a standard item of trade en masse to destinations as far apart as Iceland and North Africa. This trade in hand-held weapons is relatively easy to trace, as between 700 and 800 AD the smiths who made the swords marked and/or stamped the blades that they manufactured. These weapons then appear to have made their way all over Europe. 21  Peace Treaty With Antiochus III of Syria, 188 BC in Lewis, N and Reinhold, M (eds) (1951) Roman Civilization: Selected Readings, Vol 1 (NYC, Columbia University Press) 184. 22   Baker, D (1966) The Early Middle Ages: Portraits and Documents (London, Hutchinson) 135. 23   Gravett, C (1990) Medieval Siege Warfare (London, Osprey) 5; France, J (1999) Western Warfare In the Age of the Crusades (London, UCL Press) 11, 50–51, 76–80; Contamine, P (1984) War in the Middle Ages (Oxford, Blackwell) 47; Warner, P (2004) Sieges of the Middle Ages (Yorkshire, Pen and Sword) 9, 111–13; Morillo, S (1994) Warfare Under the Anglo-Norman Kings (Suffolk, Boydell) 17; Gillingam, R (1978) Richard the Lionheart (London, Weidenfeld) 99, 274–75. 24   Article 4 of the Consuetudines et Justice, reprinted in Contamine, P (1984) War in the Middle Ages (Oxford, Blackwell). 25   Baker, D (1966) The Early Middle Ages: Portraits and Documents (London, Hutchinson) 151.

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At times, they also appear to have found their way to the Middle East, only to be used against the Christian forces during the Islamic and/or Christian Crusades.26 Whether the hand-weapons made in Europe but used against the Christian crusaders were taken from the battlefield or traded with unscrupulous dealers of the period, is a matter of conjecture. What is not a matter of conjecture was the belief at the time, that the enemy was acquring such weaponry commercially, not via combat. This concern was so strong that at the regional level, the Catholic church came to explicitly condemn any such trading of weapons with the enemy. For example, Canon 24 of the Third Council of the Lateran of 1179 stipulated that there was a prohibition against furnishing the Saracens with material for the construction of their galleys. It was added, regarding those in the arms trade with the enemy: Cruel avarice has so seized the hearts of some that though they glory in the name of Christians they provide the Saracens with arms and wood, and become their equals or even their superiors in wickedness and supply them with arms and necessaries to attack Christians. There are even some who for gain act as captains or pilots in galleys or Saracen pirate vessels. Therefore we declare that such persons should be cut off from the communion of the church and be excommunicated for their wickedness, that catholic princes and civil magistrates should confiscate their possessions, and that if they are captured they should become the slaves of their captors. We order that throughout the churches of maritime cities frequent and solemn excommunication should be pronounced against them.

Exactly how successful these measures were is a matter of debate, as emperors like the Byzantine Isaac II Angelus (1156–1204) sent Saladin 4,000 iron lances, and 5,000 swords following the fall of Jerusalem.27 Despite such setbacks, the scholars and leaders of the age persisted in trying not only to control, but also to prohibit in certain theatres particular classes of weapons. The foremost example of this was the crossbow, which emerged around the fifth century AD. Five centuries later Anna Komnene (1083– 1153) noted that this was recognised as ‘a truly diabolical machine’ that could ‘cut through a heavy iron breastplate and resume their flight on the far side’.28 This machine, which was responsible for killing Richard the Lionheart (1157–1199) and almost killing Joan of Arc (1412–31), became very common throughout Europe and the Middle East in the Crusades, despite the efforts of Pope Urban II (1035–99) and the Fourth Lateran Council of 1139 in prohibiting the use of this weapon, which Christine de Pizan (1365–1434) suggested be banned because it was ‘un-Christian’.29 Some rulers, such as Emperor Conrad III of Germany (ruled, 1138–52) forbade the use of this weapon on pain of death, as the crossbow was not within the classical arms of the knight (sword, lance, battle axe or mace). Rather, the crossbow was a weapon typically wielded by the non-knightly classes, mercenaries and foreigners, and most importantly, they could kill the well armoured knight very easily. This was unlike complimentary projectiles like arrows (which could, since the Bronze Age, hit a target at 26  See Oakeshott, R (1996). The Archaeology of Weapons: Arms and Armour from Prehistory to the Age of Chivalry (NY, Dover). 142–47, 204, 210–13. Contamine, P (1984) War in the Middle Ages (Oxford, Blackwell) 189. Fuller, J (1945) Armaments and History (NYC, Scribner) 65; Baker, D (1966) The Early Middle Ages: Portraits and Documents (London, Hutchinson) 107–08; Wallace, J (1962) The Barbarian West: The Early Middle Ages (NYC, Harper) 81, 118, 138. 27  Finucane, R (2004) Soldiers of the Faith (London, Phoenix) 200. 28   Anna Comnena noted in Contamine, P (1984) War in the Middle Ages (Oxford, Blackwell) 124. 29   De Pissan, C (1408/09) The Book of Fayttes of Armes and of Chyvalrye (Bykes, A) (ed) (1932) 217, 224–25, 264.

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360 metres) or stones from a sling shot (which could hit a target at 138 metres). The difference was, with good armour, both conventional arrows and stones would bounce off the armoured fighting man. This was unlike a crossbow bolt, which could go right though the armour and the man wearing it. As such, the attempt to ban them was because they could kill the nobility, not because they caused superfluous injury.30 Unsurprisingly, such thinking had little influence on those who wished to acquire such weapons, and the crossbow only disappeared from Europe as a military weapon in the middle of the sixteenth century because it was eclipsed by a superior form of killing. 2 .  Gunpowder

The control of weapons during the centuries that followed was an ambitious project. In China, within 100 years of discovering gunpowder in 960, the Sung Empire had forbidden the export of saltpeter and sulphur, and banned all private trade in these ingredients, thereby attempting to create a state monopoly.31 However, these attempts at restraint were without success, and both gunpowder and the weapons it was fired from, would quickly evolve in an exponential fashion in the centuries that followed. The term ‘gun’ is most likely derived from the Norse woman’s name ‘Gunnildr’, familiarly shortened to ‘Gunna’. ‘Gonne’ first showed up in 1339 in a document written in Latin. Geoffrey Chaucer (1343–1400), who served in Edward III’s Royal Administration, initiated the vernacular use of the word in 1384, when he wrote ‘as swifte as pellet out of gonne’.32 By the time Chaucer wrote these words, the technology, with its explosive basis of gunpowder, was spreading quickly. Gunpowder bombs were the first invention after that, and then canons appeared in China 200 years later, in the late 1200s. Roger Bacon (1214–94) left recipes for gunpowder in 1252, and just over 70 years later, the first canon used in combat in Europe was recorded in 1324. The record of the first handgun was 40 years later, in 1364. The remarkably swift success of European smiths in harnessing gunpowder, long known in China but less effectively exploited, was the start of a very long trend with new developments rolling out of Europe on a very regular basis, such as the match-lock or arquebus, which was available by 1450. Although this weapon was not as quick as a bow to be reloaded, it had a range of up to 366 metres, which compared favourably to that of the longbow and equalled that of the crossbow. It was, however, decisively superior to both in terms of shock and impact and therefore in killing power. The last time crossbows and longbows were deployed in large numbers was at the end of the sixteenth century. The lock, stock and barrel of the arquebus became the platform for the weapon that would never stop evolving. The Spanish musket, which was created around 1521, weighed 23 kilograms but could fire a ball almost 26 centimetres wide that could penetrate the heaviest armour at close range, or bring down a horse at 200 paces. A well-drilled 30  Rees, G ‘The Longbow’s Deadly Secrets’ New Scientist (5 June 1993) 24–27; Fuller, J (1945) Armaments and History (NYC, Scribner) 78–79; Contamine, P (1984) War in the Middle Ages (Oxford, Blackwell) 71–72; Warner, P (2004) Sieges of the Middle Ages (Yorkshire, Pen and Sword) 123–25; Prestwich, M (1995) Armies and Warfare in the Middle Ages (NY, Yale University Press) 129; France, J (1999) Western Warfare in the Age of the Crusades 1000–1300 (London, UCL Press) 26–27; Hemingway, A ‘The English Longbow’ Military Heritage (30 February 2008). 31   Kelly, J (2004) Gunpowder (London, Atlantic) 11. 32   de Cervantes, noted in Kelly, J (2004) Gunpowder (London, Atlantic) 31.

14  Conventional Weapons

soldier could shoot two balls per minute. The wheel-locked pistol was in use by 1543, and rifled pistols by 1592. Hand grenades, land mines, and a variety of incendiaries were also developed during this same time period. By the end of the sixteenth century, the essence of the handheld weaponry of the modern battlefield had been sketched in one form or another.33 There was no shortage of social criticism of these new weapons in the Reformation as they could, as Miguel de Cervantes (1547–1616) noted, ‘enable the base coward to take the life of the bravest gentleman’. This fear quickly grew on itself as the pistol became the weapon of choice for assassins, as with the killing of William of Orange (1650–1702). Concerns that this weapon could be fired by a commoner yet down a king, meant that a number of nobles attempted to regulate it. Henry VIII (1491–1547) by an Act of Parliament prohibited ownership of firearms to anyone with an income of less than 100 pounds per year. France adopted the same policy, thereby restricting firearms to the nobility only. However, although many of these countries attempted to control the possession of such weapons within their own borders, they were sometimes willing to trade them internationally. This was especially so once the Reformation had come into being, as the unity of Europe began to fracture. As such, countries began to sell weapons to countries which were sympathetic to either their ideology or bank accounts. Switzerland had a reputation in this area by the sixteenth century. Countries with few foundries of their own, such as Portugal (where import taxes on armaments were waived) and Spain (which relied heavily on imports until it made its own foundry in 1611) brought explosive projectile weapons from abroad and welcomed all attempts at smuggling such armaments. Holland was a large importer and so, until the end of the century, was Sweden. France, too, was an importer, for the casting of cannon in bronze or iron was a large-scale operation. These large-scale operations were successful in Italy, Germany and England, all of which engaged in the lucrative trade. England even traded with a number of Islamic countries, much to disdain of many of England’s European cousins. Sometimes this trade was voluntary, whilst at other times weapons and gunpowder were traded to retrieve English slaves.34 The only country to restrict firearms completely was Japan which, despite being familiar with guns from as early as 1543, took a conscious decision to create a government monopoly, and then destroy all such weapons in preference to their traditional armaments. This policy, largely based on ideals of chivalry and what were suitable forms of combat, existed until the 30 kilogram guns of Commodore Perry (1794– 1858) forced Japan to confront the developments of four centuries of military technology.35 There were no other strong national examples like this, although the large-scale refusal by some of the Turkish nobility to adopt this weapon within interMuslim conflicts is also notable. In this regard, no Mameluke was trained or would train in any use of firearms whatsoever. Gunners and musketeers were recruited from outside the Mameluke caste, from black Africans and people of the Maghreb. When, 33  O’Connell, R (1989) Of Arms and Men: A History of War, Weapons and Aggression (Oxford, Oxford University Press) 121; Elton, G (ed) (1968) The New Cambridge Modern History: The Reformation, Vol II (Cambridge, Cambridge University Press) 495–97. 34  Elton, G (ed) (1968) The New Cambridge Modern History: The Reformation, Vol II (Cambridge, Cambridge University Press) 99–100, 482; Wernham, R (ed) (1968) The New Cambridge Modern History. The Counter Reformation, Vol III (Cambridge, Cambridge University Press) 191, 368–69; Milton, G (2004) White Gold (NYC, Hodder and Stoughton) 19–20, 49, 145, 202. 35  Perrin, N (1979) Giving Up the Gun: Japan’s Reversion to the Sword, 1543–1879 (Boston, Godine).

Gunpowder 15

eventually, these weapons were turned on fellow Muslims, there was widespread condemnation – but the victory of those holding the firearms stood.36 Unlike the crossbow, there was no papal interdiction against the use of guns, although those captured on the battlefield having used such weapons were at great risk of being executed. Nevertheless, the potential of this weapon was obvious to all, even if many States did take nostalgic moments to value weapons such as the pike, and the raw courage of their citizens. Meanwhile, in the evolving world, the Papal States acquired guns as eagerly as any secular authority, and the Church even assigned gunners a patron, Saint Barbara. Such a patron was clearly influential, for the weapons multiplied very quickly, as the emerging capitalism learnt quickly how to produce firearms, powder and ammunition for the centuries to come, largely above all other social needs. That is, until the nineteenth century, starvation and depopulation would haunt, at various times, large parts of Europe. However, guns would always be fruitful.37 From the Renaissance onwards, military technology and its lethality and questions of appropriate responses multiplied quickly. For example, before their ill-fated Armada with canons on board ships, the Spanish claimed that such weapons were an ‘ignoble arm’, only to be used in the beginning of a fray. Their ideal of noble warfare at sea was to discharge their canons and then board the ships of their enemy and fight with swords. The seafarers of Elizabeth had other ideas when they drew close to the Spanish Armada. The English used their perfected gunnery to deliver broadsides, rather than sailors with sharp cutlasses. Victory was achieved not because God was on the side of the English or that they were braver, but because the English warships were faster, more maneuverable and armed with weapons which were delivering projectiles with greater frequency, velocity and accuracy over a greater range that their opponents. The path which followed from such victories was direct as vessels with canons quickly multiplied in size, and a number of European States came to engage in the naval arms race that began in the late seventeenth century, and devoured vast amounts of financial resources in the search for ever-greater superior firepower. For example, by the 1750s, a 50-gun ship was a marginal battleship, but by the 1780s a 64 gunner was the lowest limit. After 1805 the 74 gunner was the smallest serious battleship, and by 1830, only those with over 80 guns of the heaviest calibre could even be considered as a battleship. A similar process was followed with the development of firearms for combatants, and numbers of combatants with such weapons, on land. For example, the flintlock musket was the primary weapon during the Seven Years’ War (1756–63), with an accuracy of about 90 metres. Five decades later, a Napoleonic battalion in 1815 armed with 1,000 flintlock rifles could fire 2,000 rounds per minute.38

  Keegan, J (1993) A History of Warfare (London, Hutchinson) 37–38.   Kelly, J (2004) Gunpowder (London, Atlantic) 11, 17, 71, 81; Fuller, J (1945) Armaments and History (NYC, Scribner) 85–86, 92; O’Connell, R (1989) Of Arms and Men: A History of War, Weapons and Aggression (Oxford, Oxford University Press) 126–27; Bell, D (2007) The First Total War: Napoleon’s Europe and the Birth of Modern Warfare (London, Bloomsbury) 134, 139–40; Contamine, P (1984) War in the Middle Ages (Oxford, Blackmore) 139; Potter, G (ed) (1969) The New Cambridge Modern History. The Renaissance, Vol 1 (Cambridge, Cambridge University Press) 288–90. 38  Hanson, N (2003) The Confident Hope of a Miracle. The True Story of the Spanish Armada (London, Corgi) 158, 377, 437, 525; Lambert, A (2002) War at Sea in the Age of Sail (London, Cassell) 35, 213; Fuller, J (1945) Armaments and History (NYC, Scribner) 95. 36 37

16  Conventional Weapons

3 .  Trade and Control

All sovereigns attempted to control the essential materials necessary for them to maintain a military advantage. Throughout the eighteenth century, this was most notable with the supply of timber. This was due to the fact that the dominant armed force of the period, the navy, required vast amounts of timber. For example, to build a 74 gun ship of 1,730 tons, required 1,977 loads of oak, 570 loads of elm, 139 loads of fir and 2,500 loads of deal. By the end of the eighteenth century, this meant that Britain alone required at least 25,000 loads of timber each year for military purposes. Given that much of this timber had to come from the Baltic and the New World, when Napoleon tried to suppress this trade, the reaction was not dissimilar to attempts to stop the flow of bronze or iron in earlier epochs. It therefore became a prime aim of all navies to maintain supplies of timber, both domestically and internationally. In times of war, this meant that timber was often on top of the list of contraband that could be seized. In times of peace, this meant that governments went to great lengths to ensure and monopolise supplies of this vital ingredient.39 The second set of materials that all sovereigns attempted to control (via standardisation and monopolies) were gunpowder and the weapons that fired it. In theory all such materials were strictly controlled. For example, King Henry IV of France (1553–1610) declared that only the sovereign had the right to make and hold gunpowder. The same rule applied in England. However, the reality of such monopolies on firepower was clearly displayed when Guido (Guy) Fawkes (1570–1606) managed to secure 36 barrels of gunpowder. In theory, the government had a monopoly on this material, but in practice this meant very little, as gunpowder was the equipment of every soldier, and soldiers sold it when they needed money. A proliferation of powder-mills in the last years of Elizabeth’s reign, followed by an interim peace with Spain, meant that there was a sudden glut in the market. Although it was meant to be kept under lock and key, it was not.40 This period also saw the continued growth in the amount and trade of weaponry that was produced. For example, the primary Russian arsenal was making an average of 14,000 muskets per year in the 1770s, whilst the French were producing 23,000 per year – the exact amount they decided to provide to the rebels in America in 1777. This covert assistance had begun in late 1776 when the first convoy of three ships left France carrying 200 field cannon with full trains, 27 mortars, 100,000 rifle balls, 13,000 bombs, 30,000 muskets, 290,000 pounds of gunpowder, 3,000 tents and clothing for 30,000 troops.41 The access to such materials and weaponry became a key part of the ideology of the United States. Thus, Article II of the United States Bill of Rights 1791 stipulated: ‘A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.’42 39   Goodwin, A (ed) (1968) The New Cambridge Modern History: The American and French Revolutions, Vol VIII (Cambridge, Cambridge University Press) 182–83. 40   Anderson, M (1998) War and Society in Europe of the Old Regime (London, Sutton) 31, 34; Kelly, J (2004) Gunpowder (London, Atlantic) 77, 95, 121; Hanson, N (2003) The Confident Hope of a Miracle. The True Story of the Spanish Armada (London, Corgi) 156; Fraser, A (1996) The Gunpowder Plot (London, BCA) 121–22. 41  Mott, W (1999) Military Assistance, An Operational Perspective (London, Greenwood) 33. 42  Bill of Rights in Birley, R (ed) (1944) Speeches and Documents in American History, 1776–1815 Vol I (Oxford, Oxford University Press) 171.

Trade and Control 17

The French weapons were crucial for the war effort of the United States, as it took a few years for the creation of armament plants and gunpowder mills to become fully operational. Only then could they begin to compete with the arms production of Britain. For example, the ‘Brown Bess’ flintlock was first issued to English forces in 1703. This .76-calibre smooth-bore was perhaps the best general issue firearm available in Europe throughout the eighteenth century. Destined to survive in slightly modified form for nearly 140 years, ‘Brown Bess’ enjoyed a production run estimated at 7,800,000 with virtually worldwide distribution. These numbers were supplemented by the production of weaponry in other countries. At points of crisis the production of such weaponary could be quickly increased. For example, in 1793, after war had been declared on France by three different countries, the National Convention agreed: The Committee of Public Safety is charged with taking all possible steps to establish, without delay, an extraordinary manufacture of arms of all kinds, consonant with the condition and energy of the French people. It is authorised, as a consequence, to create all establishments, manufactories, workshops, and factories considered necessary for the execution of these works, as well as to requisition for this purpose, throughout the whole Republic, artists and workmen who may contribute to their success.43

These demands were so successful that by 1794, Paris had become the largest small-arms producer in the world, turning out around 750 muskets per day. Although these figures were remarkable for the period, within a few decades, such output was miniscule. Once the American producers of the Connecticut valley had pioneered small-arms manufacture by means of machine tools turning out interchangeable parts, the production numbers could only grow rapidly. For example, by the middle of the nineteenth century, following the replacement of skilled artisans who would make each weapon by hand, the British Woolwich Arsenal, with the new repetitive-process machines, was capable of producing 250,000 rifles per day.44 With such large numbers, it is no surprise that streams of weapons flowed into other parts of the world as various European traders and countries provided gunpowder weapons to interested groups from Africa to faraway New Zealand. In some instances, local communities would consider access to such weaponry so desirable that they would even travel to Europe to obtain these war-winning technological advantages. For example, before becoming a British colony, some Maori chiefs such as Hongi Hika (c 1772–1828) travelled to England from New Zealand with the purpose of, inter alia, acquiring the 300 muskets and gunpowder that gave his forces the strategic advantage in a series of near genocidal wars against other Maori tribes. However, more often than not, these weapons were obtained in New Zealand by a trade in food, women and curios such as preserved human heads, with everyone from visiting whalers through to visiting warships. The largest trade recorded was of 230 muskets for Kauri spars with a visiting English warship in 1834.45 Similar trades were recorded in Africa throughout the nineteenth century, with the various colonial powers vying for influence with the locals providing influential arsenals. For example, in the late nineteenth century, the 43  The levee en masse in Wright, D (ed) The French Revolution Documents (Queensland, University of Queensland Press) 181. 44  O’Connell, R (1989) Of Arms and Men: A History of War, Weapons and Aggression (Oxford, Oxford University Press) 158, 175, 208; Keegan, J (1993) A History of Warfare (London, Hutchinson) 312. 45   Crosby, R (1999) The Musket Wars (Auckland, Reed) 367–73; Black, J (1994) European Warfare 1600– 1815 (New Haven, Yale University Press) 21, 55, 56, 59.

18  Conventional Weapons

French provided the King of Niger, Ahmadu, with four mountain guns, 1,000 rifles, 200 flintlocks, 200 cannon balls and 200 barrels of gunpowder, in exchange for exclusive rights to sail the rivers he commanded. By the end of the nineteenth century, the French (who repealed all earlier laws on the exportation of weapons in 1885) were supplying millions of weapons to local warlords, such as when the governor of French Somaliland supplied a local warlord with 100,000 rifles and 2 million tons of ammunition. These examples multiplied rapidly throughout the Continent, with various warlords acquiring arsenals of such magnitude that they forced the colonising powers to rethink their options as the weapons were turned onto their neighbours. This was particularly evident in Zulu war of 1879, when the British faced an enemy which had accumulated 20,000 (mostly outdated) muzzle loading muskets, through Portuguese smugglers. Cumulatively, an estimated 16 million firearms were offloaded into Africa in the nineteenth century.46 In addition to Africa, large amounts of weapons which were used in the Napoleonic Wars subsequently made their way to Latin America to be reused in the various wars of independence before the middle of the nineteenth century. This was despite the promises of countries like Britain that they would not provide arms to any insurgents fighting against the Spanish crown. Specifically, the 1814 Agreement between Great Britain and Spain, in the context of the rebellion of the colonies in the Americas against Spanish rule stipulated: His Britannic Majesty being anxious that the troubles and disturbances which unfortunately prevail in the Dominions of His Catholic Majesty in America should entirely cease, and the Subjects of those Provinces should return to their obesidence to their lawful Sovereign, engages to take the most effectual measures for preventing his subjects from furnishing Arms, Ammunition, or any other warlike article to the revolted in America.47

However, Britain, was willing to arm countries which they considered useful in the region, such as when Mexico fought the United States in the Second Texas–Mexican War of 1836–44. From the middle of the nineteenth century onwards, modern armaments from a number of other European countries also flowed into countries which were recognised as the ‘lawful’ sovereigns. East Asia, Latin America, Russia and the Balkans were the largest markets. Western European governments fostered private industries that were too big for their peacetime needs, in order to secure reserve capa­ city. Arms sales also brought political influence, jobs and tax revenue. All of the main Western and Central European companies were exporters, but British, French and German firms dominated sales to other countries. This was especially so if they were not at war with other countries at the time of sale. In 1884–85, the German Arms manufacturer Schneider exported over 40,000 canons to 23 countries, and Krupp’s sales were of a similar magnitude. In other instances, such as with the French invasion of Mexico in 1861, the United States left large stocks of ‘unattended’ weapons and ammunition on its border for the benefit of the Mexican forces. Likewise, with the Cuban War of Independence, the authorities of the United States turned a blind eye 46  Porch, D (2000) Wars of Empire (London, Cassell) 34, 54–55, 114–17; Pakenham, T (2003) The Scramble for Africa (London, Abacus) 169–70, 418, 426, 472; Saul, D (2005) Zulu, The Heroism and Tragedy of the Zulu War of 1879 (London, Penguin) 95. 47   The 1814 Agreement, reprinted in Burns, R (ed) Encyclopedia of Arms Control and Disarmament (NYC, Scribner) 1139.

Trade and Control 19

to more than 50 expeditions that left their ports carrying adventurers (mostly Americans) attempting to run the Spanish blockade with arms, munitions and mercenaries.48 However, decades later, the United States would end its arms trade to Mexico during their revolution of 1910–20 due to what were, in essence, human rights concerns. The problem was that other countries such as Germany were quick to exploit the new demand for advanced weapons, irrespective of human rights considerations.49 This arming of both sides was not a novel situation. The American firm du Pont sold gunpowder to Spain and to the Latin American republicans fighting against Spain. They then went on to supply both Russia and Britain in the Crimean War. A few decades later, Krupp Armaments sold weapons to Austria and later attempted to sell them to France – both countries fought by Prussia in 1866 and 1870. In the American Civil War, Armstrong sold to both the Union and Confederacy. In 1911–12, Italy fought an Ottoman opponent, much of whose fleet had been built or modernised by Italian firms, whilst Armstrong and Vickers were each building a super-dreadnought for a Turkish sultan against whom the General Staff in London was preparing war plans. In 1914 the Russian fleet included 23 vessels built in Germany, and was embarrassed when Berlin cut off electrical, wireless, optical and explosive supplies. Krupp developed the heavy weapons to destroy the Belgian fortresses at the same time they helped upgrade them. Krupp also licensed the making of time fuses for shells to the British firm Vickers, which the British would fire back at German forces at the battle of Jutland in 1916.50 Such unprincipled selling of weapons should not be seen as a surprise, as numerous examples exist from within the nineteenth century when the great military inventors of the period, such as Jordan Gatling (1818–1903), attempted to sell their products like any other form of commercial wares. The only difference was that this commercial product could shoot, on average, 200 bullets per minute. Gatling did not judge this to be a material consideration when looking for markets to sell his product in. As such, notwithstanding his own political sympathies, he attempted to sell his weapon to both sides in the American Civil War, and then, after the conflict, went on to sell it in Japan, Russia, Spain, and Britain. The next technological step by Hiram Maxim (1840–1916), the development of the first truly automatic weapon that could shoot 400 to 500 bullets per minute, was sold to Austria, Germany and Italy. This period was also notable for the creation of weapons which were not only mass produced but also long living. The prototype of this weapon went on to form the basis of the vast majority of all of the machine guns fired between 1914 and 1918. The British alone produced over 250,000 machine guns during this conflict51 The machine gun was supplemented by bolt action rifles, of which the 48  Scheina, R (2003) Latin America’s Wars: The Age of the Caudillo, 1791–1899 (Washington, Brassey) 151, 159, 173, 196, 236, 243, 282, 309, 316, 356–58, 362, 398. 49  Stevenson, D (1999) Armaments and the Coming of War, Europe 1904–1914 (Oxford, Oxford University Press) 37–38. Scheina, R (2003) Latin America’s War. The Age of the Professional Soldier, 1900–2001, Vol II (NYC, Brassey) 21, 23, 27. 50  Stevenson, D (1999) Armaments and the Coming of War, Europe 1904–1914 (Oxford, Oxford University Press) 37–39. Sampson, A (1977) The Arms Bazaar (NYC, Viking) 40–43, 57, 59, 64. 51   Boot, M (2006) War Made New. Technology, Warfare and the Course of History (NYC, Gotham) 128–29, 150, 168; Ellis, J (1986) The Social History of the Machine Gun (Baltimore, John Hopkins University Press) 16–20, 25–35, 39; Preston, D (2000) The Boxer Rebellion (NYC, Berkeley Books) xxiv. Also, Howard, M (2002) The Franco-Prussian War (London, Routledge) 246; Kurlansky, M (2006) Non-Violence: The History of a Dangerous Idea (London, Cape) 113; Fuller, J (1972) The Conduct of War 1789–1961 (London, Methuen) 87.

20  Conventional Weapons

Lee-Enfield was the most well known for the forces of the Commonwealth. This one weapon, which was produced in England, India and Australia, was officially in service in the British army at the end of the nineteenth century. Over 17 million of these rifles were produced, and many continued to see active service in conflicts involving Afghanistan, India, Nepal and Pakistan until the beginning of the twenty-first century. They would also be used en masse in the so-called Soccer War of 1969 between El Salvador and Honduras, along with additional German and American weaponry from the First (and Second) World Wars. In some instances, such as with Turkey prior to the Allied invasion in 1915, the Turks had been supplied with the English small arms that would push the British, French and Commonwealth forces back into the seas surrounding Gallipoli.52 Many of these situations could have been avoided if arms treaties existed which limited the build-up and/or trade of weapons. In the age of the Enlightenment, the first examples of multilateral restraint appeared with the French–Anglo Naval Limitation Pact of 1787. This Pact was designed to strengthen strategic stability between two countries that shared the high probability of war breaking out between them (as it did, soon afterwards). In a Reciprocal Declaration, both sides decided that: [I]n the current position of affairs, to agree that no one on either side will prepare any naval armaments beyond the peacetime establishment: and that neither will make any attempt to place in the water a greater number of ships-of-the-line than the six whose armaments have already been reciprocally communicated.53

Bouyed by such precedents, and the realisation that States could not only cap but also potentially mutually restrict their armaments, the modern peace movement was born. This movement, which took a few decades to fully emerge, held the first international Peace Congress in Brussels in 1848. Thereafter, such congresses were convoked annually in different European cities. These increasingly impressive gatherings, which gained the respectful attention of governments, passed eloquent resolutions in favour of disarmament. Variations of these resolutions appeared every year until 1854 and the outbreak of the Crimean War, at which point any official interest in the proceedings dissipated.54 Nevertheless, in some instances, some of the superpowers of the age agreed to control the flow of new weapons into certain areas. For example, as a way to reduce future tensions via the potential escalation of an arms race after the Crimean War, the 1856 Convention Limiting Naval Force in the Black Sea, as signed by Russia and the Ottoman Empire stated: The High Contracting Parties reserve to themselves each to maintain in that sea six steamvessels of fifty metres in length at the line of flotation, or a tonnage of eight hundred tons at the maximum, and four light steam or sailing vessels of a tonnage which shall exceed two hundred tons each.55

The possibilities of other forms of arms control were also raised from time to time in other regional negotiations. This was particularly obvious in the 1859 discussions between France, 52  Skennerton, I (2007) The Lee-Enfield (Queensland, Arms and Militia Press) 12–17, 23, 45. Scheina, R (2003) Latin America’s War. The Age of the Professional Soldier, 1900–2001, Vol II (NYC, Brassey) 302–03. 53   The Reciprocal Declaration, reprinted in Burns, R (ed) Encyclopedia of Arms Control and Disarmament (NYC, Scribner) 1139. 54  Howard, M (2008). War and the Liberal Conscience (London, Hurst) 31–32. 55   Convention Limiting Naval Force in the Black Sea 1856, Art 2 in Albrecht-Carrie, R (ed) (1968) The Concert of Europe (NYC, Harper) 190.

Trade and Control 21

Britain and Austria over the formation of modern Italy, and again in 1866 when the British proposed that a conference on disarmament be held. However, neither this proposal nor the broader discussions came to anything, and it was not until 1890 and the discussions over the colonies in Africa that some forms of arms control emerged. At this point, the Brussels Act of 1890 prohibited the introduction of arms and ammunition into Africa between latitudes 20 degrees North and 20 degrees South except under effective guarantees.56 However, it would be wrong to exaggerate these achievements, for on the whole, the trade and development of weapons continued apace, and the desire for profit often overrode other considerations. For example, despite protests from Berlin, Britain was quick to unload stocks of obsolete rifles, and to experiment with new rifles, by selling them to the French in 1870, whilst three decades later in the Boxer Rebellion of 1900, it was clear that weapons were used against the very nations that had supplied them. The response of the Western nations to this situation was found in Article V of the Boxer Protocol. However, this response did not place the onus upon the sellers of such weapons, but the buyer. Thus, ‘China has agreed to prohibit the importation into its territory of arms and ammunition, as well as of materials exclusively used for the manufacture of arms and ammunition.’ Despite such examples, comprehensive arms control was largely absent from the end of the nineteenth century until 1919. The first Hague Conference in 1899 has included armaments limitations as a main agenda item. At this conference, the Russians (who were concerned at their own escalating arms budget) suggested limits on peacetime strengths and military budgets. They also proposed the prohibition or suspension of the introduction of new weapons and/or explosives. However, there was little backing for this proposal, and the best that could be achieved was two notations in the Final Act of the conference. Specifically: The Conference expresses the wish that the questions with regard to rifles and naval guns, as considered by it, may be studied by the Governments with the object of coming to an agreement respecting the employment of new types and calibres.

And: The Conference expresses the wish that the Governments, taking into consideration the proposals made at the Conference, may examine the possibility of an agreement as to the limitation of armed forces by land and sea, and of war budgets.

In light of such considerations, some countries, such as Chile and Argentina, concluded a naval agreement in 1902 for the dismantling of some vessels they had under construction. However, outside of this area, arms control was elusive. This was especially so after Russia had suffered staggering naval losses in their 1904–1905 war with Japan – with a fleet that had been largely built in Britain and the other shipyards of Europe. Accordingly, when the time for the second Hague conference arrived in 1907, the topic of arms control was never seriously contemplated. This was despite both Britain and the United States seeing some economic self interest in slowing down the arms build-up, in naval vessels in particular. When the British naval attaché sounded out the idea on Germany, Albert von Tirpitz (1849–1930), the Secretary of State, 56  Convention revising the General Act of Berlin of 26 February 1885 and the General Act and Declaration of Brussels of 2 July 1890 Australian Treaty Series (1920) No 17, 65; Pakenham, T (2003) The Scramble for Africa (London, Abacus) 349, 416; Hill, R (2000) War at Sea in the Ironclad Age (London, Cassell) 152.

22  Conventional Weapons

replied ‘you, the colossus, come and ask Germany, the pygmy, to disarm. From the point of view of the public it is laughable and Machiavellian, and we shall never agree to anything of the sort’.57 With such strong opposition, the best that could be achieved from the Final Act of the Second Peace Conference was the: [C]onfirm[ation of] the resolution adopted by the Conference of 1899 in regard to the limitation of military expenditure; and inasmuch as military expenditure has considerably increased in almost every country since that time, the Conference declares that it is eminently desirable that the Governments should resume the serious examination of this question.

Despite being so eminently desirable, no date for a successor meeting was set. 4 .  Superfluous Injury

The methods of warfare changed rapidly during the nineteenth century, as technological developments quickly eclipsed the practices of the past. One of the most notable developments of this period was the creation of explosive projectiles as developed by Lieutenant Henry Shrapnel during the siege of Gibraltar (1779–83). These munitions, although having a vast impact in terms of land warfare, managed to completely change the face of naval warfare. The exact moment of this change was in 1853 when the Russian Black Sea fleet with their new shell-firing guns completely annihilated a Turkish wooden fleet. Following this, from 1861, no battleship was built of anything but iron until, in 1885, steel took its place. However, in many respects, this was foreseeable, for it was in 1837 that the French (and thereafter all of the other superpowers) decided to place weapons that fired explosive and incendiary munitions on boats. This decision was not taken lightly, as at the time, the voice of public opinion was very much against these new weapons which were regarded as odieuses. Nevertheless, such humanitarian concerns were brushed aside, as nations strove to defeat the new technologies, not by restraint, but by outwitting each other in vessels that were 100 per cent different to their predecessors. That is, a ‘line’ ship of 1830 was propelled by sail alone, was built of wood and possessed no protection whatever. Its cast iron canons fired non-explosive roundshot, the heaviest of which seldom weighed more than 32 pounds or did any damage beyond 400 yards. This ship was replaced with a vessel that weighed four times as much, was powered by steam driven propellers of all iron frame, with revolving turrets clad in 14 inch armour and housing mechanically operated guns that could fire explosive projectiles, weighing 700 pounds, nearly 10,000 yards. The first vessel was essentially a Victory; the other, essentially a Dreadnought.58 Some leaders of this period, when presented with technological options for the future, attempted to slow the advance. For example, in 1825, a steam-powered gun that could discharge nearly 1,000 musket balls per minute was unveiled. At the time, this was viewed as a weapon which would ‘herald in an era of universal peace’. Such ideals, that new, deadlier weapons would bring peace because the rational nature of humanity would not allow them to be utilised were not uncommon in this age. For 57   Tirpitz, noted in Stevenson, D (1999) Armaments and the Coming of War, Europe 1904–1914 (Oxford, Oxford University Press) 108. 58   Bury, J (ed) (1964) The New Cambridge Modern History (Cambridge, Cambridge University Press) Vol X The Zenith of European Power 282–84, 286–87.

Superfluous Injury 23

example, towards his last days in 1896, Alfred Nobel (1833–96), the inventor of dynamite, argued: My factories may make an end to war sooner than your Congresses because the day that two armies have the capacity to annihilate each other within a few seconds, it is likely that all civilised nations will turn their backs on warfare.

Jordan Gatling, the inventor of the Gatling gun, argued in a very similar manner that his invention that produced a steady stream of fire at 200 rounds per minute was actually progress, because ‘it would to a great extent, supersede the necessity of large armies, and consequently exposure to battle and disease would be greatly diminished.’59 In some instances, when viewing the horrors that the new technologies represented, some leaders did reject the options they gave. Thus, in 1855, when the steam-powered machine gun was revived for potential use in the Crimean War, it was rejected by Lord Palmerston (1784–1865) as being ‘too brutal for civilised warfare’.60 This type of rejection of a technological option, was a reflection which became magnified in the following decade, when international rules developed around the types of bullets that hand-held weapons could use. A bullet is aerodynamically designed to pass through the air with a minimum of resistance and the high rate of spin imparted to it in the gun barrel ensures its stability, so that the nose of the bullet faces forward. With a good design and solid construction and a high rate of spin, the bullet should maintain its nose-forward orientation and pass through a human body without losing too much of its energy or causing a massive wound. However, by the middle of the nineteenth century, a number of belligerents were beginning to experiment with other forms of bullets which were not so ‘clean’. For example, when the Red Cross was formed in 1863, the Spanish denounced the use of conical bullets as unnecessarily cruel. Likewise, following the development of hollow bullets which exploded, burst into flames or fragmented, Czar Alexander II (1818–81) was propelled into action. He was horrified by the wounds he heard of, and wanted the bullets that caused them banned internationally. Accordingly he called together 17 governments which were persuaded to agree that: The progress of civilisation should have the effect of alleviating as much as possible the calamities of war . . . [and that] the employment of arms which uselessly aggravate the suffering of disabled men, . . . would, therefore, be contrary to the laws of humanity.61

The Parties which adhered to the Declaration then agreed to prohibit the ‘employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable . . . [because they were] contrary to the laws of humanity’. This was achieved by ‘fix[ing] the technical limits at which the necessities of war ought to yield to the requirements of humanity’. Accordingly, projectiles for small arms of a weight below 400 grams which were either explosive or charged with fulminating or inflammable substances were prohibited in conflicts between Contracting Parties to the Declaration. Thirty-one years later, in 1899, working on the same principle of preventing the unnecessary suffering of disabled men or rendering their death inevitable, the international community also banned ‘dum-dum’ bullets. These bullets were so known 59   Nobel noted in Webster, D (1998) Aftermath: The Remnants of War (NY, Vintage) 8–9. Gatling is noted in Ellis, J (1986) The Social History of the Machine Gun (Baltimore, John Hopkins University Press) 27. 60  Palmerston, noted in Fuller, J (1972) The Conduct of War 1789–1961 (London, Methuen) 91. 61   Declaration Renouncing the Use, In Times of War, of Certain Explosive Projectiles, 18 Martens Nouveau Recueil (ser 1) 474, 138 Consol TS 297 (1968).

24  Conventional Weapons

because they were originally manufactured in an arsenal situated in Dum-Dum Bengal. The peculiarity of these bullets was that the lead core was exposed, thus making them ‘soft’ so that instead of passing through a body it expanded on impact and tore the body apart. Although the British objected, and continued to use them in ‘colonial conflicts’, arguing a prohibition ‘would favour the interests of savage nations and be against those of the more civilised’,62 the ban was nevertheless agreed. The broad principle operating in this area was first clearly articulated in the 1874 Project of an International Declaration Concerning the Laws and Customs of War. The principle was that it was forbidden to employ ‘arms, projectiles or material calculated to cause unnecessary suffering’.63 This principle was reiterated at the 1899 International Peace Conference hosted by Czar Nicolas II (1868–1918). However, a slight variation occurred at this point, which is evident when the moral impetus to prevent ‘unnecessary suffering’ overlapped with ‘the laws of humanity and the requirements of public conscience’. This change can be traced to the Preamble to the 1899 Hague Convention with Respect to the Laws and Customs of War on Land. The particular clause in the preamble took its name from a declaration read by Fyodor Fyodorovich Martens (1872–1905), the Russian delegate at the Hague Peace Conferences 1899 and was based upon his words. Specifically: Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilised nations, from the laws of humanity and the requirements of the public conscience.64

Ideals designed to help support the Martens Clause (although the actual clause was related to the debate about lawful and unlawful combatants) were also formulated in Articles 22 and 23 of the 1899 Convention. In particular, ‘the right of belligerents to adopt means of injuring the enemy is not unlimited’. In addition, it was prohibited to ‘employ arms, projectiles, or material of a nature to cause superfluous injury’. Articles 22 and 23 and the Martens Clause were reiterated in the 1907 Hague Conventions.65 Building on such principles the third Declaration from the Hague Conference of 1899 on the Use of Bullets Which Expand or Flatten Easily in the Human Body had its Contracting Parties agree (when fighting fellow Parties) to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core, or bullets which are pierced with incisions.66 The Martens Clause, and Articles 22 and 23 of the Hague Conventions, provided little restraint in the First World War, although the use of dum-dum or explosive bullets appears to have been surprisingly controlled. This was unlike the development of new types of weaponry. Aside the development of chemical weapons, as discussed in the fol  The British Admiralty, noted in Kiernan, V (1998) Colonial Empires and Armies (London, Sutton) 157.   Art 13(e). 64   Convention (II) With Respect to the Laws and Customs of War on Land, Preamble BH015. 65  Hague Convention, Arts 22 and 23. 66   Boot, M (2006) War Made New. Technology, Warfare and the Course of History (NYC, Gotham) 148; Levie, H (2000) ‘The History of the Law of War on Land’ International Review of the Red Cross 838: 339–50; Bennett, A (2006) The Geneva Convention: The Hidden Origins of the Red Cross (Gloucestershire, Sutton) 49; Kiernan, V (1998) Colonial Empires and Armies (London, Sutton) 124; Best, G (1980) Humanity in Warfare (London, Weidenfeld) 162. 62 63

Indiscriminate Injury 25

lowing chapter as weapons of mass destruction, the other weapons which were obviously causing superfluous injury to combatants were automated flame-throwers. Although these were fairly ineffective weapons, they were commonly used for the purposes of terror. While the French may have used them as early as 1914, it was the Germans who introduced them properly in 1915, before using them on a grand scale in 1916. Whenever flames appeared, panic struck lines. Even seasoned veterans were shocked by the results of flame attacks, as they viewed the victims, still sizzling and smoldering in grotesque positions. The Allies characterised the flame-thrower as an ‘inhuman projection of the German scientific mind’ and Winston Churchill (1874–1965) included flame-throwers with gas as exemplars of barbarity. However, by 1916, the French and British had their own flame-throwers, to which the German’s replied with the invention of the Flammenwefer – a very large version of the flame-thrower held as a damnable creation, on par with poison gas, at least according to prevailing opinion at the League of Nations. The Allied response was the development of the Livens Projector – a type of mortar that delivered incendiary oil in containers. Thereafter there were no further discussions about banning such weapons which burnt their victims to death as causing superfluous injury.67 5 .  Indiscriminate Injury

Mines,68 booby traps69, anti-personnel mines,70 other similar devices71 and Improvised Explosive Devices (IEDs)72 have a long lineage in the history of conflict. The practice of laying down non-explosive traps goes back to Antiquity. Early examples include Julius Caesar (100–44 BCE) deploying by the hundreds what were known as caltrops. Caltrops were spiked balls, so designed that however they rested on the ground, one 67  Hartcup, G (1988) The War of Invention: Scientific Developments 1914–1918 (NY, Brassey) 107–10; Sweeting, C (2009) ‘Flammenwerfer’ Quarterly Journal of Military History (Summer) 88–92; Glover, M (1982) The Velvet Glove. The Decline and Fall of Moderation in War (London, Hodder) 104. 68   ‘Mine’ was defined to mean any munition placed under, on or near the ground or other surface area and designed to be detonated or exploded by the presence, proximity or contact of a person or vehicle. A ‘remotely delivered mine’ meant any mine so defined delivered by artillery, rocket, mortar or similar means or dropped from an aircraft. See Art 2(1) of Protocol II (both the 1980 and 1996 versions). The 1996 version added that mines delivered from a land-based system from less than 500 metres are not considered to be ‘remotely delivered’, provided that they are used in accordance with Art 5 and other relevant Arts of the1996 Protocol. 69   ‘Booby-trap’ was defined to mean any device or material which is designed, constructed or adapted to kill or injure and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act. See Art 2(2) of Protocol II of 1980 and Art 2(5) of 1996. 70   ‘Anti-personnel mine’ was defined in 1996 to mean a mine primarily designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons. See Art 2(3). 71   This refers to manually-emplaced munitions and devices designed to kill, injure or damage and which are activated by remote control or automatically after a lapse of time. See Art 2(3) of the 1980 Protocol II and Art 2(5) of the 1996 version. 72   An IED is a homemade bomb constructed and deployed in ways other than in conventional military action. One may be constructed of conventional military explosives, such as an artillery round attached to a detonating mechanism. An IED, as a command-detonated explosive, where the user decides when to explode it, is not prohibited by international law per se, but use of such devices is often in violation of international humanitarian law, such as when civilians are directly targeted. IEDs are a popular weapon in less than conventional wars and have been used extensively from the time the United Nations entered Somalia, through to the conflicts in Afghanistan and Iraq. In the latter instance, by the end of 2007 they were responsible for approximately 40% of coalition deaths in Iraq.

26  Conventional Weapons

spike was always facing upwards. The weapons could cause appalling confusion when scattered amongst charging horses or exposed infantry. The Chinese in their attempts to slow down the advance of the Mongolians are believed to have strewn fields of hundreds of thousands of caltrops as far as 50 kilometres away from their defended areas. These non-explosive traps remained in use until, at least the end of the nineteenth century. The practice of creating explosive traps has its lineage in the practice of ‘mining’. The idea of ‘mining’ to disable an opponent, whereby one side dug underneath the defences of an opponent, and then set fire to the tunnel supports (thus trying to make walls collapse) goes back to the Ancient Egyptians. In the armies of subsequent centuries specialised troops known as ‘sappers’ (or combat engineers) developed to perform a variety of combat engineering duties. A subset of the sappers were the ‘miners’. This term arose from another task done by the sappers; in particular, the miners would dig a tunnel right up to and under the fort wall, place a charge of gunpowder and ignite it causing a tremendous explosion which would destroy the fort wall and permit the attacking infantry to defeat the enemy. An additional ingredient in this mix that ended up as the land mine was the creation of a portable explosive, placed next to the enemy and then detonated. This was known as a petard. And, of course, it is from this name that the phrase ‘hoisted with his own petard’ has come. The modern landmine has its history in all of these, namely caltrops, petards and miners.73 The first modern mechanically fused high-explosive anti-personnel landmines appears to have been created by Confederate troops in the American Civil War in 1862, although explosive booby traps date back before this. When General Rains (1803–81) planted landmines on the road to Richmond in 1862, there were objections that this should not be permitted because it was not ‘a proper method of warfare’.74 However, by 1864, landmines had become so commonplace that Henry Wheaton’s Elements of International Law edition of 1866, suggested that ‘concealed modes of extensive destruction are allowed . . . strewn over the ground before an advancing foe’.75 Despite this acceptance, landmines were not commonly used at the opposing sides in the First World War, and only came into full usage by the end of 1917. However, these landmines were relatively large and cumbersome, designed to destroy tanks rather than men. As such, they were relatively discriminate in their impacts. Accordingly, it was not perceived that there needed to be international controls in this area. This was unlike the situation with naval mines. Naval mines are self-contained explosive devices placed in water to destroy ships or submarines. Unlike depth charges, mines are deposited and left until they are triggered by the approach of or contact with an enemy ship. Naval mines can be used offensively, to hamper enemy ships or lock them into a harbour; or defensively, to protect friendly ships and create ‘safe’ zones. The problem is that such mines are not ‘smart’ and cannot distinguish between the combatant and non-combatant vessels with which they collide and explode. As such, they are remarkably indiscriminate. They are, however, a method of warfare with a very long lineage. The ancestors of naval mines were 73  Fuller, J (1945) Armaments and History (NYC, Scribner) 104; Crosby, A (2002) Throwing Fire: Projectile Technology Through History (Cambridge, Cambridge University Press) 101; Man, G (2004) Genghis Khan (London, Bantham) 137; Warner, P (2004) Sieges of the Middle Ages (Yorkshire, Pen and Sword) 40; Boatner, M (1969) The Encyclopedia of the American Revolution (NYC, McKay) 310. 74  Rains noted in Robinson, P (2006) Military Honour and the Conduct of War (London, Routledge) 124. 75   Wheaton, H (1866) Elements of International Law (Oxford, Oxford University Press) 97.

Indiscriminate Injury 27

‘fire ships’ which were vessels filled with gunpowder, set ablaze, and then floated into enemy formations. The first use of fire ships was recorded in the Roman civil war. Such weapons were again notable from 1585, where in an attempt to break the Spanish siege of Antwerp, 3,175 kilograms of gunpowder was loaded into the hold of an old hulk, named Hope, which floated towards the Spanish, before exploding against a densely packed pontoon, killing over 800 Spanish soldiers, and strewing wreckage in a circle 1.6 kilometres in diameter. Fireships did great damage to the Spanish Armada and between 1650 and 1700 the fireship was considered the most dangerous weapon afloat. One hundred years later the French perfected the art of stuffing vessels with dry wood, bundles of hay, powder kegs and barrels of tar and pitch and slow-burning fuses, to be left to drift into British defences. General Wolfe (1727–59) was so annoyed at these that he warned the French that if they continued to utilise such weapons, he would place the transports in which he held his Canadian prisoners at the points where the ‘infernal machines’ could be expected to arrive.76 By the time of the American War of Independence, naval mines were being created as independent mechanisms, separate from the old boats gutted and filled with explosives. Working versions of these were finally tested in 1775 during the American War of Independence, when David Bushnell (1742–1824) made the world’s first (unsuccessful) attacks against British warships. Although this failed, two years later he managed to float an explosive device towards a British frigate, which missed its target, and in the first example of collateral damage from mines, managed to sink a schooner anchored beyond. George Washington (1732–99) confirmed this incident, recognising the technical considerations as ‘an act of genius’, but noting ‘the consequent uncertainty of hitting the object of destination’.77 Robert Fulton (1765–1815), an American inventor, tried to sell and utilise advanced versions of floating mines to the French for their wars with the English, but his attempts were thwarted by peace breaking out. He then crossed the channel, and sold them to the British, before returning to the United States and having them utilised in their 1812 war with Britain. When British commanders were made aware of the use of such exploding devices, they made it clear that they would retaliate by sinking every ship they could find, warship or otherwise. The Chinese used flaming rafts and exploding boats, floated down river, in the Opium War with Britain in 1840. The Russians used underwater mines, detonated from the shore, in the Crimean War. Floating mines were also laid defensively by the Russians, but not tested by use, in Kiel harbour in 1848. Russian floating mines were finally exploded in anger in 1855 in the Baltic. Despite the concerns of John Quincy Adams (1767–1848) that underwater mines were ‘cowardly and no fair or honest warfare’, the American Congress was actively researching these weapons by the 1850s. Accordingly, by the time of their civil war, they were relatively well utilised as mainly wooden kegs, wired together with frictional or chemical fuses and claiming at least 29 Union ships by the end of the conflict. By the time of the Russo-Japanese War in 1904–1905, both sides were deploying large quantities of 76   Wolfe, in Fowler, W (2005) Empires at War (NYC, Walker) 190, 192; Hanson, N (2003) The Confident Hope of a Miracle. The True Story of the Spanish Armada (London, Corgi) 122–23, 423–24, 429; Lambert, A (2002) War at Sea in the Age of Sail (London, Cassell) 37, 79; Black, J (1994) European Warfare 1600–1815 (New Haven, Yale University Press) 157. 77   Washington, in Harris, B (1997) The Navy Times Book of Submarines. A Political, Social and Military History (NYC, Berkley) 28. See also 7, 13, 19, 34–35, 37.

28  Conventional Weapons

contact mines with sinkers. These weapons sunk the Russian flagship, three battleships, six cruisers, four destroyers and six smaller units. A number of merchant and fishing vessels also exploded upon impact with such devices. With such spectacular results, interest in sea mines grew exponentially.78 Following the relatively indiscriminate effects of sea mines on neutral vessels around Port Arthur in the Russo-Japanese War, the international community gathered in 1907 in the Netherlands. At this conference, there was a clear development in the 1907 Convention Relative to the Laying of Automatic Submarine Contact Mines. This Convention was ‘inspired by the principle of the freedom of sea routes’ and the ‘Desirability to restrict and regulate their employment in order to mitigate the severity of war and to ensure, as far as possible, to peaceful navigation the security to which it is entitled, despite the existence of war.’79 This remarkably progressive convention of 1907 provided three clear rules to regulate this area so as to limit the indiscriminate damage that sea mines can do. First, it was agreed that it was forbidden: ‘To lay unanchored automatic contact mines, except when they are so constructed as to become harmless one hour at most after the person who laid them ceases to control them.’80 Therefore, sea mines must ‘become harmless as soon as they have broken loose from their moorings’81 and they were not allowed to be deployed ‘with the sole object of intercepting commercial shipping’.82 Second, ‘when anchored automatic contact mines are employed, every possible precaution must be taken for the security of peaceful shipping’. As such, the belligerents (and neutrals) undertook ‘to notify the danger zones as soon as military exigencies permit’.83 Finally ‘at the close of the war, the Contracting Powers undertake to do their utmost to remove the mines which they have laid, each Power removing its own mines’.84 These rules which were largely reiterated in the 1913 Oxford Manual of the Laws of Naval War were clear that it was forbidden to lay automatic contact mines, anchored or not, in the open sea; and unanchored automatic contact mines, even if deployed in territorial waters, had to be so constructed as to become harmless within one hour after the person who laid them ceased to control them. The underlying goal was that ‘every precaution must be taken for the security of peaceful shipping’.85 The application of the 1907 rules between 1914 and 1918 left much to be desired as combinations of anchored and drifting sea mines were deployed. The British alone deployed 129,000 sea mines despite the Admiralty originally arguing that they were an underhand method of warfare, beneath the dignity of a superpower. Nevertheless, they declared the whole of the North Sea a military area, in which ships of all kinds (from merchant ships to fishing boats) would be exposed to the dangers of mines which were believed necessary to stop enemy warships. Conversely, the Germans, who 78   Griffith, M (1981) The Hidden Menace (London, Conway) 26–32, 46–49; Harris, B (1997) The Navy Times Book of Submarines. A Political, Social and Military History (NYC, Berkley) 50, 58–59, 62, 74–77, 84–87, 97; Hill, R (2000) War at Sea in the Ironclad Age (London, Cassell) 202–13. 79   Convention on Contact Mines 1907, Preamble. 80   Convention on Contact Mines 1907, Art 1. 81   Convention on Contact Mines 1907, Art 1(2). 82   Convention on Contact Mines1907, Art 2. 83   Convention on Contact Mines 1907, Art 3. 84   Convention on Contact Mines 1907, Art 5. 85   Oxford Manual 1913, Art 23.

After the First World War 29

deployed 44,000 sea mines, had no such qualms, seeing them as a weapon which could even up the odds against a stronger opponent. In this regard, they were partly correct, as their mines sank a total of eight battleships, two armoured cruisers, two light cruisers, 44 destroyers and 207 merchant ships. In total throughout the entire conflict, more vessels were lost to mines than to combat.86 6 .  After the First World War

When the bloodshed of the First World War ended, it was envisaged that disarmament would be a key component of both the Treaty of Versailles and the new League of Nations. This ideal was clearly articulated by President Woodrow Wilson (1856–1924), who in setting out his Fourteen Points for Peace document advocated, inter alia: ‘Adequate guarantees [will be] given and taken that national armaments will be reduced to the lowest point consistent with national security.’87 When the conflict finally ended, the first step of this vision was the forced reduction of armaments imposed upon the losers of the conflict. However, these forced reductions which were given in the Treaty of Versailles were only one step of a much bigger programme. In this regard, Article 8 of Covenant of the League88 recognised that arms control had to be done in three parts. The first part was the clarity that ‘the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of inter­national obligations’. In this regard, the Council promised to ‘formulate plans for such reduction’. Linked to this point, the Covenant also recognised that an ‘interchange [of] full and frank information as to the scale of their armaments, their military, naval and air programs and the condition of such of their industries as are adaptable to war-like purposes’ was required in an effort to build transparency in this area. Finally, the Members of the League agreed ‘that the manufacture by private enterprise of munitions and implements of war is open to grave objections’. Thus the Council promised to ‘advise how the evil effects attendant upon such manufacture can be prevented’. Exactly how the delegations came to agree on this drastic condemnation was later much debated, but the ‘grave objections’ stood enshrined in the Covenant. Moreover, in the following two decades, the League spent more time and effort on disarmament than any other subject under its auspice. A.  Forced Arms Reductions

The prohibition of an arms trade in League mandated territories, or the building of fortifications in these areas was set down in the Covenant89 and these objectives were followed through (and clearly spelt out) with specific mandates for the acquired areas.90 86  See Letter of British Foreign Office, Naval War College, (1945) International Law Documents (Washington, Government Printer) 52; Tucker, S (1996) The European Powers in the First World War (NY, Garland) 301, 492; Griffith, M (1981) The Hidden Menace (London, Conway) 37, 47, 52. 87  Wilson’s Fourteen Points in Birley, R (ed) (1944) Speeches and Documents in American History, Vol IV (Oxford, Oxford University Press) 38, 39. 88  Hudson, R (ed) (1950) International Legislation: 1919–1921, Vol I (NY, Oceana) 1. 89   Covenant, Arts 22–23. 90  See the Mandates for the Pacific, South West Africa, Togoland, the Cameroons and East Africa, in Hudson, R (ed) (1950) International Legislation: 1919–1921, Vol I (NY, Oceana) 44–56.

30  Conventional Weapons

The accompanying Treaty of Versailles, which was signed at exactly the same time as the Covenant, saw itself as part of an order on ‘a general limitation of the armaments of all nations’. Compliance with the associated provisions was overseen by special ‘Inter-Allied Commissions’. These were the first ever commissions created under international law designed to ensure compliance with armament controls. The Commissions were ‘entitled as often as they think desirable to proceed to any point whatever in German territory’.91 The Versailles treaty imposed a number of arms restrictions on Germany but not the victorious Allies. Following detailed rules, maximum numbers of machine guns, trench mortars, rifles and ammunition were all set down. Overall munitions and their storage locations were set down, as were restrictions on their manufacture. Anything in excess had to be surrendered and the importation of arms of every kind was strictly prohibited. The manufacture or importation of poison gases, tanks, armoured cars or the like were all expressly prohibited.92 The German air force, apart from 100 flying seaplanes, had to be totally surrendered to the Allies.93 In terms of naval weapons, Germany was restricted to six battleships, six light cruisers, 12 destroyers and 12 torpedo boats. Specifically, ‘no submarines are to be included’.94 That is, all submarines, submarine salvage vessels and submarine docks had to be handed over to the Allies or destroyed. Thereafter, the construction or acquisition of any submarine, even for commercial purposes, was forbidden in Germany.95 German minesweepers were also to be controlled by the Allies. Excess warships were to be surrendered and a number of battleships and light cruisers which were specific­ ally named had to be delivered to the Allies. Work on warships under construction had to halt and a number of excess vessels had to be converted into merchant ships. Germany was forbidden to build or purchase new warships above the limits of 6,000 tons for light cruisers, 800 tons for destroyers and 200 tons for torpedo boats. Large armoured ships were limited to 10,000 tons. However, as these were limited by weight and not gun calibre, the Germans went on to launch in 1931, what was known as ‘pocket battleships’ which came to encompass the Deutschland, the Admiral Scheer, and the Graf Spee.96 These novel 10,000 ton vessels which were designed to be in accordance with the Treaty of Versailles, employed diesel motors that gave them greater cruising ranges, and more firepower, than traditional Cruisers. The French, and then the Italians, responded in kind, both developing variations of pocket battleships, which were seen as lawful within the wording of the arms control treaties (that evolved in the 1920s) but pushing the boundaries of the intention of these agreements. B.  The Naval Conventions

Between the First and Second World Wars, there were five major international conferences on the naval arms race and general disarmament. The focus on naval weapons   Versailles, Art 205. See also Arts 203–210.   Versailles, Arts 164–170. 93   Versailles, Arts 198, 200,and 202. 94   Versailles, Art 181. 95   Versailles, Arts 188 and 191. 96   Versailles, Arts 182, 184–186 and 190. Ireland, B (2002) War at Sea: 1914–45 (London, Cassell) 121. 91 92

After the First World War 31

was because of a well-entrenched belief that the build-up of these weapons, and the so-called naval arms race between Germany and Britain prior to 1914, was a root cause of the conflict that followed. At this point of history, the failure to conclude an international agreement restricting the growth of these weapons was believed to have led to an enhanced arms race and the creation of a series of military alliances from which countries sought security, such as the Entente Cordiale of 1904 between France and Britain. This relationship followed, as noted above, the failures at the Hague Conferences in 1899 and 1907 to take the matter of arms control seriously. Moreover, as tensions started to rise in Europe, the naval expenditure of the superpowers, on average, more than doubled between 1900 and 1913. This was forecast to grow rapidly. For example, whereas HMS Dreadnought had 12 inch guns, the Queen Elizabeth had 15 inch guns, was significantly faster, and was driven by oil rather than coal. This battleship of 1913 also cost 60 per cent more than its predecessor of 1909. These costs were so great that in 1913 Winston Churchill attempted to negotiate a ‘one year naval holiday’ with Germany, whereby both sides would agree to have a one year moratorium on their naval programmes. However this proposal, like the earlier ones, was without success. As such, there were no bilateral, much less multilateral, attempts to control the build-up of naval weapons or the international flow of such weaponry, with restrictions only becoming operative, on a unilateral basis, when it was felt that a weapons transfer was not in the national interest, such as when the largest dreadnought in the world, being built for Turkey by Britain, was impounded at the last minute, just after the First World War broke out.97 Due to such a background of concern, international conferences on trying to prevent another naval arms race were held in 1921–22, 1927, 1930, 1932 and 1936. In addition, there was one bi-lateral conference between Great Britain and Germany in 1935. The key signatories of the international conferences were the principal allies of the First World War, being the United States, France, Great Britain, Italy and Japan. The Soviet Union was not invited to the 1921–22 conference, which was the first mutual disarmament conference in history. Moreover, even if they had been invited, it was unlikely that they would have adhered to any standards in this area. This can be asserted following the comments of Vladimir Lenin (1870–1924) following the punitive treaty they had signed with Germany in 1918. Specifically: The war has taught us much . . . especially the fact that those who have the best technology, organization, discipline and best machines emerge on top; it is this the war has taught us. It is essential to learn that without machines, without discipline, it is impossible to live in modern society. It is necessary to master the highest technology or to be crushed.98

Despite the absence of the nascent Soviet Union, the other Parties to the 1922 Conference agreed to limit their respective naval armament with regards to battleships and aircraft carriers. The details of what ships could be completed, scrapped or 97  Stevenson, D (1999) Armaments and the Coming of War, Europe 1904–1914 (Oxford, Oxford University Press) 6–7, 27. Padfield, P (1974) The Great Naval Race: Anglo-German Naval Rivalry, 1900–1914 (NYC, McKay) 23–35, 58–73, 89, 90, 110–15; Hill, R (2000) War at Sea in the Ironclad Age (London, Cassell) 66–67, 187–89; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 79–85; Milton, G (2008) Paradise Lost. Smyrna 1922: The Destruction of Islam’s City of Tolerance (London, Sceptre) 56–57. 98   Lenin quoted in Maiolo, J (2010) Cry Havoc. The Arms Race and the Second World War (London, Murray) 8–9.

32  Conventional Weapons

otherwise dealt with (in details down to the naming of each ship which the signatories could retain) were set out in the convention. Moreover, they agreed to abandon their capital ship building programmes, with no new capital ships being constructed except to replace the listed total tonnage, as agreed for the various signatories. The differentiated total tonnage limits were 525,000 tons for the United States; 525,000 tons for the British Empire; 175,000 tons for France; 175,000 tons for Italy; and 315,000 tons for Japan. Individual replacements were limited to 35,000 tons and 16-inch guns.99 Aircraft carriers were subject to the same ratio as capital ships, with the two largest fleets being allowed 135,000 tons, Japan 81,000 and France and Italy both allotted 60,000 tons apiece. Individual new carriers started to proliferate quickly in the 1920s. The Japanese completing the first one, the Hosho, in the same year the Washington conference was concluded, with a further six by the middle of 1939, by skirting around the rules of what was permissible, despite being limited to 27,000 tons each and armament limits, in terms of not having guns larger than a caliber of 8 inches. Similarly, the Treaty obliged all of its Parties not to build any ‘vessel of war’ exceeding 10,000 tons and/or with armaments greater than 8 inches in calibre. Rules for the scrapping of warships that were not within the total tonnage were set down. The importance of not assisting non-signatories (by either purchasing warships from them, or building them for them) to the conferences was also made clear.100 As soon as the 1922 principles had been agreed, some of the signatories sought to bolster other parts of their navies by concentrating on the construction of so-called ‘treaty cruisers’ (vessels sitting on 10,000 tons of weight and with 8 inch guns), sub­ marines, destroyers and other smaller vessels. By 1926, Britain had 54 cruisers in service, under construction or funded, Japan had 25 and the United States possessed 15 such vessels. Accordingly, the United States tried to extend arms control to these ‘smaller’ vessels the following year in 1927. However, Italy and France refused to attend the arms control conference, and Britain and the United States could not agree on suitable restrictions. Accordingly, the conference was a failure. Three years later in 1930, limits (in terms of tonnage numbers and armaments) for the ‘smaller’ vessels were agreed for the United States, Britain and Japan. However, Italy and France refused to adhere to the standards set, with the latter explaining that the obligations of disarmament in the League were always conditional on ‘national safety and enforcement by common action of international obligations’, of which France felt cautious.101 For the other superpowers, limits were agreed for cruisers (which were divided into heavy cruisers, with guns over 6.1 inches, and light cruisers, with guns under 6.1 inches). Total limits for heavy cruisers were set at 146,800 tons for Britain, 180,000 for the United States and 108,400 for Japan. The maximum numbers of heavy cruisers were set at 18 for America, 15 for Britain, and 12 for Japan. Destroyers were set at 150,000 tons for Britain and the United States, whilst Japan was allocated 105,500 tons. Parity was agreed for submarines for all three countries (52,700 tons). Rules for the scrapping of surplus warships, along with a clear list of which ships this   1922 Naval Disarmament Conference, Arts I–III, V, VI, X and XII. See also chapter two, parts 1 and

99

3.

100   1922 Naval Disarmament Conference, Arts XVI and XVIII. See also chapter 2, part II; Ireland, B (2002) War at Sea: 1914–45 (London, Cassell) 126–27, 184. 101   The French Memorandum on Disarmament in Keith, K (ed) (1952) International Affairs 1918–1937 (Oxford, Oxford University Press) 226.

After the First World War 33

was to encompass, were clearly set down (as it had been for battleships in 1922). Of note, in 1930 it was agreed that, rather than destruction, certain vessels could be retained for ‘experimental purposes’, ‘special vessels’ and training purposes which were not counted in the overall tonnage regime (although they still had their own limits). Some limits on what vessels (over 10,000 tons) could be converted to aircraft carriers were agreed.102 Finally, it was agreed that if one of the signatories was involved in a war, and they were materially affected by the construction of new vessels by another country, they could revise their own limits (but they had to notify the other signatories that they were going to suspend their obligations).103 From this point on, success in controlling the naval arms race was increasingly elusive. Joseph Stalin (1878–1953) would insightfully note in 1932: It is quite understandable that in this situation so-called pacifism is living its last days, that the League of Nations is rotting alive, that ‘disarmament schemes’ come to nothing, while conferences for the reduction of naval armaments become transformed into conferences for renewing and enlarging navies.104

Stalin’s assessment was soon borne out by two developments. First, in March 1933, Japan left the League of Nations following the League’s condemnation of the Japanese aggression in Manchuria. Soon after, Japan announced its intention to withdraw from its 1922 and 1930 commitments at the point they were meant to expire in 1936. This coincided with a massive jump in their budgetary allocation for military purposes, that would climb steadily towards the Second World War. As such, Japan started planning, and would eventually build, its Yamato class of battleship which weighed in at 73,000 tons and carried the largest naval artillery ever fitted to a warship, with nine 18.1 inch naval guns, each capable of firing 1,360 kilogram shells over 42 kilometres. Four of these ships, which were way in excess of anything permitted under the international agreements of the age, entered into military service at the end of 1941. Secondly, Germany managed to convince the international community that it should be freed from the Versailles commitments. In particular, a few months after both France and the United Kingdom had denounced the unilateral rearmament effort of Germany, the 1935 Anglo/German Naval Agreement allowed Germany to pursue a degree of rearmament. This concluded that ‘the future strength of the German navy in relation to the aggregate naval strength of the Members of the British Commonwealth of Nations should be in the proportion of 35:100’ relative to each class of vessel.105 The 1935 Agreement also allowed the build-up of German submarine forces, but only to the level of 45 per cent of the total possessed by the Members of the British Commonwealth of Nations.106 This treaty concluded that should this be upset violently by any abnormal or exceptional construction by other Powers, the German Government reserved the right to invite His Majesty’s Government in the United Kingdom to examine the new situation thus created.107 With such an agreement, the German government authorised the building of the Bismark and the Tirpitz, of which   Naval Disarmament Conference 1930, Arts 2–4, 8, 11, 15 and 20.   Naval Disarmament Conference 1930, Art 21. London Conference of 1936, Art 24. 104  Stalin noted in Maiolo, J (2010) Cry Havoc. The Arms Race and the Second World War (London, Murray) 170. 105   Anglo/German Agreement 1935 at Arts 1 and 2a. 106   Anglo/German Agreement 1935, at [2f]. 107   Anglo/German Agreement 1935 at Arts 2(c) and 2(f). 102 103

34  Conventional Weapons

work began in 1936. These ships were the largest warships built by the German navy and the heaviest capital ships ever completed in Europe. The Second Naval Treaty was signed in 1936. Although some countries, such as Britain, had clearly begun rearming at this point, the international community regathered in London in an attempt to control the rapidly escalating military build-ups.108 The success of this meeting was the Second Naval Treaty, which was signed by the governments of France, the United Kingdom, and the United States of America. In theory, this treaty created a duty to publish all building plans in advance, upper limits on the size of all ships, and a ban on ‘freaks’ such as the new ‘pocket’ battleships, which managed to slip between the earlier commitments. The only problem was that Japan, Italy and Germany did not sign this treaty. As such, the future Allies of the Second World War were largely negotiating with themselves. The absence of Japan prevented agreement on a ceiling on the numbers of warships. The treaty did limit the maximum size of the signatories’ ships, and the calibre of the guns which they could carry. First of all, capital ships were restricted to 36,000 tons and 14-inch guns. However, a so-called ‘escalator clause’ was included at the urging of American negotiators in case all of the countries that had signed the Washington Naval Treaty refused to adhere to this new limit. This provision allowed the signatory countries of the Second London Treaty, namely, France, the United Kingdom and the United States, to raise the limit from 14-inch guns to 16-inch guns if Japan or Italy still refused to sign after the middle of 1937. Germany also took advantage of this escalator clause, increasing the size of both the Bismark and Tirpitz which were, at this point, under construction. Submarines were limited to 2,000 tons and gun armaments no greater than 5.1 inches, light cruisers were 8,000 tons with guns no bigger than 6.1 inches and aircraft carriers were restricted to 23,000 tons.109 Notification and the sharing of information about compliance with the treaty, in terms of what each Party was making or disposing of were heightened, as was the earlier obligation (from 1922) not to purchase warships from or build any for, countries which were non-signatories to the treaty.110 The 1936 treaty added that any party had the clear right to depart from the obligations if they deemed it ‘necessary in order to meet the requirements of his national security’.111 Finally, Article 25 gave the right to depart from limitations if any other country authorised, constructed or acquired a capital ship, an aircraft carrier or a submarine exceeding treaty limits, if such a departure would be necessary for national security. In 1937 the British government entered into agreements with the governments of the Soviet Union and Germany along the lines of the 1936 Agreement. However, these were all short lived. In 1938 the United States and Britain notified the Parties to the 1936 Treaty of their intention to affect a departure from the limitations and restrictions of that treaty, and to exercise a right of escalation as reserved in Article 25. The core idea was that, although the maximum size of guns (16 inches) remained the same, the total displacement figure for capital ships went from 35,000 to 45,000 tons. Analogous modifications were made by Germany and the Soviet Union.112 In April 108   British Rearmament, Statement by the Prime Minister in Keith, K (ed) International Affairs, Vol II (Oxford, Oxford University Press) 33. 109   London Conference 1936, Arts 1–6. 110   London Conference 1936, Arts 11–22. 111   London Conference 1936, Art 25. See also Art 26. 112  Protocol Fixing a New Displacement Limitation for Capital Ships 1938 in Hudson, R (ed) (1950) International Legislation: 1935–1937, Vol VII (NY, Oceana) 288.

After the First World War 35

1939 the Germans abrogated their 1935 Agreement, and the British responded in kind with the full mobilisation of the British navy in August of 1939. The 1936 Treaty effectively ended on 1 September 1939 with the beginning of the Second World War. C.  Controlling the Arms Trade

The control of the manufacture of weaponry and its flow into the international sphere was, as the Covenant of the League of Nations noted, a problem which had to be confronted. The Covenant had ‘grave objections’ with regards to ‘the manufacture by private enterprise of munitions and implements of war’. This was due to a belief that this industry had been active in creating war-scares and in persuading countries to adopt warlike policies, through a combination of bribery, false reports and undue influence on public opinion. However, exactly how far the victors were willing to go, even at this initial stage, especially in terms of arms transfers authorised by the State as opposed to private transfers, is a matter of debate. The best example of this was with the Allies flooding in weapons to the White Armies in the Russian Civil War, whilst their diplomats drew up documents in the language of arms control for the new League. Around 500,000 rifles, 6,000 machine guns, 400 field guns, 168 aircraft and even 60 British tanks were provided to the forces fighting the Soviets.113 Skepticism aside, in some areas of the new League some strong efforts were made to control the international flow of weapons. In this regard, the basic ideals of the 1890 measures were reflected in the 1919 Convention on the Control of Trade in Arms and Ammunition114 which set about trying to establish more elaborate measures to stem and control the flow of arms and ammunition into Africa. Basically, the importation of all weapons and ammunition was prohibited, unless the trade was in accordance with a number of prerequisites, which included being legal, going through pre-established approval processes and tightly controlling the weapons and ammunition when in the restricted zones. Despite initial enthusiasm, the 1919 Convention did not acquire sufficient ratifications, and accordingly a further conference was held from which the 1925 Convention on the Supervision of International Trade in Arms and Ammunition and in the Implements of War was concluded.115 The objective of the 1925 Convention was the creation of an effective system of supervision and publicity on the inter­national trade in armaments. The Convention, which covered everything from gunpowder and bayonets to tanks and aircraft, was built around the same premise as the 1919 Convention; namely that trade would not occur unless it was legal and had followed certain pre-arranged processes (to guarantee its authenticity and safety). The primary difference from the 1919 Convention was that now the exporters of arms were obliged to regularly publicise detailed information about what they were exporting, when and to whom, unless certain exceptions applied, such as when they were at war.116 113  Mawdsley, E (2000) The Russian Civil War (Edinburgh, Birlinn) 144, 167; Bullock, D (2008) The Russian Civil War (London, Osprey) 64. 114   Convention on the Control of Trade in Arms and Ammunition British Treaty Series, No 12 (1919) Cmd 414; Also in Hudson, R (ed) (1950) International Legislation: 1919–1921, Vol I (NY, Oceana) 322. 115  Convention on the Supervision of International Trade in Arms and Ammunition and in the Implements of War 1925 in Hudson, R (ed) (1950) International Legislation: 1925–27, Vol III (NY, Oceana) 1634. 116   Arts 6 and 29.

36  Conventional Weapons

As with its 1919 predecessor, the 1925 successor also did not enter into force. The same fate of never entering into force also befell the 1937 Convention for the Prevention and Punishment of Terrorism, which had intended to make it a criminal offence to sell or distribute weapons (with the exception of sporting guns) or explosives in nonaccordance with domestic legislation. It also required all manufacturers of firearms (except sporting guns) to have a serial number or distinctive identification mark on all the guns they made, along with a register of all sales they completed. Although this plan did not come into force, the international community was to take it much more seriously 80 years later in the twenty-first century.117 The other area where substantive arms control was discussed was between 1932 and 1934 at the Conference for the Reduction and Limitation of Armaments which sat in Geneva. In theory, this should have been a success, as Britain, France, Germany and Italy formally committed themselves to ensuring the success of the disarmament conferences. The United States was strongly committed to the importance of disarmament, and the Soviet Union was invited to attend.118 The Soviets were invited because it was they, in early 1928 who had sent to the League of Nations a draft convention proposing the ‘general and complete abolition of all armed forces’.119 The eventual conference, which covered a vast array of topics, went so far as to see proposals from both Britain and the United States for the abolition of bombers, tanks and heavy guns. Other initiatives called for cuts in navies by up to a third and the complete abolition of aircraft carriers. However, all of these initiatives came to nothing, and in October 1933, Germany left the conference on disarmament. Adolf Hitler (1889–1945) justified this act because ‘other governments could not decide to redeem the pledges signed by them in the [Versailles] Peace Treaty and this deliberate refusal of real moral and material equality of rights to Germany . . . has been profoundly humiliat[ing]’.120 Hitler, although secretly supporting the rearmament campaign for Germany in early 1933 (which had begun in 1928) publically maintained that the German State was willing to disarm ‘down to the last gun and the last machine gun’ if all other nations participated in an equal and verifiable way. Following through, the German government in 1935 proposed an ‘Air Pact’ which would have restricted, on an equal basis, the number of airplanes in air forces, as well as introducing international conventions abolishing and prohibiting the heaviest types of artillery and tanks.121 In the end, the negotiations that began in 1932 came to nothing, as disarmament became a game of convincing others to disarm in a way that was most helpful to one’s own defence. At base, the quagmire over the failure of collective security in Europe, supplemented by a resurgent Germany, meant that by the middle of 1934 the conference was at an end. Benito Mussolini (1883–1945) summarised the demise of the conference in the following terms: 117   Convention for the Prevention and Punishment of Terrorism 1937, Art 13 in Hudson, R (ed) (1950) International Legislation: 1935–37, Vol VII (NY, Oceana) 862. 118  See the Agreement on Understanding and Cooperation 1933, Art 3 in Keith, K (ed) International Affairs, 1918–1937, Vol I (Oxford, Oxford University Press) 232. 119  See Maiolo, J (2010) Cry Havoc. The Arms Race and the Second World War (London, Murray) 75. 120  See Hitler’s Proclamation to the German Nation 1933 and his Memorandum Communicated to the French Ambassador, both in Keith, K (ed) International Affairs, 1918–1937, Vol I (Oxford, Oxford University Press) 232, 285. 121   Negotiations for an Air Pact and The Peace Plan of the German Government, in Keith, K (ed) International Affairs (Oxford, Oxford University Press) Vol I 285; Vol II 128, 143; Also, Kershaw, I (2008) Hitler (London, Allen) 265, 296–300.

After the First World War 37 The States that are now armed will not disarm, whilst those that are not armed will be able to arm themselves to a greater or lesser degree for defensive purposes . . . If the armed States refuse to disarm, they will not be abiding by the fifth section of the Versailles Treaty, and they cannot logically oppose the practical application of that parity of rights which was recognised for Germany . . . it is a pure illusion . . . to pretend that a people like the Germans can be kept eternally disarmed.122

The following year after the Geneva conference collapsed, Hitler told his generals to ‘rearm and get ready’ as fast as they could, as he increased the German military budget even more. He then went on to place emphasis on the assertion that ‘the extent of the military development of our resources cannot be too large, nor its pace too swift’. Neville Chamberlain (1869–1940) would add the following year ‘some people say there is a world conscience which is the League of Nations, whose part it is to preserve the peace of the world, but I prefer to rely on guns’. When Chamberlain’s determination resulted in a fresh spurt of arms production, the Führer was not concerned. He simply noted ‘we will arm even more’.123 This arms race would continue to escalate until the outbreak of the Second World War, at which point, the spending on weaponry was more than three times greater than that at the outbreak of the First World War.124 Before the Second World War broke out the cumulative result of all of these movements and the sudden escalation of the arms race was, inter alia, a lack of a comprehensive global oversight of the international flow of weapons. Rather, it was up to each country, and at times, the international community, to examine each situation of conflict in turn to see how they should respond to the flow of weaponry. The response of the British, who were the largest armourers in the world at this point, to these questions, was to hold a Royal Commission in 1935 into the private manufacture of arms. This followed the Senate of the United States having hearings in 1934 into the activities of their private munitions companies. The Commission did not accept that the arms industry was more dangerous than others or that the companies had fomented war scares or unduly influenced the press. They concluded unanimously that ‘the reasons for maintaining the private industry outweigh those for its abolition’.125 The Commission insisted that the only effective remedy against the dangers of the arms trade was in international agreement, and also, that nationalisation of the munitions industry, or at least, the effective oversight of the industry was desirable. The United States Senate agreed on this last ground. In some instances, international agreement to control the flow of arms into war zones was possible, such as with the Chaco War between Bolivia and Paraguay in 1932 to 1935. In this instance, the members of the League of Nations agreed on an embargo on arms sales to both countries. This was after both American and British arms companies had been involved in actively exploiting this new market, whilst German and Austrian officers demonstrated how to use them in the front lines.126 In other instances, a type of international agreement was possible, but it was not comprehensive enough.  Mussolini in Delzell, C (ed) (1970) Mediterranean Fascism 1919–1945 (NYC, Harper) 188.   All of these quotations of Hitler and Chamberlain are in Maiolo, J (2010) Cry Havoc. The Arms Race and the Second World War (London, Murray) 129, 142, 192. 124  Maiolo, J (2010) Cry Havoc. The Arms Race and the Second World War (London, Murray) 249. 125  Royal Commission on the Private Manufacture of and Trade in Arms 1936 (London, HMSO) 36. 126  See, Corum, J (2009) ‘Battle in the Barrens’ Quarterly Journal of Military History (Summer) 52, 63; Sampson, A (1977) The Arms Bazaar (NYC, Viking) 72–73, 85–86. 122 123

38  Conventional Weapons

For example, following Mussolini’s invasion of Ethiopia, the League of Nations agreed that, in accordance with the Covenant, they would all ‘prohibit immediately the exportation, re-exportation, or transit to Italy or Italian possessions of arms, munitions, and implements of war enumerated in the attached list’.127 The problem was that this arms embargo was defeated by two factors. First, Italy was striving to be self-sufficient in armaments. Secondly, Hitler offered Mussolini the supplies that were prohibited by the embargo, in return for a secret agreement on Austria, whereby the Duce would not object to it falling into Germany’s orbit, nor to the remilitarisation of the Rhineland when it would come. The type of subversion of international intentions was made clear with the Spanish Civil war. In this conflict, every type of military equipment came from abroad and imports accounted for about 90 per cent of the Republic’s supply. In 1936 alone, 150 aircraft were provided from France and between 700 and 1,000 fighter planes from the Soviet Union. This was in addition to, inter alia, 1,200 armoured vehicles, 1,500 field guns, 4 million shells, 15,000 machine guns, 30,000 automatic firearms, 30,000 mortars, 500,000 riles and 30,000 tons of ammunition. On the opposite side, Germany and Italy provided the essential aircraft to transport the Spanish Foreign Legion and Moorish troops from Morocco, in addition to ships, artillery, tanks and thousands of hand-held weapons.128 All of the major suppliers could see that they were each fuelling a conflict which would, ultimately, become the Second World War, as many of the future belligerents were fighting by proxy. However, at this point of history, for many of the future belligerents, it was not a suitable time to allow this conflict to escalate. Accordingly, they collectively agreed to form a ‘Non-Intervention Committee’, replete with its own Observer Patrols, to ensure compliance with the principle of not providing either weapons or troops to a warring side. The goal was to prevent the conflict spreading into an international war. The goal was not, in theory, to support one party over another. The obvious difficulty this created was that, because both sides were being treated equally (Italy, Portugal and Germany recognised the fascist government of Franco), the lawfully elected government was not given the right to defend itself through the acquisition of weapons from outside. Moreover, Germany, Portugal and Italy had the intention of only stopping the flow of military aid to the Republican side, not stopping their own flows, which they continued to allow illicitly. The Committee, fearing the risks of escalation of the war, continued to turn a blind eye to this illicit flow. The American Ambassador to Spain called the Committee ‘the most cynical and lamentably dishonest group that history has known’ due to its unwillingness to condemn and stop the flow of military aid. The end result of this failure was the military defeat of the Republican government due to a largely one-sided arms embargo. Lloyd George (1863–1945) retrospectively denounced this scheme as, ‘the greatest and basest fraud and deception perpetuated by great nations on a weak people’.129 Generally, international agreement was not possible and it fell to the individual discretion of the interested countries as to whether or not they would supply military 127   League sanctions against Italy of 19 October 1935 in Delzell, C (ed) (1970) Mediterranean Fascism 1919–1945 (NYC, Harper) 194–95. 128   Beevor, A (1982) The Spanish Civil War (London, Cassell) 164–65, 329. 129   George noted in Padelford, N (1939) International Law and Diplomacy in the Spanish Civil Strife (London, Brown) App 1; Beevor, A (1982) The Spanish Civil War (London, Cassell) 158–59, 175, 362–63.

After the First World War 39

hardware to any of the belligerents. In some places, such as the United States, a succession of Neutrality Acts (which built on the Senate inquiries into the arms industry and the need to control this flow of weaponry from private manufacturers) in 1935, 1936, 1937 and 1939 sought to impose arms embargoes upon foreign countries which were at war – irrespective of who the aggressor was. For example, section 1 of the 1937 Act stipulated: Whenever the President shall find that there exists a state of war between, or among, two or more foreign States, the President shall proclaim such fact, and it shall thereafter be unlawful to export, or attempt to export, or cause to be exported, arms, ammunition, or implements of war from any place in the United States to any belligerent State named in such proclamation.130

These were the first modern American efforts to limit the free trade in weaponry, and were directly related to attempts to not get drawn into the conflicts that were beginning to emerge with a number of European countries. Although they did not give the government the power to prohibit the trade in weapons in times of peace, it appeared to be a step forward in that it prevented the trade in weapons in times of war. The success of these Acts was often dependent upon the timing of exports, with countries that were preparing for, but not actively involved in, conflict. Thus, in the year the first Act was passed, American industries managed to export arms to China, Chile and Germany (the latter buying ‘non-military’ aircraft, revolvers and ammunition at this point from the United States). The year before, the Germans had obtained 400 tanks from France, disguised by shipping the tanks through the Netherlands, as well as 60 planes from Vickers, the British weapons-maker. The Germans also developed weapons, in conjunction with the new Soviet Union, until Hitler ended the relationship with the Soviets in 1935. Two years later, before their war with China re-ignited, Japan had placed orders for Lockheed Model 14 transport bombers, of which more than 200 more were built under license in Japan before Lockheed stopped selling to them in the middle of 1939. Earlier in 1931, British manufacturers managed to sell the same weapons to both Japan and China. In addition, sometimes the manufacturers themselves, were duped. For example, in the early 1920s Soviet technical missions sent abroad managed to purchase some prototypes of French, American and British modern light tanks. Within 10 years, Stalin was watching over 10,000 of these copies rumble past Red Square.131 At other times, when countries were clearly in conflict, such as with the Spanish Civil War, the United States, whilst not allowing weapons to be exported, allowed Franco’s forces to receive 350,000 tons of oil (more than double that taken by the Republic). Also, Ford, Studebaker and General Motors provided 12,000 trucks to the Nationalists, nearly three times as many as the Axis powers, and DuPont provided 40,000 bombs, sending them via Germany to avoid the Neutrality Act.132 Although Spain fell due, in part, to an arms embargo, the United States learnt from the mistake and when war came to Europe, Franklin D Roosevelt (1882–1945) signed 130   Neutrality Act 1937 in Birley, R (ed) (1944) Speeches and Documents in American History, Vol IV (Oxford, Oxford University Press) 210, 211. 131  Maiolo, J (2010) Cry Havoc. The Arms Race and the Second World War (London, Murray) 18–19. 132   Baker, N (2008) Human Smoke (London, Simon & Schuster) 48–49, 60, 63, 85, 124; Beevor, A (1982) The Spanish Civil War (London, Cassell) 166–67.

40  Conventional Weapons

a new Neutrality Act that repealed the arms embargo on countries at war and allowed ‘cash and carry’ sales of weaponry. This arms trade was fundamental to the successes of Britain, the Soviet Union and China in the Second World War. This followed the British retreat from Dunkirk, when Churchill announced to Roosevelt the loss of 11 British destroyers in 10 days. Roosevelt responded promptly, transferring 50 near obsolete destroyers to England, in return for 99 year leases on bases in the Caribbean and western Atlantic. Although Roosevelt managed to bypass Congress by certifying the ships as inessential to the national defence of the United States, even Churchill conceded that this act would have justified a German war declaration. Nevertheless, Roosevelt continued on this path and at the end of 1940, he proclaimed ‘we must be the great arsenal of democracy’ and promptly dispatched 12 merchant freighters loaded with arms, including 93 bombers, 184 tanks, 500,000 rifles, 76,000 machine guns and over 100 million rounds of ammunition under the first stages of what was known as the Lend-Lease Act of 1941. This Act nullified the main provisions of the earlier Neutrality Acts and conferred unprecedented powers on the President to lend, lease, sell or trade war supplies to any country whose defence he thought was vital to the safety of the United States. This Act was supplemented with the Lend-Lease Agreement of 1942. Article 1 stipulated: The Government of the United States of America will continue to supply the Government of the United Kingdom with such defence articles, defence services, and defence information as the President shall authorize to be transferred or provided.133

Whilst the former Russia had been recipient of some five million tons of equipment in the First World War from Britain and the other Allies, the lend-lease Agreements of the 1940s ensured Britain, the Soviet Union and China were all net beneficiaries of a strong arms trade. Net grants from the United States totaled 5.4 billion pounds between 1941 and 1945, or about nine per cent of British gross national product – or roughly a quarter of all British munitions. All told, Stalin received military supplies worth 93 billion roubles, being about four to eight per cent of the Soviet net material support. In terms of direct support in the trade in weapons or weapon-related supplies, around 58 per cent of Soviet aviation fuel came from America, 53 per cent of all explosives and nearly half of all their copper, aluminum and tyres.134 The American material in the Soviet Union was supplemented by that provided from Britain, which under their 1942 Treaty of Alliance with the Soviet Union, promised to provide: ‘military and other assistance and support of all kinds in the war against Germany’.135 In time, as Soviet strength would grow, they would be the ones providing weaponry to their other allies, such as (duplicitly enough) the Nationalist government of China.136 Such support for the Nationalist government of China was largely denied by the United States until the Japanese attack on Pearl Harbour at the end of 133   The Lend-Lease Agreement in Axelrod, A (ed) Encyclopedia of Historical Treaties and Alliances, Vol II (NYC, Facts on File) 631. 134   Vandiver, F (2003) 1001 Things Everyone Should Know About World War II (NYC, Broadway) 15–17, 40, 43; Ferguson, N (2006) The War of the World (London, Allen Lane) 528–29; Burleigh, M (2010) Moral Combat. A History of World War II (London, Harper) 181. 135   Treaty of Alliance Between the Soviet Union and Britain 1942, Art 1 in Axelrod, A (ed) Encyclopedia of Historical Treaties and Alliances, Vol II (NYC, Facts on File) 600. 136  See the Exchange of Notes, Art 1 of the Treaty of Friendship and Alliance Between the Soviet Union and China 1945 in Axelrod, A (ed) Encyclopedia of Historical Treaties and Alliances, Vol II (NYC, Facts on File) 610.

After the First World War 41

1941. However, before this point Roosevelt was utilising exceptions to provide China with small amounts of military hardware. For example, at the end of 1940, he approved a Chinese credit of US$25 million for military aid, of which 100 P-40 fighter aircraft were immediately ordered for the forming of the American Volunteer Groups or the so-called Flying Tigers. After the events of Pearl Harbour, China was added to the list of beneficiaries under the Lend Lease Act, and by the end of the war in 1945 they had received an estimated US$845.7 million in military hardware. This equated to the equipping of a 39 division Chinese army and an eight wing Chinese air force.137 D. Indiscriminate Conventional Weapons: Sea Mines

After the war was over, the response of the Allies to the impact of sea mines was for Germany, through the Versailles Treaty, to surrender or destroy all of their sea mines (and torpedoes) and never manufacture, import or stockpile these again. They were also obliged to sweep certain oceans for mines that had been left behind and remained active.138 Similarly, the 1918 Treaty of Brest-Litovsk obliged Russia to remove all of their sea mines from the Black Sea.139 Supplemental work was done on related areas during the 1930s on the collection of torpedoes and ensuring that they become harmless if they missed their mark.140 When war broke out in 1939, the practice of warfare with naval mines became amplified, as between 600,000 and 1,000,000 naval mines of all types were laid in all of the oceans of the world until the conflict ended in 1945. In many instances, despite the earlier rules adopted in 1907, practices developed which were not conducive to discriminate types of warfare. Hitler deployed sea mines at the outset of the Second World War around the Baltic, but expressly directed his navy not to ‘infringe neutral territorial waters’.141 By the end of September 1939, this was extended to embarkation points off the north French coast, and off the principal English ports by the end of 1939.142 The British responded, unlike the Germans, by laying sea mines in an indiscriminate manner in neutral Norwegian waters in 1940, despite the strong protests of the Norwegians that such actions were illegal.143 Hitler leant from the British actions, and by early 1941, he emphasised the import­ance of this type of warfare, suggesting: ‘The continuous laying of minefields [will bring] feelings of uncertainty and losses [for the enemy].’144 Accordingly, Germany deployed thousands of mines without warning or information on location, through which many vessels, neutral and otherwise, were claimed.145 Similarly, the Japanese would deploy some 70,000 sea mines throughout the Pacific, with a large number being of the drifting variety. However, the real novelty from this period involved the deployment of sea mines 137  Mott, W (1999) Military Assistance, An Operational Perspective (Greenwood, London) 108–109, 122, 126–27. 138   Versailles, Arts 192 and 193. 139   Treaty of Brest-Litovsk 1918, Art V. 140  Convention Concerning the Salvage of Torpedoes 1934 in Hudson, R (ed) (1950) International Legislation, Vol VI: 1932–34 (NY, Oceana) 896–98. 141   Directive 2 in Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 41. 142   Directive 9 in Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 57. 143   Kalshoven, F (2005) Belligerent Reprisals (Leiden, Nijhoff) 116–20, 143. 144   Directives 4 and 23 in Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 104. 145   Kalshoven, F (2005) Belligerent Reprisals (Leiden, Nijhoff) 130–36.

42  Conventional Weapons

from the air. Aircraft had the advantage of speed and they would never get caught in their own minefields. Germany and the Soviet Union both experimented with this type of delivery. The United Kingdom deployed 48,000 mines in European waters which claimed 164 Axis ships as a prize (as part of the total of some 600,000 tons of German merchant vessels which were lost to sea mines – compared to 318,000 tons to submarines and 303,000 tons to warships). The United States (in conjunction with the British and Australian air forces) also utilised this method, inflicting tremendous losses on the merchant shipping of Japan. In total, over 25,000 sea mines were deployed around Japan (of which 21,389 were delivered from the air). The last action, ‘Operation Starvation’ which began in March 1945, dropped over 12,000 mines, and at least 293 merchant vessels were lost both during – and after – the war, as the mines which were meant to be selfsterilising, failed to deactivate and continued to float into unsuspecting targets.146 With regards to landmines, by the time of the Spanish Civil War and the Second World War which followed, the mines were increasingly used to target enemy combatants, as opposed to enemy vehicles. However, the conventional method of laying minefields during this conflict was one whereby the mines were usually recorded, mapped, clearly marked and fenced off. Much of the thinking at this point was not to make the ground completely impassable, but rather to put down an obstacle, to slow down the enemy, or channel them into a ‘killing zone’, making near impenetrable defences. For example, at the critical battle of Kursk in 1943, there were over 5,000 anti-personnel or anti-tank mines per mile of fortification. Although there was some ‘nuisance’ mining with unmarked fields of mines in wooden casings that were designed not to be detected, up until 1945, this was relatively rare. Nevertheless, thousands of civilians were killed by landmines, although this was often semi-intentional. For example, the Germans were known to force civilians to clear mines laid by Soviet forces. In one operation of mine clearing in 1943 alone, between 2,000 and 3,000 civilians were killed. The Soviets would use their own penal battalions to walk through minefields en masse as suicide missions. Thousands more were killed after the war ended but the landmines remained. For example, in Poland, where over 80 per cent of the entire land mass was mined between 1939 and 1945, over 15 million had been removed by the early 1980s, with 350,000 being removed each successive year. The impact of these weapons upon civilians has been ongoing, for example, Egypt has claimed that 8,313 civilians have died between 1945 and the year 2000 from the landmines left in their country.147 7.  After the Second World War

One of the principles of the 1941 Atlantic Charter was that disarmament of nations is ‘essential’ both to achieve peace and to lift the ‘crushing burden of arma­ments’.148 146   Boot, M (2006) War Made New. Technology, Warfare and the Course of History (NYC, Gotham) 291–92. Levie, H (1992) Mine Warfare At Sea (NYC, Springer) 89, 90–95; Hough, R (2003) The Longest Battle. The War at Sea 1939–45 (London, Cassell) 274. 147  Monin, L (2002) The Devil’s Gardens: A History of Landmines (London, Pimlico) 60–61, 63; Westing, A (1985) Explosive Remnants of War: Mitigating the Environmental Effects (London, Taylor & Francis) 33; Beevor, A (2002) Berlin: The Downfall 1945 (London, Penguin) 169; Merridale, C (2005) Ivan’s War: The Red Army 1939– 45 (London, Faber) 177; Rees, L (1999) War of the Century: When Hitler Fought Stalin (London, BBC) 116–18. 148   Atlantic Charter, 1941 in Hudson, J (1978) International Legislation, Vol IX (NY, Oceana) 3.

After the Second World War 43

Four years later, when the topic of arms control was addressed in the Charter of the United Nations, principles ‘governing disarmament and the regulation of armaments’ were included among the general principles of international peace and security to be considered by the General Assembly. The General Assembly has never waivered in this obligation, keeping issues of the control of all types of weapon at the centre of international attention, and at times, acting as a catalyst for the creation of various international instruments. However, for more immediate issues requiring direct attention, the responsibility was set to fall on the Security Council. Article 26 of the Charter added: In order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world’s human and economic resources, the Security Council shall be responsible for formulating . . . plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments.

The difference between the Covenant of the League of Nations and the Charter of the United Nations on these questions was striking. In large part, this was due to the contexts of each period. Many who drafted the Covenant believed the First World War had been caused by the arms race. Conversely, many of those who drafted the Charter believed the Second World War could have been avoided if a more adequate military potential had been maintained, in addition to a willingness to use the weapons against emerging threats to the peace. A.  The Spread of Conventional Weapons

Following through on this commitment, in 1947 the Security Council created a commission to examine how best to proceed with reductions in conventional armaments.149 Like the relative successes that evolved on the controls of weapons of mass destruction, even through the Cold War, over the coming decades, success was evasive on the control of most conventional weapons, and small arms and light weapons in particular. Small arms are designed for use by one person, whereas light weapons are designed for use by several people serving as a crew. Small arms came to include weapons ranging from self-loading pistols to sub-machine guns to light machine guns. Light weapons include arms ranging from heavy machine guns to portable anti-aircraft and anti-tank guns to mortars of less than 100 mm calibres. Single types of weapons, such as the AK47, named after its designer, Mikhail Kalashnikova (b 1930), would help change the pace and breadth of war. That is, somewhere between 75 million and 100 million copies of this weapon that could shoot on average, 600 rounds per minute were produced in over one dozen countries (for as low as US$60 each) between 1947 and the twenty-first century. The counterpart to this weapon, the M16, which entered service in 1963, would amass more than 8 million units. Like its AK counterpart, between 80 and 90 per cent of them are still in use, commonly being recycled and traded between conflict zones. This would go on to create serious problems, with individual weapons of the approximately 10 million AK47s being supplied by the Soviet Union to its 149  S/RES/18 (1947, Feb 13); The Conventional Armaments Committee was dissolved in 1952 following UNGA recommendations. See S/RES/97 (1952, Jan 30).

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clients in Africa between 1975 and 1988. Many of these weapons would see action in up to four or five different conflicts.150 The anxiety of the Cold War was so great that post World War Two peace treaties devised in 1947 were relative failures. Both East and West Germany were being rearmed at great pace by their respective occupiers within two years of the Second World War ending. Likewise, Japan was having its military rebuilt by the United States as early as 1951. The only times that the Security Council could agree that arms embargoes on all conventional weapons should be applied was when none of the Permanent Members of the Security Council had any direct interest in these places. This occurred four times before 1991. In the first instance, in addition to calling upon all States to prevent the influx of mercenaries into the Congo in 1961, they also authorised the Secretary-General to take all such necessary measures to prevent the entry of arms and equipment into the country.151 This evolved into the second instance, when the Security Council in 1963 (and until the 1970s) called for all countries to prevent the sale and supply of arms and military equipment used for the purpose of subjugation of peoples in Africa to the Portuguese government.152 The third instance involved the Security Council calling upon all States to desist from providing the breakaway regime of Southern Rhodesia with arms, equipment and military material.153 The final example involved South Africa, which was placed under an international arms embargo between 1963 and 1994. The Security Council made such calls because they were of the view that the South African regime was ‘made possible by the continued acquisition of arms, military vehicles and other equipment and spare parts for military equipment from a number of Member states’. Moreover, this trade ‘constitutes a potential threat to international peace and security’.154 As such, for 31 years they continually tried to enforce an arms embargo that went from preventing the sale of computers to the South African army through to not allowing them to display their hardware at international arms fairs.155 The effect of this arms embargo upon the South African military can only be described as negligible as it managed to build itself up into one of the strongest military and arms-producing countries by the end of twentieth century. Their eventual near self-sufficiency in weaponry up to the scale of nuclear had evolved after Britain, and then the United States, stopped providing them with weaponry in accordance with the Security Council resolutions. However, South Africa leant to bypass these resolutions through both illegal imports of spare parts from Britain, and a sizeable but largely invisible trade in heavy weapons with France, Italy, the Soviet Union and Israel. In addition, whilst under embargo, they became influential in the large-scale spread of weapons to a series of insurgents fighting communist assisted countries, such as Angola 150   Kahaner, L (2007) AK47. The Weapon That Changed the World (NYC, Wiley) 26, 35, 87, 98–100; Anon ‘Rip Off Kalashnikov Clash’ New Scientist (31 July 2004) 4; Keys, D ‘Events in Context’ BBC History (10–11 October 2006). 151  S/RES/169 (1961, Nov 24). Note also UNGA Resolution (1960) 1474 (ES-IV). 152  S/RES/180 (1963, July 31); S/RES/218 (1965, Nov 23); S/RES/290 (1970, Dec 8). 153  S/RES/217 (1965, Nov 20). 154  S/RES/282 (1970, July 23). 155  S/RES/282 (1970, July 23); S/RES/418 (1977, Nov 4); S/RES/421 (1977, Dec 9); S/RES/473 (1980, June 13); S/RES/475 (1980, June 27); S/RES/558 (1984, Dec 31); S/RES/569 (1985, July 26); S/RES/591 (1986, Nov 28); S/RES/919 (1994, May 26); S/RES/183 (1963, Dec 11); S/RES/182 (1963, Dec 4); S/RES/191 (1964, June 18); S/RES/276 (1970, Jan 30).

After the Second World War 45

and Mozambique (with the latter being flooded with small arms to such an extent that the Security Council was repeatedly concerned that unless removed, their subsequent peace process was in jeopardy).156 The ruling regimes of these countries, being on the opposite side of the Cold War, received military aid from the Soviet Union and China. This military aid from communist countries also went to support insurgents, from the mid-1960s, fighting apartheid-led regimes, such as Rhodesia. The Soviets also gave millions of dollars in weaponry to the African National Congress.157 Other countries like the United States managed to stay away from the unsavoury arms trade with South Africa, as South Africa was not a friend and the trade was not a diplomatic necessity. This was unlike the case with many other less than savoury regimes, in which the United States approach was governed by diplomatic rather than human rights considerations. Nevertheless, the broad policy, as stated in the 1968 United States Law on Foreign Military Sales, was that all sales were authorised if in furtherance of the security objectives of the United States and the purposes and principles of the United Nations Charter. However, the caveat was: ‘Sales shall not be approved where they would have the effect of arming military dictators who are denying social progress to their own people.’158 From such considerations, at times, the flow of American weaponry could be stopped if any recipient administration was linked to poor human rights practices. After the Second World War, this was evident with the regime of Fulgencio Batista (1901–73) who lost his supply of American weaponry just as the insurgency of Fidel Castro (b 1926) was gathering momentum. When this embargo carried over onto Castro’s regime, he turned to the Soviet Union, which was quick to export everything from small arms to nuclear missiles. The United States by the early 1960s were acutely aware that balancing considerations of human rights against their security needs was not always easily reconciled as their need for allies in the Cold War sometimes meant they had to turn a blind eye to the despotic nature of some of the regimes that were ‘pro-western’. This was manifested most clearly in what became known as the ‘Nixon Doctrine’, when President Richard Nixon (1913–94) suggested that the internal secur­ ity problems in Asia and elsewhere should be handled internally, but the United States would provide military and economic support to friendly regimes in order to support them.159 Nevertheless, at times, human rights considerations trumped. Indonesian requests for military aid were refused by the United States in the mid 1960s, as were Nigerian ones the late 1960s during the civil war for Biafran independence (but in both instances, the Soviets filled the gap). Other countries of note which lost their American supply due to poor human rights records in the 1970s, after repeated exposures of American weaponry (and training) being linked to repression and torture were Ethiopia (of which the Soviets filled the gap in the supply of weaponry), Chile, and Argentina (of which the French went to exploit many of the gaps). In other instances, such as with Guatemala (who went on to source their weaponry from Belgium and Czechoslovakia) and El Salvador, the giving of American weapons would stop under  S/RES/898 (1994, Feb 23); S/RES/916 (1994, May 6).   Turner, J (1998) Continent Ablaze: The Insurgency Wars in Africa (London, Cassell) 16, 43, 134–35, 140, 147; Burleigh, M (2008) Blood and Rage. A Cultural History of Terrorism (London, Harper) 143–44. 158   US Law on Foreign Military Sales, 7 ILM (1968) 1383. 159  Stohl, R (2009) The International Arms Trade (London, Polity) 10, 53–56. Scheina, R (2003) Latin America’s War. The Age of the Professional Soldier, 1900–2001, Vol II (NYC, Brassey) 178–79, 198, 203, 230, 325, 327, 345–47, 352–53. 156 157

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the presidency of Jimmy Carter (b 1924) but restart under the presidency of Ronald Reagan (1911–2004) when the importance of supporting countries fighting commun­ ist insurgents was deemed to be of a greater weight. At such, by the time the civil war in El Salvador was at its peak, over 80 per cent of its military aid (as part of a package that accumulated to over US$1 billion between 1980 and 1991) was coming from the United States, with Israel filling the remaining orders. And of course, the insurgents were busy being supplied by various like-minded countries. In the case of Latin America, Cuba was most notable, although far from alone in smuggling weaponry to its allies. For example, insurgents in El Salvador managed to have arms smuggled to them from Bulgaria, Czechoslovakia, East Germany, Hungary, Vietnam, Ethiopia and Cuba (with the latter often acting as a proxy for the Soviet Union in Latin America). Elsewhere, insurgents fighting Israel would source weaponry from unscrupulous arms dealers, or be quietly gifted guns and explosives to fight a common enemy. In this regard, the Palestine Liberation Organization (PLO) was known to have obtained imported and redirected weapons from at least 12 countries, of which Iraq, Iran, Libya, Jordan and Egypt were most notable. Terrorist groups in Europe sourced their weapons from Libya, East Germany and regular gun shops in the West.160 Such considerations were not always evident at the state-to-state level. The first Arab-Israeli war of 1948–49 was powered by the surplus of the Second World War, whereby Israel, with the help of America, managed to quickly put together an arsenal from existing stockpiles and innovative purchasing from the emerging arms manufacturers in Eastern Europe. However, sensing a new opportunity, a number of these countries, and others, sought to arm all of the emerging belligerents in this highly stressed region. This was such a problem that in 1951, Britain, France and the United States agreed to the Tripartite Declaration. It was declared: 1.  The three Governments recognise that the Arab states and Israel all need to maintain a certain level of armed forces for the purposes of assuring their internal security and their legitimate self-defence and to permit them to play their part in the defence of the area as a whole. All applications for arms or war material for these countries will be considered in the light of these principles. In this connection the three Governments wish to recall . . . their opposition to the development of all arms race between the Arab states and Israel. 2.  The three Governments declare that assurances have been received from all the states in question, to which they permit arms to be supplied from their countries, that the purchasing state does not intend to undertake any act of aggression against any other state. Similar assurances will be requested from any other state in the area to which they permit arms to be supplied in the future.

The problem with this approach between the United States, Britain and France was that Belgium went on to sell weapons to all sides, Spain sold machine guns to Egypt and Israel managed to continue to obtain tanks and other heavy weapons from 160  Military Exports and Security Assistance for Argentina, 21 ILM (1982) 683; Jones, S (2006) Securing Tyrants or Fostering Reform? (Washington, Rand) 10–20, 23–32; Joshua, M (1969) Arms for the Third World, Soviet Military Aid Diplomacy (Baltimore, John Hopkins Press) 58–60, 80–90; Neuman, S (1986) Military Assistance in Recent Wars (NYC, Praeger) 32–33, 50–53; Dinges, J (2005) The Condor Years (NYC, New Press) 160; Hitchens, C (2001) The Trial of Henry Kissinger (Melbourne, Text) 60–61, 72–73, 95–96, 106; Scheina, R (2003) Latin America’s War. The Age of the Professional Soldier, 1900–2001, Vol II (NYC, Brassey) 178–79, 198, 203, 230, 325, 327, 345–47, 352–53; Burleigh, M (2008) Blood and Rage. A Cultural History of Terrorism (London, Harper) 202–03, 261.

After the Second World War 47

private arms dealers holding stockpiles from the Second World War. By 1954, the tripartite efforts were in ruins as the three signatories also joined into wooing all of the potential belligerents in the area with their military wares, despite recommendations from the General Assembly that all Member States ‘refrain from introducing military goods into the area’.161 This problem only became more complicated when the Cold War overlapped with the politics of the Middle East; a bewildering collection of arms provisions were agreed, with some countries, such as the United States, seeking to provide a balance towards both Israel (although always a preferred customer during the 1960s and 1970s)162 and its neighbours, whilst others such as France supported Israel because of Israeli support for French interests in Algeria. This situation in the Middle East, which was already difficult enough to control with Western countries, became much more complicated when the Soviet Union and their Eastern European allies entered the international arms trade. The Soviet Union provided weapons to whomever they thought they could influence, and when gaps in the market developed, were quick to exploit them. That is, the Soviets often displayed little concern for the domestic political orientation of recipient countries, which often received weaponry despite being anti-communist. For example, in the Middle East, from the mid 1950s onwards, the Soviets and their allies sold weapons to Syria, Yemen and Egypt. On the last instance, between 1955 and the outbreak of the 1967 Arab-Israeli war, Egypt received approximately US$1.7 billion in military equipment. This was after Egypt had left the American fold in 1955, before reentering its sphere of influence in 1972. At the end of this period, when the Soviets were asked to leave Egypt, they left behind an arsenal including 1,700 tanks, 620 combat aircraft and 130 anti-aircraft missile sites. When Egypt engaged Israel in war, whenever it lost some of these weapons, the Israelis were quick to pick them up, and re-export them either to allies or through commercial opportunities. Such abandoned stockpiles were not unusual for this period. For example, the Americans left behind some 800,000 M16 rifles, 600 M48 tanks, 100 self- propelled guns and 73 Northrop Tiger fighters when they left their slowly sinking South Vietnam allies. The North Vietnamese victors, who were already well stocked with Chinese weaponry (before their conflict with them) nevertheless sequestered these armaments, too. These would have been very useful when Vietnam went on to fight China in 1979, and subsequently swap to a Soviet supply of weaponry. However, the real winner of this period was Iran which, by the late 1970s, under the dictatorship of Mohammad Reza Pahlavi, the Shah of Iran (1919–1980) and with direct American assistance, amassed the most extensive and modern armoury in the world outside of the United States, the Soviet Union and Europe. Like Egypt, Iran had played off all the Superpowers to acquire their hardware, taking large contracts with both the Soviet Union (from 1963) and the United States. Accordingly, when the Iranian revolution occurred in 1979, the radical new State was blessed with remarkably powerful and extensive weaponry.163 The 1980s revealed a bewildering array of new and old enemies, and the arms trade modified itself to face the new threats. This change of emphasis was best reflected in the 1981 Presidential Directive on the Arms Transfer Policy of the United States. This new policy, which failed to mention any issues such as the domestic human rights   UNGA Resolution (1956) 997 (ES-1).   US Law on Foreign Military Sales 10 ILM (1971) 597. 163  Sampson, A (1977) The Arms Bazaar (NYC, Viking) 23, 27, 29–30, 170–80, 244–59; Neuman, S (1986) Military Assistance in Recent Wars (NYC, Praeger) 17–18. 161 162

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records of recipient countries, stated that in the interests of deterring aggression against ‘friends and allies’, increasing domestic effectiveness, collective security concerns and mutual interests in countering externally sponsored aggression: We pursue a sober, responsible, and balanced arms transfer policy, a policy that will advance our national security interests and those of the free world . . . we will be guided by principles as well as practical necessity. We will deal with the world as it is, rather than as we would like it to be.164

Dealing with the world as it was meant that the arms trade was remarkably rich during the 1980s. A good example of this was the war between Iran and Iraq. In this eight year war, some 29 countries supplies Iraq and 21 countries supplied Iran. Of these, 10 countries supplied both sides. Notably, the Soviet Union provided the majority of weapons to Iraq, worth billions of dollars. This was in addition to their long-standing military relationship to Iraq dating back to 1966. The French were also big suppliers to Iraq in their war with Iran, as was Egypt, which provided them with many of the scud missiles which would later be fired in the First Gulf War in 1991. Brazil, Britain, Italy and Spain also all contributed to the Iraqi arsenal. Despite historically strained relations, the United States was also quick to provide weaponry (worth over US$1 billion) and intelligence information to Iraq. Iran got weaponry from Libya, Syria and North Korea, with the latter selling as much as US$3 billion worth of hardware. The British also sold Iran material, as did China, Taiwan, Argentina, South Africa, Pakistan and Switzerland. Even Israel – their arch nemesis – (who were also a key provider to Argentina during the Falklands War with Britain) provided critical items for the American tanks and planes that the Iranian revolutionaries had inherited, to the value of, perhaps, US$1 billion. Vietnam also benefited from this trade, selling off much of the American stockpiles which had been left behind at the end of their conflict to Iran.165 Factions within the United States, despite sharing a common loathing with the Islamic Republic of Iran, also managed to facilitate arms sales to Iran, via Israel, in return for the freedom of various western hostages, and a contra flow of finance and weapons to the insurgents fighting the communist regime in Nicaragua. This trade to Iran was carried on despite the American Congress prohibiting such transfers.166 Nevertheless, via a number of inter-related trades, the Contra rebels in Nicaragua received over US$6 million worth of AK47s made in communist Poland in 1985 to fight the communist government in Nicaragua. Many of these came from, allegedly, CIA-maintained warehouses of Soviet Bloc weaponry. Guatemala, Honduras and El Salvador also appear to have taken a sympathetic view to the arming of allied groups in the wars that raged through Central America in the 1980s (although as the International Court of Justice noted the connection was speculative). These views coincided with the regional failures, such as with the ill-fated 1985 Contadora Act, which attempted to stem the flow of illegal weapons moving through the area.167 In   US Announcement of Policy Concerning Conventional Arms Transfers 20 ILM (1981) 1508.  Hiro, D (1991) The Longest War: The Iran-Iraq Military Conflict (London, Routledge) 1–2, 44–45, 72–73, 83, 116–19, 122–28, 162–64, 234, 239–40; Neuman, S (1986) Military Assistance in Recent Wars (NYC, Praeger) 42–47, 47–48. 166  Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 298–99; Karsh, E (2002) The Iran-Iraq War (London, Osprey) 26, 29. 167   Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) [1986] ICJ General List No 70 at 127, 129–52, 160; Goldblat, J (2003) Arms Control (London, Sage) 233–36. 164 165

After the Second World War 49

time, many of these same weapons made their way down to other conflicts in Latin American countries such as Columbia. Although in the later instance, the source of weapons flowing to the insurgents appears to have been organised by brokers selling weapons of an East German genesis, through Nicaragua, and onto Columbian rebels.168 Such convoluted patterns were typical of the 1980s. Afghanistan was already well stocked with weaponry before the Soviets went into the country at the end of 1979, with large formal arms aid agreements with the Soviet Union and Czechoslovakia dating back to 1956. The dominance of this supply was only challenged after the Soviet entry. This challenge began when the first clandestine American shipments of small arms arrived less than two weeks after the Soviet intervention into Afghanistan. These shipments were in the form of thousands of bolt-action .303 Lee-Enfield rifles. These were brought in from stockpiles in India and Greece. During 1983 a number of consignments of Soviet-made weapons were flown straight from the United States to Pakistan. These had been purchased from Israel who had captured them following the expulsion of the PLO from Lebanon. The following year, these were supplemented with 400,000 AK47s, which were bought from communist China and dissident Polish military officials who were only too happy to prove these weapons to be used against their nemesis, communist Russia. The Egyptians sold the CIA stores of Soviet weapons they had had since the 1970s, to be passed onto Afghanistan. Even Turkey sold 60,000 rifles, 8,000 light machine guns, 10,000 pistols and 100 million rounds of ammunition – mainly of 1940 vintage – which the brokers and insurgents grumbled about but accepted. Pakistan offloaded an unknown amount of weaponry into the conflict. By 1992, it was estimated that there were more personal weapons in Afghanistan than in India and Pakistan combined. By some estimates, more weapons had been shipped to Afghanistan in the 1980s than any other country in the world. The Soviets had provided between US$36 and US$48 billion to their allies over a 10-year period. This was much more than that provided by the United States, China and Saudi Arabia which are believed to have parted with between six and 12 billion for military hardware to help the insurgents. This flow of weapons did not stop after the Soviets left. This was despite bilateral agreements and Security Council demands not to provide weapons to this region, especially after the rise of Al Qaida. The flow of weaponry largely continued, with Pakistan, Iran and later Russia, continuing actively to arm their favourite proxies up until the American/United Nations invasion in 2001.169 The only substantive attempts to control the flow of some types of weaponry into Afghanistan, prior to 2001, had to do with the American supply of Stinger Human Portable Air Defence Systems. Between 2000 and 2005 of these ‘MANPADS’ were delivered to the Afghani insurgency (and the insurgency in Angola) between 1986 and 1988. After the Soviets left, the United States attempted to buy back the MANPADS that had not been used. In 1996, it was estimated that about 600 of these were still at large (although of questionable value due to a limited battery life), with at least 100   Kahaner, L (2007) AK47. The Weapon That Changed the World (NYC, Wiley) 120–26.  S/RES/1076 (1996, Oct 22); S/RES/1193 (1998, Aug 28); S/RES/1333 (2000, Dec 19); Human Rights Watch (2001) Crisis of Impunity: The Role of Pakistan, Russia and Iran in Fueling the Civil War in Afghanistan (NYC, HRW) 5–7, 12–19, 25–43; Joshua, M (1969) Arms for the Third World, Soviet Military Aid Diplomacy (Baltimore, John Hopkins Press) 55–57, 72–75; Feifer, G (2009) The Great Gamble, The Soviet War in Afghanistan (NYC, Harper) 113, 130–33, 158, 205, 208–10. 168 169

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having made their way to Iran, which was, also, actively trying to outbid the Americans in the resale of these weapons.170 8 .  After the Cold War A.  Superfluous Injury

The failure of the international community to attempt to restrict the superfluous injuries against combatants caused by weapons such as flame-throwers after the end of the First World War continued for another 75 years. The international community only came to act once more in this area in 1980 when the Convention, and associated Protocols, on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects was concluded. Protocol I to this Convention prohibited the use of ‘any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays’ spoke of an obvious humanity. The next time such consideration was given was in 1995, when the Parties to the Convention on Conventional Weapons sought to counter the influence of laser weapons that were designed to blind opposing combatants. Laser weapons, which reached the battlefield during the Vietnam War when they helped American troops guide bombs and missiles to their targets, had become standardised instruments by the time of the First Gulf War, used in everything from binoculars to gunners sights, through to infrared sensors and guidance mechanisms for ‘smart bombs’. However, none of these applications were intended to be weapons in themselves. Nevertheless, it was discovered that they could be made powerful enough to be an offensive weapon. The core of this thinking occurred during the Cold War when attempts were made to develop high-energy laser weapons to destroy aircraft and missiles. Although the large-scale systems associated with this have produced mixed results, smaller, spin-off systems produced weapons which were just large enough to attack and destroy the eyes of other humans. It was alleged during the late 1970s and early 1980s that these blinding weapons were used in the war between China and Vietnam, in the Soviet invasion of Afghanistan and in the Falklands (apparently causing three Argentine planes to crash). From such concerns, in 1986, the International Committee of the Red Cross proposed that laser weapons should be made illegal because they would cause unnecessary suffering or superfluous injury. These efforts were initially without success and by the late 1980s, it was believed that, inter alia, the armouries of the United States included at least 10 different types of laser weapons able to permanently blind enemy soldiers from a distance. It was only at the end of the Cold War, when the United States and Russia warmed to the idea of a Protocol on Blinding Laser Weapons under the Convention on Conventional Weapons on this topic, that the issue was addressed.171 170   Coll, S (2005) Ghost Wars (London, Penguin) 11, 58, 66–67, 238, 337; Harclerode, P (2002) Fighting Dirty (London, Cassell) 557, 563, 572; Kahaner, L (2007) AK47. The Weapon That Changed the World (NYC, Wiley) 58, 63, 65, 66. 171  Hecht, J ‘Military Mega Lasers Proving Too Hot to Handle’ New Scientist (11 July 2009) 20; Spinney, L ‘A Fate Worse Than Death’ New Scientist (18 Oct 1997) 26–27; Patel, T ‘US Fights Ban on Laser Warfare’ New Scientist (23 Sept 1995) 6; Kiernan, V ‘Ban Cruel Laser Weapons Says Red Cross’ New Scientist (8 Sept 1993) 7; Hecht, J ‘Lasers Designed to Blind’ New Scientist (8 Aug 1992) 27–31; Hecht, J ‘Weapons For the

After the Cold War 51

Thereafter, in 1995, the Protocol IV to the Convention on Conventional Weapons agreed that it was ‘prohibited to employ laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices’.172 Thus, although unintentional and temporary blindness (such as by ‘dazzle’ weapons) were not covered, and the Parties were still expected to develop measures to protect their forces from blindness, the goal – of not intentionally causing blindness by laser weapons because it was considered a superfluous injury – was clear.173 The final area of note in this section was that the rule on explosive bullets would become largely followed throughout the twentieth century, although the United States disagreed that it was a customary rule, and did not want a specific Protocol to prohibit them. However, with dum-dum bullets, although they are used by some insurgents/ terrorists and by some police forces in domestic counter-terrorism operations, the International Criminal Court could proclaim in 1998 that it was a war crime to employ ‘bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions’.174 Note however, that the restrictions in this area do not cover small calibre bullets which spin, turn or tumble, into the human body and cause very similar injuries to dum-dum bullets. This is despite the long-term recognition by the Parties to the Convention on Conventional Weapons of the injuries that such munitions cause.175 Similarly, work by groups like ICRC and their SIrUS project (Superfluous Injury or Unnecessary Suffering) to identify which weapons were superfluous by defining superfluous injury and unnecessary suffering, have failed to achieve any substantive legal conclusions.176

21st Century’ New Scientist (8 Aug 1992) 21–22; Anon ‘Weapons Challenge’ New Scientist (27 May 1995) 14; Human Rights Watch (1995) United States: Blinding Laser Weapons (NYC, HRW) 3–6, 12–19, 21. 172  Protocol IV, Art 1. 173   Anon (1995) ‘The Vienna Review Conference’ IRRC 309: 672–77; Hambling, D ‘Dazzle Gun Will Protect US Helicopters’ New Scientist (24 Dec 2005) 10; Hambling, D ‘Safe Laser Weapon Comes Under Fire’ New Scientist (7 Sept 2002) 5. 174  ICC, Art 8(c)(xix). For the American commentary, see General Counsel of US Department of Defence (2007) Letter to the ICRC Regarding Customary International Law Study in International Legal Materials 46: 511; and, Steele, J ‘Police Using Outlawed Bullets’ New Zealand Herald (17 Nov 2005) A1. 175  For the interest of the Parties, see Resolution on Small Calibre Weapons Systems App E to the CCW 19 ILM (1980) 1536. Also, Report of the Second 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 (2001) CCW/CONF.II/16 (Part 1) at 41; Prokosch, E (1995) ‘The Swiss Draft Protocol on Small Calibre Weapons Systems’ IRRC 307: 411–25. 176   In 1999, the ICRC suggested that a definition for superfluous injury and unnecessary suffering would be where death rates were above the norm experienced at the end of the 1990s. In particular, new weapons should not be permitted if they kill more than a quarter of all soldiers on a battlefield or more than 5% in hospital, cause specific physical or psychological disabilities or diseases, leave cavities in the body greater than 10 cms, or produce injuries that cannot be treated. Edwards, R ‘Humane Killing’ New Scientist (4 Dec 1999) 14–15. Also, Coupland, R (1999) ‘Review of the Legality of Weapons: A New Approach with the SirUS Project’ IRRC 835: 583–92.

52  Conventional Weapons B.  Indiscriminate Injury (i)  Sea mines

The law of sea mines was not re-examined. After the Second World War the indiscriminate use of sea mines by the British, Germans, Americans or Japanese was not considered a topic suitable for consideration at any of the trials, because it was felt that all of the belligerents had adopted the same indiscriminate practices.177 Rather, the general principles were reiterated, twice, by the International Court of Justice. The first instance, the Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v People’s Republic of Albania) arose from incidents that occurred on 22 October 1946, in the Corfu Strait, when two British destroyers struck mines in Albanian waters and suffered damage, including serious loss of life. In this case, the Court found that the Albanian government had a responsibility to warn ships coming into the minefields they had placed in the waters which were subject to free passage, and/or control the dangerous source.178 In the second case Concerning Military and Paramilitary Activities in and against Nicaragua179 the Court found the mining of Nicaraguan harbours by either American forces or American operatives without warning to the public or making safe peaceful shipping (one of the casualties was a Japanese freighter), as required by the 1907 Hague Convention, was wrongful. The Court added, reiterating what it said in 1949 with the Corfu Channel Case, that this principle was an elementary consideration of humanity, even more exacting in peace than in war.180 All of the 1907 rules were reiterated in the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea. Specifically, ‘mines may only be used for legitimate military purposes including the denial of sea areas to the enemy’.181 The important notification of where minefields are, of keeping open certain shipping lanes for neutral shipping in territorial waters, not mining neutral waters, and paying due regard for safe alternate routes for neutral shipping on the high seas and international straits was emphasised.182 Free-floating mines were forbidden unless they were directed against a military objective and became harmless within an hour after loss of control over them.183 Finally, the Manual gave importance to good record-keeping of where mines are laid, sharing of the records and providing assistance after a conflict for removing all deployed naval mines.184 This is particularly important, as if this information is not recorded and shared at the end of a conflict, these weapons can remain active for decades after they were deployed. Accordingly, the clearance of sea mines was recognised as a priority directly after the Second World War, and this objective was, in fact, one of the first agreements (between France, the United Kingdom and the United States) directly following the capitulation of Germany. However, the problem was that many of the records of where the German sea mines were located were lost. Accordingly,   Kalshoven, F (2005) Belligerent Reprisals (Leiden, Nijhoff) 136–38.   The Corfu Channel Case (Merits) 9 April 1949. 179   Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) [1986] General List No 70 at 76–80. 180   Military and Paramilitary Activities in and Against Nicaragua at 215. 181  San Remo Manual on International Law Applicable to Armed Conflicts at Sea at 80. 182  San Remo Manual on International Law Applicable to Armed Conflicts at Sea at 85–90. 183  San Remo Manual on International Law Applicable to Armed Conflicts at Sea at 81 and 82. 184  San Remo Manual on International Law Applicable to Armed Conflicts at Sea at 84, 90 and 91. 177 178

After the Cold War 53

retrieving the thousands of underwater mines off France alone took decades. Thus, as late as in the mid 1990s, a line of 220 German magnetic underwater mines were located off the coast of Bordeaux. All were still active, and it was a near miracle that no ship had run through them in that time.185 (ii)  Additional Protocol I and the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons

Throughout the 1950s, 1960s and early 1970s, the ICRC and a number of countries of the international community became increasingly concerned about indiscriminate weapons. Specific weapons of concern at this point included incendiary, chemical, biological, radiological and delayed action weapons including land mines. The ICRC 1973 Report on Weapons that May Cause Unnecessary Suffering or Have Indiscriminate Effects helped spur interest in the topic, and inter-governmental meetings on Certain Conventional Weapons were held in 1974 and 1976. Many of the debates at these two conferences were between the military superpowers and a number of neutral European States (in addition to Egypt and Mexico) who took the view that new high technology anti-personnel weapons had a strong potential to become indiscriminate and should therefore be prohibited.186 These concerns were manifested the following year in 1977 in the Protocol Additional to the Geneva Conventions of 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I). This Protocol reiterated in Article 2 the traditional Martens principle from 1899 that even if the law is not clear ‘the principles of humanity’ and ‘the dictates of public conscience’ still applied. It was added in Article 35 that ‘in any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited’. Moreover, it was ‘prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering’. The basic rule of Additional Protocol I also had an impact in this area. The basic rule was to ‘ensure respect for and protection of the civilian population and civilian objects’ and the necessity to ‘distinguish between the civilian population and combatants and between civilian objects and military objectives’ at all times and ‘direct their operations only against military objectives’.187 In particular, ‘indiscriminate attacks are prohibited’.188 The Protocol added that when dealing with the development of new weapons, means or methods of warfare, Parties were ‘under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by 185   Agreement Between the United States, the United Kingdom and France Concerning Mine Clearance in European Waters, in Simma, R (ed) International Protection of the Environment, Vol XIX (NY, Oceana) 9249. 186  ICRC (1976) The Lugano Conference of Government Experts on the Use of Certain Conventional Weapons (Geneva, ICRC) 3–6, 12–17; Mathews, R (2001) ‘The 1980 Convention on Certain Conventional Weapons: A Useful Framework Despite Earlier Disappointments’ IRRC 844: 991–1012; McCelland, J (2003) ‘The Review of Weapons in Accordance with Article 36 of Additional Protocol I’ IRRC 85: 397– 415; ICRC (1974) The Lucerne Conference of Government Experts on the Use of Certain Conventional Weapons (Geneva, ICRC) 12–19, 23–28; ICRC (1958) Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War (Geneva, ICRC). 187   Additional Protocol I Art 48. 188   Additional Protocol I Art 51(4). Indiscriminate attacks are those which (a) are not directed at a specific military objective; (b) employ a method or means of combat which cannot be directed at a specific military objective; or (c) employ a method or means of combat the effects of which cannot be limited as required by Additional Protocol I.

54  Conventional Weapons

this Protocol or by any other rule of international law applicable to the High Contracting Party’.189 Twenty-one years later it was agreed, with the formation of the International Criminal Court, that it was a war crime to ‘employ [listed] weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict’.190 The primary international mechanism that has come to explicitly deal with this problem is the 1980 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 and its subsequent protocols. This conference, which emerged out of a General Assembly recommendation in the same year that the Additional Protocols were concluded, eventually resulted in a convention which begins with the recognition of: The principle of international law that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited, and on the principle that prohibits the employment in armed conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.191

In addition, the Parties, despite clearly trying to adopt a positivist approach (with the subsequent approval of the International Court of Justice) to international law where the prohibitions involving weapons that apply to countries should be explicit and not inferred,192 nevertheless confirmed their determination that in cases not covered by the new Convention and its annexed Protocols or by other international agreements, the civilian population and the combatants shall ‘at all times remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’. This Convention which was amended in 2001 to apply to conflicts of both an international and non-international nature is ultimately nothing more than the framework from which the 109 Parties (as of 2010) can gather and discuss the formation and implementation of specific types of weapons controls.193 The aim of the Convention and its Protocols is to provide new rules for the protection of combatants from superfluous injury and non-combatants from indiscriminate weapons. Ultimately, the Convention serves as a framework convention for protocols dealing with specific weapons, although there are no verification and enforcement mechanisms to ensure compliance. Currently, there are five protocols. These relate to weapons with non-detectable fragments; landmines and booby traps; incendiary weapons; blinding laser weapons; and explosive remnants of war.194

 See Protocol I, Art 36.  See Art 8(xx). 191   Resolution on Prohibitions on Certain Weapons GA Res 33/70, A/Res/33/70 (1978); Resolution on Specific Conventional Weapons Which May be the Subject of Prohibitions GA Res 32/153, A/Res/32/153 (1977). 192   Legality of the Threat or Use of Nuclear Weapons(Advisory Opinion) [1996] ICJ General List No 95 at 21. 193  Report of the Second 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 (2001) CCW/CONF.II/16 (Part 1). 194  See Mathews, R (2001) ‘The 1980 Convention on Certain Conventional Weapons: A Useful Framework Despite Earlier Disappointments’ IRRC 844: 991–1012. 189 190

After the Cold War 55 (iii)  Explosive Remnants

A good example of the problem of indiscriminate damage caused by weapons or weapon systems concerns remnants which remain after a conflict has ended. Some remnants are non-explosive. Non-explosive remnants range from the 250,000 kilograms of scrap metal (shrapnel, shell casings, spent bullets, old helmets, barbed wires, entrenching tools, buckles, buttons and all other things) being annually collected in the Somme, through to old ship wrecks. In some instances, such as with a number of decommissioned Soviet nuclear submarines, their radioactive cores have been disposed of in completely inadequate ways, leaving a legacy for generations to come.195 However, these poorly disposed of nuclear submarines are remnants of a time of peace, not conflict. This is unlike more conventional shipwrecks from times of milit­ ary conflict. Some of these, like the USS Richard Montgomery, which still has about 1,400 tons of unstable TNT onboard, are effectively explosive remnants. Most shipwrecks are not explosive risks, although they can still cause significant environmental damage. This is especially so in terms of oil spills. That is, of the 8,569 potentially polluting shipwrecks of the Second World War, 1,583 are known to be oil tankers. Collectively, these vessels hold between 2.5 million and 25 million tons of oil. Even the lower amount is double the amount of oil that spilled into the Gulf of Mexico in 2010, or more than 60 times that size of the Exxon Valdez accident in 1991. Some of the vessels on the ocean floor are considered a particular risk. For example, when the USS Mississinewa was sunk in 1944, it went down with 12 million litres of oil which continue to leak into the ocean decades after it was sunk. There are over 1,080 wrecks in the South Pacific region alone from the Second World War, including 50 tankers, 23 large aircraft carriers, 213 destroyers and 22 battleships. Most of these represent some form of environmental risk. However, the responsibility for such non-explosive remnants, despite their ongoing legacy, is far from clear. Some countries disowned their wrecks after losing the war, whilst others have refused to allow others to salvage or plunder them, as unlike merchant vessels, military vessels, prima facie, remain the property of the country that originally owned them.196 These views were furthered with the United Nations Convention Law of the Sea;197 the 2007 International Treaty on Wreck Removals which expressly excluded warships (unless the flag State

195  Four decommissioned reactors were dumped in 20–40 metres of water in the Abrosimov Gulf in 1965 and 1966. Three reactors from the ice-breaker Lenin were dumped in the Sivolky Gulf in 1967. A reactor was dumped in the Kara Sea in 1972. A submarine with two fuel-laden reactors was scuttled in the Stepovov Gulf in 1982, and a reactor was dumped in the Techeniya Gulf in 1988. Additionally, Russian authorities have reported that 11,000–17,000 waste containers holding 61,406 curies of radioactivity were dumped off Novaya Zemlya from 1964 to 1990, as well as 165,000 cubic metres of liquid waste into the Barent Sea from 1961 to 1990. Livingston, T (1998) ‘Tomorrow’s Oceans’ IAEA Bulletin 40(3) 2; cf Edwards, R ‘Hot Waters’ New Scientist (9 May 1998) 11; MacKenzie, D (1994) ‘Doubts Lurk in Graveyard for Nuclear Subs’ New Scientist (12 Mar 1994) 4–5; Anon ‘Row Over Sunken Nuclear Sub’ New Scientist (18 Sept 1993) 7; Anon ‘Whole Reactor Lurks Under Barents Sea’ New Scientist (13 Feb 1993) 9; MacKenzie, D ‘Russia Owns Up to Sea Burial for Nuclear Waste’ New Scientist (17 April 1993) 5. 196  Hamer, M ‘Disaster From the Deep’ New Scientist (4 Sept 2010) 34–38; Editor ‘Thames Time Bomb Is Still Ticking’ New Scientist (22 Jan 2005) 1–2; Hamer, M ‘The Doomsday Wreck’ New Scientist (21 Aug 2004) 36–40; Hadfield, P ‘Ecowar is Looming In the Pacific’s Pristine Waters’ New Scientist (22 Feb 2003) 12; Boesten, E (2008) Archaeological and Historic Valuable Shipwrecks in International Waters (London, Asser Press) 140–49. 197   UNCLOS, Arts 29, 31, 32 and 95.

56  Conventional Weapons

consents);198 and the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage.199 In international law, explosive ordnance means conventional munitions containing explosives, with the exception of mines, booby traps and other devices as defined in Protocol II of the Convention on Conventional Weapons. Unexploded ordnance are explosive weapons which have been primed, fused, armed or otherwise prepared for use and used in an armed conflict. The weapon may have been fired, dropped, launched or projected and should have exploded but has failed to do so. Abandoned explosive ordnance means explosive weapons that have not been used during an armed conflict, that has been left behind or dumped by a party to an armed conflict, and which is no longer under the control of the party that left it behind or dumped it. Abandoned explosive ordnance may or may not have been primed, fused, armed or otherwise prepared for use. Explosive remnants of war are unexploded ordnance and abandoned explosive ordnance.200 Explosive remnants may also be divided into those which are chemical and those which are conventional. France is littered with unexploded remnants dating back to their 1870 war with Germany. The majority of the unexploded ordnance is from the First World War, where shells had a detonation failure rate of 15 per cent. When the First World War ended, over 64,749 square kilometres of France were cordoned off due to the danger of unexploded ordnance. After 80 years of cleaning up old unexploded ordnance, it is estimated that 12 million unexploded shells still lie in the soil near Verdun alone. In the Second World War, although the failure rate had fallen to six per cent, this still represents millions of munitions. In the Pacific, despite the removal of some 6,000 tons of unexploded ordnance in Okinawa since the Second World War, an estimated 4,000 tons still remained by the middle of 2009. The cumulative result of all of these remnants is that they can create ‘serious post-conflict humanitarian problems’.201 This is because, as the United Nations Environment Programme realised, they ‘can have lasting harmful effects on people, animal populations, vegetation, water, land and the ecosystem as a whole’.202 Although all of the wars that the weapons were originally deployed for have long finished, non-combatants continue to be killed by such remnants. In Poland, more than 12,800 people were killed or injured by unexploded remnants in the years following 1945. In France, between 1945 and 2000 more than 630 of workers died in the course of their employment, which involved collecting and destroying more than 18 million artillery shells, 10 million grenades, 600,000 bombs dropped from aircraft and thousands of underwater mines. Japan left behind up to two million shells in its conflict with China, whilst Germany was bombed to an intensity that was so great that, in preparation for a talk by Pope Benedict XVI in 2005, 63 unexploded shells were uncovered beneath the ground of one square mile in a security sweep of the area in Cologne.203 198  International Convention for the Removal of Wrecks (2007) LEG/CONF.16/19. Also, 46 ILM (2007) 694, Art 4(2). 199  See Underwater Convention, Arts 1(8) and 13. 200  Explosive Remnants Protocol, Art 2. 201  Explosive Remnants Protocol, Preamble. 202   UNEP Decisions of the 5th Session (1977) Decision 82(V) in International Protection of the Environment, Vol XVIII (NY, Oceana) 9178, 9294. 203  Reuters ‘Japan Renews Call for US to Cut Troops on Island’ (25 June 2009) A25; Anon ‘Blast From the Past’ New Zealand Herald (6 Aug 2005) B1; MacKenzie, D ‘Agents of Death’ New Scientist (27 May 2000)

After the Cold War 57

Remnant chemical weapons are also a particular problem. Some of the worst sites of chemical remnants are in the countries that manufactured them (or their former colonies or dependent territories). Hundreds of sites, some used for storage, some for testing, in both the United States and the United Kingdom are said to be on the record books (although many are not recorded) and still contain ageing chemical weapons, some dating back to the First World War.204 Belligerents also left large amounts of chemical remnants on the territories of others. British chemical weapons left in the Middle East after the Second World War (Britain had at least 24,000 mustard gas bombs in the region during the conflict) may have ended up in Iraq’s arsenal, and were also most probably used in the Yemen war in the late 1960s. China was also highly polluted by the estimated 300,000 to 400,000 chemical weapons that Japanese forces buried in their territory.205 Chemical remnants were also disposed, en mass, into the ocean. The exact amount of chemical ordnance which was disposed of in the ocean is a matter of great uncertainty. Nevertheless, it is estimated that between 1967 and 1969 more than 1,700 concrete ‘coffins’ containing 300,000 tons of nerve gas were dumped into the Atlantic and a further 100,000 tons in the Gulf of Mexico by the United States before the practice was outlawed in 1972. Between 1920 and 1976 over 1,000,000 tons of munitions were dumped in Beaufort’s Dyke (the Irish Sea), 168,000 tons in the Skagerrak and 300,000 tons in the North Sea. At least 20 per cent of this total involved chemical weapons. Around 20,000 tons of chemical weapons were dumped into the Baltic after the First World War, and a further 40,000 tons after the Second World War. The former Soviet Union is also believed to have dumped up to 500,000 tons of chemical munitions into the Baltic, the Kara Sea and the Sea of Japan. Many of these munitions are either fished up or washed up on shorelines, decades later. Estimates suggest around 25 per cent of these were still active around 2005.206 The international community, in the form of the General Assembly, has been aware since the mid 1970s that remnants of war can pose a direct threat to future sustainable development. Following studies on this problem, it was recommended by the United Nations Environment Programme, the ICRC and the United Nations General Assembly that this problem be dealt with by a protocol under the 1980 Convention on

5; Hadfield, P ‘China’s Bill For Wartime Cleanup’ New Scientist (25 Mar 1995) 7; MacKenzie, D ‘Agents of Death’ New Scientist (27 May 2000) 5. See Herby, P (2001) ‘Explosive Remnants of War: Protecting Civilians Through An Additional Protocol to the 1980 Convention on Certain Conventional Weapons’ IRRC 841: 195, 198; Webster, D (1998) Aftermath: The Remnants of War (NY, Vintage) 13, 15, 19, 50, 52. 204   Tucker, J ‘Chemical Weapons Buried In the Backyard’ Bulletin of Atomic Scientists (Sept 2001) 51–54; Pugliese, D ‘Bombs On the Beach’ Bulletin of Atomic Scientists ( July 2002) 55–58; Tucker, J ‘Chemical Weapons Buried In the Backyard’ Bulletin of Atomic Scientists (Sept 2001) 51–54; Kiernan, V ‘Survey Uncovers Weapons Dump’ New Scientist (4 Dec 1993) 7; Anon ‘Mustard Gas Found’ New Scientist (23 Nov 1996) 15. 205  See the statements by Japan and China. Both are Position Papers from the 2008 Second Review Conference. See RC-2/NAT.4 and RC-2/NAT.20; Anon ‘British Chemicals in Gulf ’ New Scientist (9 May 1985) 5. 206   OSPAR Commission (2009) Assessment of the Impact of Conventional and Chemical Munitions (London, OSPAR) 3–6; Helcom (1994) Report on Chemical Weapons Dumped in the Baltic Sea (Helsinki, Helcom) 3–4, 7–11; Knight, J ‘Bombs Away’ New Scientist (13 June 1998) 6; MacKenzie, D ‘Plumbing the Depths of the Cold War’ New Scientist (14 Feb 1998) 20; Edwards, R ‘Old Bombs Dumped Miles Off Target’ New Scientist (7 Dec 1995) 12; Edwards, R ‘Danger From the Deep’ New Scientist (18 Nov 1995) 16–17; Chepesiuk, R ‘A Sea of Trouble’ Bulletin of Atomic Scientists (Sept 1997) 41–44.

58  Conventional Weapons

Certain Conventional Weapons.207 However, before the Protocol on Explosive Remnants was concluded in 2003, the 1993 Convention on Chemical Weapons came to encompass not only the creation of new chemical weapons but also the old ‘abandoned chemical weapons’. Under this Convention Parties became obliged to retrieve and dispose of all of these weapons abandoned by a State after 1 January 1925 on the territory of another State without the consent of the latter.208 In 2001 the Parties to the Convention on Conventional Weapons established a working group to examine the topic of explosive remnants. The result of their work was the 2003 Protocol V to the Convention on Explosive Remnants of War.209 Under this Protocol, the 66 Parties which were signatories (in 2010) agreed to ‘minimise the risks and effects of explosive remnants of war in post-conflict situations’ on both their land and internal waters.210 As such, it was agreed that if the Parties, were in control of a territory, or were involved on it, they would help with the clearance, removal or destruction of explosive remnants of war.211 In particular, after the cessation of active hostilities and as soon as feasible, each Party involved in a conflict ‘shall mark and clear, remove or destroy explosive remnants of war in affected territories under its control’.212 The basic steps in this process involve surveying and assessing the threat posed by explosive remnants; and prioritising needs and practicability in terms of marking, clearance, removal and/or destruction. Steps must also be taken to mobilise technical, financial, material and human resources to carry out these activities. The process of recording information to the maximum extent necessary (including, inter alia, type, markings, amount, location) on the use or abandonment of explosive materials, and retaining and transferring it, as far as practicable, subject to legitimate security interests, to the Parties in control of the area is one of the key obligations. The Parties are also obliged to take all feasible measures in the territory under their control to protect the civilian population and humanitarian missions and organisations from such risks. These precautions range from providing information on the location of remnants; marking, fencing and monitoring such areas; and educating the public about the risks they represent.213 (iv) Landmines

After the Second World War, the best known example of large-scale planned minefields was with the 243 kilometres demilitarised zone in Korea. This controlled approach was not followed in the Vietnam conflict, where the United States introduced the concept of

207   UNGA Resolution 3435 (XXX) 9 December 1975; Also, ‘UNEP Decision 6.15’ (1978) in International Protection of the Environment, Vol XVIII (NY, Oceana) 9178, 9397; Herby, P (2001) ‘Explosive Remnants of War: Protecting Civilians Through An Additional Protocol to the 1980 Convention on Certain Conventional Weapons’ IRRC 841: 195, 197. 208   Convention on Chemical Weapons, Arts 1(3) and 2(5). 209   Third 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 (2006) CCW/CONF.III/11 (Part 1); Annex I. Protocol on Explosive Remnants of War 45 ILM (2006) 1348. 210   Art 1. 211   Art 3. 212   Art 3(2). 213   Arts 3(3), (4) and (5), 4– 8. Also Technical Annex I and II.

After the Cold War 59

‘air-dropped minefields’. These were very different to traditionally marked and mapped minefields deployed during the world wars. In a war without static front lines, and when thousands of mines were indiscriminately dropped, without records, the effects – for the Americans – were catastrophic, as the weapons were collected and used against their owners. American-laid landmines contributed greatly to the American body count in Vietnam. According to one report, landmines and booby traps accounted for between 65 and 70 per cent of Marine Corps casualties during 1965 alone. This number increased to 80 per cent by 1970. In the wars in Latin America, the figures were very similar. Thus, 80 per cent of all casualties in El Salvador during the 1980s were attributed to the landmines and booby traps of the insurgents (although this may have been an overestimate). Such weapons also came to represent a significant threat to the civilians who remained in the mined areas after the conflict ended.214 Accordingly, in the case of Vietnam, the North Vietnamese demanded that as part of the peace process with the United States, the Americans assist in de-mining a number of sensitive areas.215 From this point, the technologies, numbers, economic efficiencies and applications of landmines multiplied at great speed. By the twenty-first century there were at least 350 varieties, costing between US$3 and US$15 to make. They can be metal or plastic and made of materials which are near impossible to detect. In physical size, they can be small or large. Small ones can weigh as little as 20 grams. They can be scattered in their thousands across forests and fields from rockets or aircraft. They can be ‘dumb’, without any form of self-destruct mechanism, or they can be smart, in terms of a 99.9 per cent effective self-destructing rate within one month of being deployed if not activated previously. Collectively, they became the weapon of choice for combatants, formal and informal, for the conflicts which covered the last three decades of the twentieth century. At the end of the twentieth century, at least 47 countries had landmines on their territory after the conflicts in which they had been laid had ended. The extent of the contamination varied greatly between countries, although some, such as Afghanistan (724 million square kilometres, with up to 25 people per day standing on landmines in Kabul in 2001), Cambodia (4,466 square kilometres) and Angola (with over 2,610 minefields) were particularly notable. Even a relatively quick war, such as the First Gulf War of 1991, saw an estimated seven million landmines strewn and subsequently abandoned across Kuwait.216 In total, the guess is that globally, thousands, perhaps tens of thousands of square kilometres are contaminated with landmines. Cumulative estimates suggested that in the mid 1990s anti-personnel mines were killing or maiming approximately 15,000 people per year. Some countries, such as Cambodia, were recording casualty rates of over 4,000 per year in 1996, before these fell to 755 by 2003. Of these victims, over 80 per cent were civilians. By the new century, as the Cambodian figures suggest, the overall totals were beginning to fall, although they continued to be recorded in at least 13 countries. For the 2007–2008 period, some 5,426 casualties were caused by mines,  Report of the United Nations Truth Commission on El Salvador, S/25500 (1 April 1993) 36–37.  ‘United States and the Democratic Republic of Vietnam’, ‘Agreement on Ending the War and Restoring Peace in Vietnam’, ‘Protocol on the Removal, Permanent Deactivation or Destruction of Mines in the Territorial Waters’ 12 ILM (1973) 91; Tucker, S (1998) The Encyclopedia of the Vietnam War (Oxford, Oxford University Press) 261; Scheina, R (2003) Latin America’s War. The Age of the Professional Soldier, 1900– 2001, Vol II (NYC, Brassey) 346–47. 216  Filkins, D (2009) The Forever War (NYC, Vintage) 20. 214 215

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explosive remnants and victim-activated improvised explosive devices.217 In addition to the human cost, it is important to recognise that such landmines can, if not removed, prove to be a distinct barrier to the formation and/or acceptance of peace agreements. Before the end of the century, this problem was recognised by the Security Council as a vital part of rebuilding societies and/or enhancing peace initiatives both within and between countries, including, inter alia, Afghanistan,218 Angola,219 Bosnia and Herzegovina,220 Cambodia,221 the Congo,222 Cyprus,223 Ethiopia and Eritrea,224 Kosovo,225 Lebanon,226 Liberia,227 Georgia,228 Guinea Bissau,229 Iraq,230 Mozambique,231 Rwanda,232 Sierra Leone,233 Senegal,234 Somalia,235 Tajikstan236 and the Western Sahara.237 In the new century, the importance of removing landmines was recognised by the Security Council as a solid step towards peace and security for Cyprus,238 Eritrea, Ethiopia239 and Lebanon.240 To assist this process, the United Nations General Assembly has been, since 1993, facilitating assistance to mine infected countries to 217   International Campaign to Ban Landmines (2008) Landmine Monitor Report 2008: Toward a Mine-Free World (London, ICBL) 5–7, 10; First Review Conference of the State Parties to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines APLC/ CONF/204/5 (9 February 2005) Annex V; Monin, L (2002) The Devil’s Gardens: A History of Landmines (London, Pimlico) 4, 55, 70–75; Mullins, J ‘One False Step . . .’ New Scientist (4 May 1996) 32–35; Geddes, L ‘A Step Sideways’ New Scientist (26 Nov 2005) 27; Editor ‘Bang Goes the Landmine Treaty’ New Scientist (30 Sept 2000) 3; Human Rights Watch (2001) Landmine Use in Afghanistan (NYC, HRW) 1-18; Human Rights Watch (1991) Landmines in Cambodia: The Coward’s War (NYC, HRW) 12–19; Human Rights Watch (1986) Landmines in El Salvador and Nicaragua (NYC, HRW) 14–23; Human Rights Watch (1992) Landmines and Civilian Casualties in Iraq (NYC, HRW) 11–18; Human Rights Watch (1993) Landmines in Angola (NYC, HRW)13–20;Human Rights Watch (1995) Cambodia at War (NYC, HRW) 3–6; Human Rights Watch (1994) Landmines in Mozambique (NYC, HRW) 7–12; Turner, J (1998) Continent Ablaze: The Insurgency Wars in Africa (London, Cassell) 91–92. 218  S/RES/1076 (1996, Oct 22). 219  S/RES/1157 (1998, Mar 20); S/RES/1045 (1996, Feb 8); S/RES/1055 (1996, May 8); S/RES/1075 (1996, Oct 11); S/RES/1157 (1998, Mar 20); S/RES/1190 (1998, Aug 13); S/RES/1064 (1996, July 11); S/RES/1087 (1996, Dec 11); S/RES/1127 (1997, Aug 28); S/RES/945 (1994, Sept 29); S/RES/1008 (1995, Aug 7). 220  S/RES/947 (1994, Sept 30); S/RES/952 (1994, Oct 27); S/RES/1021 (1995, Nov 22); S/RES/1034 (1995, Dec 21). 221  S/RES/728 (1992, Jan 8); S/RES/766 (1992, July 21); S/RES/880 (1993, Nov 4). 222  S/RES/1291 (2000, Feb 24). 223  S/RES/1062 (1996, June 28). 224  S/RES/1320 (2000, Sept 15); S/RES/1369 (2001, Sept 14); S/RES/1430 (2002, Aug 14). 225  S/RES/1244 (1999, June 10). 226  S/RES/1337 (2001, Jan 30); S/RES/1391 (2002, Jan 28); S/RES/1428 (2002, July 30). 227  S/RES/866 (1993, Sept 22). 228  S/RES/1124 (1997, July 31); S/RES/1150 (1998, Jan 30); S/RES/1187 (1998, July 30); S/RES/1225 (1999, Jan 28). 229  S/RES/1233 (1999, Apr 6). 230  S/RES/686 (1991, Mar 2). 231  S/RES/863 (1993, Sept 13). 232  S/RES/872 (1993, Oct 5); S/RES/965 (1994, Nov 30); S/RES/965 (1994, Nov 30). 233  S/RES/1289 (2000, Feb 7). 234  S/RES/294 (1971, July 15). 235  S/RES/814 (1993, Mar 26). 236  S/RES/1089 (1996, Dec 13). 237  S/RES/1163 (1998, Apr 17); S/RES/1232 (1999, Mar 30). 238  S/RES/1642 (2005, Dec 14); S/RES/1758 (2007, June 15). 239  S/RES/1466 (2003, March 14); S/RES/1507 (2003, Sept 12); S/RES/1614 (2005, July 26). 240  S/RES/1461 (2003, Jan 30); S/RES/1496 (2003, July 31) S/RES/1525 (2004 Jan 30); S/RES/1553 (2004) July 29; S/RES/1583 (2005, Jan 28).

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help them remove those unexploded devices which have remained in place, after a conflict has ended.241 The international community has attempted to deal with all of the above problems caused by landmines on three occasions. The first two attempts occurred under the auspice of the Convention on Conventional Weapons, whilst the last attempt was through the independent so-called ‘Ottawa’ Treaty. Cumulatively, these three regimes have, in the words of the Security Council, provided ‘beneficial effects . . . on the safety of civilians’.242 Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices was originally drafted in 1980. It was later revised in 1996. As of 2010, there were 93 State Parties to Protocol II. Protocol II covers the use on land of mines,243 booby traps,244 anti-personnel mines (added in 1996)245 and other similar devices.246 It did not apply to the use of anti-ship mines at sea or in inland waterways.247 In 1996 it was made clear that Protocol II applied to conflicts of both an international and noninternational character.248 The Protocol contained an outright prohibition on the use of these weapons against civilians ‘either in offence, defence or by way of reprisals’.249 Mines which were designed to explode in the presence of anti-mining operations were banned, as were those designed to have anti-handling mechanisms that overrode deactivating devices.250 The indiscriminate use of these weapons was clearly prohibited in 1980. The Protocol then, somewhat usefully, went on to explain that the indiscriminate use of such weapons involved any placement which is not directed at a military objective or which employs a method or means of delivery which cannot be directed at a specific military objective.251 These weapons were being used indiscriminately if they caused incidental loss of civilian life, injury to civilians, damage to civilian objects or a combi  UNGA Resolution (1993) 48/7 Assistance in Mine Clearance.  S/RES/1265 (1999, Sep 17); S/RES/1296 (2000, Apr 19). 243   ‘Mine’ was defined to mean any munition placed under, on or near the ground or other surface area and designed to be detonated or exploded by the presence, proximity or contact of a person or vehicle. A ‘remotely delivered mine’ meant any mine so defined delivered by artillery, rocket, mortar or similar means or dropped from an aircraft. See Art 2(1) of Protocol II (both the 1980 and 1996 versions). The 1996 version added mines delivered from a land-based system from less than 500 metres are not considered to be ‘remotely delivered’, provided that they are used in accordance with Art 5 and other relevant Articles of the 1996 Protocol. 244   ‘Booby-trap’ was defined to mean any device or material which is designed, constructed or adapted to kill or injure and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act. See Protocol II 1980, Art 2(2) and Protocol II 1996, Art 2(5). 245   ‘Anti-personnel mine’ was defined in 1996 to mean a mine primarily designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons. See Art 2(3). 246  This refers to manually-emplaced munitions and devices designed to kill, injure or damage and which are actuated by remote control or automatically after a lapse of time. See Art 2(3) of the 1980 Protocol II and Protocol II 1996, Art 2(5). 247  Protocol II, Art 1. 248  See Protocol II 1996, Art 1(3). 249  See Protocol II 1996, Art 3(7). 250  See Protocol II 1996, Art 3(4) and (5). 251  Military objective was defined to mean, so far as objects are concerned, any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage. See Protocol II 1996, Art 2(6). 241 242

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nation thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.252 This meant that there was a prima facie prohibition on the use of such weapons where there was a concentration of civilians in which combat between ground forces was not taking place or did not appear to be imminent.253 Absolute prohibitions applied in all circumstances to the use of booby traps attached to apparently harmless portable objects, or particularly humanitarian, non-combat or civilian objects (such as, inter alia, medical, religious, cultural objects or products for children).254 The same rule applied to objects which are normally dedicated to civilian purposes, such as places of worship, schools and civilian houses – unless they were being used to make an effective contribution to military action.255 All feasible pre­ cautions had to be taken to protect civilians, United Nations forces and humanitarian missions from such weapons.256 Remotely delivered mines were also prohibited, unless they were used within an area which was itself a military objective or which contained military objectives, and unless advance warning of their use was given to civilian populations that may be affected. The location of such remotely delivered mines also had to be accurately recorded or each mine had to have an effective neutralising mechanism on each such mine to render it harmless or cause it to destroy itself after a certain period of time.257 The 1996 revision continued this restriction, but added a technical annex for selfdestruction and self-deactivation requirements.258 Most notably, the 1996 revision prohibited the use of anti-personnel mines which were not detectable259 or did not contain self-deactivation mechanisms covering at least 90 per cent of the mines within a 30-day period and 999 out of 1,000 mines in a 120-day period.260 The Parties agreed not to transfer any such mines that were not consistent with these obligations.261 However, it was permissible to use these prohibited weapons if such mines were placed within a perimeter-marked area which was monitored by military personnel and protected by fencing or other means to ensure the effective exclusion of civilians from the area and such weapons were cleared from the area when the conflict was over.262 Finally, the specific marking, recording and publication of the location of all of these controlled weapons was obliged under the Protocol and, immediately after hostilities ceased, such information was to be shared with the opposition – to the extent that security interests permitted.263 It was added that after the cessation of active hostilities, the Parties would  See Protocol II, Art 3(3).   The exceptions to this were if the weapons were placed on or in the close vicinity of a military objective belonging to or under the control of an adverse party; or measures were taken to protect civilians from their effects, eg, the posting of warning signs, the posting of sentries, the issue of warnings or the provision of fences. Protocol II 1980, Art 6. 254  Protocol II 1980, Art 6 and Protocol II 1996, Art 7. 255  Protocol II 1996, Art 3(8) and (9). It added that several clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects are not to be treated as a single military objective. 256  Protocol II 1980, Arts 3 and 8 and Protocol II 1996, Arts 3(10) and 12. 257  Protocol II 1980, Art 5. 258  Protocol II 1996, Art 6. 259  See Protocol II 1996, Art 4, and para 2 of the technical annex. 260  See Protocol II 1996, Art 4, and para 3 of the technical annex. 261  See Protocol II 1996, Art 8. 262  See Protocol II 1996, Art 6. 263   ‘Recording’ meant a physical, administrative and technical operation designed to obtain, for the purpose of registration in the official records, all available information facilitating the location of mine252 253

After the Cold War 63

endeavour to reach agreement, both among themselves and, where appropriate, with other States and with international organisations, on the provision of information and technical and material assistance including, in appropriate circumstances, joint operations necessary to remove or otherwise render ineffective the weapons covered by Protocol II.264 Without doubt, given the chasm that had developed between this weapon and its indiscriminate impact upon non-combatants, Protocol II, especially after its 1996 revision, had made strong progress in attempting to restrict the use of a class of particularly blunt weapons. However, to many policy makers, this was not sufficient progress. For example, in 1996, the then United States President, Bill Clinton (b 1946), with a then existing stockpile of some 15 million landmines, announced a policy that immediately discontinued the American use of anti-personnel landmines without a timed self-destruct mechanism except in the demilitarised zone of Korea. He also indicated that he supported negotiation of a worldwide ban on anti-personnel landmines, as opposed to the regulation of anti-personnel landmines that had been achieved under Protocol II. This idea seized the imagination of many in the international community, and within a comparatively short space of time, it gathered in Ottawa, Canada, and concluded the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction.265 As at 2010, there were 156 State Parties to this Convention which has been strongly supported by the General Assembly.266 This Convention, whilst welcoming the revised Protocol II, stressed the role of public conscience in furthering the principles of humanity as evidenced by the call for a total ban of anti-personnel mines. With such considerations in mind, the Parties to the Ottawa Convention adopted a very different approach to the control of anti-personnel mines whereby these weapons were banned, not regulated. The problem was that the United States would not sign the Convention without an exception for their military needs in North Korea across the thirty-eight parallel (although they did promise that by 2010 they would not use anti-personnel or anti-vehicle mines which did not have self-destruct and self-activating mechanisms).267 Article 1 of the Ottawa Convention stipulated that each Party to the Convention undertook to ‘never under any circumstances use anti-personnel mines’.268 The Parties fields, mines and booby traps. See Protocol II 1980, Arts 2 and 7 and Protocol II 1996, Arts 2(9) and 9. See also the Technical Annexes of the Protocols, which sets out what must be recorded. 264  Protocol II 1980, Art 9 and Protocol II 1996, Arts 10 and 11. 265   36 ILM (1997) 1507; Maslen, S (1998) ‘An International Ban on Anti-Personnel Mines: History and Negotiation of the Ottawa Treaty’ IRRC 325: 693–713; Human Rights Watch (1997) Exposing the Source (NYC, HRW) 7–10, 14–24. 266   UNGA Resolution (2010) 64/56 Implementation of the Ottawa Convention. Also, 64/42 (2009); 61/84 (2006); 61/84 (2006); 58/53 (2003). 267  Human Rights Watch (2000) The United States Programme to Develop Alternatives to Anti-Personnel Mines (NYC, HRW). 268   ‘Anti-personnel mine’ was defined to mean a mine designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons. Mines designed to be detonated by the presence, proximity or contact of a vehicle that is equipped with anti-handling devices as opposed to a person, are not considered anti-personnel mines as a result of being so equipped. Antivehicle mines are specifically designed for blowing up tanks or vehicles. They explode only when compressed by something weighing hundreds of kilograms. Anti-personnel mines are different. They tend to be smaller, frequently less than 10 cm across, and difficult to detect. In some cases, the colour and shape of the mine help to camouflage it so that it becomes virtually invisible. Nevertheless, given this exception, it is necessary to monitor the development of anti-vehicle mines to ensure they are not capable of detonation under the weight of a person. See Human Rights Watch (2002) Anti-Vehicle Mines With Sensitive Fuses or Anti-

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promised never to develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, such weapons or assist, encourage or induce any Party to use such weapons. They also agreed to destroy or ensure the destruction of all stockpiled anti-personnel mines (except for a small number for training purposes) in accordance with the provisions of the Convention within four years and the destruction of all anti-personnel mines in mined areas under its control, within 10 years.269 These commitments were supplemented with goals of international assistance, full reporting of stockpiles, controlled destructions of the prohibited weapons and facilitation and clarification of compliance, including fact-finding missions and national implementation measures.270 Following the conclusion of the Ottawa Convention the use of anti-personnel mines, especially by governments, has become a rare phenomenon, although speculation continues that they were used during this period by the armed forces of Armenia, Myanmar, Pakistan, Russia, Sri Lanka and Yemen. They also continued to be deployed in large numbers on the borders between countries such as Pakistan and India. Some insurgents, such as those in Columbia, have intensified their use of them, whilst apparently others, like the Taliban, have attempted to disavow them, whilst ramping up their use of IEDs, which are primarily controlled explosions.271 Nevertheless as at 2010, at least 38 States that used to make anti-personnel mines have ceased production. The final positive note is that since 1997, via international assistance, a global clearance of at least 122 square kilometres of mined areas has been recorded and a further 412 square kilometres of battle areas in 30 States has been accurately recorded and cordoned off.272 On the negative side, at least 13 States remain producers of anti-­ personnel mines, including China, Cuba, India, Iran, Myanmar, Nepal, North Korea, Pakistan, Russia, Singapore, South Korea, the United States and Vietnam. It is estimated that more than 160 million anti-personnel mines are currently stockpiled by these States. The vast majority of these estimated stockpiles belong to China (110 million), Russia (24.5 million) and the United States (10.4 million). Other States with very large stockpiles include Pakistan (six million) and India (4.5 million). Of this group, China, Russia and the United States have adhered to self-imposed anti-­ personnel export bans.273 (v)  Cluster bombs

Cluster munitions or cluster bombs are air-dropped or ground-launched munitions that eject smaller submunitions or a cluster of bomblets. The most common types are intended to kill enemy personnel and destroy vehicles, although they may be designed for other purposes as well, such as destroying runways. They are weapons of scope, in handling Devices (NYC, HRW). 269   Arts 4–6. 270   Arts 6–9. 271  Human Rights Watch (2007) Guerrilla Use of Antipersonnel Mines in Columbia (NYC, HRW) 2–10, 12–21; Human Rights Watch (2002) Recent Landmine Use by India and Pakistan (NYC, HRW) 14–29; Human Rights Watch (2001) Landmine Use in Afghanistan (NYC, HRW) 3–4. 272   UNGA Resolution (2010) 64/84 Assistance in Mine Action. Also, 60/69 (2006); 58/127 (2004). 273   International Campaign to Ban Landmines (2008) Landmine Monitor Report 2008: Toward a Mine-Free World (London, ICBL) 5–10; Flynn, M ‘Clearing the Way’ Bulletin of Atomic Scientists (Sept 2006) 18–19; First Review Conference of the State Parties to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines APLC/CONF/204/5 (9 February 2005) 12.

After the Cold War 65

that they have the capacity to spread destruction over large areas. In international law, the definition is more constrained. According to Article 2 of the Convention on Cluster Munitions, a cluster munition is a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms. They must be for anti-personnel purposes and without the means of target discrimination or self-­ detonation if they fail in their immediate goal.274 Accordingly, the focus is upon the cluster bombs most likely to be involved in indiscriminate impacts upon people. In both a historical and contemporary sense, this problem is exacerbated not only by considerations of targeting, but also by the failure rates of cluster bombs (in mechanical terms by poorly designed fuses or manufacturing problems) and because of inefficient delivery due to considerations such as weather, height, speed and/or the terrain they encounter. In addition, although some cluster bombs and/or their submunitions are brightly coloured to increase their visibility and warn off civilians, others are not, and in some instances, the colour, coupled with their small and non-threatening appearance, has caused children to believe they are toys. Collectively: [C]luster munition remnants kill or maim civilians, including women and children, obstruct economic and social development, including through the loss of livelihood, impede postconflict rehabilitation and reconstruction, delay or prevent the return of refugees and internally displaced persons, can negatively impact on national and international peace-building and humanitarian assistance efforts, and have other severe consequences that can persist for many years after use.275

Cluster bombs first appeared when a bundle of grenades were fired from a mortar in 1840 in Sweden. One hundred and seventy years later, a cluster bomb may carry up to 2,000 submunitions. The new generation of cluster munitions can lock onto targets, and chase a moving target for up to five minutes or for five kilometres. Despite the relatively early origins of cluster bombs, it was not until the Battle of Britain in the Second World War that Germany utilised anti-personnel cluster bombs, along with incendiary cluster bombs. These were used during the Blitz with delay and booby trap fusing to prevent firefighting and other damage control efforts in the bombed areas. A few years later in the middle of 1943 both the Soviets and the Nazis deployed more advanced cluster munitions. The Soviets dropped theirs on Nazi armour, whilst the Nazis dropped theirs (some 1,000 early butterfly bombs) on the English port of Grimsby. Between this act and the end of the twentieth century, cluster munitions have been used in at least 33 other conflicts, ranging from Afghanistan to Zambia. The most extensive use of this weapon was by the United States in Cambodia, Laos and Vietnam between 1965 and 1975. It was in these conflicts that the cluster bomb was fully developed with the CBU-24. One single submunition bomb could result in 200,000 steel balls flying in every direction.276 To stress this point, the number of bomblets a B-52 274  For the purposes of the law, submunitions do not include munitions or submunitions designed to dispense flares, smoke, pyrotechnics or chaff; or munitions designed exclusively for an air defence role or those designed to produce electrical or electronic effects. Submunitions do not include munitions containing fewer than 10 explosive submunitions if each explosive submunition weighs more than four kilograms. The Convention is also clear that if they are designed to detect and engage a single target object, each explosive submunition is equipped with an electronic self-destruction mechanism and each explosive submunition is equipped with an electronic self-deactivating feature, then they are not submunitions for the purpose of the Convention. 275   Convention on Cluster Munitions, Preamble. 276   Lindqvist, S (2001) A History of Bombing (London, Grant) 334.

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bomber could drop is almost unimaginable. In one sortie, 25,488 BLU-26B submunitions could be dispersed. A BLU-26B fragmentation bomblet was six centimetres in diameter and upon impact each bomblet projected 300 steel pellets. A single B-52 loaded with these bomblets could saturate an area of approximately 2.5 square kilometres with over 7.5 million steel pellets. In total, an estimated 285 million submunitions were dropped in this conflict. Not all of these exploded. The lowest estimates of 5 per cent failure rates (although they could be as high as 30 per cent) suggest that anywhere between one and 80 million submunitions were left unexploded at the end of the conflict, only to explode later. For example, in Laos in the mid 1990s, such unexploded ordnance was linked to the deaths or maiming of more than 10,000 people per year, of which 31 per cent were children.277 Towards the end of the century, cluster bombs were well used by Russian forces in Chechnya and American-led forces in Kuwait and Afghanistan. In the First Gulf War, about one quarter of the total number of weapons dropped by aircraft on Iraq and Kuwait by the United Nations forces were cluster bombs, comprising a total of some 62,000 cluster bombs containing some 20 million submunitions. Some 100,000 dual purpose artillery shells containing cluster munitions were also fired. This translates, overall, into the dispersal of somewhere in the order of 24 to 30 million submunitions. Assuming a dud rate of 5 per cent, the number of individual live submunitions left on the battlefield and in other areas of Kuwait and Iraq could be estimated to be between 1.2 and 1.5 million. In the Kosovo conflict, NATO acknowledged dropping 1,392 cluster bombs which contained 290,000 submunitions. NATO’s own acknowledged failure rate was between 7 and 11 per cent, although other estimates suggest it is closer to 15 per cent. Even with the lower estimate, at least 29,000 unexploded submunitions remained after the war. One year after the war 492 people had been killed by unexploded remnants. Of these, one third (between 90 and 150 individuals) were killed by anti-personnel mines, one third by ordinary ordnance, and one third by cluster bombs. With the conflict in Afghanistan, 1,228 cluster bombs containing 248,056 bomblets were dropped between October 2001 and March 2002. Even using the conservative estimate of a 5 per cent dud rate, at least 12,400 explosive duds were left behind and by the end of 2002 these had killed at least 127 civilians. With the invasion of Iraq in 2003, 3,664 cluster bombs had been dropped by the middle of 2004. Each one of these contained between 10 and 149 submunitions, with a failure rate of between 2 and 16 per cent. Until the middle of 2004, such unexploded ordnance was impacting upon an estimated 20 civilians per day. Thirty per cent of these people died. In the 2006 incursion into southern Lebanon by Israel, some four million submunitions were released in just a few days. These submunitions had an estimated failure rate of 25 per cent, and were more than twice as many submunitions as had been used by Coalition forces in Iraq in 2003 and more than 15 times the number used by the United States in Afghanistan in 2001 and 2002. These weapons killed 192 civilians within two years of

277   Landmine Monitor (2009) Global Overview of Government Policy and Practice with Cluster-Munitions (London) 7; Marks, P ‘You Thought Cluster Bombs Were Scary?’ New Scientist (27 September 2008) 26; ICRC (2003) Explosive Remnants of War: Negotiations on a New Instrument: Official Statement (Geneva, ICRC) 1; Lovering, D ‘Exploding the Past’ Bulletin of Atomic Scientists (Sept 2000) 28–32; Tucker, S (1998) The Encyclopedia of the Vietnam War (Oxford, Oxford University Press) 44; Swift, E (2003) Where They Lay (NY, Bantam) 6–7.

After the Cold War 67

the ceasefire. In August 2008 both Russian and Georgian forces used the weapon during the conflict over South Ossetia, killing or injuring at least 70 civilians.278 Despite being a relatively common weapon of choice in a number of contemporary conflicts, the merits of these weapons have been questioned, due to their indiscriminate impacts on civilians, since 1974. Following the high use of cluster bombs in the Indochina wars, Sweden and six other States proposed, without success, that these weapons be prohibited for future use. Sweden proposed a similar motion again, in the 1990s, for a new instrument under the auspice of the Convention on Conventional Weapons, laying down technical specifications for cluster bombs and other submunitions to have a 98 per cent reliability and a back-up self-destruct feature. However, this proposal also failed, and it was not until the 1997 Ottawa Convention was concluded, that it was proposed by Norway to create a similar, standalone Convention. The final Convention on Cluster Munitions was concluded in late 2008, and by the middle of 2010, there were 34 State Parties with 72 signatories. Twenty of the 28 NATO members are signatories. Fourteen of the countries that have been affected by cluster munitions have signed, including some of those most severely contaminated, such as Afghanistan, Laos and Lebanon.279 The Parties to the Cluster Munitions Convention were ‘determined to put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use, when they fail to function as intended or when they are abandoned’.280 Article 1 of the Convention was clear that every State Party undertook to never, under any circumstances, use cluster munitions, nor develop, produce, otherwise acquire, stockpile, retain or transfer to anyone else such munitions. They also undertook to clear and destroy any cluster munitions under their jurisdiction or control within 10 years, unless an extension was given. Assistance to address such objectives may be requested. Assistance may be required especially if the cluster munitions are left by a former belligerent.281 In addition to these core goals, the Convention contained a number of other measures related to victim assistance and international cooperation and assistance (especially for clearance and destruction). Transparency measures (such as reporting on size and types of stocks), cooperation in the facilitation of compliance, and national implementation measures were all included in the Convention.282 Although this convention was a clear progression in attempting to ban another indiscriminate weapon, a number of other countries which are large producers of cluster munitions, such as China, Russia and the United States, have refused to sign the Convention, although the United States has pledged to eliminate by 2018 all cluster bombs that do not meet new safety standards of a failure rate of less than one per cent, and all cluster bombs self-destruct mechanisms. In addition to not pledging themselves 278  Human Rights Watch (2009) Humanitarian Law Violations in the Conflict over South Ossetia (NYC, HRW) 25–30, 43–50; Human Rights Watch (2008) Flooding South Lebanon: Israel’s Use of Cluster Munitions in Lebanon (NYC, HRW) 7–10, 12–19; Anon ‘350,000 Cluster Bombs in Lebanon’ Financial Times (20 Sept 2006); Anon (2006) ‘True Cost of Cluster Bombs’ New Scientist (11 Nov 2006) 6. 279  Human Rights Watch (2007) Cluster Munition Policy and Practice (NYC, HRW) 4–5; ICRC (2002) ‘Second Review Conference of the Convention on Certain Conventional Weapons’ IRRC 845: 255–62; Herby, P (2001) ‘Explosive Remnants of War: Protecting Civilians Through An Additional Protocol to the 1980 Convention on Certain Conventional Weapons’ IRRC 841: 195, 199. 280  Preamble of the Cluster Munitions Convention. 281   Cluster Munitions Convention, Art 4. 282   Arts 5–14.

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to destroy their own stockpiles, they are also not obliged to specifically stop their trade in cluster munitions (to other non-signatories). While the true scope of the global trade in cluster munitions is difficult to ascertain due to lack of official information, at least 15 countries have transferred more than 50 types of cluster munitions to at least 60 other countries. In some instances, such exports have been to countries with poor human rights records.283 C.  The Trade in Conventional Weapons

The cumulative result of the armament efforts of the twentieth century was that by the year 2010 it was estimated that there were at least 875 million small arms in the world, shared between the military, law enforcement and civilians. Although about 600,000 small arms were being destroyed annually through disarmament and buy-back programs, the numbers destroyed were probably lower than the numbers of new weapons that are being produced. Of the 875 million that are believed to be in existence, civilians own 650 million, or between 75 and 80 per cent of the global total. In the United States, citizens own some 270 million small arms, with about 90 firearms for every 100 people. North East Asia is home to combined military and police arsenals of at least 22 to 42 million firearms. The people of the Middle East own between 45 and 90 million firearms. Worldwide, gang arsenals include at least two million but probably no more than 10 million firearms. Other non-State armed groups, insurgents and militias, including dormant and state-related groups, have a total of about 1.4 million small arms. In total, armed groups and gangs control between 0.4 and 1.3 per cent of all small arms. At least 51 countries produce weapons to meet all of the above demands for small arms, of which at least half are produced without any license to do so, as illegal copies. The illegal copying is especially high with military rifles, assault rifles and carbines. The average total economic value of all of this trade is guessed at about US$4.3 billion per year. It estimated that the illegal trade in small arms is worth about US$1 billion per year. The difficulty with these figures is that where possible governments try to procure most of their light weapons and ammunition from domestic producers. Therefore, international transfers of light weapons are probably a small percentage of global public procurement. Moreover, there is a great lack of transparency over exactly which countries are producing what and how many are being produced. In this regard, unlike larger conventional weapons, there is relative uncertainty over production statistics for small arms. The six biggest declared conventional arms selling countries are the United States (as the leader of the market at 32 per cent), whilst Britain, France, Germany, the Netherlands and Russia are also notable players (but each at under 10 per cent). Exactly what countries such as, Israel, North Korea and Iran produce and trade is a matter of pure conjecture.284

283   Landmine Monitor (2009) Global Overview of Government Policy and Practice of Cluster Munitions (London) 1–15; Anon ‘Letting Go of Cluster Bombs’ New Scientist (7 June 2008) 25; Human Rights Watch (1994) United States Cluster Bombs for Turkey? (NYC, HRW) 15–23. 284  Stockholm International Peace Research Institute (2010) Small Arms Survey 2010 (Geneva, SIPRI) 2–24.

After the Cold War 69 (i) Europe

The overt problem with all of the small arms in the world is that the international community fundamentally failed to grasp the magnitude of the problem of small arms until the end of the twentieth century. In large part, this had to do with the ethos of arms control thinking that evolved in the early 1990s. The Cold War ended with a series of treaties that, after 20 years of negotiations, largely gained control of both weapons of mass destruction and conventional weapons. The key to understanding the Cold War was the antipathy of the two superpowers towards each other. Accordingly, all of the international effort went on reducing the antagonism between these two groups, building confidence and disarmament. With regards to conventional weapons, this occurred at two levels. First, the Convention on Armed Forces in Europe was concluded. Second, the Register on Conventional Arms was agreed. These two measures, although successful in ending the risks of the Cold War and building confidence and transparency, overlooked the fact that the proliferation of uncontrolled small arms and light weapons would come to plague other regions of the world with an increased ferocity. In late 1990, 22 members of NATO and the Warsaw Pact signed the Convention on Armed Forces in Europe (CFE) Treaty,285 agreeing to limit NATO and Warsaw Pact nonnuclear forces in an area between the Atlantic Ocean and the Ural Mountains. The objective of this treaty was to ensure that the total numbers of conventional armaments and equipment limited by the Treaty within its area of application did not exceed 40,000 battle tanks, 60,000 armoured combat vehicles, 40,000 pieces of artillery, 13,600 combat aircraft and 4,000 attack helicopters. These were then divided between regions. One of the initial difficulties was that the CFE Treaty did not anticipate the dissolution of the Soviet Union and the Warsaw Pact, although it was clear from the end of 1991 that Russia wished to continue on the CFE path.286 Consequently, the participants signed the so-called ‘Tashkent Agreement’ in 1992, allocating responsibility for the Soviet Union’s Treaty-Limited Items of Equipment among the former States of the Soviet Union. It also established equipment ceilings for each nation and the implied responsibility for the destruction or transfer of equipment necessary to meet these national ceilings. Under the CFE Treaty all equipment reductions needed to comply with overall national and zonal ceilings had to been completed by the end of 1995. As the 1995 deadline approached, it was evident that Russia would not meet those requirements, particularly in the so-called ‘flank zones’ which include the Leningrad Military District in the north, and more importantly, the North Caucasus Military District in the south. The outbreak of armed conflicts in and around the Caucasus, most notably in Chechnya, led Russia to claim that it needed to deploy equipment in excess of treaty limits in that zone. To address these concerns, the CFE parties negotiated a Flank Agreement in early 1996.287 This agreement removed several Russian (and one Ukrainian) administrative districts from the old ‘flank zone’ thus permitting existing flank equipment ceilings to apply to a smaller area. To provide some counterbalance to these adjustments,   30 ILM (1991) 1.  Statements Regarding Obligations Assumed Outside the Framework of the Treaty and Certain Armaments and Equipment 30 ILM (1991) 1141; Goldblat, J (2003) Arms Control (London, Sage) 220–25. 287  Flank Document Agreement to the Conventional Armed Forces In Europe Treaty 36 ILM (1997) 866. 285 286

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reporting requirements were enhanced, inspection rights in the zone increased, and district ceilings were placed on armoured combat vehicles to prevent their concentration. There was further posturing by Russia in 1997, following concerns about the expansion of NATO. Thereafter, in 1999, the CFE Adaptation Agreement was signed to further adjust to the dissolution of the Warsaw Pact and the expansion of NATO. The CFE placed alliance-wide, regional and national ceilings on specific major items of military equipment. It sought to promote stability not only by reducing armaments, but also by reducing the possibility of surprise attack by preventing large concentrations of forces. In addition, the CFE Treaty also provided for very detailed data exchanges on equipment, force structure and training manoeuvers; specific procedures for the destruction or redistribution of excess equipment, and verification of compliance through on-site inspections, of which more than 2,500 on-the-ground inspections were conducted in the coming nine years. By the end of the twentieth century the implementation of the CFE had resulted in an unprecedented reduction of conventional arms in Europe, with over 58,000 pieces of equipment removed or destroyed by the end of the decade. Compliance and confidence building has also been assisted by the Treaty on Open Skies. Although concluded in 1992, it took another 10 years for this to become operative after Russia adhered in 2001, and thus allow unarmed aircraft to conduct observation flights over the territories of the Parties. Each nation is assigned a quota of over-flights that it can conduct and must be willing to receive each year. The quota is determined, generally, by the size of the nation’s territory. For the United States, this quota is equal to 42 observation flights per year. The first official over-flight mission occurred in 2002. The Parties have conducted more than 140 missions since that time. The CFE Treaty was supplemented by the United Nations Register of Conventional Arms. The register was created by the General Assembly in 1991288 (and has been continually supported by them) as a means to enhance transparency in this area and thus reduce tension between nations. It was subsequently endorsed by the Security Council.289 Building directly on the thinking of the same period as the CFE, the General Assembly adopted the register as a way to lessen tensions between regions, by introducing an increased ‘openness and transparency in the fields of armament’ transfers. Participation with the register is voluntary, for both suppliers and recipients, and does not involve any controls on arms transfers. Very simply, Member States were requested to provide annual information to the Secretary-General on seven categories of conventional weapons (battle tanks, armoured combat vehicles, large calibre artillery systems, combat aircraft, attack helicopters, warships and missile or missile systems) that they imported or exported. Almost all of the major producers, exporters and importers of major conventional weapons have participated in the register on a consistent basis. It has been estimated that each year the register is able to capture more than 95 per cent of the global arms trade in the seven agreed categories of conventional weapons. In 2003, the register was expanded to cover transfers of MANPADS and artillery between 75 and 100 millimetres in size. Although MANPADS are a type of small arms, they are the only type that is routinely reported upon. That is, despite repeated discussions about adding the category of small arms and light weapons into the reporting expectations, this theme has (as at 2010) not yet been endorsed (although   UNGA Resolution 46/36 L of 9 December 1991. The Register is in the Annex to the resolution.  S/RES/1209 (1998, Nov 19).

288 289

After the Cold War 71

some States chose to report this information). This failure to include small arms and light weapons into the reporting categories means that there is a substantial gap in knowledge about this trade. The problem with the CFE and the register was that, collectively, they failed to draw attention to the issue of small arms and light weapons. Both regimes were focusing on ‘larger’ weapons and the security concerns that they represented. This oversight meant that for smaller weapons, a freedom to exchange, largely without external monitoring, was created that did not exist in other areas and the recording of their transfers was not required despite subsequent General Assembly exhortions that small arms should be recorded,290 (and ammunition stockpiles dealt with vigilantly).291 As such, although the Cold War saw a strict control on the creation of stability and reduction of risk in Europe, it produced the opposite effect in other parts of the world, as countries emptied stockpiles, produced weapons for hard currency or simply lost control of what they possessed. For example, during the chaos surrounding the bloodless revolution in East Germany, a few years before the Soviet Union’s demise, the East German National Peoples’ Army began selling their hardware to the highest bidder. This process continued when they were reunified with West Germany. At this point, the new German government put the entire stockpile of East German weaponry on the open market, with most of it sold to private dealers. Missile attack boats went for US$200,000 while light machine guns were sold for US$60 each. When the Albanian government collapsed in 1993, criminals looted the State arsenals and up to one million weapons may have found their way onto the black market, whilst at other times, without the oversight of the Soviet governors, countries such as Slovakia, Albania, Bulgaria and the Ukraine sold off stockpiles and ammunition to all-comers, irrespective of who they were, to raise cash. In the case of the Ukraine alone, estimates suggest that between 1992 and 1998 US$32 billion worth of weapons were stolen and re-sold abroad.292 A proliferation of private contractors seeking to bridge the gaps between supply and demand were quick to grasp the commercial opportunities that availed themselves in this situation. These commercial opportunities were, however, often directly linked to the illegal provision of weaponry to combatants who could not secure supplies by lawful means, due to, inter alia, their lack of regard to the laws of war.293 (ii)  Plastic Explosives, MANPADS and the Wassenaar Arrangement

It would be an exaggeration to suggest that there was no international agreement on all types of small weapons at end of the Cold War and immediately after. That is, in two instances, there was agreement on both plastic explosives and, as noted above,   UNGA Resolution (2010) 64/54 Transparency in Armaments. Also, 63/69 (2009); 61/77 (2006).  UNGA Resolution (2010) 64/51 Problems Arising from the Accumulation of Conventional Ammunition Stockpiles in Surplus. Also, 63.61 (2009); 61/72 (2007). 292  Stohl, R (2009) The International Arms Trade (London, Polity) 82–91, 100–101; Singer, P (2008) Corporate Warriors (London, Cornell University Press) 54–55; Kahaner, L (2007) AK47. The Weapon That Changed the World (NYC, Wiley) 69–70; Human Rights Watch (1999) Bulgaria: Money Talks: Arms Dealing With Human Rights Abusers (NYC, HRW) 17–22. 293  Human Rights Watch (2000) Question of Principle: Arms Trade and Human Rights (NYC, HRW) 16–24, 27–34; Human Rights Watch (1998) Global Trade, Local Impact (NYC, HRW) 12–19, 23, 28, 32–49; Herby, P (1998) ‘Arms Transfers, Humanitarian Assistance and International Humanitarian Law’ IRRC 325: 685– 91; Egeland, J (1999) ‘Arms Availability And Violations of International Humanitarian Law’ IRRC 835: 673–77. 290 291

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there was also a strong interest in MANPADs. Both of these needed to be controlled because of the risk that terrorism, when linked to either of these weapons, represented. In the first instance, following Security Council recommendations in 1989 that an ‘international regime for the marking of plastic or sheet explosives for the purpose of detection’ was required to protect ‘all acts of unlawful interference against the security of civil aviation’,294 a Convention was concluded. The 1991 Convention on the Marking of Plastic Explosives for the Purpose of Identification was motivated by the ‘deep concern regarding terrorist acts aimed at destruction of aircraft, other means of transportation and other targets’ through the use of ‘plastic explosives’. Under this Convention, each State Party undertook to, ‘Take the necessary and effective measures to prohibit and prevent the manufacture in [or movement through] its territory of unmarked explosives.’295 Accordingly, aside some plastic explosives created for special military or police training purposes, all such explosives were, in the future, to be constructed with specific detection agents ‘in such a manner as to achieve homogeneous distribution in the finished product’. Accordingly, these weapons can be easily detected and are no longer easily hidden. The second small weapon type which the international community has made some headway in controlling is MANPADS. Since the late 1990s, the United States has been attempting to control the proliferation of MANPADS. It is estimated that more than 700,000 of these (and associated surface-to-air missiles) have been created since the mid 1970s. The threat these weapons pose to both military and civilian aircraft has been well known since they were first created.296 It was primarily due to the threat to non-military aircraft that the United Nations General Assembly297 and the Group of Eight,298 have both called for the strict control of these weapons, the destruction of those which are surplus, and ensuring none are provided to non-State actors. Similarly, the 33 Parties to the 1996 Wassenaar Arrangement agreed to a set of criteria for evaluating potential MANPADS exports. The Wassenaar Arrangement on Export Controls for Conventional Arms and Dualuse Goods and Technologies replaced the earlier Cold War organisation (the Coordinating Committee For Multilateral Export Controls) that controlled sensitive exports of technologies to Communist nations. The Wassenaar Arrangement is designed to promote transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilising accumulations. This goal is achieved by participating States agreeing to control exports and retransfers of items on a common Munitions List based on the categories of major conventional weapons used for the Conventional Forces-Europe Treaty and the United Nations Arms Register, and more than 100 items on a List of Dual-Use Goods and Technologies. MANPADS are a foremost example of the type of weapon that the Wassenaar seeks to control. However, the limits of control in this area are clearly evident by what can be achieved under this regime. That is, the Wassenaar discourages MANPADS transfers from its members to end-users other than States, and to governments that are unwill S/RES/635 (1989, June 14).  Plastic Explosives Convention, Art 2. Note the exceptions in Art 3. 296  Hecht, J ‘Defending Civil Aircraft May Be Too Costly’ New Scientist (5 Feb 2005) 24. 297   UNGA Resolution (2006) 60/77 Prevention of the Illicit Transfer and Unauthorised Access to and Use of Man Portable Air Defence Systems. On the same topic, (2004) 59/90. 298   The G8 Action Plan on Enhanced Transport Security and Control of Man Portable Air Defence Systems (2003). Available from the University of Toronto G8 site www.g7.utoronto.ca. 294 295

After the Cold War 73

ing or unable to protect against theft, loss, misuse or diversion of the MANPADS themselves or related technical information. It also identifies several safeguards that importing governments should implement, including storing the firing mechanism and the missile in separate locations, taking monthly inventories of imported MANPADs and re-exporting imported systems only after receiving prior consent from the exporting government. The difficulty with this Arrangement is that there is not a rigorous control system. Under Wassenaar, each national government regulates its own exports and there is no enforcement mechanism should a Participating State violate Wassenaar guidelines. In addition, reporting requirements are light. The fact that this Agreement only covers 33 nations, and notable arms manufacturing nations like China, Iran and Israel are not included, also highlight the weaknesses of this regime.299 (iii)  Arms Embargoes

Outside of the topics of undetectable plastic explosives and MANPADS, the end of strategic alliances of the Cold War saw a proliferation in the trade of small arms. Often this trade was to regimes which were responsible for the killing of tens of thousands of civilians, provided weaponry to terrorists or threatened neighbouring sovereign countries. The cumulative result of this largely unrestricted trade in small arms meant that the 1990s was notable for the Security Council having to place embargos on a number of countries that were quickly becoming threats to international peace and security. In its easiest form, arms embargoes were placed on countries because particularly dangerous conflicts were threatening both the civilians in the area, and the security of surrounding countries. The best example of this type of problem was with the prevention of the import of weapons into all of the territories of the former Yugoslavia, mandated by the Security Council in 1991 when they demanded ‘a general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia until the Council decides otherwise’.300 This embargo, which clearly favoured the Serbian forces which had the lion’s share of all of the existing stockpiles (including some 700 tanks which dated from the Second World War) was continually reiterated and stood until 1996.301 It was lifted following the Dayton Peace Accords, although heavy weapons (such as aircraft and helicopters) were restricted for a further period, while the Security Council called for the keeping of weapons in the region ‘at the lowest possible level’.302 It was reapplied during the late 1990s as threats to inter­national peace and security came to overlap with concerns with Macedonia,303 and later Kosovo, at which point it was reapplied to the Federal Republic of Yugoslavia, until 2001.304 299  Stohl, R (2009) The International Arms Trade (London, Polity) 154–56; Hambling, D ‘Danger in the Skies’ Guardian Weekly (25 June 2004) 19. 300  S/RES/713 (1991, Sept 25). 301  S/RES/724 (1991, Dec 15); S/RES/757 (1992, May 30); S/RES/787 (1992, Nov 16); S/RES/820 (1993 Apr 17); S/RES/942 (1994, Sep 23); S/RES/970 (1995, Jan 12); S/RES/992 (1995, May 11); S/RES/1003 (1995, July 5); S/RES/1015 (1995, Sep 15); S/RES/1022 (1995, Nov 22); S/RES/1074 (1996, Oct 1). For commentary, see Finlan, A (2004) The Collapse of Yugoslavia 1991–1999 (London, Osprey) 20–21; Stephen, C (2004) Judgment Day. The Trial of Slobodan Milosevic (London, Atlantic) 80. 302  S/RES/1088 (1996, Dec 12); S/RES/1021 (1995, Nov 22); S/RES/1021 (1995, Nov 22); Dayton Agreement for Peace in Bosnia and Herzegovina 1995, Annex 1B. 303  S/RES/1186 (1998, July 21). 304  S/RES/1160 (1998, Mar 31); S/RES/1199 (1998, Sept 23); S/RES/1371 (2001, Sept 26); S/RES/1367 (2001, Sept 10).

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In other instances, arms embargoes were placed against Iran305 because of their non-compliance with Security Council resolutions on potential weapons of mass destruction and Haiti because of the toppling of the ‘the legitimate government of President Jean-Bertrand Aristide’.306 Sometimes, embargoes were applied during the 1990s because opposing countries were at, or close to, conflict, such as with Ethiopia and Eritrea,307 and Armenia and Mzerbaijani.308 Libya had a Security Council arms embargo placed on them because of their support for international terrorist operations, although their other actions in terms of arms supply were often just as dangerous. That is, during the 1980s, Libya was also busy supplying weapons they made or resupplying weapons they had acquired from the Soviet Union and China to, inter alia, the governing regime in the Sudan, the Irish Republican Army operating clandestinely in Northern Ireland and insurgents in Chad. Of course, such Libyan supplies were matched during the Cold War; sides provided weaponry to allies because they shared common enemies rather than because they were naturally friends. Thus the opponents of Libya, like the United States and France, were busily arming Hissene Habre (b 1942) who defeated the Libyans with their gifted weaponry, before turning the weapons on his own citizens.309 Iraq also came to have an arms embargo placed against it, due to their invasion of Kuwait and then continual non-compliance with Security Council demands on disarmament.310 This was lifted after the regime of Saddam Hussein had been toppled.311 However, by the time it was toppled, and the military disintegrated, an arsenal of between seven and eight million small arms broke up and helped fuel the insurgency. Losses from this inventory included, inter alia, 350 tons of high explosive and between 3,700 and 5,000 surface-to-air missiles.312 When the Cold War ended and the Security Council turned its attention to the situations of small arms in Africa, the mix of considerations was different. This was primarily because the belligerents were acquiring and trading weapons with a much more diverse flow than elsewhere and private brokers and sympathetic neighbours played a much greater role in supplementing the existing stockpiles that had been acquired during the Cold War. During this period, superpowers had armed their proxies, their proxies armed their friends, and their friends armed each other. Whilst this was relatively easy to conceptualise when the Cold War was in play, the paradigm ended abruptly in 1992, one year after the Soviet Union collapsed. In this single year, the Security Council had to issue arms embargos on three separate parts of Africa. The first example began with two liberation armies, the PMLA (Popular Movement for the Liberation of Angola) and UNITA (the National Union for the Total Independence of Angola). Both of these groups had long been Cold War proxies.  S/RES/1747 (2007) Mar 24.  S/RES/841 (1993, June 16); S/RES/875 (1993, Oct 16). 307  S/RES/1227 (1999, Feb 10); S/RES/1297 (2000, May 12); S/RES/1320 (2000, Sept 15). 308  S/RES/853 (1993, July 29); S/RES/1291 (2000, Feb 24). 309  S/RES/748 (1992, Mar 31); Moloney, E (2002) A Secret History of the IRA (London, Penguin) 3–4, 14–16, 19, 137; Turner, J (1998) Continent Ablaze: The Insurgency Wars in Africa (London, Cassell) 166–67, 174–76, 206–07. 310  S/RES/661 (1990, Aug 6); S/RES/1051 (1996, Mar 27); S/RES/1382 (2001, Nov 29); S/RES/1409 (2002, May 14). 311  S/RES/1546 (2004, June 8). Also, S/RES/1483 (2003). 312  Anon ‘Explosives Missing in Iraq’ New Scientist (30 Oct 2004) 7; Anon ‘An Audit of War and Occupation’ New Scientist (3 July 2004) 8; Whitaker, B ‘Saudi Haul of SAM Missiles Raises Fears of Attack’ Guardian Weekly (11 September 2003) 4. 305 306

After the Cold War 75

Whilst the PMLA was strongly socialist in outlook, UNITA was more liberal. Although these two groups managed not to kill each other when fighting the Portuguese, when the Portuguese quit the country in 1975, the former allies turned on each other and kept shooting for the next 20 years. As such, between 1975 and 1992, the Soviet Union and associated States armed the PMLA whilst (apartheid-led) South Africa and the United States and others armed UNITA. The PMLA purchased over US$1 billion worth of weapons from the Eastern Bloc during 1986 and 1987 alone.313 When the Cold War ended, the arms slowed, and the clear call was for democratic elections. The failure of UNITA to accept the results of these elections resulted in the now cooperative Security Council issuing an arms embargo upon UNITA.314 This was extended into 1995 (and maintained into the new century) when the Security Council emphasised that the ‘continuing acquisition of weapons would . . . undermine confidence in the peace process’315 and called upon all States to ensure their own private arms brokers were not violating the embargo and providing weapons to the multitude of actors, whom the Security Council classified as ‘armed civilians’.316 The success of these actions is a matter of debate, as countries such as Bulgaria, Burkina Faso, Russia, Togo and Zaire managed to assist, or at least turn a blind eye to, this embargo. France appears to have managed to have sold weapons to, or at least been complicit in the rearming of both the MPLA and UNITA.317 The second example from 1992 involved Somalia. Acting under Chapter VII of the Charter, the Security Council implemented an immediate ‘general and complete embargo on all deliveries of weapons and military equipment to Somalia’.318 The background to this problem was the government of Mohamed Siad Barre (1919–85) who seized power in 1969 and managed to play both sides in the Cold War. First, building military largess with the assistance of the Soviet Union (which provided Somalia with the latest jets, tanks, and artillery in the late 1960s), he later swapped preferred suppliers in the 1980s, when promised even greater military aid from the United States. The United States was happy to provide him with weapons to tussle with communist Ethiopia (which had previously been a recipient of large-scale milit­ ary aid from the United States, before it, too, swapped suppliers and ideology) and turn a blind eye when he used them against his own insurgents and associated communities. As such, the country was remarkably well armed before melting down in 1990. Two years later, after the country had disintegrated, the Security Council had to place an arms embargo in this country where arms were ‘in the hands of civilians’ and the ‘proliferation of armed banditry throughout Somalia’ was a deep concern.319 This embargo, which proved difficult to implement because of a continual flow of further 313   Turner, J (1998) Continent Ablaze: The Insurgency Wars in Africa (London, Cassell) 102–03; Prunier, G (2009) Africa’s World War (Oxford, Oxford University Press) 92. 314  S/RES/804 (1993, Jan 29); S/RES/864 (1993, Sept 15). 315  S/RES/976 (1995, Feb 8); S/RES/1064 (1996, July 11). 316  S /RES/1008 (1995, Aug 7); S/RES/1127 (1997, Aug 28); S/RES/1173 (1998, June 12); S/RES/1237 (1999, May 7); S/RES/1295 (2000, Apr 18); S/RES/1373 (2001, Sept 28); Human Rights Watch (1994) Arms Trade and Violations of the Laws of War Since the 1992 Elections (NYC, HRW) 35–60; Human Rights Watch (1996) Between War and Peace: Arms Trade and Human Rights Abuses Since the Lusaka Protocol (NYC, HRW) 17–35. 317  Prunier, G (2009) Africa’s World War (Oxford, Oxford University Press) 98–99. 318  S/RES/733 (1992, Jan 23). 319  S/RES/767 (1992, July 24); S/RES/775 (1992, Aug 28); Turner, J (1998) Continent Ablaze: The Insurgency Wars in Africa (London, Cassell) 191–202.

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weapons, often linked to Yemen (also later a subject of embargo),320 was continuing at the time of writing until the end of 2010. From 1993, for at least the next 17 years, there were continuing fears that the illicit traffic in arms was ‘severely undermining peace and security and the political efforts for national reconciliation’.321 The United Nations arms embargo on all forces in Liberia, except official peacekeepers, or later, the new government, began in 1992 and continued well into the new century following their two civil wars and the ousting of Charles Taylor (b 1948).322 Liberia was well stocked with American weaponry from the Cold War before it fell apart. As such, despite calls and attempts by the United Nations to destroy stockpiles of existing, illegally held weapons,323 and the close monitoring of the embargo, existing weapon stocks supplemented a flow of weapons, many from Eastern Europe countries via arms brokers who were willing to violate the embargo directly, or indirectly through methods which the Security Council identified as ‘illegally diverted and re-exported’324 weapons from neighbouring countries.325 A similar process was applied to Sierra Leone in 1997 where, following the failure of the military junta to hand over power to the democratically elected government, the Security Council placed an embargo on arms and ammunition going into the country, except on a case-by-case basis on applications coming from the democratically elected government. Even if these were authorised, the new government had to clearly mark and register all weapons.326 This embargo on arms sales and transfers to ‘non-governmental forces’ continued into 2001, and as with Liberia, was also difficult to implement due to both the illegal importation and crossborder flows of weaponry.327 The following year in 1993, the Security Council placed an arms embargo on Rwanda.328 However, as the subsequent genocide showed, this was not sufficient to stop the obtaining of small arms by the Rwandan militia, who were largely responsible  S/RES/924 (1994, June 1); S/RES/931 (1994, June 29).  S/RES/814 (1993, Mar 26); S/RES/837 (1993, June 6); S/RES/897 (1994, Feb 4); S/RES/923 (1994, May 31); S/RES/954 (1994, Nov 4); S/RES/1356 (2001, June 19); S/RES/1407 (2002, May 3). S/RES/1425 (2002, July 22); S/RES/1474 (2003); S/RES/1519 (2003, Dec 16); S/RES/1558 (2004 Aug 17); S/RES/1587 (2005, Mar 15), S/RES/1630 (2005, Oct14); S/RES/1676 (2006, May 10); S/RES/1724 (2006, Nov 29); S/RES/1744 (2007, Feb 21); S/RES/1766 (2007, July 23); S/RES/1801 (2008, Feb 20); S/RES/1811 (2008, Apr 29); S/RES/1853 (2008, Dec 19); Neuman, S (1986) Military Assistance in Recent Wars (NYC, Praeger) 17–18; Rutherford. K (2008) Humanitarianism Under Fire: The US and UN in Somalia (Virginia, Kumarian) 11, 119. 322  S/RES/788 (1992, Nov 19); S/RES/813 (1993, Mar 26); S/RES/950 (1994, Oct 21); S/RES/972 (1995, Jan 13); S/RES/1020 (1995, Nov 10); S/RES/1001 (1995, June 30); S/RES/985 (1995, Apr 13); S/RES/1053 (1996, Apr 23); S/RES/1041 (1996, Jan 29); S/RES/1059 (1996, May 31); S/RES/1071 (1996, Aug 30); S/RES/1083 (1996, Nov 27); S/RES/1100 (1997, Mar 27); S/RES/1116 (1997, June 27); S/RES/1343 (2001, Mar 7); S/RES/1478 (2003); S/RES/1497 (2003, Aug 1); S/RES/1521 (2003, Dec 22); S/RES/1579 (2004, Dec 21); S/RES/1643 (2005, Dec 15); S/RES/1683 (2006, June 13); S/RES/1731 (2006, Dec 20); S/RES1792 (2007, Dec 19); S/RES/1854 (2008, Dec 19). 323  S/RES/911 (1994, Apr 21); S/RES/950 (1994, Oct 21); S/RES/972 (1995, Jan 13); S/RES/1041 (1996, Jan 29); S/RES/1001 (1995, June 30); S/RES/1014 (1995, Sept 15); S/RES/1083 (1996, Nov 27); S/RES/1509 (2003, Sept 19). 324  S/RES/1408 (2002, May 6). 325  Human Rights Watch (2001) No Questions Asked: The Eastern Europe Arms Pipeline to Liberia (NYC, HRW). 326  S/RES/1171 (1998, June 5); S/RES/1132 (1997, Oct 8). 327  S/RES/1171 (1998, June 5); S/RES/1231 (1999, Mar 11); S/RES/1299 (2000, May 19); S/RES/1181 (1998, July 13); S/RES/1306 (2000, July 5); S/RES/1343 (2001, Mar 7). For commentary, see Human Rights Watch (2000) The Neglected Arms Embargo on Sierra Leone Rebels (NYC, HRW) 4, 7, 10–17; Farah, D (2007) Merchant of Death (New Jersey, Willey) 65–84, 93, 149–69. 328  S/RES/846 (1993, June 22). 320 321

After the Cold War 77

for the atrocities that followed in 1994, having already obtained arms from, inter alia, Bulgaria, Uganda, South Africa and China. Off the record, a Chinese official later told a British journalist that ‘China practices a policy of allowing people to solve their own problems’.329 Exactly how this view could be reconciled with the official Chinese position that the export of Chinese conventional weapons should not be used to, inter alia, ‘interfere with the internal affairs of recipient countries’ has never been explained.330 After the genocide, the arms embargo was maintained until 1995, when weapons were allowed back in for the legitimate government, but not for any nongovernmental forces. The Government of Rwanda was obliged to keep tight control over its arms (no resale or transfer) and to further this was obliged to mark for identification all of its new weapons and create a register of them.331 As the 1990s turned into the new century, it was clear that preventing the flow of weapons in the Great Lakes region of Africa was very difficult, as weapons continued to find their way to non-sanctioned and non-State actors who were linked to violations of international humanitarian law. The sources by this stage were the private sector who were willing to try to breach the sanctions, and governments such as that of Burundi (much to the ire of the Security Council) which would lawfully import weapons themselves, but then pass them on to groups who they supported in the region.332 By the new century, as the conflicts of the region spread to the Democratic Republic of the Congo, that too was placed under a strict arms embargo until the end of the decade. In the new century, governmental forces were allowed to import small arms. However, the success of this embargo was once more undermined, as the governments of, inter alia, Uganda and Rwanda, provided weaponry to their proxies. This resulted in the unusual step of the Security Council not only targeting certain individuals suspected of violating the embargo, but also demanding that these governments, and the Democratic Republic of Congo, ensure that all flights into their countries were fully authorised and their borders strictly controlled.333 From such concerns, by the end of the twentieth century, the Security Council was clear that the trade in small arms (in Africa) was prolonging conflicts, often with little regard to international humanitarian law.334 Accordingly, they called on all countries to restrict arms transfers which could provoke or prolong armed conflicts or aggravate existing tensions or armed conflicts335 (especially with regards to West Africa, where they urged support for the regional moratorium),336 and to implement effective import,

329  Prunier, G (2009) Africa’s World War (Oxford, Oxford University Press) 27; Human Rights Watch (1994) Arming Rwanda: The Arms Trade and Human Rights Abuses in the Rwandan War (NYC, HRW) 7–15. 330  Stohl, R (2009) The International Arms Trade (London, Polity) 70–74. 331  S/RES/918 (1994, May 17); S/RES/997 (1995, June 9); S/RES/1011 (1995, Aug 16); S/RES/1013 (1995, Sept 7). 332  S/RES/1053 (1996, Apr 23); S/RES/1040 (1996, Jan 29); S/RES/1072 (1996, Aug 30); S/RES/1161 (1998, Apr 9); S/RES/1286 (2000, Jan 19); S/RES/1545 (2004, May 21). Also, Prunier, G (2009) Africa’s World War (Oxford, Oxford University Press) 68–69, 84, 115, 129, 171, 185, 240–41. 333  S/RES/1592 (2005, March 30); S/RES/1533 (2004, March 12); S/RES/1552 (2004, July 27); S/RES/1565 (2004, Oct 1); S/RES/1596 (2005, May 3); S/RES/1616 (2005, July 29); S/RES/1698 (2006, July 31); S/RES/1771 (2007, Aug 10); S/RES/1807 (2008, March 31); S/RES/1857 (2008, Dec 22). 334  S/RES/1265 (1999, Sept 17); S/RES/1209 (1998, Nov 19). 335  S/RES/1261 (1999, Aug 30); S/RES/1296 (2000, Apr 19); S/RES/1314 (2000, Aug 11). 336  S/RES/1343 (2001, Mar 7); S/RES/1631 (2005, Oct 17).

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export and re-export controls on such weapons.337 The Security Council also called for information exchange, transparency in arms shipments, national inventories, better monitoring of airspaces and ‘the introduction of a standardised end-user certificate for imported weapons’. States were urged to consider measures against corporate actors, individuals and entities under their jurisdiction who engaged in the illicit trade of small arms in violation of Security Council authorised arms embargoes.338 (iv)  Between Preventing Illegal or Irresponsible Trade in Small Arms

The international response to the problem of the proliferation of small arms has been one of two approaches. The first seeks to restrict all arms sales and transfers to sovereign governments and to prevent any illegal (as in not authorised by the sovereign) trades. The second seeks to restrict all arms sales and transfers to sovereign governments which will use the weapons irresponsibly by undermining regional stability, harming development and/or abusing human rights.339 Whilst the second approach has gained some traction in some parts of the world, especially Europe, it is the first approach which has come to dominate. As such, it remains quite permissible in the twenty-first century for a country to provide small arms to countries with poor human rights records, such as, inter alia, Myanmar, Sudan or Zimbabwe, and not be held in breach of any international agreement or expectations. Since the early 1990s there have been efforts to review and develop arms transfer principles and codes of conduct to ensure that arms are not sold to countries which would commit violations of humanitarian law or human rights law. Discussions on a potential code of conduct in this area first surfaced in 1991 with the Five Powers Communique. This Communique by the permanent five members of the Security Council acknowledged that the transfer of conventional weapons, when conducted in a responsible manner, should contribute to the ability of States to meet their legitimate needs for defence, security and national sovereignty. It also recognised that indiscriminate transfers of military weapons and technology can carry the risk of regional instability. The five powers then promised to observe restraint in conventional arms transfers and issued a series of guidelines which aimed at creating a ‘serious, responsible and prudent attitude of restraint’. Although the only substance of their commitment was informing each other about the transfer of conventional weapons (above the size of small arms) to the Middle East, there was no procedure by which one government could question a specific export deal concluded by another government. Nevertheless, they agreed, in principle, to avoid transfers likely to prolong or aggravate an existing armed conflict, increase tension, or introduce destabilising military capabilities into a region, or contravene embargoes or other relevant international restraints. They also agreed not to transfer conventional weapons that could be used for purposes other than the security needs of the recipient, such as the support of international terrorism, or to interfere with the internal affairs of other sovereign states or seriously undermine the recipient’s economy. 337  S/RES/1209 (1998, Nov 19); S/RES/1196 (1998, Sept 16); S/RES/1197 (1998, Sept 18); S/RES/1125 (1997, Aug 6). 338  S/RES/1379 (2001, Nov 20); S/RES/1318 (2000, Sept 7); S/RES/1209 (1998, Nov 19). 339   Boivin, A (2005) ‘Complicity and Beyond: International Law and the Transfer of Small Arms and Light Weapons’ IRRC 87 (859): 467–96.

After the Cold War 79

The problem with the 1991 Communique and Guidelines was that the big five, who were only just emerging out of a Cold War populated with big weaponry, barely saw the problem of small arms as a particular type of threat. As such, it took a few more years for the issue, as a problem requiring an international solution, to be clearly visible. This occurred at the end of the twentieth century, when a number of initiatives were beginning to appear. The bluntest of these was the 1988 Moratorium on the Importation, Exportation and Manufacture of Light Weapons within the Economic Community of West Africa. This moratorium, which was set to be renewed every three years, was clear in what it tried to achieve. However, when the list of signatories of this moratorium was examined more closely, and names such as Charles Taylor were revealed, the depth of commitment to the moratorium was questionable. This was unlike their later attempt to control this ongoing problem with the 2006 Convention on Small and Light Weapons, Their Ammunition and Other Related Material of the Economic Community of West African States (ECOWAS). This Convention aimed ‘to prevent and combat the excessive and destabilising accumulation of small arms and light weapons within ECOWAS [area]’.340 The goal of the 2006 regime was to ensure the security of small arms in the region, and restrict the unnecessary trade in these weapons. On the first issue, the ECOWAS Convention agreed that all local manufacturers of small arms and light weapons needed to be placed under State control, especially in terms of clearly recording what and how much was being produced. They were also required to ensure that all such weapons were clearly marked for identification purposes and linked to transparent national and regional databases and registries.341 All national stockpiles were to be safely and effectively managed, whilst weapons that were surplus to the national needs or have become obsolete, seized, unmarked or illicitly held, must be registered and securely stored and/or destroyed.342 On the second issue, the Parties agreed a prima facie prohibition on all transfers of small arms and light weapons. However, a Member State could request an exemption from this prohibition: In order to meet legitimate national defence and security needs, or to participate in peace support or other operations in accordance with the decisions of the United Nations, African Union, ECOWAS, or other regional or sub-regional body of which it is a member.343

Such requests must be made to the ECOWAS Secretariat, of which the Member States shall approve, by consensus. Such requests will be refused if, inter alia, they are contrary to the United Nations arms embargoes and/or encourage terrorism or may cause serious violations of international humanitarian law.344 In addition to these approaches adopted in South West Africa where all trade in weapons was stopped for a short period, a different approach was adopted in some instances whereby attempts were made to restrict the weapons traded to irresponsible countries. The foremost example, following the interest in this topic by the United Nations General Assembly from 1995 onwards, which came to emphasise the import­ ance of the adoption of measures to curb the illicit transfer and use of conventional  ECOWAS 2006, Art 2.  ECOWAS 2006, Arts 7–12. Marking is dealt with in Art 18, and tracing in Art19. The importance of licensing is in Art 4(2). 342  ECOWAS 2006, Arts 16 and 17. 343  ECOWAS 2006, Art 4(1). 344  ECOWAS 2006, Art 6. 340 341

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arms. At the same point, the General Assembly also called for assistance to be given to States for curbing the illicit traffic in small arms and collecting them. Of note, they invited Member States, ‘to implement national control measures in order to check the illicit circulation of small arms, in particular by curbing the illegal export of such arms’.345 Over the coming years, the General Assembly would continually reiterate the importance of countries preventing the illicit circulation of small arms, especially that carried out by arms brokers.346 Progressing such goals, three years later in 1998, the European Code of Conduct on Arms Exports was created as a politically binding instrument that sought to create ‘high common standards’ for all European Union members to use when making arms export decisions and to increase transparency among European Union States on arms exports. Fundamentally, arms exports are not meant to occur to States which breach standards set by nine separate criteria. The first three criteria are that the weapons are going to a country which is under Security Council embargo (or other international obligations relating to arms control); the country does not respect human rights (as established by competent bodies); and ‘there is a clear risk that the proposed export might be used for internal repression’. The fourth criterion is that the exports would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination. Similarly, the fifth consideration is that the exported arms would be used aggressively against another country or to assert by force a territorial claim. The national security of the Member States and of territories whose external relations are the responsibility of a Member State, as well as that of countries friendly to and allied with Member States must be taken into account as the sixth consideration. Criterion seven is the behaviour of the buyer country with regard to the international community, in particular, its attitude to terrorism, the nature of its alliances and respect for international law, including international humanitarian law. The existence of a risk that the equipment will be diverted within the buyer country or re-exported under undesirable conditions is the eighth criterion. Finally, the compatibility of the arms exports with the technical and economic capacity of the recipient country, taking into account the desirability that States should achieve their legitimate needs of security and defence with the least diversion for armaments of human and economic resources, must be taken into account. Two years later at the turn of the century, the Organization for Security and Co-operation in Europe (OSCE) added to this line of thinking with their Policy Statement on Small Arms and Light Weapons.347 Whilst this retained all of the usual expectations on national control over the manufacture of small arms, the marking of small arms, record keeping and transparency measures, it was in their Section III on Common Criteria and Export Controls where the emphasis lay. Each participating State promised to avoid issuing licenses for exports where it deems that there is a clear risk that the small arms in question might: 345  UNGA Resolution (1995) 50/70 General and Complete Disarmament, Sections B and H. The quote is from H.5. 346  UNGA Resolution (2010) 64/50 The Illicit Trade in Small Arms and Light Weapons in All Its Aspects; UNGA Resolution (2010) 64/48 The Arms Trade Treaty; UNGA Resolution (2009) 63/67 Preventing and Combating Illicit Brokering Activities; UNGA Resolution (2010) 64/30 Assistance to States for Curbing the Illicit Traffic in Small Arms and Light Weapons. Also 63/66 (2009); 61/71 (2007). 347  This document was adopted at the 308th Plenary Meeting of the OSCE Forum for Security Co-operation on 24 Nov 2000 (see FSC JOUR/314). Note also UNGA Resolution (2003) 58/55 Promotion at the Regional Level in the OSCE on Small Arms.

After the Cold War 81

(i) Be used for the violation or suppression of human rights and fundamental freedoms; (ii) Threaten the national security of other States; (iii) Be diverted to territories whose external relations are the internationally acknow­ ledged responsibility of another State; (iv) Contravene its international commitments, in particular in relation to sanctions adopted by the Security Council of the United Nations, decisions taken by the OSCE, agreements on non-proliferation, small arms, or other arms control and disarmament agreements; (v) Prolong or aggravate an existing armed conflict, taking into account the legitimate requirement for self-defence, or threaten compliance with international law governing the conduct of armed conflict; (vi) Endanger peace, create an excessive and destabilising accumulation of small arms or otherwise contribute to regional instability; (vii) Be either re-sold (or otherwise diverted) within the recipient country or reexported for purposes contrary to the aims of this document; (viii) Be used for the purpose of repression; (ix) Support or encourage terrorism; (x) Facilitate organised crime; or (xi) Be used other than for the legitimate defence and security needs of the recipient country. However, both the Code and the Policy Statement were only politically binding documents, and there have been a long list of debates over the supply of weapons to individual countries with less than stellar human rights records, such as, inter alia, China, Indonesia, Israel, Saudi Arabia and Turkey. Despite these debates, it would appear that many of the countries that are members of either the European Community and/or the OSCE, have increasingly modified their behaviour. In this regard, Bulgaria, the Czech Republic, Romania and Slovakia all appear to have developed much more responsible patterns in the trade of small arms and light weapons.348 Similar positive changes in behaviour have been evident with some of the larger producers of small arms. This is most evident with the United States, of which, in 1999 their Congress (which had begun to trade weapons with some less than reputable countries in human rights terms who were nevertheless now Allies in the so-called ‘war on terror’) passed their International Arms Sale Code of Conduct.349 This required the President to begin negotiations on a multilateral regime on arms export criteria, whereby an international instrument could be created that sought to prevent the trade in weapons to countries which were not democratic, had no respect for human rights, were aggressive against other States or did not participate fully in the Register of Conventional Arms. The problem was that what was eventually negotiated in 2001 was neither legally binding, nor looked at the broader issue of the suitability of countries which should not be traded with because of their human rights practices. 348  Human Rights Watch (2004) Ripe for Reform: Slovakia and the International Arms Trade (NYC, HRW) 17–41; Human Rights Watch (2002) Arms Trade, Human Rights and European Union Enlargement (NYC, HRW) 4–8, 12–19; Human Rights Watch (2002) Reforming Bulgaria’s Arms Trade: An Update (NYC, HRW) 12–19; Human Rights Watch (1999) Reforming Bulgaria’s Arms Trade (NYC, HRW) 2–14. 349  Human Rights Watch (2002) Dangerous Dealings: Changes to US Military Assistance After September 11 (NYC, HRW) 12–24.

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Nevertheless, the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects was the result of this process.350 The 2001 Programme of Action, which was endorsed by the Security Council,351 was not concerned with the legal flow of small arms between countries. As such, the Programme called upon governments to require arms manufacturers to compile accurate records on small arms sales and mark weapons to help trace the origin of weapons. It also urged States to establish new laws aimed at regulating arms brokers and ensuring control over the export and transit of small arms and light weapons. It appealed to States to destroy surplus stocks of small arms and to criminalise the illegal production, possession, stockpiling and trade in small arms. The only restrictions in trade dealt with those countries that were under an arms embargo of the Security Council.352 The approach of the 2001 Programme, focusing on the illegal, as opposed to the irresponsible, trade in small arms was entirely consistent with the emerging treaties of the period. This can be evidenced with the the 1998 Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and other Related Materials353 and the 2001 Protocol (to the United Nations Convention Against Transnational Organized Crime) against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition.354 It is this 1998 Convention and 2001 Protocol that currently influence, in part, the trade and exchange of small arms. It is envisaged by the General Assembly that in 2012 a ‘legally binding instrument of the highest possible common international standards for the transfer of conventional arms’ will be negotiated. The goal is that the desired treaty will be in accordance ‘with the principles of the Charter of the United Nations and other existing international obligations’.355 However, as of the time of writing, the proposed ‘arms treaty’ is not in existence, unlike the 1998 and 2001 instruments. The 1998 Inter-American Convention was the first international treaty designed to prevent, combat and eradicate illegal transnational trafficking in firearms, ammunition, and explosives. ‘Illicit trafficking’ was defined as referring to the import, export, acquisition, sale, delivery, movement or transfer of firearms, ammunition, explosives, and other related materials from or across the territory of one State Party to that of another State Party, if any one of the States Parties concerned did not authorise it.356 The key provisions of the Inter-American Convention were threefold. First, to help ensure that firearms were transferred only to legitimate users and effective licensing or authorisation systems were in place and no exports were made to countries without these. Secondly, to improve the ability to track illegal firearms, Parties to the Convention   A/CONF 192/15.  S/RES/1366 (2001, Aug 30). 352   The point on the Security Council is Section II, point 15. For commentary from the conference, see Editor (2001) ‘An American Retreat on Small Arms’ New York Times (11 July 2001); Lynch, C ‘US Blocks Tough Action on Illicit Small Arms Trade’ Guardian Weekly (26 July 2001) 31. 353   37 ILM (1998) 143. 354   UNGA Resolution (2001) 55/255. 355   UNGA Resolution (2010) 64/48 The Arms Trade Treaty; UNGA Resolution (2006) 61/89 Towards An Arms Trade Treaty. 356   Inter-American Treaty, Art 1. 350 351

After the Cold War 83

were obliged to require, at the time of manufacture, the marking of firearms with the name of the manufacturer, the place of manufacture and the serial number. Similar markings were required for imported firearms.357 The third component was that Parties had to ensure that they had adequate laws and regulations which criminalised the illicit manufacture of and trafficking in firearms, ammunition, explosives and related materials.358 The sharing of information, as appropriate, on: legislative practices and other national measures to combat illicit trafficking; techniques used to combat money laundering related to illicit transfers; routes customarily used by criminal organisations engaged in illicit trafficking; and the means of concealment used and ways of detecting them were all called for.359 These goals were supplemented with calls for regional coordination and cooperation in responses to everything from identification and tracing, intelligence gathering and search protocols at borders.360 The confiscation or forfeiture of illegal materials, ensuring the security of legal stockpiles; the strengthening of controls at export points; carefully controlled deliveries; and accurate record keeping were also all emphasised.361 The 2001 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime (Firearms Protocol)362 followed the blueprint of the Inter-American Convention. The Firearms Protocol, which had 81 parties in 2010, was designed to ‘promote, facilitate and strengthen cooperation among States Parties in order to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition’.363 Exactly like the Inter-American Convention, the Firearms Protocol did not apply to state-to-state transfers. Rather, it aimed to criminalise the illicit manufacturing of and trafficking in firearms and their associated parts. This was especially so where those offences are transnational in nature and involve an organised criminal group.364 State Parties to this Protocol were obliged to: confiscate, seize and dispose of all such illegal weapons;365 create records (which must exist for at least one decade) of information in relation to firearms in order to be able to trace and identify each weapon. Correspondingly each weapon should be individually recognisable with a unique identifying number and its import and export history;366 and maintain an effective export and import licensing regime.367 Cooperation between Parties in combating all aspects of the illicit transfer of small weapons was also expected.368 Also in 2001, the Protocol on the Control of Firearms, Ammunition and Related Materials in the Southern African Regional Development Community Area was concluded. Following suit with the Firearms Protocol, this regional instrument emphasised the importance of strong legislative measures and effective (and regionally cooperative)   Inter-American Convention, Art VI.   Inter-American Convention, Arts IV and V. 359   Inter-American Convention Art XIII. 360   Inter-American Convention, Arts XIV, XV, XVI and XVII. 361   Arts VIII, X, XI, XII, XVIII and XIX. 362  GA/RES/55/255. 363  Firearms Protocol, Art 2. 364  Firearms Protocol, Art 4. The criminalisation of such activities is dealt with in Art 5. 365  Firearms Protocol, Art 6. 366  Firearms Protocol, Arts 7 and 8. 367  Firearms Protocol, Art 10. 368  Firearms Protocol, Arts 12, 13 and 15. 357 358

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police forces to confront illegal small arms, ensuring that all civilian weapons are licensed, that national inventories are under strict control (and surplus arms destroyed), and that all firearms: Are marked with a unique number, at the time of manufacture or import, on the barrel, frame and, where applicable, the slide and undertake to keep proper records of the markings. [This] shall identify the country of manufacture, the serial number, and the manu­ facturer of the firearm.369

Four years later, a key linkage in this area was concluded. This was the 2005 United Nations International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons.370 This instrument, although far from a legally binding convention, created the first international mechan­ ism whereby, in theory, the history of an individual weapon could be revealed. This history has the capacity to help identify where weapons were sourced. The emphasis within the instrument is upon each weapon being clearly marked with a unique identifier, clear records being kept on the manufacture and trade of each weapon, and most importantly, cooperation in tracing in weapons that are found in one State and are believed to be illicit. Nevertheless, as at 2010, the full and effective utilisation of these tools by the identification and tracing tools and obligations remains weak, although this is not always the case. For example, between 2004 and 2010, some 55,000 automatic weapons have been confiscated by police in Mexico, of which the vast majority have been traced back to lawful purchases in the United States.371

 SADC Protocol, Art 9.   UNGA Resolution (2005) A/60/88. 371  See sections V and VI. Refusals are dealt with in paras 22 and 23. For commentary, see Small Arms Survey (2010) The Small Arms Survey 2009: Shadows of War (Cambridge, Cambridge University Press) 107– 29. For the Mexican statistic, see Anon (2010) ‘Mexican Waves’ Economist (16 Oct) 12–13. 369 370

II Weapons of Mass Destruction 1.  Chemical Weapons

C

hemical agents, as the basis of chemical weapons, may be classified in a variety of different ways depending on the type of characteristic that is of primary concern. For scientists, this can lead to potentially confusing differences in the way that such agents are grouped and referred to in the literature. However, as this book is about the law, the correct way to define these is by the definition agreed via international treaty. The 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and Their Destruction (the Chemical Weapons Convention or CWC) defined ‘chemical weapons’ as toxic chemicals and their precursors, and/or munitions and devices specifically designed to cause death or other harm through the toxic properties of those chemicals. Toxic chemicals, which are listed in the Annex to the CWC, are any chemicals which through their actions can cause death, temporary incapacitation or permanent harm to humans or animals. There are some 3,400 chemical weapons-related compounds. Many of these are binary agents which are harmless until mixed with other chemicals. Other weapons involving chemicals which do not specifically seek the goals of permanent harm through the intrinsic nature of their processes, such as nuclear weapons, are not classified as ‘chemical’.1 In practice, chemical weapons are divided between first and second generation weapons. First generation chemical weapons involve choking gases, such as, inter alia, chlorine, phosgene and blister agents which made up mustard gas, lewisite, and diphosgene gas. Diphosgene appeared in the First World War, when the Germans introduced a mixture of high explosive and a gas that could penetrate gas masks and cause uncontrollable sneezing and vomiting, forcing the removal of gas masks making the targets vulnerable to the other chemicals. The last of the first generation chemicals are blood agents that block oxygen utilisation or uptake from the blood, effectively causing the body to asphyxiate, such as cyanogen chloride, arsine, carbon monoxide and hydrogen cyanide – more infamously known as Zyklon B, the gas used in the Holocaust. Second generation chemical weapons include nerve agents such as tabun, sarin, soman and VX. These chemical weapons are designed to be absorbed into the body through the skin, airways or mouth. Once in the body they disrupt the function of the nervous system by blocking the action of a crucial enzyme called acetylcholinesterase. If nerve

1  See the International Court of Justice for the discussion on nuclear as opposed to chemical weapons. ICJ (1996) The Legality of the Threat or Use of Nuclear Weapons (8 July) General List No 95, paras 54 and 55. The definition from the CWC is in Art 2. For background discussions, see World Health Organization (2004) Public Health Response to Biological and Chemical Weapons: WHO Guidance (Geneva, WHO) 37. The best full discussion of all of the potential chemicals involved in this area is in Annex I of this Report.

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agents prevent the enzyme from breaking down acetylcholine after it causes a synapse to fire, convulsions, paralysis and death will follow. Sarin and tabun were discovered in the 1930s by German scientists looking for new insecticides. These discoveries were quickly replicated after the Second World War by both the Western and Eastern allies, who both acquired sections of the unused Nazi stockpile of these weapons. Later, nerve gases became the gas of choice for all modern armouries. As of 1997, when the CWC came into force (and chemical weapons were at their peak before destruction obligations came into effect), the world’s declared stockpile of chemical agents was 71,316 metric tonnes and 8.67 million chemical munitions and containers.2 Chemical weapons with non-lethal impacts, by which opponents are temporarily disabled but not killed, are actively researched. Within this rubric of non-lethal weapons, all sorts of ideas have developed, involving, inter alia, kinetic energy (water cannons), barriers and entanglements, electrical energy (the taser), acoustics, directed energy (microwave or electric pulses), strobe lights, heat rays, lasers that dazzle and non-lethal chemical agents.3 Non-lethal chemicals range from those developed by the secret service agency of the United States which were intended, but did not succeed, to pacify Hitler by putting female hormones into his vegetables, through to plans to investigate ‘aphrodisiac’ chemical weapons which would have made enemy soldiers irresistible to each other, provoking widespread homosexual activity. Other options advocated in the early 1950s involved dropping LSD into enemy water supplies. Such chemicals were also utilised en masse to find ‘truth drugs’. Work in this area followed evidence which emerged from the Dachau concentration camp where 30 inmates were injected with mescalin to see if they would reveal their innermost thoughts. Similar work was carried out by the United States from 1947 to 1963 with, amongst others, mescalin and LSD. In this regard more than 7,000 soldiers were tested without their consent. More than 1,000 of these men went on to develop serious psychological complications such as depression and epilepsy. A further 25,000 doses of LSD were also doled out to university students, professors and the general public. Despite the novelty value of such options, most of the work in this area appears to have been conducted on ‘knockout’ or ‘calmative’ agents and stimulant chemicals given to troops. Studies into ‘irritants’ such as tear gas and pepper spray, mace and adamsite (which causes severe vomiting, sneezing and coughing) are also well advanced.4 In medical terms, the most prominent short-term effect of lethal chemical weapons is the large number of casualties that they can cause. The potential for overwhelming 2   Organisation for the Prohibition of Chemical Weapons (2009) Facts and Figures (Geneva, OPCW) 3–4; Croddy, E (2002) Chemical and Biological Warfare: A Comprehensive Survey (NY, Springer) 100–09; Charles, D ‘The Poisonous Powers of Chemical Warfare’ New Scientist (25 Aug 1990) 12; Hay, A et al ‘The Chemical Weapons’ New Scientist (11 Mar 1982) 630–34; Hay, A ‘At War With Chemistry’ New Scientist (22 Mar 1984) 12; Day, P ‘British Nerve Gas Plans Revealed’ BBC History (7 Jan 2005). 3  Anon ‘Halt or We’ll Dazzle You’ New Scientist (27 June 2009) 19; Hambling, D ‘Flash Gun’ New Scientist (10 May 2008) 38–40; Hambling, D ‘Maximum Pain is Aim of Navy Study’ New Scientist (5 Mar 2005) 8; Marks, P ‘The Shocking Use of Stun Guns’ in New Scientist (12 Nov 2005) 30–31; Anon ‘Non-Lethals Report’ New Scientist (9 Nov 2002) 9; Edwards, R ‘War Without Tears’ New Scientist (16 Dec 2000) 4–5; Marks, P ‘Long Range Taser Reignites Safety Debate’ New Scientist (29 Aug 2009) 20; Bond, M ‘Shoot, But Not to Kill’ New Scientist (20 Sept 2008) 16; Anon ‘Less Lethal, But Still Not Safe’ New Scientist (16 Sept 2006) 27. 4   Otterman, M (2007) American Torture. From the Cold War to Abu Ghraid and Beyond (London, Pluto) 22, 27; Anon ‘Sex Bomb’ New Scientist (15 Jan 2005) 4; Crowdy, T (2006) The Enemy Within. A History of Espionage (London, Osprey) 328; Hobbes, N (2004) Essential Militaria (London, Atlantic) 72–75; Hay, A et al ‘The Chemical Weapons’ New Scientist (11 Mar 1982) 630–34.

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medical resources and infrastructure is magnified by the fact that the psychological reaction, including possible terror and panic, of a civilian population to chemical attack may be more serious than that caused by attack with conventional weapons. Some chemical agents have the potential to cause physical or mental illnesses that either remain, or only become evident, months or years after the weapons have been used. The occurrence of chronic debilitating pulmonary disease in victims of exposure to mustard gas, years after the conflict, was reported after the First World War. This has also been described in reports of Iranian casualties from Iraqi mustard gas during their war in the 1980s. Deaths from pulmonary complications were still occurring as late as 12 years after all exposure had ended. Certain chemical agents have also been implicated in the causation of cancer in humans, although as seen with the impacts of Agent Orange on Vietnam veterans, the link between causation and effect is often difficult to display with certainty. The point of difference with all of the above examples is that they involve the targeting of chemical weapons at combatants who are prepared for such an attack. The risk, of course, is that a belligerent would choose to target such weapons at civilians, who would not be prepared for such an attack. If this occurred, the results would be unpredictable, long-lasting and very indiscriminate. Simulations of large-scale conflicts suggested, depending on the location and environmental conditions, a ratio of 20 civilians killed for every soldier in chemical warfare. Conversely, for nuclear war the ratio is only meant to be 8 to 1.5 A.  Poison and Other Chemicals in the History of Warfare

The word for poison in ancient Greek, toxicon, derived from toxon – or arrow. In Latin, the word for poison, toxica, was said to derive from taxus – yew, because the first poison arrows had been daubed with deadly yew-berry juice. The use of poison by primitive societies in terms of creating noxious or hearted substances that injure by direct poisoning or burning was not uncommon. In the western lineage, Hercules was the first recorded person in history to use biological weapons, created by dipping arrows in the serpent venom of the Hydra. In the great works by Homer (c 850 BCE) of the Odyssey and the Illiad, Odysseus took poison to Troy, Achilles used poisoned weapons and the priest of Apollo called for plague arrows to fall upon the invading armies. However, Homer spoke of his disdain for such weapons that did not display skill, marksmanship or bravery.6 In practice, poisoned arrows were used by numerous groupings around the Aegean, with the Scythians of Central Asia being the most notable. The Spartans apparently deployed toxic metal arsenic in clouds, and at the siege of Delium in 424 BCE, a gas attack with sulphur fumes was made.7 Biochemical weapons were also part of the 5   World Health Organization (2004) Public Health Response to Biological and Chemical Weapons: WHO Guidance (Geneva, WHO) 45–51; Meleson, M ‘Chemical Warfare and Chemical Disarmament’ Scientific American (April 1980) 36; Anon ‘Europe: A Suitable Case for Treatment?’ New Scientist (11 Mar 1982) 633; Anon ‘When to Use Chemical Weapons’ New Scientist (11 Mar 1982) 633; Rose, S ‘The Case Against Chemical Weapons’ New Scientist (12 Mar 1981) 670–71. 6  Mayor, A (2003) Greek Fire, Poison Arrows and Scorpion Bombs (London, Duckworth) 25, 33. 7  Mayor, A (2003) Greek Fire, Poison Arrows and Scorpion Bombs (London, Duckworth) 25–62, 76, 122; Keeley, L (1996) War Before Civilisation (Oxford, Oxford University Press) 49, 54; Davie, M (1929) The Evolution of War (Boston, Yale University Press) 181–84.

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repertoire of many ancient Indian arsenals and some were used against Alexander the Great (356–323 BCE) following his invasion. Perhaps the most cunning way of delivering a poison was the use of vishakanyas or ‘poisonous damsels’. The vishakanyas were female courtesans who from early childhood were given doses of poisonous herbs or the venom of snakes and scorpions. By the time they reached adolescence, although they themselves had become immunised, they were deadly poisonous to those who had contact with them, especially intimate contact.8 Poison was also used by Hannibal (248–183 BCE) to deal with rebellious tribes, Mithridates (134–63 BCE) to deal with enemy Romans, and by assassins to deal with troublesome Roman emperors such as Claudius (10 BCE–54 AD) and Commodus (161–192). However, as a matter of policy, the Romans disdained the use of poison, linking it with treachery and a type of underhand warfare unworthy of Roman honour.9 A poisoned dagger was used by the assassin of the Caliph Ali (598–661). Rumour has it that Saladin (1138–93) provided his agents with poisoned wine and flour to distribute to the Crusaders, although this is disputed, as various Muslim scholars of the period clearly argued against the use of poison arrows (but not poisoned fresh water, or the firing of snakes and scorpions) in all forms of warfare. Richard the Lionheart (1157–1199) may have had poison arrows used against him in his capture of Cyprus in 1191. Poisoning was not uncommon in either England or Normandy around the year 1000, with a number of nobles believed to have perished from such methods. Poison had a suspected use in the Hundred Years War, to kill foreign nobles. This was despite the fact that John of Salisbury (1120–80) was clear that although poison was used by infidels, it was not permitted by the law.10 Christine de Pisan (1365–1434) would later add that poison weapons were so inhumane that they could not be used in wars with Christians. Nevertheless, poison was used against Christian forces in, inter alia, Spain and the Americas.11 In 1485, the Spanish supplied the French with wine laced with blood from lepers at the siege of Naples. Sulphur, which gave off choking fumes, was utilised in a number of sieges in the sixteenth century, and the use of poison remained on the record books. At this point, Machiavelli (1469–1527) noted the use of poison as a way to secure victory, and did not condemn it.12 This view became acceptable in the century that would come, with some scholars, such as Samuel Rachel (1628–91) arguing ‘it scarcely matters at all, who it is that is killed or whether death is dealt by the sword or by poison’.13 However, on the ground it did matter, with some commanders after the English Civil War being charged with using bullets boiled in poison. This view was clearly persua8  McCrindle, J (1969) The Invasion of India By Alexander the Great (NYC, Barnes) 251, 255; Crowdy, T (2006) The Enemy Within. A History of Espionage (London, Osprey) 31. 9  Mayor, A (2003) Greek Fire, Poison Arrows and Scorpion Bombs (London, Duckworth) 25, 33, 37, 69, 71, 111, 153, 180, 185–90. 10  Nederman, J (ed) (1990) John of Salisbury. Policraticus (Cambridge, Cambridge University Press) 65. 11   Kelly, J (2004) Gunpowder (London, Atlantic) 21; Laing, J (2000) Warriors of the Dark Ages (London, Sutton) 78; Foss, C ‘Islam’s First Terrorists’ in History Today (12 Dec 2007); Seward, D (1974) The Monks of War (Herts, Penguin) 52, 185, 224; Finucane, R (2004) Soldiers of the Faith (London, Phoenix) 97, 200; Wood, H (2008) The Battle of Hastings (London, Atlantic) 33–34; Seward, D (2003) The Hundred Years War (London, Robinson) 116–18; Meron, T (1993) Henry’s Wars and Shakespeare’s Laws (Oxford, Oxford University Press) 116; Khadduri, M (1955) War and Peace in the Law of Islam (Baltimore, John Hopkins Press) 104–05, 106, 114. 12  Machiavelli, N (1560) The Art of War in trans Whitehorne (1990) (Connecticut, Eastern Press) 198–99. 13   Rachel, S The Art of War in trans Whitehorne (1990) (Connecticut, Eastern Press) 186.

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sive, despite the opposite opinions of great scholars of the period such as Cornelius von Bynkershoek (1673–1743)14 and Christian Wolff (1679–1754),15 and in 1675 (between France and Germany) and 1692 (with France, the Circle of Swabia and the Duchy of Wurttemberg) the first ever international agreements were concluded, prohibiting the use of poisoned bullets. From such agreements, Voltaire (1694–1778) could proclaim that the use of poison was ‘so crude [it was] universally condemned’.16 Immanuel Kant (1724–1804) would add that the use of ‘poisoners’ in times of war should never be allowed, as it would make mutual confidence in the subsequent peace impossible. He added, in what could be a rule for all weapons of mass destruction: [A] war of extermination – where the destruction of both parties along with all rights is the result – would permit perpetual peace to occur only in the vast graveyard of humanity as a whole. Thus, such a war, including all means used to wage it, must be absolutely prohibited . . . [for] . . . once they come into use, these intrinsically despicable infernal acts cannot long be confided to war alone.17

These views appear to have been influential, as when the French Revolution broke, calls for the use of poison to be used against the enemies of the revolution were refused by the revolutionary government. Nevertheless, Napoleon (1769–1821) later allowed his forces to pump sulphur dioxide into ship’s holds full of captured rebels from the colony of Haiti, an early form of gas chamber.18 During the Crimean War, the British Navy concocted a plan involving the use of sulphur fumes and, although the British did not have time to use this potential weapon in the Crimea, suggestions for a weapon closer to being deployed, namely artillery shells that had cyanide within them, was rejected by the British command, as being ‘against the rules of warfare’.19 Such chivalry was consistently reflected in Europe and the United States in 1813, 1862 and 1870, when high commands consistently refused petitions to allow poison to be placed on bayonets. However, such chivalry was often only a European tradition. During the Second China War of 1856 to 1869, large quantities of arsenic were secretly mixed into the bread of the European forces. However, so much was mixed in that the soldiers vomited and were not poisoned en masse. Similarly, poisoned arrows and poisoned daggers would continue to preoccupy insurgents and assassins throughout the nineteenth century.20 From such prevailing norms, it was a relatively small step for a number of the premier humanitarian documents of the nineteenth century to conclude that the use of   Bynkershoek, C (1737) Quaestionum Juris Publici Libri Duo in (1930) (Oxford, Clarendon) 16.   Wolff, C (1764) Jus Gentium Methodo Scientifica Pertractatus in (1934) (Oxford, Clarendon) 450. 16   Williams, D (1994) Voltaire. Political Writings (Cambridge, Cambridge University Press) 162. 17   Kant, I (1795) ‘To Perpetual Peace: A Philosophical Sketch’ in Humphrey, T (ed) (1983) Immanuel Kant. Perpetual Peace and Other Essays (NYC, Hacket) 107, 110. 18   Bell, D (2007) The First Total War: Napoleon’s Europe and the Birth of Modern Warfare (London, Bloomsbury) 178; Griffith, P (1998) The Art of War of Revolutionary France: 1789–1902 (London, Greenhill) 76; Reuters ‘France Rethinks Legacy of Napoleon’ New Zealand Herald (1 Dec 2005) B3; Childs, J (2001) Warfare in the Seventeenth Century (London, Cassell) 161. 19  Miles, W ‘Chapters in Chemical Warfare II: The Chemical Shells of Lyon Playfair’ 11(6) Armed Forces Chemical Journal (1957) 23–40. 20   Croddy, E (2002) Chemical and Biological Warfare: A Comprehensive Survey (NY, Springer) 113, 127; Hanson, N (2005) The Unknown Soldier (London, Doubleday) 81; Kiernan, V (1998) Colonial Empires and Armies (London, Sutton) 87; Harclerode, P (2002) Fighting Dirty (London, Cassell) 251; Belfield, R (2005) Terminate With Extreme Prejudice (London, Macmillan) xxi, xxii, 17, 36, 59; Hernon, I (2007) Britain’s Forgotten Wars. Colonial Campaigns in the 19th Century (London, Sutton) 362. 14 15

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poison, in any manner, be it to poison wells, food, or by arms, was, as the Lieber Code would proclaim in 1863 ‘wholly excluded from modern warfare’ as ‘military necessity . . . does not admit of the use of poison in any way’.21 The 1874 Brussels Project of an International Declaration concerning the Laws and Customs of War concurred that the employment of poison or poisoned weapons was ‘especially forbidden’22 and the 1880 Oxford Manual concurred.23 This rule was later codified in the 189924 and 190725 Conventions on the Laws and Customs of War on Land. However, it was the 1899 Declaration on the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases which was most poignant. In particular, the Contracting Powers agreed, when dealing with other Contracting Powers ‘to abstain from the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases’. Despite the obvious clarity of the 1899 Declaration, by the end of the First World War some 28 chemicals had been mixed into 124,000 tons of chemical agents and delivered by some 66 million artillery shells against opposing combatants. Over one million of these men, including Adolf Hitler (1889–1945) who was temporarily blinded, would be affected by late 1918. The onslaught began on 22 April 1915 when the Germans opened 6,000 cylinders, releasing 168 tons of chlorine gas. Five months later the British replied with their first chlorine gas cloud along a 25 mile front in Belgium. What began as dubious experiments with irritants soon degenerated into the large-scale release of a barrage of chlorine gas against the Allies, involving 5,730 90-pound cylinders, which had been hidden in the trenches, the gas being released when the wind was blowing the right direction. Within a few hours, 800 Allied soldiers were dead and another 2,000 were wounded. A reciprocal British attempt to release gas a few months later from 5,000 cylinders resulted in 2,632 British casualties when the wind changed direction and blew the gas back onto their own side. Although the British initially replied with canisters, the delivery of gas by artillery shells quickly followed. Germany excused itself from the 1899 provisions by arguing that they only applied to the deliberate poisoning of food and/or water and the use of projectiles steeped in poison, as opposed to poison drifting out of fixed utilities. Moreover, as these were asphyxiating gases contained within explosive shells designed to fragment, they were not covered because they were dual purpose and the delivery of gas was not their sole purpose.26 As thousands of combatants choked to death, it was argued by some that chemical warfare was a relatively humane method of combat in that a soldier struck by bullets or high explosives was 12 times more likely to die than if affected by gas. There was also a strong belief that using such ‘shock’ weapons could shorten the war, and thus in a utilitarian type of calculus, lower the overall number of dead and injured. The best example of a holder of this view was Fritz Haber (1868–1934), a pioneer of chemical warfare who had actually supervised the use of chlorine against Allied troops at Ypres. He sincerely believed his weapons could end the war quickly, saving lives on both sides.  Arts 16 and 70 of the Lieber Code.  See Arts 12 and 13 of the Brussels Declaration. 23  The 1880 Oxford Manual, Art 8(a). 24  See Art 23 of the 1899 Convention. 25  See Art 23 of the 1907 Convention. 26  Tucker, S (1996) The European Powers in the First World War (NY, Garland) 184–86; Kershaw, I (2008) Hitler (London, Allen) 59–60; Trumpeter, U ‘The Road to Ypres: The Beginnings of Gas Warfare in World War One’ 47 Journal of Modern History (1975) 468. 21 22

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Haber, who went on win a Nobel Prize in chemistry (for a process he had invented to synthesise ammonia), called his chlorine weapons in his acceptance speech ‘a higher form of killing’.27 What would not have been a higher form of killing would be these weapons being used on civilians. This was viewed as a clear possibility, by both sides, via long-range artillery shells and/or aircraft, in early 1918. At this point, the International Committee of the Red Cross (ICRC) issued its most weighty message of the First World War, that this would be against all ‘ideas of humanity’ and would ‘surpass in ferocity every barbaric act known to history’.28 Although these weapons, at this stage, would not be utilised against civilians, by 11 November 1918, 1.3 million casualties were attributed to the 66 million gas shells that the belligerents fired at each other.29 The international outcry at the possibility of using chemical weapons on civilians meant that the topic was high on the agenda after the war ended. The first prohibitions in this area began with the 1919 Versailles Treaty, by which Germany had to disclose to the Allies all of the chemical weapons and plants they possessed, and then stop making or importing such weaponry.30 Very similar obligations were also imposed upon Turkey through the Treaty of Sevres.31 However, before the international community could deal comprehensively with chemical weapons, two incidents occurred that suggested that the limits of only focusing on combatants were changing. First, Soviet forces used lethal poison gas, delivered by aircraft, to attack civilian areas which were supporting the White Armies or were associated with rebellion. The Allies in support of the White Army replied in kind. Second, Winston Churchill (1874–1965) urged the use of non-lethal mustard gas on dissidents in Iraq in 1920. He wrote to the Air Marshal suggesting ‘you should certainly proceed with the experimental work on gas bombs, especially mustard gas, which would inflict punishment upon recalcitrant natives without inflicting grave injury upon them’.32 Such options were curtailed in two international instruments soon after. The first, following strong lobbying from the ICRC, the 1922 (Washington) Treaty relating to the Use of Submarines and Noxious Gases in Warfare, was agreed. In this Treaty (which did not enter force), the signatories recognised that: ‘The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, ha[d] been justly condemned by the general opinion of the civilised world and a prohibition of such use [was] declared [by] the signatories.’33 27  Haber in Barenblatt, D (2004) A Plague Upon Humanity (NYC, Harper) 106. Also, Matthews, R ‘The Real Dr Faustus?’ New Scientist (17 Sept 2005) 47; Prize, R (1997) The Chemical Weapons Taboo (NY, Cornell University Press) 2. 28  Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 255, 256. 29  O’Connell, R (1989) Of Arms and Men: A History of War, Weapons and Aggression (Oxford, Oxford University Press) 253; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 324; Hull, I (2005) Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (Ithaca, Cornell University Press) 214; Fuller, J (1972) The Conduct of War 1789–1961 (London, Methuen) 174. 30  Arts 171 and 172 of the Versailles Treaty. 31  Sevres Treaty, Art 176. 32   Churchill in Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 178. For the Soviet examples, see Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 117; Bullock, D (2008) The Russian Civil War (London, Osprey) 132; Challinger, M (2010) ANZACs in Arkhangel (Melbourne, Hardie) 124–25, 158, 169. 33  Art 5 of the 1922 Treaty of Washington. For the ICRC lobbying, see Resolutions from the 1921 ICRC Conference in ICRC (1995) The Humanitarian Endeavour (Geneva, ICRC) 155.

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Any uncertainty about the legality of these weapons was settled in the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare ‘which have been justly condemned by the general opinion of the civilised world’.34 The Parties agreed to ‘accept this prohibition . . . as a universally accepted part of international law, binding alike the conscience and practice of nations’. Although there were some notable absentees, such as the United States (which did not adhere until 1975) and a number of reservations, typically allowing reprisals if such weapons were first used against them, this instrument laid down the benchmark for the use of this class of weapons that would govern the international community through the Second World War.35 Thirteen years later, the 1938 Draft Convention for the Protection of Civilian Populations Against New Engines of War, although not in force during the conflict that followed it one year later, added the use of chemical weapons that were designed to kill, as opposed to chemical processes that happened on the battlefield by way of normal combustion, or chemicals that were non-lethal (like the use of smoke), in conflicts of both an international and non-international character was prohibited.36 This latter instrument was a clear attempt, following the ineffective diplomacy of the League of Nations and the ICRC, to prevent actions such as those of Benito Mussolini (1883–1945), who authorised the use of chemical weapons against combatants and civilians during his invasion of Ethiopia in 1935.37 It is doubtful whether the 1938 instrument would have stopped Mussolini using chemical weapons on combatants and civilians, any more than it stopped Hitler using chemical weapons on certain classes of civilians in occupied territories from 1941 onwards with his execution by chemicals on an industrial scale. This was especially so with the agent Zyklon B which first came into service with the ‘mercy killing’ of some 70,000 German mental hospital patients; within a few years concentration camps including Auschwitz were using two tons of this chemical each month as their primary method of deaths in the Holocaust.38 Although chemical weapons were used to kill civilians, their utilisation in the Second World War between combatants was surprisingly sparse. This was a remarkable result given that most of the major belligerents possessed great stocks of the first generation chemical weapons, and the Germans had also developed tabun and sarin as secondgeneration chemical weapons. The exception to this was in the conflict between Japan and China. In the battle of Nanchang in 1939, the invading Japanese army fired more than 3,000 gas shells. In another battle in 1941, Japanese planes dropped mustard gas bombs on the suburbs of the Chinese city of Ichang, killing more than 600 soldiers and wounding 1,000 others. The only other incident of note occurred in 1943 when  TIAS, 8061.   For the reservations, see Adams, R (1989) Documents on the Laws of War (Oxford, Oxford University Press) 144. 36  Arts 6 and 7 of the 1938 Draft Convention for the Protection of Civilians. 37  Selassie, Statements to the League of Nations in Keith, K (ed) International Affairs, Vol II (Oxford, Oxford University Press) 85; Baudendistel, R ‘Force Versus Law: Chemical Warfare in the Italo-Ethiopian War’ 322 International Review of the Red Cross (1988) 81–104; Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 309–11. 38   UN War Crimes Commission (1947) ‘The Zyklon B Case: The Trial of Bruno Tesch. Case No 9’ in Law Reports of the Trials of War Criminals, Vol VI (London, HMSO) 94. Also, Laqueur, W (ed) (2001) The Holocaust Encyclopedia (New Haven, Yale University Press) 718–20. 34 35

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an American vessel carrying stocks of 500 tons of mustard gas in 100-pound bombs was attacked by German planes unaware of its cargo. This attack caused the ship to explode and send poisonous vapour over the harbour and town of Bari in Italy, killing over 700 sailors and 1,000 civilians.39 As such, the only real damage done by chemical weapons intended for use against other combatants was self-inflicted because the Germans did not know that the weapons that the British had pledged not to use were in fact just behind the main army. At all other points, the Germans, British and Americans all refused to allow the utilisation of such weapons, despite all being tempted, due to fear of retribution and loss of moral authority. Nevertheless, they were all clear that, as Churchill pointed out, if such weapons were used against them first, ‘we shall carry gas warfare on the largest possible scale far and wide against military objectives in Germany. It is thus for Hitler to decide if he wishes to add this additional horror to aerial warfare.’40 Following the Second World War, the most notable advances with chemical weapons involved their application for non-lethal uses, such as the destruction of the natural environment. Outside of this area, most of the deaths that occurred due to chemical weapons were those inflicted on unwilling volunteers by their own side. Between 15,000 American and 20,000 to 30,000 British, as well as some Australian and Indian soldiers, were used for the testing of chemical weapons between 1945 and 1989.41 However, chemical weapons were used in anger in conflicts in Yemen between 1963 and 1967 (although the scale of this usage in unknown) and in the 1980 to 1988 war between Iran and Iraq. In this second instance, despite repeated Security Council demands that chemical weapons not be used by either belligerent,42 Iraq (but not Iran, which disavowed such weapons), utilised such munitions in 63 separate attacks that accounted for between three to five per cent of Iran’s total casualties during the eightyear war. The Iraqi authorities also targeted their own Kurdish citizens with at least 5,000 being killed and 10,000 injured in one single attack in March 1988 alone. This attack was only one of more than 50 documented chemical attacks by the Iraqi authorities against their own dissident populations.43 39   Perera, J ‘Britain’s Victims of Mustard Gas Disaster’ New Scientist (30 Jan 1986) 26; Barenblatt, D (2004) A Plague Upon Humanity (NYC, Harper) 108–109. 40  Churchill, W (1957) Great War Speeches (London, Transworld) 156; Baker, N (2008) Human Smoke (London, Simon & Schuster) 7, 97; Irons, R (2003) Hitler’s Terror Weapons (London, Collins) 82–83, 89; Geissler, E (1999) Biological and Toxin Weapons: Research, Development and Use from the Middle Ages to 1945 (Oxford, SIPRI, Oxford University Press) 113; Hastings, M (2008) Nemesis: The Battle for Japan (London, Harper) 7, 284. 41  Ansley, G ‘US Planned Nerve Gas Attack on Australian Troops’ New Zealand Herald (7 July 2008) A10; AP ‘British Scientists Tested Poison Gas on Indian Soldiers’ New Zealand Herald (3 Sept 2007) B3; Edwards, R ‘Your Country Needs You’ New Scientist (11 Nov 2000) 11; Charles, D ‘US Admits Guilt Over Mustard Gas’ New Scientist (16 Jan 1993) 8; Mason, I ‘Porton Defends Nerve-Gas Tests on Humans’ New Scientist (16 July 1987) 30; Anon ‘Former Soldiers Blame Their Ills on Nerve Gas Trials’ New Scientist (23 July 1987) 19; Perera, J ‘Australia’s Chemical War Tests’ New Scientist (10 Jan 1985) 5. 42  S/RES/582 (1986, Feb 24); S/RES/612 (1988, May 9); S/RES/620 (1988, Aug 26). 43  Newton, M (2008) Enemy of the State: The Trial and Execution of Saddam Hussein (London, St Martin’s Press) 26; Hiro, D (1991) The Longest War: The Iran-Iraq Military Conflict (London, Routledge) 105, 249; Karsh, E (2002) The Iran-Iraq War (London, Osprey) 47, 53, 55; Croddy, E (2002) Chemical and Biological Warfare: A Comprehensive Survey (NY, Springer) 36, 39, 161; Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 602; Forsythe, D (2005) The Humanitarians: The International Committee of the Red Cross (Cambridge, Cambridge University Press) 68; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 257, 262.

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The only other conventional conflict of note in which chemical weapons were involved was the 1991 Gulf War. After this war was over, United Nations inspectors found 16 SCUD warheads each containing 200 kilogrammes of nerve gas. They also found 7,000 bombs, 13,000 artillery shells and 6,500 rocket warheads filled with mustard and nerve gas. Some 500 tons of chemical agents (80 tons of nerve gas) and nearly 3,000 tons of chemicals that could be used to make chemical weapons were also found. However, Iraq did not use its chemical weapons against the United States lead forces in either the 1991 or 2003 conflicts, although it certainly threatened to. This was probably due to a fear that the United States may have responded with nuclear weapons.44 However, soon after the 1991 conflict was over, evidence started to come to light that up to 25 per cent of Gulf War veterans were suffering from some form of neurological or other illnesses which became known as ‘Gulf War syndrome’ and resembled the symptoms of those poisoned with nerve gas. Although the exact causes were never clear, it appears to be a combination of chemicals given to the soldiers before the conflict to protect them, the destruction – and residue – of captured Iraqi chemical munitions, and the genetic susceptibility of some soldiers were the cause of the problems.45 In addition to conventional belligerents, a number of insurgent and/or terrorist groups have shown a keen interest in chemical weapons. The first manifestation of this in recent times was with the Arab Revolutionary Council in 1978 which tried to poison Israeli oranges with mercury, only managing to injure 12 people, but succeeding in reducing Israeli exports by 40 per cent.46 In the mid 1990s, the Japanese terror group Aum Shinrikyo had produced 70 tons of sarin (enough to wipe out a small city) as well as mustard gas and phosgene. When they finally struck in 1995, they used sarin to kill 12 people and injure a further 5,500.47 Learning from such examples, operating manuals for crop-dusters were found amongst the remaining belongings of the hijackers involved with the September 11 attacks, which could, in theory, have been used to distribute chemical munitions. Finally, the insurgents in Iraq, post 2003, have been noted utilising chemical bombs with chlorine in them, in addition to some of the older chemical munitions left behind by Saddam Hussein.48

44   Bin, A (1998) Desert Storm. A Forgotten War (Westport, Prager) 19, 228, 229; Charles, D ‘US Remans Coy About Its Plans for Chemical Arms’ New Scientist (18 Aug 1990) 6. 45  Anon ‘Gulf War Syndrome Revisited’ New Scientist (15 Mar 2008) 7; Anon ‘Gulf War Brain Drain’ New Scientist (5 May 2007) 5; Anon ‘Gulf Gas Leaves Its Mark’ New Scientist (26 May 2007) 7; MacKenzie, D ‘Military Test Veterans Suffer Gulf War Effects’ New Scientist (29 July 2006) 14; Anon ‘Tug of War Over Gulf War Illness’ New Scientist (24 July 2004) 4; Anon ‘Chemical Fall-Out’ New Scientist (12 June 2004) 5; Anon ‘Syndrome Report’ New Scientist (23 Oct 2004) 4; MacKenzie, D ‘The Disease That Never Was’ New Scientist (6 Nov 2004) 8–10; MacKenzie, D ‘Chemical Warfare’s Enduring Threat’ New Scientist (29 Mar 2003) 6–7; Kleiner, K ‘Are Troops At Risk From Gulf War Syndrome II?’ New Scientist (1 Mar 2003) 11; Anon ‘Gulf Syndrome Dispute’ New Scientist (19 Feb 2000) 21; Knight, J ‘Believe Us Now’ New Scientist (4 Dec 1999) 10; MacKenzie, D ‘Victims of Vaccines’ New Scientist (10 Apr 1999) 5; Kleiner, K ‘Doctors Dissect Gulf Sickness Mystery’ New Scientist (18 Jan 1997) 12; Anon ‘Gulf War Probe’ New Scientist (17 May 1997) 13; Day, M ‘Gulf War Studies May Be Too Late’ New Scientist (21 Dec 1996) 7; Kleiner, K ‘Did Toxic Mix Cause Gulf Sickness?’ New Scientist (22 Apr 1995) 5; Anon ‘No Such Syndrome’ New Scientist (12 Aug 1995) 13; Kiernan, V ‘Poison Gas Not To Blame For Gulf War Sickness’ New Scientist (20 Nov 1993) 8. 46  Eisenberg, C ‘Agroterrorism’ Newsday (15 Dec 2006) 17. 47  Editor ‘Thinking the Unthinkable’ New Scientist (11 May 1996) 3; Hadfield, P ‘Tokyo’s Deadly Nerve Gas Easy To Make’ New Scientist (25 Mar 1995) 4. 48  Anon ‘An Audit of War and Occupation’ New Scientist (3 July 2004) 9; MacKenzie, D ‘Invisible Enemies’ New Scientist (6 Oct 2001) 6–7.

Chemical Weapons 95 B.  The Convention on Chemical Weapons

The Convention on Chemical Weapons represents the high-tide of inter­national arms control of weapons of mass destruction. With this Convention, promises, obligations and verification have all combined to control strongly an entire class of weapon of mass destruction. The road to the CWC began in the late 1960s, when a number of bodies within the United Nations began to get a clear picture of the threat modern chemical weapons had come to represent. Richard Nixon (1913–94) concurred and, at the end of the decade, he announced a new policy of ‘no first use of chemical weapons’ and placed a unilateral moratorium on the development and production of chemical weapons designed for offensive use. These efforts gained momentum in early 1972 when, as part of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction, the signatories agreed to undertake negotiations with a view to reaching an agreement on effective measures for the prohibition of the development, production and stockpiling of chemical weapons.49 These negotiations proceeded throughout the 1970s, making slow but good progress to such an extent that, by 1979, the broad objectives of a Convention which would prohibit the development of the stockpiling of chemical weapons, to be verified by on-site inspections, was agreed. However, all of this progress quickly unravelled in the 1980s when the tensions of the Cold War began to escalate. By 1984, both the Americans and the British had repudiated their own moratoriums in this area and began rearming with modern chemical weapons, due to fears about, inter alia, the size and lethality of the Soviet chemical weapons, and the proliferation of the manufacture of chemical weapons by a number of other countries, such as China, Egypt, Iran, Israel, Libya, North Korea, Syria and Taiwan.50 This trend towards the rearmament of chemical weapons broke in the mid 1980s when the Cold War began to thaw. The lessening of tensions, combined with the horrors of chemical weapons used in the Iraq–Iran War, saw a redoubled effort, supported by the Security Council51 and the meeting of the Parties to the 1925 Geneva Protocol on the Prohibition of Chemical Weapons.52 This momentum was supported by an initial group of 15 countries, who began to cooperate to control the proliferation of 49  See Art IX of the Bioweapons Convention; United Nations (1969) Chemical and Bacteriological Weapons and the Effects of Their Possible Use (NY, UN) 12–26. Also, Croddy, E (2002) Chemical and Biological Warfare: A Comprehensive Survey (NY, Springer) 26–28. 50   Perera, J ‘Britain Shifts To Accommodate Binary Weapons’ New Scientist (29 May 1986) 19; Perera, J ‘Reagan Outflanked by Chemical War Leak’ New Scientist (3 Jan 1985) 3; Perera, J ‘Britain’s Lone Support for Nerve Gas’ New Scientist (2 May 1985) 13; Perera, J ‘Britain May Have Bigeye Nerve Gas By 1989’ New Scientist (11 Apr 1985) 10; Joyce, C ‘Opposition Mounts Against Reagan’s Nerve Gas’ New Scientist (3 May 1984) 8; Anon ‘US Plays the Doomsday Card’ New Scientist (25 Feb 1982) 484; Joyce, C ‘US Takes Aim At Chemical Warfare’ New Scientist (25 Sept 1980) 909; Meleson, M ‘Chemical Warfare and Chemical Disarmament’ Scientific American (Apr 1980) 36; Anon ‘Britain Proposes A Curb on Chemical Warfare’ New Scientist (19 Aug 1976) 372. 51  S/RES/612 (1988, May 9); S/RES/620 (1988, Aug 26). See also their later comments during the 1991 Gulf War, S/RES/686 (1991, Mar 2); S/RES/687 (1991, Apr 3). 52  Meeting of the Parties, reprinted in 28 ILM (1989) 1020. For the momentum, see USSR–USA, Documents from the Geneva Summit 25 ILM (1986) 102; Anon ‘Britain Takes Lead on Chemical Weapons’ New Scientist (16 Feb 1984) 3; Joyce, C ‘US Offers Open Door Treaty on Chemical Warfare’ New Scientist (26 Apr 1984) 7; Anon ‘US Revises Data on Soviet Chemical Arms’ New Scientist (2 Dec 1989); Editor ‘Battling Against Chemical Warfare’ New Scientist (26 Apr 1984) 2.

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chemical weapons. This started in 1984 after it was revealed early that year that Iraq (and later Libya) had obtained many of the precursors necessary for the manufacture of its chemicals weapons through legitimate trade channels. In response, several countries introduced export controls on certain chemicals that could be used to manufacture chemical weapons. This effort, led by Australia (for what subsequently became known as the ‘Australia group’) involved the harmonisation of export controls for eight chemicals that should not be traded with certain countries.53 However, the real breakthrough occurred at the end of the decade when the United States and the Soviet Union agreed to bilateral verification experiments and data exchange relating to the prohibition of chemical weapons.54 This mutual good faith move, in addition to support of the chemical industry, and despite concerns of commercial secrecy, was the key to achieving success. Verification issues had been the stumbling block for many years. When the Soviet Union accepted the principle of unrestricted inspections to ensure compliance, the rest of the 1990 bilateral agreement between the Soviet Union and the United States came together relatively quickly. From this 1990 Agreement, the Superpowers promised to destroy the vast majority of their stockpiles (90 per cent for the Soviets and 80 per cent for the United States), cease further production of chemical weapons, and allow intrusive verification inspections.55 Following the success of the bilateral question, the 1993 CWC came together with relative ease. The 1993 Convention is one step in the progress towards the ‘strict and effective international control, including the prohibition and elimination of all types of weapons of mass destruction’.56 As at the middle of 2010, the 188 Member States to the Convention represented about 98 per cent of the global population and land mass, as well as 98 per cent of the worldwide chemical industry. Whilst Israel and Myanmar (Burma) were signatories, but had not yet ratified the Convention, Angola, Egypt, North Korea, Somalia and Syria were the only States which had neither signed nor acceded to the Convention. The most notable new accessions to the Convention were Libya and Iraq. Under this Convention, the value to humanity of the achievements of chemistry, such as within the fields of industry, agriculture, research, medicine, pharmaceuticals and for other peaceful purposes, are recognised, and the goal is not to disrupt these achievements, either domestically or internationally.57 However, the core of the Convention is the recognition that not all of the developments of chemistry, such as some of those in the creation of weapons, are of benefit to humanity. Accordingly, each State undertook 53  Editor ‘Chemical Reactions’ New Scientist (25 Aug 1990) 3; Anon ‘Britain Restricts Chemical Exports to Gulf ’ New Scientist (19 Apr 1984) 4; Perera, J ‘Europe Continues Chemical Sales to Gulf ’ New Scientist (12 Apr 1984) 4; Perera, J ‘Britain Aids Gulf Chemical Warfare’ New Scientist (22 Dec 1983) 867; Toro, T ‘The Grim Trade That Is So Hard to Control’ New Scientist (25 Aug 1990) 14; Connor, S ‘Scientists Ready to Solve Riddle of Rabta’ New Scientist (14 Jan 1989) 26. 54   USSR–US Agreement Regarding Bilateral Verification Experiment and Data Exchange, 28 ILM (1989) 1438; Gavaghan, H ‘Chemical Weapons Feel the Heat’ New Scientist (9 Sept 1989) 11–12; Anon ‘US Smooths Road to Agreement’ New Scientist (30 Sept 1989) 4.; Editor ‘The Chemistry of Peace’ New Scientist (14 Jan 1989) 25. 55  For the agreement to discuss, see USSR–US Agreement on Destruction and Non-Production of Chemical Weapons and on Measures to Facilitate a Multilateral Convention on Banning Chemical Weapons, 29 ILM (1990) 932; Goldblat, J (2003) Arms Control (London, Sage) 142–49. For background, see Charles, D ‘Chemical Weapons Ban: Now For the Hard Work’ New Scientist (23 Jan 1993) 7; Anon ‘Bush Backs Ban’ New Scientist (18 May 1991) 13; Editor ‘Controlling Chemical Arms’ New Scientist (10 Aug 1991) 9. 56   Chemical Weapons Convention, Preamble. 57  See the Preamble of the Chemical Weapons Convention, as well as Arts II and VI, and especially XI.

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never ‘under any circumstances’, to develop, produce, or otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; to use chemical weapons; to engage in any military preparations to use chemical weapons; or assist, encourage or induce anyone to engage in any activity prohibited to a State Party under the Convention.58 An exception to this obligation exists for chemicals used for protective purposes.59 Five years later, the International Criminal Court would add that the employment of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices was a crime of war.60 Not all chemical compounds with which the Convention is concerned are treated the same. The Convention makes distinctions based on the relative threat of each substance. Schedule 1 Agents are chemicals that could be used as chemical weapons and have little or no use in industry.61 These are all tightly monitored and the national aggregate for any nation of all these chemicals must not exceed one ton at any given time, or 10 grams per year for protective purposes, research, or medical or pharmaceutical facilities. Schedule 2 Agents and Precursors are not toxic of themselves, and most are produced for commercial use in some quantities. However, because it is possible they could be used for the creation of weapons, limits of quantities are set for their possession.62 Schedule 3 pertains to Agents and Precursors which are chemicals which have the potential to become Schedule 1 or 2. However, these have widespread uses in industry and as long as they are used in accordance with the Convention, they may be produced in large quantities, although limits are still set, and declarations on outputs over a certain limit are required.63 Each State Party undertook ‘to destroy chemical weapons it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention’64 within 10 years, unless an official extension was given. They also undertook to destroy any existing chemical weapons production facilities owned or possessed by them, or located in any place under its jurisdiction or control.65   Chemical Weapons Convention, Art 1.  See Art 2(9). ‘Purposes Not Prohibited Under this Convention’ meant protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons; and military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare. 60   International Criminal Court Statute, Art 8(b). 61  These include sarin, soman, tabun, VX, nitrogen and sulphur mustards, lewisite, ricin and saxitoxin. 62  This list includes Amiton, PFIB and BZ. 63   Phosgene, cyanogen chloride, hydrogen cyanide and chloropicrin are in this category. 64   Chemical Weapons Convention, Art 1(2). 65   Chemical Weapons Convention, Art 1(4). Art 2(8) of the Convention defined ‘chemical weapons production facility’. The key definition points are that it is for the ‘final technological stage’ of the munitions, when the equipment is in operation and utilised any chemical listed in Schedule 1 of the Annex on Chemicals; or any other chemical that has no use, above one tonne per year on the territory of a State Party or in any other place under the jurisdiction or control of a State Party, for purposes not prohibited under the Convention, but can be used for chemical weapons purposes. Alternately, it may be a facility for filling chemical weapons, including, inter alia, the filling of chemicals listed in Schedule 1 into munitions, devices or bulk storage containers; the filling of chemicals into containers that form part of assembled binary munitions and devices or into chemical submunitions that form part of assembled unitary munitions and devices, and the loading of the containers and chemical submunitions into the respective munitions and devices. It does not mean any facility having a production capacity for synthesis of chemicals specified as non-Schedule 1 that are less than one tonne; or is Schedule 1, but are produced as an unavoidable by-product of activities for purposes not prohibited under the Convention, provided that the chemical does not exceed 3 % of the total product and that the facility is subject to declaration and inspection under the Convention. Alternately, it may be permitted if it is a single small-scale facility for production of chemicals listed in Schedule 1 for purposes not prohibited under this Convention. 58 59

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Until these facilities were destroyed, they had to be subject to systematic verification through on-site inspection and monitoring with on-site instruments in accordance with the Convention.66 Although the obligation was upon Parties to destroy their chemical weapons within 10 years of the Convention coming into force (in 1997), despite clear intentions, it quickly became apparent that the safe disposal of such munitions was not easily achieved.67 Nevertheless, by the end of the first decade of the twenty-first century a number of notable countries which had possessed chemical weapons, such as the United Kingdom, South Korea, India and Albania had met their obligations. However, this was not the case with Russia and the United States which together, held over 95 per cent of the world’s chemical weapons. The problem with Russia was that no sooner had they signed the Convention, than their economy collapsed and they lacked the financial ability to achieve their obligations as originally intended. This problem was largely solved by the United States agreeing in 1997 to provide them with hundreds of millions of dollars to help with chemical weapons’ destruction. The Russian’s were then given an extension to 2012 to achieve this goal, as was the United States. Both had destroyed around 50 per cent of their stockpiles by 2009.68 As at the middle of 2010, 43,131 tonnes or 60.58 per cent, of the world’s declared stockpile of 71,194 metric tonnes of chemical agent had been verifiably destroyed. In addition, 3.95 million, or 45.56 per cent, of the 8.67 million chemical munitions and containers covered by the CWC had been verifiably destroyed.69 A notable exception under the Convention is of the use of ‘riot control agents’ which are any chemical not listed in the Schedules to the Convention which can ‘produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure’. Although these may not be used as a method of warfare,70 thus eliminating the earlier practice of using tear gas-like substances to flush out enemy troops from tunnels used by the Americans in Vietnam,71 they are not prohibited for law enforcement agencies, including when   Chemical Weapons Convention, Art 5(3).  MacKenzie, D ‘Out Of Harm’s Way’ New Scientist (3 June 2000) 6; Guterman, L ‘Inside Story’ New Scientist (31 Oct 1998) 14; Kiernan, V ‘Old Chemical Weapons Could Blow At Any Time’ New Scientist (9 May 1996) 7; Kiernan, V ‘Bacteria Could Clean Up Cold War Chemicals’ New Scientist (5 Oct 1996) 10; Kiernan, V ‘Many Ways to Kill Off Chemical Weapons’ New Scientist (19 June 1993) 6; Bown, W ‘Nuclear Bonfire For Chemical Weapons’ New Scientist (16 May 1992) 4; Anderson, I ‘Destruction of Chemical Arms Comes Under Fire’ New Scientist (4 Aug 1990) 5; Anderson, I ‘Destroying Chemical Weapons in the Desert’ New Scientist (24 Nov 1983) 561. 68   Organisation for the Prohibition of Chemical Weapons (2008) Review of the Operation of the Chemical Weapons Convention Since the First Review Conference, RC-2/S/1 (Mar 31) paras 2.10, 2.11; US-Russian Statements Concerning Chemical Weapons, 36 ILM (1997) 1025; Anon ‘Chemical Weapon Stew Up Toxic Soup’ New Scientist (3 Nov 2007) 32; MacKenzie, D ‘Chemical Weapons Still a Concern’ New Scientist (28 Apr 2007) 14; Anon ‘Disposal in the Doldrums’ Bulletin of the Atomic Scientists ( July 2004); Anon ‘Chemical Weapons Linger’ New Scientist (8 Nov 2003) 4; Averre, D ‘Chemical Weapons Disposal: Russia Tries Again’ Bulletin of the Atomic Scientists (Sept 2001) 57–64; Anon ‘Mass Destruction’ New Scientist (23 June 2001) 5; MacKenzie, D ‘Deadly Slow’ New Scientist (3 June 2000) 6. 69   Organisation for the Prohibition of Chemical Weapons (2009) Facts and Figures (Geneva, OPCW) 3–4. 70   Chemical Weapons Convention, Art 1(5). 71  The Americans had themselves pledged to stop using riot agents in most situations by 1975. After Vietnam, President Ford signed Executive Order 11850 restricting the use of riot agents in battle to two situations, and then only with presidential approval: against human shields or in rescue missions to save isolated troops from a mob. See Statement by the President on the Geneva Protocol of 1925, 14 ILM (1925) 299; Hay, A et al ‘The Chemical Weapons’ New Scientist (11 Mar 1982) 630–34; Randerson, J ‘US in Danger of Breaking Chemical Weapon Treaty’ New Scientist (5 Apr 2003) 6. 66 67

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acting in domestic riot control situations.72 Although this exception appears relatively straightforward, it became very difficult to disentangle the difference between law enforcement and counter-terrorism linked with the Chechen War when Russian forces used a nebulised aerosol said to contain fentanyl (an opiate used in anesthetics) as a ‘non-lethal’ chemical to overcome terrorists who had taken some 700 hostages in a Moscow theatre in 2002. This gas actually ended up killing 119 of the hostages, although this may have been less had the antidote been given directly after the attack, and not five days later. However, although all of the rebels were killed, not a single government soldier was lost. Nevertheless, 119 civilian deaths makes it ironic to label such a gas as ‘non lethal’. However, the decision of Vladimir Putin (b 1952) to use the gas within his own borders was not criticised on the international stage and the question was not substantially raised in 2004 when it was speculated that American troops guarding prisoners at Guantanamo Bay in Cuba were using knock-out gas similar to that used by the Russians in the hostage siege of 2002.73 The Parties to the Convention agreed to assist each other in the coordination and delivery of protection against chemical weapons (including, inter alia, detection, decontamination, medical antidotes and so on) and research into these matters. Annual reports from State Parties are required on this, from which a databank containing freely available information has been created. In addition, each State Party has the right to request and receive assistance and protection against the use or threat of use of chemical weapons if it considers that prohibited weapons have been used against it or are threatened.74 The compliance mechanisms within the Convention involve Declarations from the State Party with regard to what they possessed and where it was held,75 and national implementation measures (in terms of the formation of domestic laws, controls to implement the Convention,76 and controls on the listed chemicals).77 Most importantly, the Convention contains a complex verification regime, with different obligations applying to different types of chemical facilities. The Convention establishes three schedules of chemicals, grouped by relevance to the production of chemical weapons and extent of legitimate peaceful uses. Some facilities are subject to systematic on-site verification, others are subject to periodic verification inspections. Facilities for a third class of chemicals are subject to random or ‘ad hoc’ inspections. The value and utility of all of these inspection-related verification methods was strongly endorsed at the second Conference of the Parties to the Convention in 2008.78   Chemical Weapons Convention, Art 2(d).  Anon ‘Always Lethal Weapons?’ New Scientist (2 June 2007) 6; Brooks, M ‘Gas Attack’ New Scientist (20 Oct 2007) 50–54; Anon ‘Knockout Gas At Camp X-Ray?’ New Scientist (13 Dec 2004) 4; Auer, C ‘Killer Non-Lethals’ Bulletin of the Atomic Scientists ( Jan 2003) 42–43; Dupont, D ‘Storm Before the Calm’ Scientific American (Feb 2003) 11–12; Mullins, J ‘Moscow Drama Spurs Hunt For Non-Lethals’ New Scientist (21 Dec 2003) 23; Editor ‘A Russian Tragedy’ New Scientist (2 Nov 2002) 5; MacKenzie, D ‘Secret Gas Changes Face of Urban War’ New Scientist (2 Nov 2002) 6–7; Fidler, D ‘The Meaning of Moscow: Non-Lethal Weapons and International Law in the 21st Century’ 87(859) IRRC (2005) 525. 74   Chemical Weapons Convention, Art 10. 75   Chemical Weapons Convention, Art 3. 76   Chemical Weapons Convention, Art 7. 77   Chemical Weapons Convention, Art 6. 78  See Organisation for the Prohibition of Chemical Weapons (2008) Report of the Second Special Session of the Conference of the State Parties to Review the Operation of the Chemical Weapons Convention, RC-2/4 (Apr 18) paras 9.41–9.51. 72 73

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Systematic verification through on-site inspection and monitoring with on-site instruments in order to ensure that the facility remains closed and is subsequently destroyed, and other forms of consultation, cooperation and fact-finding missions, including what are known as ‘challenge inspections’ are provided for.79 Challenge inspections carried out by the Secretariat of the Convention, which any Party can request for suspected non-compliance (as specified in the Verification Annex), and which must be accepted by the State Party, can be authorised within 12 hours of receiving the request if agreed by three quarters of the Parties to the Convention. Inspected nations have the right to negotiate the extent of inspectors’ access to any facility and, although there are strong measures for the handling of confidential information, the Party to be inspected must make every reasonable effort to confirm compliance. These visits, in all of their manifestations, are central to the success of this Convention.80 As at the middle of 2010, since the entry into force of the Convention 12 years earlier, the Secretariat has conducted 3,723 inspections on the territory of 81 States Parties, including 2,102 inspections of chemical weapon-related sites. In addition, 195 chemical weapon-related sites have been inspected out of a total of 227 declared sites, as have 1,621 industrial sites (out of 5,057 industrial facilities worldwide liable to visits).81 2.  Biological Weapons

There is no strict definition of biological weapons in international law. The 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and Their Destruction – or Bioweapons Convention – did not define the prohibited items it sought to regulate. In scientific terms, the chief characteristic of biological agents is their ability to multiply in a host. This is consistent with the view of the World Health Organization which described biological agents as those that depend for their effects on multiplication within the target organism and are intended for use in war to cause disease or death in humans, animals or plants. Toxins are poisonous products of organisms which are inanimate and not capable of reproducing themselves.82 The Bioweapons Convention applies to all natural or artificially created toxins ‘whatever their origin or method of production’.83 It thus covers toxins produced naturally as well as those produced by human-induced chemical synthesis. It also covers developments within micro-biology, genetic engineering and biotechnology, whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes.84 Biological agents are commonly classified according to their taxonomy, the most important taxa being fungi, bacteria and viruses. Biological agents can also be classi  Chemical Weapons Convention, Arts 5(3), 9, 9(8).  MacKenzie, D ‘Chemical Hypocrisy’ New Scientist (9 May 1998) 5; Motluk, A ‘Chemical Weapons Police May Work in Secret’ New Scientist (25 Nov 1995) 10. 81   Organisation for the Prohibition of Chemical Weapons (2009) Facts and Figures (Geneva, OPCW) 3–4. 82  World Health Organization (2004) Public Health Response to Biological and Chemical Weapons: WHO Guidance (Geneva, WHO) 3–7, 37. 83  Art 1 of the Biological Weapons Convention. 84  See Art 1 of the 1986 Final Declaration of the Second Review Conference, BWC/CONF.II/13/II, and also Art 1 of the 1991 Final Declaration of the Third Review Conference, BWC/CONF.III/23; Art 1.5 of the Final Declaration of the Fourth Review Conference in 1996, BWC/CONF, IV/9. 79 80

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fied according to properties that may determine their utility for hostile purposes, such as ease of production or resistance to prophylactic and therapeutic measures. More generally they are characterised by features such as infectivity, virulence, incubation period, lethality, contagiousness, mechanisms of transmission, and stability. The traditional nomenclature in this area typically divides the living organisms involved in bioweapons into three types. The first contains bacteria, including plague, glanders, tularaemia, Q-fever, cholera and anthrax. Anthrax is primarily a disease of herbivor­ ous mammals, although other mammals and some birds have been known to contract it. Anthrax can enter humans when a spore enters the skin through a cut or an abrasion, through eating contaminated food, and from breathing in airborne anthrax spores. Anthrax is not contagious but is still potentially fatal for 10 to 20 per cent of infected people if not treated promptly. Bubonic plague is nearly always fatal if not treated. The second set of living agents involve viruses including smallpox, hemorrhagic fever viruses including yellow fever virus, Venezuelan equine encephalitis, foot and mouth and Ebola. The Ebola virus is highly contagious and usually lethal. There is no known treatment. Smallpox has a death rate of close to 30 to 40 per cent and is also without an effective antidote. The final group of living organisms involves toxins that have been extracted from microbes or plants such as mycotoxins, fungi, botulism, ricin (which can also be viewed as a chemical weapon), saxitoxin, and trichothecene mycotoxin. Botulinum toxins are the most toxic compounds known. Drop for drop, they are 100,000 times more lethal than sarin gas. It has been estimated that one gram of botulinum toxin, if evenly dispensed and inhaled, could kill more than one million people.85 The scientific research into all of these biological agents, when supplemented by the possibilities of genetic engineering, suggests that new types of more lethal biological weapons can be created with relative ease. For example, in the early years of the twenty-first century, the so-called ‘mouse-pox virus’ was created by accident. This kills every one of its victims by wiping out part of their immune system.86 Due to the fact that bacteria, viruses and other live agents may be contagious and reproductive, if they become established in the environment, they may multiply. Thus, unlike any other weapon, they can become more dangerous over time and there are often limited defences against them. As it stands, there are at least 70 types of bacteria, viruses, rickett-siae and fungi that can be weaponised. However, no more than 20 to 30 of these can be can be reliably treated. As such, many weaponised biological agents are the exemplar of indiscriminate and unpredictable munitions. The most prominent short-term effect of biological weapons is the large number of casualties that they can cause. The potential for overwhelming medical resources and infrastructure is magnified by the psychological reaction, including possible terror and panic, of a civilian 85   Dando, M (2006) Bioterror and Biowarfare (Oxford, Oneworld) 76; Barnaby, W (2002) The Plague Makers (London, Vision) 34; Anon ‘The Hobbled Horseman’ The Economist (20 May 1996) 83–89. 86  Aldhouse, P ‘The Bioweapon is in the Post’ New Scientist (12 Nov 2005) 8–9; Cohen, P ‘Recipes for Bioterror’ New Scientist (18 Jan 2003) 10–11; Hatmann, T ‘The Genetically Modified Bomb’ Ecologist (19 Nov 2003); Anon ‘Creating A Killer’ New Scientist (18 Jan 2003) 11; Anon ‘Bioterror Code’ New Scientist (18 Oct 2003) 6; MacKenzie, D ‘Act Now Plea on Bioterror Threat’ New Scientist (28 Sept 2002) 4; Marchant, J ‘Bioterror Takes Centre Stage’ New Scientist (21 Dec 2002) 22; Martindale, D ‘Breathing Space’ New Scientist (14 Dec 2002) 36–38; Anon ‘Disaster in the Making’ New Scientist (13 Jan 2001) 4; Rose, S ‘Biotechnology at War’ New Scientist (19 Mar 1987) 33–37; Joyce, C ‘Gene Cloning Could Further Biological Warfare’ New Scientist (16 Feb 1984) 7. See, generally, Dando, M (1994) Biological Warfare in the 21st Century: Biotechnology and the Proliferation of Biological Weapons (London, Brassey).

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population potentially exposed to biological attack. The possible long-term consequences of the use of biological weapons are more uncertain and less well understood. The delayed effects in persons exposed to certain biological agents, depending on the dose received, may include carcinogenesis, teratogenesis and perhaps mutagenesis. Certain biological agents have been strongly implicated in the causation of cancer in humans, and a number may have teratogenic effects and cause detrimental heritable mutations in humans. If biological agents are used to cause diseases that are not endemic in the country attacked, this may result in the disease becoming endemic, in either human populations, or in suitable vectors such as arthropods, and other nonhuman hosts such as rodents, birds, equids or cattle.87 This last point leads to the fact that biological weapons may also be used to attack non-human biological systems, such as agriculture, with targeted pathogens, such as foot-and-mouth disease. The ecological and economic chaos that can be caused by such outbreaks has not only led to many conspiracy theories when outbreaks have occurred (over whether they were natural or human made), but also to the direct interest of a number of terrorists, who appear to have developed an interest in bioweapons against soft targets such as food and fresh water supplies.88 Aside their lethality, biological weapons are also economically cheaper to make than either nuclear or chemical weapons and require relatively small amounts of infrastructure in terms of manufacture or storage. Estimates suggest that such an arsenal of biological weapons could be built with US$10,000 worth of equipment including a beer fermenter, a protein-based culture, a gas mask and plastic over-garments in a room 15 feet by 15 feet.89 A.  Disease and the History of Warfare

The history of armies being destroyed by diseases and weapons utilising living organisms to create disease is a long one. In the Middle East, the Hittites are believed to have driven diseased animals and individuals out of besieged cities towards the enemy. Moses is known to have called upon plagues to be set upon the Egyptians, including one which caused boils.90 Antiquity also records outbreaks of infectious disease during armed conflict, such as the plague of Athens in 427 BCE during the Peloponnesian war, which killed one third of the besieged population. Two decades later, Scythian archers were known to dip their arrows in faeces and putrid corpses. Some Roman 87  World Health Organization (2004) Public Health Response to Biological and Chemical Weapons: WHO Guidance (Geneva, WHO) 45–51; MacKenzie, D ‘US Will Pay A Price For Vaccinating Over A Million Against Small Pox’ New Scientist (21 Dec 2003) 8; MacKenzie, D ‘Bioarmaggedon’ New Scientist (19 Sept 1998) 42–44; Editor ‘Strike At Will’ New Scientist (21 Mar 1998) 3; Boyce, N ‘No-Where to Hide’ New Scientist (21 Mar 1998) 4. 88   WHO (2003) Terrorist Threats to Food (Geneva, WHO) 5; Whitby, S (2001) Biological Warfare Against Crops (Basingstoke, Palgrave) 12–34, 43–35, 87–93; Johnston, K ‘A Natural Target’ Bulletin of the Atomic Scientists (Dec 2007); Editor ‘Bio-apocalypse Now’ New Scientist (21 Apr 2001) 3; Dupont, D ‘Food Fears’ Scientific American (Oct 2003) 12–13; Cameron, G ‘Planting Fear’ Bulletin of the Atomic Scientists (Sept 2001) 39, 41, 43; Gurr, N (2000) The New Face of Terrorism (London, Taurus) 96–97, 132; Blum, W (2003) Rogue State: A Guide to the World’s Only Superpower (London, Zed) 108–12. 89   Barnaby, W (2002) The Plague Makers (London, Vision) 19, 28; Cole, L ‘The Spectre of Biological Weapons’ Scientific America (Dec 1996) 30–34; Beal, C ‘How To Spot A Killer’ New Scientist (8 Apr 1996) 24–25; Charles, D ‘Iraq Admits Growing Deadly Biological Arsenal’ New Scientist (24 Aug 1991) 12. 90  Exodus 9:9.

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soldiers were also known to run their swords through manure and the rotting offal of dead animals before battle. Pestilence broke out in some recorded sieges before the birth of Christ, no doubt helped by the sometime used practice of throwing diseased bodies into besieged areas. Even when bodies were not fired into besieged areas, disease could easily spread from dead bodies which were not properly disposed of within a confined space, as occurred at Jerusalem in 70 AD.91 Bubonic plague destroyed several Roman armies in the first and second centuries and the armies of Justinian in the sixth century, whilst smallpox ravaged parts of the Middle East decades later. Plague destroyed the besieged Lisbon 500 years later in 1147. The following centuries had the catapulting of dead putrid bodies of humans and other animals, in addition to excrement, throughout the Hundred Years’ War. The Mongols were recorded in 1346 as catapulting bubonic plague-ridden corpses of their own soldiers into Kaffa, the Genoese fortress on the Black Sea, providing the pathway for plague (the so-called ‘black plague’) to spread along the trade routes into Europe. Such practices continued into the fifteenth century, along with additions including poisoning wine with blood drawn from leprosy and syphilis patients, and even chasing beautiful prostitutes with sexually transmitted diseases into enemy camps. Assassination attempts were made on the Pope by sending him sealed boxes made of the bandages of plague victims, whilst Philip II of Spain (1527–98) allegedly gave his army ‘ointments to spread the plague’ when working in rebellious areas.92 The generalissimo of the Austrian armies, Riamondo De Montecuccoli (1608–81) would add, a way to defeat an enemy: ‘[S]end foul smoke over him . . . spread contagious diseases among his troops.’93 The European exploration and colonisation of the New World, beginning in the late fifteenth century, brought devastating cultural, social and ecological changes. European diseases such as smallpox, measles, tuberculosis and influenza killed between four to eight million people. This was much greater than the 100,000 who died in combat. Malaria and yellow fever were later brought by the slave trade.94 Elsewhere, as armed forces came into contact with diseases, similar outcomes occurred, often killing hundreds of men per week. For example, the Scots who garrisoned the lower Oder in 1631 lost 200 men per week due to plague, and more still from typhus, whilst beriberi and other diseases led to the deaths of nine-tenths of some Portuguese garrisons stationed in Mombassa in 1698. In the same period, entire fleets of some European powers were rendered inactive as various diseases swept through the ranks. The practice of throwing corpses into besieged areas continued in some parts of Europe in the early 91   Croddy, E (2002) Biological and Chemical Weapons: A Comprehensive Survey (NY, Springer) 219; Kagan, D (2003) The Peloponnesian War (NYC, Harper) 78–80; Mayor, A (2003) Greek Fire, Poison Arrows and Scorpion Bombs (London, Duckworth) 121, 122, 143, 163. 92   Dols, M (1977) The Black Death in the Middle East (NJ, Princeton University Press) 52; Contamine, P (1984) War in the Middle Ages (Oxford, Blackmore) 104; Warner, P (2004) Sieges of the Middle Ages (Yorkshire, Pen and Sword) 31–32; Geissler, E et al (1999) Biological and Toxin Weapons: From the Middle Ages Until 1945 (Oxford, SIPRI, Oxford University Press) 15; Parker, G (1972) The Army of Flanders and the Spanish Road (Cambridge, Cambridge University Press) 66; Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 233; Fetherling, G (2001) The Book of Assassins (NYC, Wiley) 322; Parker, G (1997) The Thirty Years’ War (London, Routledge) 182; Bury, J (ed) (1969) The Cambridge Ancient History. Athens, Vol V (Cambridge, Cambridge University Press) 200–202. 93  Montecuccoli in Chaliand, G (ed) (1994) The Art of War in World History (California, University of California Press) 566. 94  Wood, M (2000) Conquistadors (London, BBC) 80–81; Crosby, A (1986) Ecological Imperialism: The Biological Expansion of Europe, 900–1900 (NY, Cambridge University Press) 23–56; Diamond, J (1997) Guns, Germs and Steel (NY, Norton) 210–11; Dodds, C ‘Cortes and Montezuma’ BBC History (Nov 2007) 35–40.

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eighteenth century, as did the poisoning of water supplies by the disposal of human and animal corpses into them. In 1763, during the French and Indian wars, blankets which had been planted with smallpox were intentionally given to local Indian tribes who were at war and besieging the British Fort Pitt. This may have been consistent with an overall policy, for attempts to pass smallpox were also alleged during the American War of Independence. This was taken very seriously by George Washington, as more American soldiers died from disease than from the musket balls of the British. Of course, such problems were not restricted to the Americans. In the West Indies, ‘the fever islands’ decimated both French and British armies. From 1793 to 1796, 40,000 British soldiers died of disease, whilst of the force that took Havana in 1762, one third were lost to yellow fever and malaria. These problems were often multiplied with navies, which were often wasted by disease well before they met their opposition. For example, an analysis of British navy during the Seven Year war suggested 1,512 seamen were killed in battles, but 133,708 died of disease or were missing. Similarly, of the 103,660 deaths recorded by the British navy during the Napoleonic wars, 82 per cent died of disease, 12 per cent by accident or shipwreck and only six per cent by enemy action. Moreover, often the military was slow to implement cures when they finally eventuated. For example, whilst the conquest of scurvy was one of the triumphs of the eighteenth century, it was over 40 years before the cure (lemon juice) was made mandatory throughout the British navy.95 During the Valmy campaign of 1792, the Prussians lost several hundred men a day from dysentery. In 1796, malaria in Southern Italy sent 9,000 French soldiers to hospital, of which 4,000 died, whilst Napoleon’s attempt to end a slave uprising in Haiti in 1802 failed when 15,000 men out of the 20,000 he sent out were struck down with yellow fever. A little later, on the Continent, 24,930 British soldiers situated in Spain and Portugal died of disease, while only 8,889 died in combat. With the French army which attacked Russia in 1812, an estimated 219,000 died of disease, most commonly, typhus. Between 1825 and 1836, the mortality rate among soldiers on the Gold Coast of Africa was 668 per 1,000. The Indian Mutiny cost the British forces some 11,021 lives, 8,987 of which were from sickness. When cholera broke out in the siege of Venice in 1849, at its peak up to 200 people died of it per day. Cholera was also a problem for the besieging armies of Sevastopol in 1854, with over 40,000 Greek civilians being killed by the introduction of the disease by French troops. Moreover, only one fifth of all the casualties in Crimea were caused on the battlefield, with the vast majority falling to cholera, scurvy, typhus and typhoid. Typhoid also killed more than 28,000 Union soldiers during the American Civil War and chronic diarrhoea accounted for a further 29,000 deaths. These deaths were a subset of an overall total of 190,000 on the Union side and 165,000 on the Confederate side who died of disease, not gunfire, during the conflict. Diseases went on to kill more combatants than bullets in the FrancoPrussian war of 1870 and the Spanish-American war of 1898. With the latter, the 280 95  Boatner, M (1969) The Encyclopedia of the American Revolution (NYC, McKay) 698; McCullough, D (2005) 1776. America and Britain at War (London, Penguin) 61–62; Fowler, W (2005) Empires at War (NYC, Walker) 137–39, 276–77; Goodwin, A (ed) (1968) The New Cambridge Modern History: The American and French Revolutions, Vol VIII (Cambridge, Cambridge University Press) 178–79. Lindsay, J (ed) (1957) The New Cambridge Modern History. The Old Regime, Vol VII (Cambridge, Cambridge University Press) 185; Geissler, E (1999) Biological and Toxin Weapons: Research, Development and Use from the Middle Ages to 1945 (Oxford, SIPRI, Oxford University Press) 24, 28–29; Black, J (1994) European Warfare 1600–1815 (New Haven, Yale University Press) 18, 143.

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American soldiers killed in action was a fraction of the 2,565 who died from diseases, with 1,590 of those deaths due to typhoid. During the Boer War, 20 times as many men were hospitalised for disease as for wounds. Moreover, with the Concentration Camps established by the British, most of the 32,000 civilians who died did so because of epidemics of measles and typhoid.96 Whilst the impacts of typhus and cholera were particularly bad on the eastern front during the First World War, the main impacts of biological disease occurred just as the conflict was ending, between 1918 and 1920, when the so-called ‘Spanish Influenza’ impacted upon one fifth of the world’s population and killed between 20 and 40 million people, including thousands who were still in the armed forces. For example, in 1918, 60 per cent of the deaths in the United States army, about 38,000 men, were due to Spanish Influenza. However, in all of these instances, of typhus, cholera and influenza, there was no intention on the part of any of the belligerents to intentionally weaponise or spread these diseases to humans. In fact, the only time that such warfare was considered, with proposed Zeppelin airdrops of plague bacilli on England, Berlin vetoed the project. However, Berlin accepted and acted upon projects involving biological weapons targeted at non-human resources. In this regard, Germany developed an ambitious programme of biological sabotage. This was utilised against neutral suppliers to the Allied Powers, including Argentina, Romania and Norway whereby attempts were made to disable or kill horses and mules through the spreading of anthrax and glanders. The Germans justified this action by arguing that the restrictions in this area (on chemical not biological weapons) could only been taken to apply to anti-human measures.97 B.  Between the 1925 Protocol and the 1972 Convention

Given that the use of biological weapons was relatively underdeveloped during the First World War, especially in comparison to the use of chemical weapons, it is not surprising that the topic received very little international attention in the laws that followed the conflict. Accordingly, whilst the Versailles Treaty contained prohibitions for Germany on the use of future chemical munitions, no such notation was attached to weapons of a biological nature. Likewise, the first attempt to prohibit chemical warfare completely, the 1922 Treaty of Washington, was also silent on the topic of bio­weapons. In part, these omissions may have been due to earlier beliefs, such as those held by the drafters of the 1874 Brussels Declaration, that a prohibition on the spreading of disease was not necessary because it was covered by the general prohibitions on poison.98 96  Talty, S (2009) The Illustrious Dead: The Terrifying Story of How Typhus Killed Napoleon’s Greatest Army (NY, Crown) 9–12; Keates, J (2006) The Siege of Vienna (London, Pimlico) 390–94; Ponting, C (2005) The Crimean War: The Truth Behind the Myth (London, Pimlico) 61, 72–75, 191; Pakenham, T (1991) The Boer War (London, Cardinal) 518; Hernon, I (2007) Britain’s Forgotten Wars. Colonial Campaigns in the 19th Century (London, Sutton) 13; Kiernan, V (1998) Colonial Empires and Armies (London, Sutton) 48; Greenwood, J (2005) Medics at War: Military Medicine from Colonial Times to the 21st Century (Annapolis, Naval Institute Press) 31, 38, 54. 97  See Karlen, A (1995) Man and Microbes: Diseases and Plagues in History (NY, Simon & Schuster) 144–45; Greenwood, J (2005) Medics at War: Military Medicine from Colonial Times to the 21st Century (Annapolis, Naval Institute Press) 76; Tucker, S (1996) The European Powers in the First World War (NY, Garland) 360, 471; Mawdsley, E (2000) The Russian Civil War (Edinburgh, Birlinn) 286; Bullock, D (2008) The Russian Civil War (London, Osprey) 63. 98  See Geissler, E (1999) Biological and Toxin Weapons: Research, Development and Use from the Middle Ages to 1945 (Oxford, SIPRI, Oxford University Press) 37.

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However, by 1925, a number of countries felt that this could no longer be presumed and the prohibition should be made explicit as this was a weapon which was, according to the Polish government, ‘a system of destruction both ingenious and sinister . . . [whereby] a single man having a small number of cultures of microbes . . . may obtain incalculable results’.99 These arguments were persuasive and the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, was changed to include ‘and of Bacteriological Methods of Warfare’. Through this Protocol, the Parties declared, so far as they were not already Parties to treaties prohibiting such use, that they would ‘accept this prohibition . . . a universally accepted as part of international law, binding alike the conscience and practice of nations’ on bacteriological methods of warfare. Although a number of countries (such as France, the United Kingdom and the Soviet Union) signed this and immediately entered caveats that they would only abide by the Protocol in a conflict if the opposing belligerents did the same,100 the first international rule on this type of warfare was set in concrete. The 1938 Draft Convention for the Protection of Civilian Populations Against New Engines of War, although not in entry during the conflict that followed one year later, attempted to add: The prohibition of the use of bacterial weapons shall apply to the use for the purpose of injuring an adversary of all methods for the dissemination of pathogenic microbes or of filter-passing viruses, or of infected substances, whether for the purpose of bringing them into immediate contact with human beings, animals or plants, or for the purpose of affecting any of the latter in any manner whatsoever, as, for example, by polluting the atmosphere, water, foodstuffs or any other objects of human use or consumption.101

The 1925 prohibition held with most of the belligerents in the Second World War. Although some diseases killed thousands of prisoners, such as the typhus outbreak in the Belsen Concentration Camp in the closing months of the Second World War, it appears that the overall German interest in biological weapons for offensive purposes was haphazard. Although they may have unleashed millions of mosquito larvae which carried malaria in Italy in 1944 in specially flooded areas in an attempt to stem the allied advance in Italy, this remains speculative. It is debateable as Hitler refused any offensive work to be carried out on biological weapons until the very end of the war, despite earlier (mistaken) allegations that by the middle of 1940 the British were dropping crop destroying beetles on Germany and occupied countries. Although the British and the French both had capacity for such attacks, and the British went on to develop and stockpile (but not use) some five million anthrax ‘cakes’, the only time Hitler appears to have actively considered renouncing the Geneva Protocol was in the face of the increasingly bombing of Germany, but even then he decided against it for fear of overwhelming retaliatory actions. Nevertheless, the Germans did develop an extensive use of defensive measures such as the large-scale production of vaccines. Thus, whilst they feared that their own water supplies may be attacked by biological weapons, such as cholera, they increased the importance of water purification devices, as did the United Kingdom and the United States in the same period, making extensive use of 99  Polish statement in League of Nations (1925) Proceedings of the Conference for the Supervision of the International Trade in Arms and Ammunition and in Implements of War (Geneva, LON) 155. 100  Noted in Adams, R (1989) Documents on the Laws of War (Oxford, Oxford University Press) 144. 101  Art 9 of the 1938 Draft Convention for the Protection of Civilian Populations.

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chlorinating and filtering processes. Because of their obligations, when a German proposal to poison Gibraltar’s water supply, along with other proposals to spread cholera through water supplies, was made, it was turned down by two military agencies on military and legal grounds, as it was contrary to international agreements prohibiting biological warfare.102 The Soviets did not utilise biological weapons in this conflict, although they were aware of their potential from instances such as the outbreak of botulism in 1944 in Orenberg in Siberia which killed 10 per cent of the population after they had eaten bread made from grain containing the fungal toxin.103 A great amount of work undertaken in this area appears to have been done by the Americans who, by the end of the Second World War, had over 4,000 workers examining the options for biological warfare. The emphasis from 1942, as led by the then Secretary of War, Henry Stimson (1867–1950), was one of being prepared. Accordingly, work on anthrax and botulism was undertaken but its utilisation as a weapon against humans was never concluded. However, with the targeting of food crops, and in particular Japanese rice, it appears that the case for such a use was much more advanced and that Stimson was prepared to accept the poisoning of Japanese crops as one step further on the thinking of a blockade if it would lead to a shortening of the war. The official position was that ‘there is no rule of international law which proscribes chemicals in war absolutely, apart from their poisonous and toxic effects in human beings’.104 The war ended before these plans could be implemented.105 The exception to all of the other belligerents which had either shown restraint, or only gone so far to as to start to prepare (such as the United States) or stockpile (such as the United Kingdom) biological weapons, was Japan. One of the few countries not to use chemical weapons in the First World War, Japan would be at the forefront of biological weapon use in the Second. This was despite their initial support for the Protocol, which dispersed once the military had taken over Japan’s administration. Japan’s Imperial Army Unit conducted their biological warfare programme which was established the same year their country left the League of Nations in 1932. By 1939 it was operating during a border war against Russia, and by 1945 they had, perhaps, the most advanced bioweapons capacity in the world. Although the Japanese experimented with biological crop-destruction agents, they were much more interested in anti-personnel agents. In China, the Japanese forces released plague-infested fleas and rats into enemy territory and dropped infected fleas in bombs. They also dropped wheat, rice, bits of paper and fluffs of cotton contaminated with bubonic plague and developed a special air squadron to spray insects and jellied bacterial compounds. They also contaminated wells with typhoid pathogens. A conservative estimate is that this biological warfare may have killed over half a million Chinese soldiers and civilians. A cholera epidemic created in Yunnan Province in May 1942 killed 200,000 people. Three months later, another 200,000 people perished from cholera in 102  Geissler, E (1999) Biological and Toxin Weapons: Research, Development and Use from the Middle Ages to 1945 (Oxford, SIPRI, Oxford University Press) 37, 70–90, 99, 100–01, 122, 164–67; Baker, N (2008) Human Smoke (London, Simon & Schuster) 178, 180–83, 230, 293, 440; Shephard, B (2006) After Daybreak: The Liberation of Belsen (London, Pimlico) 15–17, 21. 103  Hay, A et al ‘The Chemical Weapons’ New Scientist (11 Mar 1982) 630–34. 104  Memorandum for the Secretary of War (1945) in 10 ILM (1971) 1304. 105   Bernstein, B ‘The Birth of the US Biological Warfare Program’ Scientific American ( June 1987) 94, 99; Geissler, E (1999) Biological and Toxin Weapons: Research, Development and Use from the Middle Ages to 1945 (Oxford, SIPRI, Oxford University Press) 37, 217–33.

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Shandong Province. The city of Baoshan, bombed in May 1942, was the first city to be bombed with high explosive and bacterial bombs at the same time. The Japanese also made an extensive use of prisoners of war (killing at least 3,000) and refugees to test their biological weapons. They inadvertently killed a few thousand of their own soldiers in the process, and left diseases in some of the zones they occupied, such as typhus, which persisted into the 1950s. Despite the crimes that the men of Unit 731 perpetuated, apart from the Soviet prosecutions of 12 members of their unit, they were not prosecuted by the Western authorities. Rather, they were given immunity for their crimes, their work was publically denied, and they were secretly incorporated into the United States programme on bioweapons.106 After the Second World War, all of the major belligerents appear to have developed comprehensive collections of biological weapons. The Soviets learnt to militarise the smallpox virus, anthrax and plague bacteria. They also worked on 50 other biological agents, including, inter alia, foot-and-mouth, rinderpest and African swine fever. The Soviet level of preparation was so high, that it is believed that some 20 tons of smallpox agent alone was weaponised for delivery on inter-continental ballistic missiles. Likewise, the United States had standardised seven biological weapons. These included the agents which cause anthrax and tularaemia, the agents used to create brucellosis, Q fever and botulinum. They had also conducted research and development on wheat stem rust, rice blast, rye stem rust, foot-and-mouth disease, rinderpest and brucellosis, and had stockpiled 30,000 tons of wheat stem rusts, ready to deploy against their Cold War enemies.107 Despite the clear threat and potential that these stockpiles represented, they were not utilised in international warfare between the key belligerents, although a number of allegations were made in the Korean War, the conflict in Afghanistan, and repeatedly by Cuba, that biological weapons had been deployed. However, none of these accusations have ever been substantiated by an international independent scientific panel.108 106   Barenblatt, D (2004) A Plague Upon Humanity (NYC, Harper) 64–84, 141–47, 156–58, 165–66, 173; Harris, S (1995) Factories of Death: Japanese Biological Warfare: 1932–45 (London, Routledge) ch 6; Geissler, E (1999) Biological and Toxin Weapons: Research, Development and Use from the Middle Ages to 1945 (Oxford, SIPRI, Oxford University Press) 37 131–37, 139, 142; Baker, N (2008) Human Smoke (London, Simon & Schuster) 265, 426; Hadfield, P ‘Lethal Legacy’ New Scientist (3 Feb 2001) 5; Anderson, I ‘Americans Hushed Up Wartime Experiments on Humans’ New Scientist (18 Aug 1988) 22; Hadfield, P ‘Wartime Skeletons Return to Haunt Japan’ New Scientist (25 Feb 1995) 12; Barenblatt, D (2004) A Plague Upon Humanity (NYC, Harper) 204–24; Brackman, A (1990) The Other Nuremberg: The Tokyo War Crimes Trials (Glasgow, Fontana) 200–17. 107   Dando, M (2006) Bioterror and Biowarfare (Oxford, Oneworld) 34–43; MacKenzie, D ‘Run, Radish, Run’ New Scientist (18 Dec 1999) 36–37; Croddy, E (2002) Chemical and Biological Warfare: A Comprehensive Survey (NY, Springer) 34–35, 70–71; Newak, R ‘Prepare For the Worst’ New Scientist (14 July 2001) 42–45; Editor ‘A Very Unholy War’ New Scientist (11 Sept 1999) 1; Cameron, G ‘Planting Fear’ Bulletin of the Atomic Scientists (Sept 2001) 41; Anon ‘Russia Shuns Biological Weapons’ New Scientist (23 May 1992) 6. 108   Cameron, G ‘Planting Fear’ Bulletin of the Atomic Scientists (Sept 2001) 39, 43; Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 576; Knightley, P (1975) The First Casualty (London, Pan) 355. For Afghanistan, see the diplomatic wording of Art 1 of the Final Declaration of the Second Review Conference in 1986, BWC/CONF.II/13/II. For commentary, see Anon ‘Shameful War of Words on Yellow Rain’ New Scientist (5 June 1986) 25; Seeley, T ‘Yellow Rain’ Scientific American (Sept 1985) 122–28; Joyce, C ‘Proof That Yellow Rain is Bee Faeces’ New Scientist (15 Aug 1985) 16; Joyce, C ‘Did Bees Drop Yellow Rain?’ New Scientist (9 June 1983) 679; Joyce, C ‘Strongest Evidence Yet for Yellow Rain’ New Scientist (20 May 1982) 472; Anon ‘Yellow Rain: A Guide For the Wary’ New Scientist (13 Oct 1983) 77; Joyce, C ‘New Evidence of Biological Warfare in SE Asia’ New Scientist (19 Nov 1981) 480; Gwynne, G ‘UN Experts Come to No Conclusions About Yellow Rain’ New Scientist (3 Dec 1981) 648; Editor ‘Independent Evidence of Yellow Rain’ New Scientist (11 Mar 1982) 626; Torrey, L ‘US

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Although biological weapons have not been deployed against enemy populations during the Cold War, these weapons still managed to kill many people, in the countries where the weapons were created, held or tested. The most obvious example of this occurred in 1979 when an outbreak of anthrax in the Soviet Union, in which at least 68 people died, was eventually linked to a human-made strain.109 Although there were no comparable accidents in Western countries, a practice developed in the 1950s and 1960s when a series of (non-lethal) biological agents were released amongst civilian populations so their spread and impact could be studied. For example, live bacteria were released over southern England between 1961 and 1971, which included releases on the London Underground. Likewise, in the United States, in 1950, Navy ships in the San Francisco Bay area released large quantities of non-pathogen biological contaminants in aerosol form to test dispersal efficiency. A further 239 top-secret open air disseminations in cities were undertaken. Although the testing of these biological weapons may not have left a long-term impact, the same cannot be said for a number of areas where lethal biological weapons were tested. For example, field practices in Utah which finished in 1969 involved hundreds of tests which introduced non-indigenous diseases including encephalomyelitis, Rocky Mountain spotted fever, psittacosis, Q fever, anthrax, brucellosis, plague, tularaemia and hydatid disease. These are all now considered endemic among the native wildlife.110 The only other instances since this period where bioweapons may have been actively used as anti-personnel agents, involved the civil war in Zimbabwe/Rhodesia, where 182 people were killed and 11,000 injured with anthrax between 1979 and 1982; and in the civil war in Iraq, where typhoid was possibly used against the Kurds.111 Iraq did not utilise biological weapons against the countries ranged against it in 1991, although they had the capacity to unleash anthrax, botulinum toxin, aflatoxin, ricin and viruses such as camel pox virus, as well as a plant agent, wheat cover smut. The United Nations mission to Iraq after the first Gulf War showed how Iraq, over a five-year period, had developed a biological weapons programme which, at the outbreak of the 1991 war, had resulted in their filling over 160 aircraft bombs and 25 missile warheads with biological warfare agents. Iraq later admitted that the authority to launch biological weapons was pre-delegated in the event that Baghdad was hit by nuclear weapons during the conflict. It was also clear that Iraq was engaged in the design and development of longer range missiles capable of carrying biological warheads that could reach Accusation Escalates Chemical Arms Race’ New Scientist (21 Aug 1980) 571; Wilkie, T ‘Scientists in Turmoil Over Yellow Rain’ New Scientist (24 May 1984) 3; Anon ‘Yellow Rain Charges Still Not Proven’ New Scientist (24 Mar 1983) 783; Perera, J ‘Yellow Rain Evidence Does Not Stack Up’ New Scientist (22 Mar 1984) 3; Anon ‘Yellow Rain: Is This Proof At Last?’ New Scientist (9 Dec 1982) 627; Joyce, C ‘Yellow Rain: The Scientists Verdict’ New Scientist (5 May 1983) 274; Torrey, L ‘Yellow Rain: Is It Really a Weapon?’ New Scientist (4 Aug 1983) 350; Joyce, C ‘Strongest Evidence Yet for Yellow Rain’ New Scientist (20 May 1982) 472; Joyce, C ‘Doubts About US Claims on Chemical Weapons’ New Scientist (17 Sept 1981) 704; Anon ‘Yellow Rain Play’s Hide and Seek Across Europe’ New Scientist (29 Mar 1984) 6. 109  MacKenzie, D ‘Unnatural Deaths’ New Scientist (7 Feb 1998) 5; Miller, S ‘Secret Samples Reveal Truth About Anthrax’ New Scientist (20 Mar 1993) 4; Joyce, C ‘Russian Rebut Claims of Anthrax Weapons Disaster’ New Scientist (21 Apr 1988) 24; Wyatt, V ‘Anthrax in the Air’ New Scientist (27 Mar 1980) 986. 110   Choffnes, E ‘Germs on the Loose’ Bulletin of the Atomic Scientists (Mar 2001) 57–61; Anon ‘Scottish Island to Be Cleansed of Anthrax’ New Scientist (22 May 1986) 21; Anon ‘Nerve Gas Site ‘Too Dear’ To Clean Up’ New Scientist (6 Aug 1987) 21; MacKenzie, D ‘Bug Attack’ New Scientist (20 Feb 1999) 14; Kiernan, V ‘Biowar Tests Did Not Harm Public’ New Scientist (24 May 1997) 6. 111   Barnaby, W (2002) The Plague Makers (London, Vision) 100–01; Anon ‘Kurds Claim Iraq Bombed City With Typhoid’ New Scientist (22 Sept 1988) 25.

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targets up to 3,000 kilometres away, thus bringing cities such as Paris and Bonn within range of Iraq.112 It would appear that post World War Two, the largest utilisation of biological weapons has been by terrorists. Aside at least 52 failed instances; there have also been at least four successful attempts by terrorists at killing other human beings using biological weapons. The most known involved the use of ricin to kill Bulgarian dissident Georgi Markov (1929–78) on Waterloo Bridge. A second almost successful instance occurred in 1984 when 751 people became ill in Oregon when a religious cult infected salad bars with salmonella. A third instance involved the Japanese terrorist group Aum Shinrikyo who, after failing to get samples of Ebola (despite a group of 40 of them travelling to Zaire for that purpose), chose to release anthrax spores in Tokyo on several occasions. However, as they had failed to create a virulent strain, the attacks caused no known casualties. This was unlike the time when they managed to kill 12 civilians and injure 5,500 through disseminating a faulty batch of sarin. Had they disseminated it more effectively, their attack could have killed tens of thousands. The final instance involved the anthrax attacks in the United States in 2001, in which highly virulent, military-grade anthrax was sent through the post killing five, making a further 18 ill and forcing tens of thousands to take antibiotics.113 C.  The 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction

From the end of the 1960s, the United Nations became increasingly concerned about the threat of biological weapons. This interest coincided with the surprise announcement by Richard Nixon at the end of 1969 that they would destroy their stockpile of biological weapons, irrespective of any future agreement. Simultaneously, the United States pressed the Soviet Union to follow its example, and following further important reports on the topic by the World Health Organization and increased support from the General Assembly for a new and ‘urgent’ treaty in this area, the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction was negotiated and concluded in 1972. The United States ratified the 1972 Convention and the 1925 Geneva Protocol (replete with the no-first use reservation) in 1975.114 An additional 30 countries who 112  See Pearson, G ‘The Prohibition of Biological Weapons: Current Activities and Future Prospects’ 318 IRRC (1997) 267–81; Gutere, F ‘What Can Iraq Do?’ TIME (Nov 5 2001) 42–47. 113  Aldhous, P ‘Shaky Mental History No Bar to Anthrax Work’ New Scientist (23 Aug 2008) 12; Barnaby, W (2002) The Plague Makers (London, Vision) 41–45; Choffnes, E ‘New Labs, More Terror?’ Bulletin of the Atomic Scientists (Sept 2002) 29–32; Barletta, M ‘Keeping Track of Anthrax’ New Scientist (24 May 2002) 57; MacKenzie, D ‘Terror Trial Run’ New Scientist (1 Sept 2001) 6; Fetherling, G (2001) The Book of Assassins (NYC, Wiley) 183–84; Anon ‘Anatomy of Terror’ New Scientist (20 Oct 2001) 4; Boyce, N ‘No-Where to Hide’ New Scientist (21 Mar 1998) 4; Cole, L ‘The Spectre of Biological Weapons’ Scientific American (Dec 1996) 30–34. 114   For the UNGA support in this area, see UNGA Resolution A/ 2662. Also, 10 ILM (1971) 830; UNGA Resolution 2603A (XXIV) (Dec 16,1969). For the American process, see Ratification of the 1925 Geneva Protocol, 14 ILM (1975) 49. The key reports were United Nations (1969) Chemical and Bacteriological Weapons and the Effects of Their Possible Use (NY, UN) 13–19; World Health Organization (1970) Health Aspects of the Use of Chemical and Biological Weapons (Geneva, WHO) 34–45.

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signed the Convention also had reservations, most of which were around the option to reply in kind if biological weapons were first used against them.115 The Bioweapons Convention was designed to be part of an ‘effective progress toward general and complete disarmament, including the prohibition and elimination of all types of weapons of mass destruction’. The specific contribution of this regime, was ‘for the sake of all mankind, to exclude completely the possibility of bacterio­ logical (biological) agents and toxins being used as weapons’.116 To achieve this, the signatories accepted the obligation: [N]ever in any circumstance to develop, produce, stockpile or otherwise acquire or retain: microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; [and/or] weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.117

The Bioweapons Convention permits research for ‘prophylactic, protective or other protective purposes’. The importance of retaining a research capacity to be able to defend against biological weapons has been a forthright position of the United States since they finally agreed to the Convention in 1975. However, aside agreement between the Parties in 1996 that such research should not involve open-air experiments,118 what constitutes permissible defence research has always remained undefined. This lack of clarity has been problematic for two reasons. The first reason is that the line between creating defensive and offensive bioweapons is a fine one, and in many instances it appears that researchers have had to first create diseases from which defences have been made. Moreover, in some instances, the size of so-called defence-based work is questionable as the sheer scale of what is required seems excessive and further blurs the line between offensive and defensive research. For example, in 2005, the United States sought out contractors to provide up to 1,500 litres of non-virulent strains of anthrax and up to 3,000 litre batches of other unspecified biological materials. The second concern is that a defence industry built around biological weapons, especially if it is poorly regulated, may lead to the creation of the very threats it is trying to prevent. This has clearly been the case in a number of instances where some scientists have either gone beyond what they were permitted to do in terms of experimentation, or actually released the results of their work against their own governments. For example, the anthrax used in the attacks in the United States in 2001 was eventually traced back to defence industry stocks, whilst the outbreak of foot-and-mouth in the United Kingdom in 2007 was linked to a lapse at British Animal Health Laboratories.119 115   Fourteen states subsequently changed their reservations, stipulating that they would not use biological weapons as a response. See Roberts, A (2002) ‘The Law of War and Environmental Damage’ in Austin, J (ed) The Environmental Consequences of War (Cambridge, Cambridge University Press) 47, 55. 116   Preamble, Convention on Biological Weapons. Also Art 10. 117  Art 1 of the Biological Weapons Convention. 118  Art 7 of the Final Declaration of the Fourth Review Conference in 1996, BWC/CONF.IV/9. 119  Anon ‘Anthrax Worries’ New Scientist (16 Aug 2008) 5; Aldhous, P ‘Shaky Mental History No Bar to Anthrax Work’ New Scientist (23 Aug 2008) 12; Editor ‘Biodefence Efforts Need Transparency’ Bulletin of the Atomic Scientists (Nov 2008) 6–7; Anon ‘Sun Sets on Sunshine Project’ New Scientist (16 Feb 2008) 7; Anon ‘Bioweapon Bug Escapes’ New Scientist (30 June 2007) 7; Anon ‘Anyone For Bioweapons?’ New Scientist (15 Sept 2007) 5; Anon ‘Anthrax Fine’ New Scientist (13 Oct 2007) 5; Geddes, L ‘Biosafety Lapses Dog UK Animal Health Labs’ New Scientist (15 Sept 2007) 15; Steinbruner, J ‘In the Name of Defence’ New Scientist (25 Nov 2006) 20; Hambling, D ‘US Army Plans to Bulk Buy Anthrax’ New Scientist (24 Sept 2005) 17; Schwellenbach, N ‘A Plague of Researchers’ Bulletin of the Atomic Scientists (May 2005) 14–16; MacKenzie, D

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The accompanying obligation under Article II of the Convention was that, in addition to not developing biological weapons, each State Party to the Convention undertook: [T]o destroy, or to divert to peaceful purposes, as soon as possible but not later than nine months after the entry into force of the Convention, all agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention, which are in its possession or under its jurisdiction or control. In implementing the provisions of this article all necessary safety precautions shall be observed to protect populations and the environment.

Subsequent meetings of the Parties reiterated the importance of ‘voluntary declarations’ to support Article II,120 and the need for such destruction to be done with the observance of ‘all necessary safety precautions to protect populations and the environment’.121 The importance of ‘the fullest possible exchange of equipment, materials and scientific and technological information for the use of bacteriological (biological) agents and toxins for peaceful purposes’ is clear in the Convention and subsequent review conferences.122 However, the converse obligation is to ensure that there is no exchange of equipment or pathogens for non-peaceful purposes. Specifically, the third obligation of the Convention is for each Party: [N]ot to transfer to any recipient whatsoever, directly or indirectly, and not in any way to assist, encourage, or induce any State, group of States or international organizations to manufacture or otherwise acquire any of the agents, toxins, weapons, equipment or means of delivery specified in . . . the Convention.

It was in part due to this obligation that the so-called ‘Australia Group’ which, as noted above, was formed to control the flow of chemicals that could be linked to chemical weapons, came to expand its auspice to also cover certain biological materials. This was due to evidence that Iraq had built up many of its bioweapons through the international market, by buying germ specimens from not-for-profit companies (for as little as US$25 per sample) designed to provide raw material for researchers and hospitals. The informal arrangements of the Australia Group, which has grown to 40 countries, has come to focus on licensing measures to ensure that exports of certain biological agents and biological manufacturing facilities and equipment do not contribute to the spread of biological weapons. The group achieves this by harmonising participating countries’ national export licensing measures. These measures are seen by members of the Australia Group as being consistent with their obligations under the Bioweapons Convention, as well as being in the interests of commercial firms and research institutes to ensure that they do not inadvertently supply biological agents or biological equipment for the creation of weapons of mass destruction. In 2002, the Australia Group went one step further and agreed to establish export controls for ‘Is Making A New Strain of Smallpox Worth the Risk?’ New Scientist (1 Nov 2003) 7; Barnaby, W (2002) The Plague Makers (London, Vision) 162–63; MacKenzie, D ‘US Develops Lethal New Viruses’ New Scientist (1 Nov 2003) 6–7; Barletta, M ‘Keeping Track of Anthrax’ New Scientist (24 May 2002) 57; Choffnes, E ‘New Labs, More Terror?’ Bulletin of the Atomic Scientists (Sept 2002) 29–32; Choffnes, E ‘New Labs, More Terror?’ Bulletin of the Atomic Scientists (Sept 2002) 29–32. 120  See Art II of the 1980 Final Declaration of the First Conference, BWC/CONF.I/13/10. 121  See Art II of the Final Declaration of the Second Review Conference in 1986, BWC/CONF.II/13/ II. 122  See Art X of the Biological Weapons Convention. See in particular, the comments at the Third and Fourth Review Conferences.

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sensitive (in terms of their ability to be made into biological weapons) bits of DNA. Such initiatives are very difficult to achieve, as the international scope of research into genetic engineering is vast, as is the international germ trade. Hundreds of companies and laboratories around the world work with dangerous pathogens, but regulations on access vary greatly. Basic figures suggest that at the turn of the twenty-first century, there were over 1,000 germ banks worldwide that were not part of any over-seeing control structure.123 Some nations consider the efforts of the Australia Group to be discriminatory because the primarily restrictions have been on trade with the developing world and they have argued for the Australia Group to be disbanded, and if compliance is undertaken, it should be done under a properly constituted international mechanism. The ideal of such an internationally agreed mechanism can be traced to the fifth Article of the Bioweapons Convention. This Article requires States to ‘to consult one another and to cooperate in solving any problems which may arise in relation to the objective of, or in the application of the provisions of, the Convention’. From this provision, in addition to the basic obligation to take ‘any necessary measures’ within its legal system, to achieve the goals of the Convention, the Parties agreed in 1986 to the importance of ‘promptly convened’ consultative meetings relating to achieving the purposes of the Convention. Such meetings, it was suggested, would cover, ‘any problems which may arise in relation to the objective of, or in the application of the provisions of the Convention, and in clarifying ambiguous and unresolved matters’.124 Moreover, in an attempt ‘to prevent or reduce the occurrence of ambiguities, doubts and suspicions’ and in order to improve international cooperation in the field of peaceful activities in this area, the Parties agreed to exchanges of data on their research centres and laboratories; exchange of information on all outbreaks of infectious diseases and the ‘active promotion of contacts between scientists’ engaged in biological research directly related to the Convention for joint research and other confidence-building measures.125 The most important development of the 1991 Review Conference of the Convention was the ‘determination to strengthen the effectiveness and improve the implementation of the Convention’ and the recognition by the Parties ‘that effective verification could reinforce the Convention’. Accordingly, the Parties decided to establish an Ad Hoc Group of Governmental Experts open to all State Parties to identify and examine potential verification measures from a scientific and technical standpoint. This group 123   Barletta, M ‘Keeping Track of Anthrax’ New Scientist (24 May 2002) 57, 60; Marchant, J ‘Bioterror Takes Centre Stage’ New Scientist (21 Dec 2002) 22; Crody, E (2002) Biological and Chemical Warfare: A Comprehensive Survey (NY, Springer) 10–11; Barnaby, W (2002) The Plague Makers (London, Vision) 175–77. 124  See Art IV of the Convention on Biological Diversity. See also Art IV of the 1980 Final Declaration of the First Conference, BWC/CONF.I/13/10; Art IV of the Final Declaration of the Second Review Conference in 1986, BWC/CONF.II/13/II; Art IV of the 1991 Final Declaration of the Third Review Conference, BWC/CONF.III/10. 125  See Art V of the Final Declaration of the Second Review Conference (1986) BWC/CONF.II/13/II. Confidence-building measure ‘A’ was: part I, exchange of data on research centres and laboratories; and part 2, exchange of information on national biological defence research and development programmes. Confidence-building measure ‘B’ was exchange of information on outbreaks of infectious diseases and similar occurrences caused by toxins. Confidence-building measure ‘C’ was encouragement of publication of results and promotion of use of knowledge. Confidence-building measure ‘D’ was active promotion of contacts. Confidence-building measure ’E’ was declarations of legislation, regulations and other measures. Confidence-building measure ‘F’ was declarations of past activities in offensive and/or defensive biological research and development programmes. Confidence-building measure ‘G’ was declarations of vaccine production facilities.

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was tasked to identify measures which could help ensure compliance with the Convention.126 This resulted in what was known as the ‘VEREX’ report.127 This report was reviewed at a special conference of the State Parties to the Convention in 1994, from which a further ad hoc group was established to consider appropriate options, including possible verification measures and draft proposals to strengthen the Convention, possibly via a legally binding instrument.128 The following year, in 1995, negotiations started for a Protocol to the Convention that would include, as part of a compliance package (which clearly resembled that of the Chemical Weapons’ Convention), inter alia, annual declarations by State Parties and random visits to declared facilities and consultation processes if one country questioned the com­ pleteness or accuracy of another’s declaration. The provision for multilateral teams to conduct short-notice investigations into facilities suspected of illegally producing bioweapons agents where there were suspicious disease outbreaks (a tell-tale sign of illicit bioweapons research) was also envisaged. This work was supplemented by suggestions for the development of international standards for biosecurity including, inter alia, registers of all germ collections, uniform international standards for accounting and security purposes, domestic legislation and cooperative safety assistance. To facilitate this work, over one dozen mock inspections were made to a number of volunteering countries, including Australia, Austria, Brazil, Iran and the United Kingdom. Earlier reciprocal inspections had been shared between the Soviet Union and the United States in 1991. These inspections showed that although it would never be possible to stop all illicit activities in this area (due to the ease of production and small scale required), inspections could still blunt more sophisticated, larger scale attempts at noncompliance.129 All of the work in this area came to a direct halt in 2001, when the United States announced it would not sign the draft protocol in this field.130 Three reasons were given for this. The first was that, because of the nature of research in this area and the physically small size of laboratories, it would be impossible to detect secret bioweapon initiatives. This concern was buttressed by growing evidence that a number of countries such as China, Iran, Israel, Libya, North Korea, Russia, Syria and Taiwan, had systematically avoided their obligations under the Convention, and developed 126  See Art V of the Final Declaration of the Third Review Conference (1991) BWC/CONF.III/23. For the commentary of the period, see MacKenzie, D ‘How To Police Germ Warfare Treaty’ New Scientist (9 Oct 1993) 5; Webb, J ‘US Sceptical Over Germ Warfare Controls’ New Scientist (28 Mar 1992) 14; Charles, D ‘Calls For Tougher Pact on Biological Weapons’ New Scientist (7 Sept 1991) 20; Pearson, G ‘Preventing Biological Warfare’ New Scientist (21 Mar 1992) 8. 127  Ad Hoc Group of Experts to Identify and Examine Potential Verification Measures (1993) Report BWC/CONF.III/VEREX/9 (Geneva). 128  Special Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and On Their Destruction (1994) BWC/SPCONF/1; Webb, J ‘Bioweapons Deal Aims To Make Nations Toe the Line’ New Scientist (15 Oct 1994) 7. 129   Barnaby, W (2002) The Plague Makers (London, Vision) 110–11, 178–79; Casagrande, R ‘Technology Against Terror’ Scientific American (Oct 2002) 59–64; Nowak, R ‘We’re Under Attack’ New Scientist (1 Sept 2001) 20–21; Editor ‘Bio-apocalypse Now’ New Scientist (21 Apr 2001) 3; Kleiner, K ‘Nerve Gases Just Got Harder To Find’ New Scientist (19 June 1999) 15; Guterman, L ‘Death in the Air’ New Scientist (8 Sept 1998) 5; Barletta, M ‘Keeping Track of Anthrax’ New Scientist (24 May 2002) 57, 61–62; MacKenzie, D ‘Biowar Checks Hang in the Balance’ New Scientist (23 Nov 1996) 11; MacKenzie, D ‘Disease Watch May Spot Bioweapons’ New Scientist (19 Oct 2002) 7; Knight, J ‘Biowarfare Sleuths’ New Scientist (20 June 1998) 24. 130  MacKenzie, D ‘Bushwacked’ New Scientist (4 Aug 2001) 17.

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offensive bioweapons. Secondly, they feared commercial proprietary secrets could be jeopardised by inspections. Finally, the United States was concerned that such inspections could endanger their own bio-defence programmes.131 Alone in its complete rejection of the draft protocol, the United States came under widespread international criticism, including from close allies, for ‘jeopardising’ the future of biological arms control. In response, the administration put forward several proposals at the 2001 Review Conference, urging their adoption by State Parties to the Bioweapons Convention at the national level. Confronted with the American position, the chairperson of the 2002 Review Conference presented a minimal programme emphasising only annual meetings to discuss strengthening national laws and ways to respond to attacks by biological weapons. These were endorsed by the United States and accepted by the Conference. However, the Review Conference held in late 2006, despite urging by two high-level United Nation’s reports, could not even reach consensus on a comprehensive set of guidelines for national implementation of the Convention owing to differences between the United States and the non-aligned nations group over technology transfer control issues.132 Nevertheless, the Parties were able to agree to continue to hold annual meetings for discussion (but not decision making) and information exchanges on a variety of issues, including domestic enforcement of the Convention’s provisions, pathogen security and oversight of potential dual-use research. Moreover, an ‘Implementation Support Unit’ was created to last until the 7th Review Conference in 2011. This unit is meant to help with administrative support, facilitating the agreed confidence-building measures of the Parties.133 In many ways, the American rejection of the verification protocol was implicitly linked to a suggestion that questions of compliance should only be dealt with as originally envisaged in the Convention with the assistance of the Australia Group.134 That is, under the existing rules of the bioweapons convention breach of obligations are meant to be reported to the Security Council, and each State Party to this Convention agreed to cooperate in carrying out any investigation which the Security Council may initiate. Each State Party to the Convention also undertook to provide or support assistance if the Security Council decided that such a Party had been exposed to danger as a result of violation of the Convention.135 However, although the Security Council has accepted that the proliferation of weapons of mass destruction, including biological weapons, would constitute a 131   US withdrawal comments of Ambassador Mahley in Wheelis, M ‘Back to Bioweapons?’ Bulletin of the Atomic Scientists ( Jan 2003) 41, 42; Cornwell, R ‘Bush Rejects Germ Warfare Treaty’ Independent (26 July 2001) 1; Wheelis, M ‘Back to Bioweapons?’ Bulletin of the Atomic Scientists ( Jan 2003) 41, 45; Dando, M ‘Weaving a Web of Deterrence’ New Scientist (17 Sept 1994) 12–13; MacKenzie, D ‘Deadly Secrets’ New Scientist (28 Feb 1998) 16–17; Bond, M ‘Drug Firms Fight Biowar Curbs’ New Scientist (8 Mar 1997) 3; Alibek, K (1999) Biohazard: The Chilling True Story of the Largest Covert Biological Weapons Program in the World – Told By the Man Who Ran It (NYC, Random); Siegel, J ‘Thirtysomething’ Bulletin of the Atomic Scientists (Aug 2005) 11; Dando, M (2006) Bioterror and Biowarfare (Oxford, Oneworld) 49–59. 132   WMD Commission (2006) Weapons of Terror A/60/934, High Level Panel, 13. The final report is in General Assembly (2004) Follow-Up to the Outcome of the Millennium Summit A/59/565, para 81. 133  See Decisions and Recommendations of the 6th Review Conference of the Parties to the Bioweapons Convention (2006) BWC/CONF.VI/6; MacKenzie, D ‘Bioweapons Convention Saved By A Compromise’ New Scientist (23 Nov 2002) 9. 134  Barletta, M ‘Keeping Track of Anthrax’ New Scientist (24 May 2002) 57, 62; W MacKenzie, D ‘Bushwacked’ New Scientist (4 Aug 2001) 17; Webb, J ‘Bioweapons Deal Aims To Make Nations Toe the Line’ New Scientist (15 Oct 1994) 7; Dando, M ‘Weaving a Web of Deterrence’ New Scientist (17 Sept 1994) 12–13. 135  See Arts VI and VII of the Biological Weapons Convention.

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threat to international peace and security,136 especially when linked to terrorists,137 discussions of how to deal with other complaints about the Convention (such as when Security Council members are believed to be the ones in breach of their obligations) have proven less than obvious.138 Moreover, and most obviously, there is little point going to the Security Council when it is believed that some of the permanent members of the Security Council are in breach of their obligations under the Convention. Thus, the Security Council has only exercised its influence in situations where none of the main protagonists or their allies has been at fault. The best example of this was with Iraq and the 1991 Gulf War, where the obligation for Iraq to disarm its biological (and chemical) weapons and submit to ‘immediate on-site inspection’ of their biological, chemical and missile capabilities,139 was foisted upon them as part of the initial peace process, from which a Special Commission gained unprecedented ‘unrestricted and unconditional access to any and all areas, facilities, equipment, records and means of transportation which they wish to inspect’.140 3 .  Nuclear Weapons

A conventional nuclear weapon is an explosive device that derives its destructive force from nuclear reactions, either fission or a combination of fission and fusion. Both reactions release vast quantities of energy from relatively small amounts of matter. Enhanced radiation weapons (neutron bombs) were developed in the late 1970s, whilst in the late 1980s, a third generation of nuclear weapons were developed. The third generation of nuclear weapons are as far from second generation nuclear weapons in terms of military effectiveness as a rifle is technologically distant from dynamite. The primary agents for the release of the destructive forces of all three generations of nuclear weapons are either plutonium or highly enriched uranium. Plutonium is a synthetic transuranic radioactive chemical element. The most important isotope of plutonium is plutonium-239. Plutonium-239 and 241 are fissile, meaning the nuclei of their atoms can break apart by being bombarded by slow-moving thermal neutrons, releasing energy, gamma radiation and more neutrons. It can therefore sustain a nuclear chain reaction, leading to applications in nuclear weapons and nuclear reactors. The first nuclear test in July 1945 and the second atomic bomb used to destroy Nagasaki in August 1945 both had cores of plutonium-239. Uranium is one of the heaviest elements on Earth, almost twice as heavy as lead, and two pounds of it amounts to about only three tablespoons. Enriched uranium is a kind of uranium in which the percentage of uranium-235 has been increased through the process of isotope separation. Enriched uranium is a critical component for both civil nuclear power generation and military nuclear weapons. Highly enriched uranium (HEU) has a greater than 20 per cent concentration of uranium-235. The fissile uranium in nuclear weapons usually contains 85 per cent or more of uranium-235. The very first uranium bomb, Little Boy, used 64 kilogrammes of 80 per cent enriched uranium to destroy Hiroshima in 1945. One kilogramme of plutonium-239 can produce an   UNSC Document, S/23500 ( Jan 31).  S/RES/1373 (2001, Sept 28). 138  See Goldblat, J ‘The Biological Weapons Convention: An Overview’ 318 IRRC (1997) 251–56. 139  S/RES/687 (1991, Apr 3). 140  S/RES/707 (1991, Aug 15); S/RES/699 (1991, June 17); S/RES/715 (1991, Oct 11). 136 137

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explosion equivalent to 20,000 tons of conventional explosives. One kilogramme of plutonium occupies the equivalent of one seventh the volume of a standard aluminum soft-drink can. Large stockpiles of weapons-grade plutonium were built up by both the Soviet Union and the United States during the Cold War. By 2008, the world plutonium stockpile was estimated at about 500 tonnes, divided equally between weapons and civilian stocks. There are about 1,600 tons of HEU in the world, produced mostly for nuclear weapons and naval propulsion, with smaller quantities for research reactors. If the United States and Russia reduced their nuclear arsenals to 1,000 weapons each, each State would require less than five metric tons of weapon-grade plutonium and 30 metric tons of HEU. In total, current global stocks of plutonium and HEU are sufficient, in principle, for more than 100,000 simple nuclear weapons.141 A different category of risk involves what are known as ‘dirty bombs’. Dirty bombs refer to weapons that combine radioactive material with conventional explosives. The sources of radioactive material are in the tens of thousands. There are more than 10,000 instances from medical equipment involved in radiotherapy alone. In Iraq, there were an estimated 1,000 sources where radioactive material could be sources to make such weapons. The purpose of the weapon is to contaminate the area around the explosion with radioactive material, hence the attribute ‘dirty’. Dirty bombs are not designed to kill large numbers of people, but rather to render areas uninhabitable. Attempts to utilise or at least threaten to utilise dirty bombs have only occurred twice. In 1995, Chechen rebels buried a caesium-137 source in a park in Moscow and in 1998 a container of radioactive material attached to a landmine was found by a railway line in Chechnya. Since a dirty bomb is unlikely to cause many deaths, they are typically not viewed as weapons of mass destruction, but as weapons of mass social and economic disruption. Accordingly, the topic of dirty bombs is not considered in this chapter.142 Compared with most other weapons, nuclear weapons are relatively new. It was in March 1940 that Albert Einstein (1879–1955) wrote to President Roosevelt about the possibility of making an atomic bomb. Soon afterwards, the American defence department invested US$6,000 in examining the feasibility of a weapon which no military man believed was possible. By March of the following year, a group of young physicians had been assembled in California to examine the possibilities in this area. Their investigations led, on 6 December 1941 (the day before the Japanese attack on Pearl Harbour) to the United States decision to back the making of an atomic bomb. The Americans were not alone in this pursuit. The Soviets, Japanese and Germans also all had atomic bomb programmes. Apparently the Japanese were close to making an atom bomb, but were held back by a lack of resources. The Germans, who had been 141  MacKenzie, D ‘Can We Keep Tabs on Stockpiles of Nuclear Fuel’ New Scientist (24 Apr 2010) 9; Siegel, J ‘Material Danger’ Bulletin of the Atomic Scientists (May 2007) 16–17; Anon ‘Conventional or Nuclear?’ New Scientist (16 Aug 2003) 5; Hambling, D ‘Gamma Ray Weapons Could Trigger Next Arms Race’ New Scientist (16 Aug 2003) 4; Edwards, R ‘Piles of Plutonium Blow Up Big Bomb Fears’ New Scientist (17 Jan 1998) 12; Edwards, R ‘Plutonium For Sale’ New Scientist (26 May 2001) 10–11; Williams, P ‘The Real Threat of Nuclear Smuggling’ Scientific American ( Jan 1996) 26–30; Edwards, R ‘Never Mind the Tritium, Watch the Plutonium’ New Scientist (20 May 1995) 5; Taylor, T ‘Third Generation Nuclear Weapons’ Scientific American (Apr 1987) 22–31; Kaplan, F ‘Enhanced Radiation Weapons’ Scientific American (May 1978) 44–51. 142  Anon ‘Radioactive Sting’ New Scientist (21 July 2007) 6; Anon ‘An Audit of War and Occupation’ New Scientist (3 July 2004) 8; Edwards, R ‘Only a Matter of Time’ New Scientist (5 June 2004) 8.

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working in this area since 1939, were largely derailed by a Commando attack on the Norsk Hydro heavy water plant at Vemork in Occupied Norway. Today it seems that the German scientists were on the wrong track, but no-one knew that at the time and nor could it be predicted which side would develop the weapon first. Moreover, their efforts were not completely fruitless. Three hundred grams of Hitler’s uranium was uncovered in 1983, allegedly en route to a Middle Eastern country.143 The United States was the only country to successfully develop nuclear weapons before the end of the Second World War. The only country to have nuclear weapons used against it, twice, was Japan. The destruction of Hiroshima and Nagasaki was the climax of the American bombing campaign in South East Asia. The two weapons which were deployed against these areas were the absolute antithesis of any discussions of discriminate warfare. This is not to suggest that neither target had any military value. Hiroshima was known for its major army and navy installations whilst Nagasaki was recognised for its large ship and steel works.144 Despite their military values, these cities had been largely untouched during the American bombing campaign. These cities were explicitly avoided so as to allow accurate assessments of the impacts of the new weapon. In addition, although the United States had previously dropped leaflets warning civilians of air raids on 12 other major Japanese cities before bombing, the residents of Hiroshima were given no specific notice of the atomic bomb. This was contrary to the advice offered by Ralph A Bard (1884–1975), Undersecretary of the Navy, Leo Szilard (1898–1964) and 69 other scientists involved in making the bomb. All of these men recommended that Japan be first warned about the weapon they were about to face, insisting that the government had ‘an obligation of restraint’.145 Similarly, the view of future president Dwight Eisenhower (1890–1969), that Japan was on the cusp of surrendering and that the dropping of an atomic bomb was unnecessary, was not given much weight. Rather, a fear that an invasion of Japan may be necessary to subdue it and this could have meant a near incomprehensible loss of life, led this area. That is, the capture of Saipan had been at the cost of 3,000 American and 30,000 Japanese casualties. In addition, 22,000 Japanese civilians had committed suicide by hurling themselves over the cliffs. The capture of Iwo Jima had cost nearly 7,000 American and 20,000 Japanese lives. Okinawa had cost 12,500 American and 100,000 Japanese lives. The projections for a land invasion of Japan were for losses of life in the millions. Other proposals for harmless demonstrations of the new bombs, such as by dropping them at sea in full view of the enemy, had been dismissed because the feeling was that it would not persuade the Japanese to surrender, and there was a risk that the demonstration bomb might not work. Finally, the propaganda value of such an act, as a clear signal to the Soviet Union of the military might of the United States, was undeniable. From such considerations, President Truman (1884–1972) authorised the utilisation of nuclear weapons against Japan.146 Whilst philosophers and pundits have spent decades on these questions, the fact of the matter is that on 26 July the Allies issued the Potsdam Declaration in which the 143  Hadfield, P ‘Japan Came Close To Wartime A-Bomb’ New Scientist (29 July 1995) 4; Anon ‘Hitler’s Uranium Found’ New Scientist (26 May 1983) 525. 144   Vandiver, F (2003) 1001 Things Everyone Should Know About World War II (NYC, Broadway) 244. 145  Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 153. 146  Hastings, M (2008) Nemesis: The Battle for Japan (London, Harper) 495; Lindqvist, S (2001) A History of Bombing (London, Granta) 231; Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 114; Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico) 95.

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United States and Great Britain threatened Japan with ‘prompt and utter destruction’ if the country did not surrender unconditionally. Nothing about atomic weapons was mentioned and on 28 July, the Japanese rejected the ultimatum contained in the Potsdam Declaration, although on 2 August they did approach the Soviets to act as intermediaries with the Allies.147 However, this approach came to nothing and on 6 August 1945 the crew of the solitary American bomber the Enola Gay, at 8:15 am local time, released the atomic bomb known as Little Boy. This weapon was armed with 60 kilogrammes of uranium-235. It took 57 seconds to fall from the aircraft to the predetermined detonation height about 600 metres above the city. Due to crosswind it missed ground zero, the Aioi Bridge, by almost 240 metres and detonated directly over the Shima Surgical Clinic, 550 feet from its desired point. It created a blast equivalent to about 13 kilotons of TNT. The radius of total destruction was about 1.6 kilometres which resulted in fires across 11 square kilometres. Japanese officials estimated that 69 per cent of Hiroshima’s buildings were destroyed and another 6 to 7 per cent were damaged. Windows were shattered as far as 27 kilometres from the point of impact. The ICRC had a (western) delegate at Japan at the time who managed to get to Hiroshima on 2 September. He reported by cable: Situation horrifying. 80% of town razed. All hospitals destroyed or severely damaged . . . Many victims, apparently recovering, suddenly experience fatal relapse owing to degeneration of white corpuscles and other internal injuries. Death occurring now in great numbers. . . . Urgently need large supplies bandages, cotton wool, ointment for burns, sulphonamides, blood plasma and transfusion kits.148

A second cable to the ICRC reported that he had: Witnessed a sight unlike anything we had ever seen before. The centre of the city was a sort of white patch, flattened and smooth like the palm of a hand. Nothing remained . . . patients were suffering from the delayed effects of radioactivity with multiple haemorrhages [needing transfusions] . . . but there are no donors, no doctors . . . no treatment.149

Somewhere between 70,000 and 80,000 citizens of Hiroshima were killed immediately or very soon after 8.16 in the morning. Over 90 per cent of the doctors and 93 per cent of the nurses in Hiroshima were killed or injured, as most of these people had been in the downtown area which received the greatest damage. A further 70,000 citizens were injured, and had to contend with internal bleeding and cancers caused by the radiation.150 As Japan did not respond to the American authorities in the wake of the bomb being dropped on Hiroshima, just after 11 am on 9 August, the bomb known as Fat Man was dropped on the city of Nagasaki. Nagasaki was levelled by the fission of one kilogramme of plutonium 239. This was responsible for killing some 40,000 in the

147  Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico) 97; Lindqvist, S (2001) A History of Bombing (London, Granta) 233; Barber, L (1999) The Last War of Empires: Japan and the Pacific War (Auckland, Bateman) 213–19. 148  Telegram from Bilfinger, reprinted in Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 489. 149  Telegram from Junod, reprinted in Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 490. 150  See Bugnion, F ‘Remembering Hiroshima’ IRRC (1995) 306, 307–13.

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blast and perhaps 30,000 more within the following five years.151 The determining factor in both explosions was how close people were to the blast and how many sieverts of radiation they received. Exposure to above four sieverts (within 950 metres of the epicentre) resulted in death. People exposed to three sieverts (at 1,000 metres) were luckier, while those 1,100 metres away at two sieverts had an even greater chance of living.152 The most common ailment from the radiation proved to be thyroid abnormality or disease. As at 2006, this disease was present in 1,833 of the 4,091 survivors of Nagasaki and Hiroshima, or 45 per cent of the total.153 These deaths and disabilities which continued to occur years after the bombs were dropped were of such concern, that the General Assembly mandated the scientific investigation into the effects of atomic radiation in the 1950s – and never removed the ongoing studies from their agenda in the decades that followed.154 Even after the second bomb on Nagasaki, half of the Japanese war cabinet wanted to continue the war. However, the Emperor himself and some senior ministers wanted to end it. The resistance was due to the demand for ‘unconditional surrender’, such as the Germans had to accept. However changes were made in the peace negotiations allowing the Japanese to retain their emperor, with a separate agreement not to prosecute him with crimes connected to the war. Accordingly, Japan surrendered and the Second World War was at an end. This was a fortunate decision, as had Japan not surrendered, it is likely further bombing would have occurred, although whether this would be nuclear or not is a matter of debate. A third atomic bomb had been made ready for assembly and delivery in the final days before the Japanese surrender. However, Truman had an innate aversion to using nuclear weapons due to their remarkably indiscriminate nature. Truman’s assistant recorded: ‘He thought the idea of wiping out another 100,000 people was too horrible. He didn’t like the idea of killing . . . all those kids.’155 Viewed from the perspective of the twenty-first century, the damage caused by the two nuclear attacks on Japan was relatively small as these were low-yield weapons. In the twenty-first century, the sheer numbers of nuclear weapons on Earth is mindnumbing. In 2010, after years of secrecy, the United States disclosed that it had 5,113 nuclear warheads. This was not counting those which had been disabled or dismantled.156 This is the only country which has openly declared how many weapons it has. With all other countries, best guess estimates suggest Russia, which exploded its first bomb in 1949 (after stealing much of it from the United States) has a total of 5,192. France, which reached the nuclear age in 1960, possesses about 300 whilst the United Kingdom, which acquired the bomb in 1952, holds fewer than 200. Israel, which is suspected of having 200 nuclear weapons, probably became nuclear armed around 1966, with the possible help of the United States, France and the United Kingdom. China, which acquired the bomb in 1964, has about 176 operationally deployed 151  Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico) 99; Hobbes, N (2003) Essential Militaria (London, Atlantic) 41. 152   Young, E ‘Secrets of the A-Bomb Survivors’ New Scientist (6 Aug 2005) 6–9. 153  Anon ‘A-Bomb Legacy Lingers On’ New Scientist (4 Mar 2006) 6. 154   UNGA Resolution (2007) 61/109 Effects of Atomic Radiation. 155  Truman, noted in Rhodes, R (2009) Arsenals of Folly: The Making of the Nuclear Arms Race (London, Pocket) 78. 156  Anon ‘Nuke Count’ New Scientist (8 May 2010) 5.

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nuclear warheads, whilst India and Pakistan hold about 50 to 60 each. North Korea is believed to have perhaps ten nuclear warheads.157 Whilst a single, small 10 kiloton bomb could, if detonated correctly in a large city, be sufficient to kill hundreds of thousands, if it was an exchange between countries, the effects upon civilians of nuclear war would be unprecedented. Depending on the weapons used, an estimated 50 nuclear warheads would destroy the vast majority of the infrastructure of a large country like the United States. Three hundred would destroy the civilisation by blast alone. Even if all of the nuclear weapons were aimed at military targets (as the Americans have promised since 1962) the indirect impacts of these weapons would kill tens of millions. Estimates suggest that an exchange between Russia, China and the United States would kill up to 285 million people via the blasts and explosions. The long-term impacts of such an exchange are a matter of speculation, although the generally held understanding is that what is known as a ‘nuclear winter’ would occur. From studies of historical volcanic eruptions and mass forest fires, it is possible to speculate that if a regional nuclear exchange were to occur, there could be a destruction of the ozone layer, violent windstorms, toxic smog and persistent radioactive fallout. Prolonged darkness and abnormally low temperatures due to the thermal pulse from a nuclear explosion igniting materials over a wide area, starting both city and forest fires, could be the decisive factor in survival for the ecosystems upon which humanity depends. The difficulty could be that the fires would inject copious amounts of smoke into the atmosphere where it would absorb sunlight and prevent it reaching the Earth’s surface. The temperature profile would then turn on its head, upsetting the entire pattern of global circulation. Some versions of the theory suggest a dropping of temperature of between 10 and 30 degrees below freezing for between six and 20 weeks. The impact upon agricultural systems could be catastrophic. Such temperature drops would be compounded by the widespread breakdown of transportation systems, power grids, agricultural production, food processing, medical care, sanitation and government.158 Whilst the preambles of the nuclear arms control treaties tend refer to such impacts as ‘devastating’,159 a more accurate assessment of a nuclear exchange is, in the words of the International Court of Justice (ICJ), that: ‘The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilisation and the entire ecosystem of the planet.’160 Although there has been no nuclear exchange in times of warfare since 1945, there has nevertheless been a significant impact of nuclear weapons in times of peace 157  All of these figures are taken from the Bulletin of the Atomic Scientist, from 2005 to 2010. Each edition sees one nuclear force examined and a ‘best guess’ estimate is made of what type and how many weapons each country holds. 158   Robock, A ‘Local Nuclear War, Global Suffering’ Scientific American ( Jan 2010) 58–67; Shiga, D ‘Who Will Survive a Nuclear Attack?’ New Scientist (11 July 2009) 6–7; Choi, C ‘Destroyer of Worlds, and Ozone’ Scientific American ( June 2008) 19; Anon ‘After the War . . .’ New Scientist (18 Apr 2008) 7; Pittock, A et al (1989) The Environmental Consequences of a Nuclear War: Volume 1: The Physical and Atmospheric Effects (NY, Wiley); Harwell, M et al (1989) The Environmental Consequences of a Nuclear War: Volume 2: The Ecological and Agricultural Effects (NY, Wiley); Ehrlich, P and Sagan, C et al (1984) The Nuclear Winter: The World After Nuclear War (London, Sidgwick & Jackson); Scientific Committee on Problems of the Environment (1986) The Environmental Consequences of Nuclear War (Chichester, Wiley) 14–19; Hippel, F ‘Civilian Casualties From Counterforce Attacks’ Scientific American (Mar 1988) 26–32; Turco, R et al ‘The Climatic Effects of Nuclear War’ Scientific American (Aug 1984) 23–33. 159  See the Preamble of the ABM and START treaties. 160  Legality of the Threat or Use of Nuclear Weapons (1996) 8 July General List No 95, para 35.

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through their continual testing. The first nuclear weapons test was conducted in Alamogordo, New Mexico, on 16 July 1945 as part of the Manhattan Project. The test sought to confirm if the potential weapon design was feasible, and to give an idea of what the actual size and effects of a nuclear explosion would be before they were used in combat three weeks later. By 2010, a further 2,402 nuclear tests had been recorded. Five hundred and forty one of these have been carried out in the atmosphere. It is from the atmospheric tests that the iconic mushroom cloud images have been generated. The first nuclear tests after the Second World War were conducted by the United States on the Marshall Islands in the Pacific in 1946. They conducted six tests before the Soviet Union developed their first atomic bomb and tested it on 29 August 1949. By the end of 1956 the United States had tested more than 86 nuclear bombs, whilst the Soviets had tested 15. The early tests were used primarily to discern the military effects of nuclear weapons and to test new weapon designs. During the 1950s these included new hydrogen bomb designs, which were tested in the Pacific, and also improved fission weapon designs. The largest American nuclear test was in 1954 on Bikini Atoll. The weapon tested was about 1,200 times more powerful than the weapons dropped on Japan. Despite the new designs, the impacts of the tests sometimes went far from plan, and local communities, such as those around the Marshall Islands, had to be evacuated at very short notice, and kept from their islands for decades. Between 1953 and 1957, the United Kingdom began their programme of atmospheric blasts on the Monte Bello Islands off Western Australia and near Maralinga in southern Australia. These tests, which involved weapons 25 times larger than those dropped on Hiroshima, were partly concealed from the Australians. The secrecy was not only in terms of long-term contamination of the environment but also with the link to the deaths of some local aboriginal inhabitants. The Soviet Union began testing their nuclear weapons in 1949. Most of this work was done in Kazakhstan where more than 450 nuclear bombs were exploded. The two most contaminated zones in Semipalatink are still over 10 times the international safety limit for radiation. After 46 atmospheric tests, France stopped exploding nuclear devices above the Earth in 1974. China stopped atmospheric testing in 1980.161 Nuclear weapons were also tested under water and under ground. Underwater testing involves nuclear devices being detonated underwater, usually moored to a ship or a barge. Tests of this nature have usually been conducted to evaluate the effects of nuclear weapons against naval vessels, or to evaluate potential sea-based nuclear weapons such as nuclear torpedoes or depth-charges. Underground testing refers to nuclear tests which are conducted under the surface of the earth, at varying depths. Underground nuclear testing made up the majority of nuclear tests by the United 161  Marshall Islands Nuclear Claims Tribunal, 39 ILM (2000) 1214; Anon ‘Bombed Out Coral’ New Scientist (19 Apr 2008) 5; Young, S ‘Nuke Row Runs On After Clean Up Ends’ New Scientist (5 Apr 2003) 7; Edwards, R ‘Careful With That Nuke’ New Scientist (23 June 2001) 6; Young, S ‘Nuke Row Runs On After Clean Up Ends’ New Scientist (5 Apr 2003) 7; Edwards, R ‘Careful With That Nuke’ New Scientist (23 June 2001) 6; Anon ‘Hot Zone’ New Scientist (22 Aug 1998) 5; Anon ‘Unhealthy Fallout’ New Scientist (26 Aug 1989) 5; Stegnar, P ‘Review at Bikini Atoll’ 40(4) IAEA Bulletin (1998) 15–17; Lindqvist, S (2001) A History of Bombing (London, Granta) 287; Anderson, I ‘Britain’s Dirty Deeds at Maralinga’ New Scientist (12 June 1993) 12–13; Anderson, I ‘Australia Counts The Cost of Maralinga Cleanup’ New Scientist (17 Nov 1990) 4; Connor, S ‘The Nuclear Blast That Britain Kept Secret’ New Scientist (May 24 1984) 4; Ford, J ‘Dying Serviceman Tells of Covert A-Tests’ New Scientist (3 May 1984) 8.

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States and the Soviet Union during the Cold War, after the 1963 Limited Test Ban Treaty prevented the explosion of nuclear weapons in the atmosphere or ocean. This was seen as a preferable way to test nuclear weapons as the explosions were meant to be fully contained, emitting a negligible amount of fallout. However, underground nuclear tests can ‘vent’ to the surface and still produce considerable amounts of radioactive debris. The 828 nuclear bombs exploded at the underground Nevada test site have, in some areas, left a radioactive legacy in the terrestrial environment of around half of the total radiation released by the Chernobyl accident, as well as potentially polluting part of the water table. It is believed that some 30 per cent of Soviet tests leaked some radioactive material, and in some instances, as in Siberia and Kazakhstan, the leakages were very serious, and as noted above areas remain out of bounds for safety reasons. The 147 underground nuclear tests by the French in Polynesia between 1974 and 1996 have also left a negative legacy in some of the neighbouring islands, especially in terms of elevated rates of thyroid cancer, although the full extent of the damage is a matter of scientific debate.162 Cumulatively, the nuclear tests already undertaken have left an ongoing worldwide legacy in both environmental and human terms. It has been suggested that atmospheric nuclear testing may have had a direct link to the deaths of up to 65 million people worldwide. Many of these deaths occurred in the late 1950s and early 1960s, when certain cancers, such as breast cancer, took hold in women who were adolescent in this period. The United States Department of Health and Human Services suggested that at least 11,000 Americans alone had died from cancers caused from the radioactivity released from the 390 nuclear bombs exploded in the atmosphere between 1951 and 1963. The number of non-lethal cancers from these tests in the United States alone has been put at more than 200,000. The Soviet atomic bomb testing projects may have directly cost the lives of between 50,000 and 100,000 nonmilitary personnel. Problems have also been contended by the service personnel of all countries who were forced to witness some of the blasts. However, the differences in the way nuclear test veterans and civilians from the United States, France, the United Kingdom and the Commonwealth experienced them suggest the extent of impact from watching such tests, despite their often being exposed to dangerous levels of radiation, are the subject of scientific uncertainty due to difficulties in trying to disentangle background rates of cancer and other possible sources of cause.163 162   Young, E ‘France Keeps Its Atomic Secrets’ New Scientist (4 Feb 2006) 11; Anon ‘Nuke Test Cancers’ New Scientist (26 Mar 2005) 7; Edwards, R ‘US Comes Clean On Nuclear Legacy’ New Scientist (8 Feb 2003) 13; Stegnar, P ‘Semipalatinsk Revisited’ 40(4) IAEA Bulletin (1998) 12–16; Edwards, R ‘Russians Warn of Radiation Threat to Arctic’ New Scientist (2 Oct 1999) 14; Pearce, F ‘Bomb Tests Leave Legacy of Radioactive Food’ New Scientist (21 June 1997) 11; Edwards, R ‘Blast Wakes Ghosts of Nuclear Past’ New Scientist (10 June 1995) 4; Clery, D ‘Cracks Begin To Show In Russia’s Nuclear Test Site’ New Scientist (16 Jan 1993) 8; MacKenzie, D ‘Contamination Fears Linger As French Quit Mururoa’ New Scientist (26 Oct 1996) 7; Planque, EG ‘The Mururoa Study’ 40(4) IAEA Bulletin (1998) 21–23; Anderson, I ‘Fallout In The South Pacific’ New Scientist (2 Sept 1995) 12–13; MacKenzie, D ‘France Barred Inspectors From Nuclear Test Sites’ New Scientist (21 Oct 1995) 6; Patel, T ‘France Claims Mururous Blast Proof ’ New Scientist (30 Sept 1995) 7; Anon ‘Mururoa Probe’ New Scientist (16 Mar 1996) 11. 163   Reuters ‘France to Compensate for Victims of Nuclear Testing’ New Zealand Herald (25 Mar 2009) A3; AP ‘UK Comes Clean on Radiation’ New Zealand Herald (4 Aug 2008) A3; O’Rourke, S ‘Vets Want Tests on Their Children Too’ New Zealand Herald (15 May 2007) A7; Anon ‘European Union: Atmospheric Testing’ New Scientist (8 Feb 2003) 13; Anon ‘Nuclear Tests Cancer Toll’ New Scientist (9 Mar 2002) 7; Edwards, R ‘New Twist To Veteran’s Tale’ New Scientist (23 Nov 2002) 14–15; Edwards, R ‘New Twist To Veteran’s Tale’ New Scientist (23 Nov 2002) 14–15; Hecht, J ‘Fatal Fallout’ New Scientist (12 Sept 1998) 13;

124  Weapons of Mass Destruction A.  Controlling Nuclear Weapons During the Cold War

Niels Bohr (1885–1962) was the most distinguished theoretical physicist to play a role in the development of the atomic bomb. It was due to the threat of a Nazi nuclear bomb that Bohr escaped from occupied Denmark and was willing to work on the Manhattan Project. Bohr was also the first to see that the development of a nuclear weapon could lead to either a nuclear arms race and the possible extinction of the human species, or international control. He opted for the latter as the only safe option. From 1944 he tried – but failed – to convince first Churchill and then Roosevelt that ‘the terrifying prospect of a future competition between nations of a weapon of such formidable character can only be avoided by a universal agreement in true confidence’.164 Nevertheless, soon after the Second World War ended, international attention turned to the problem that such weapons represented. This was first manifested in the statement by the President of the United States, and the Prime Ministers of Britain and Canada, in what was known as the Truman–Attlee–King statement in the middle of November 1945. These leaders warned: We recognize that the application of recent scientific discoveries to the methods and practice of war has placed at the disposal of mankind means of destruction hitherto unknown, against which there can be no adequate military defence, and in the employment of which no single nation can in fact have a monopoly.

With such considerations in mind, the General Assembly of the United Nations was very active in this area from 1946 onwards. For example, at the end of this year, they called for the prohibition and elimination ‘from national armaments atomic and all other major weapons adaptable now and in the future to mass destruction, and the early establishment of international control of atomic energy’.165 These calls were supported by many organisations such as the ICRC166 and by different countries. For example, in 1949, (before exploding their own nuclear weapon) the Soviet Union proposed during the negotiations for the 1949 Geneva Convention that a resolution on banning nuclear weapons should be adopted. The Soviet resolution was built upon their plan presented by Andrei Gromyko (1909–89) in 1946, which like the similar American plan presented by Bernard Baruch (1870–1965), suggested that nuclear weapons should be placed under international control and abolished. The problem was, the Americans and the Soviets could not agree on the best methods to achieve a Ortmeyer, P ‘Worse Than We Knew’ Bulletin of the Atomic Scientists (Nov 1997) 46–50; Gonzalez, A ‘A Radiological Legacy: Radioactive Residues of the Cold War Period’ 40(4) IAEA Bulletin (1998) 2–6; Robbings, A et al (1991) Radioactive Heaven and Earth: The Health and Environmental Effects of Nuclear Weapons Testing In, On and Above the Earth (London, Zed); Kiernan, V ‘US Takes A Closer Look At Nuclear Test Veterans’ New Scientist (3 July 1993) 8; Cross, M ‘Most US Atom Veterans Unharmed’ New Scientist (13 June 1985) 8; Torrey, L ‘Nuclear Bomb Fall-Out Victims Should Be Compensated’ New Scientist (20 Mar 1980) 901; Edwards, R ‘Radiation Payout’ New Scientist (22 May 1999) 12; Anon ‘Radiation Damages’ New Scientist (30 Nov 1996) 12; Larin, V ‘Mayak’s Walking Wounded’ Bulletin of the Atomic Scientists (Sept 1999) 20–25; Edwards, R ‘The Day the Sky Caught Fire’ New Scientist (13 May 1995) 14–15; Klochko, M ‘Victims of Stalin’s A-Bomb’ New Scientist (23 June 1983) 854–57. 164   Bohr, in Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico) 111. 165   UNGA Resolution (1946) 41 (I) Principles Governing the General Regulation and Reduction of Armaments. 166  See the ICRC 1948 and 1952 Conference Resolutions in ICRC (1995) The Humanitarian Endeavour (Geneva, ICRC) 169, 171.

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goal they both gave rhetoric to supporting, and by the time the Soviets had made the technological breakthrough, all of the talk was worthless.167 The quality of the negotiations in this period quickly declined as the Cold War spawned the Korean War, and the United States made clear that it did not distinguish between atomic and conventional weapons. The former were regarded as a legitimate resource for battlefield commanders and plans to employ them in a variety of contexts were developed throughout the war. Practice bombing runs were even carried out in which solitary B–29s were dispatched from Okinawa to drop dummy weapons against targets in the North, an unnerving spectacle in itself. Against such a background, the United States was apparently twice close to using nuclear weapons in the Korean War. The first time occurred when China entered the war, and the second, when the 1953 Armistice was in doubt. Eisenhower subsequently explained that had North Korea not accepted the armistice, the United States would have used nuclear weapons ‘enough to win, and we, of course, would have tried to keep them on military targets, not civil ones’.168 This was the same point that nuclear weapons had reached a magnitude of 1,200 times the strength of what had destroyed Hiroshima. At the same time, the United States announced that it had adopted the doctrine of massive retaliation. This doctrine implied a threat that Soviet aggression would be met with a major nuclear attack by the United States. Despite these rising threats, after the Korean War ended, substantive discussions on the control of nuclear weapons began. This process began in 1954, when France and Great Britain crafted a suggestion for mutual disarmament that required great concessions from the Soviet Union and the United States. These suggestions were supported by General Assembly resolutions which stated ‘further effort should be made to reach agreement on comprehensive and co-ordinated proposals to be embodied in a draft international disarmament convention providing for the total prohibition of the use and manufacture of nuclear weapons’.169 Surprisingly, both superpowers agreed to talk about the detailed plans for disarmament when they met, for the first time since the Second World War, in Geneva the following year. Although these talks, which covered everything from arms expenditure through to invasive inspection regimes failed to achieve disarmament, two developments occurred. The first development in this area was the creation of an international body to develop safely the management of nuclear energy. This process began in 1945 when the President of the United States and the Prime Minister of the United Kingdom declared their intention to create an international organisation through which the benefits of nuclear energy could be dispelled, for peaceful purposes, to all nations. However, at the outset, they were clear that any such uses, for peaceful purposes, could only be justified if it was accompanied by ‘effective enforcement safeguards against its use for destructive purposes’.170 This process was furthered in 1947 when the Atomic Energy Commission of the United Nations was being directed by the Security Council to conduct an inquiry into how all aspects of ‘the problem of the international control   For the negotiations of the period, see Goldblat, J (2003) Arms Control (London, Sage) 38–41.  Eisenhower in Knightley, P (1975) The First Casualty (London, Pan) 350; Moran, D (2001) Wars of National Liberation (London, Cassell) 37–40. Hastings, M (1987) The Korean War (London, Guild) 393–94. 169   UNGA Resolution (1954) 808 A (IX) of 4 November. 170   Declaration on Atomic Energy reprinted in Hudson, J (1978) International Legislation, Vol IX (New York, Oceana) 783. 167 168

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of atomic energy’ could be dealt with, and to submit a draft treaty of a convention incorporating its ultimate proposal.171 This work was supplemented with the ‘Atoms for Peace’ programme whereby atomic energy could be utilised for peaceful pur-­ poses under an international auspice, to prevent it falling into the wrong hands for ‘destructive purposes’.172 When the International Atomic Energy Agency (IAEA) was established in 1957, the objective of the organisation was explained in the following terms: The Agency shall seek to accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world. It shall ensure, so far as it is able, that assistance provided by it or at its request or under its supervision or control is not used in such a way as to further any military purpose.173

The Agency was authorised, inter alia: To establish and administer safeguards designed to ensure that special fissionable and other materials, services, equipment, facilities, and information made available by the Agency or at its request or under its supervision or control are not used in such a way as to further any military purpose; and to apply safeguards, at the request of the Parties, to any bilateral or multilateral arrangement, or at the request of a State, to any of that State’s activities in the field of atomic energy.174

Safeguards are the set of activities by which the IAEA sought to verify that a State was (or is) living up to its international undertakings not to use nuclear programmes for the purposes of creating nuclear weapons. The safeguards system is based on the assessment of the correctness and completeness of the State’s declarations to the IAEA about nuclear material and nuclear-related activities. The first safeguards agreements with the IAEA covered only individual items (nuclear fuel, equipment, plants and so on) without necessarily binding the State to submit all its present or future nuclear activities to safeguards. However, by 1964 the safeguards were being reviewed and revised, as they were again in 1969, taking in an ever greater amount of information on design, records and reports, as well as nuclear material in conversion and fabrication plants.175 The second development in the late 1950s that helped foster a culture of restraint, was the first international agreement not to place or test nuclear weapons on particular parts of the planet, such as Antarctica.176 This was supplemented by work which sought to reduce the nuclear tension that was continuing to build between the United States and the Soviet Union. The first step was the creation of a direct communications link between the United States and the Soviet Union in 1963.177 A further Agreement on the Prevention of Nuclear War was added in 1973, by which the clear obligation on both superpowers was to ‘enter into urgent consultations with each other and make every effort . . . to avoid military confrontations, and as to exclude the   UNSC Res 20 (1947).   Declaration on Atomic Energy in Hudson, J (1978) International Legislation, Vol IX (NY, Oceana) 783; Best, G (2002) War and Law Since 1945 (Oxford, Oxford University Press) 112–14; Weiss, L ‘Atoms for Peace’ Bulletin of the Atomic Scientists (Nov 2003) 34–44. 173   IAEA, Art II. 174   IAEA, Art III(5)(a). 175  IAEA Revised Safeguards System, 4 ILM (1965) 512–23; Provisions for Safeguarded Nuclear Material in Conversion and Fabrication Plants, 8 ILM (1969) 893. 176  See Arts I and V of the 1959 Antarctic Treaty. 177  Memorandum of Understanding on the Direct Communications Link, 2 ILM (1963) 793. 171 172

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outbreak of nuclear war between them and between either of the Parties and other countries’.178 Such agreements were necessary as in the early 1960s a series of mistakes could have led to nuclear war. On one occasion on 28 October 1962, the North American Air Defence Command was told that a nuclear missile from Cuba was about to hit Tampa. When no explosion occurred in Tampa, it was discovered that a radio operator had inserted a military tape simulating a Cuban attack. The shooting down of the U2 spy plane over Cuba in the same year, despite not being authorised by Moscow, could also have triggered a nuclear war. So too could an increasing number of potentially devastating accidents such as the 1961 Goldsboro B-52 incident when a Stratofortress carrying two 24-megaton nuclear bombs broke up in mid-air, dropping its nuclear payload in the process. Similarly, three years earlier at the Greenham Common airbase in 1958, a nuclear weapon was burned in an accident and the site and surrounding environment were seriously contaminated with radiation. All the while, the arms continued to multiply, with the United States alone reaching its high tide mark of 32,200 bombs and warheads in the mid 1960s.179 More substantial steps, beyond communication, were taken with the first formal proposals for a limited test ban treaty which were advanced by the Soviet Union in 1955 and the United States and the United Kingdom in 1959. The General Assembly of the United Nations added their voice for an international agreement that would stop the testing of nuclear weapons.180 The following year, the Security Council noted that the ongoing failure of meetings between the world superpowers ‘may lead to an increase of international tensions likely to endanger peace and security’. They were particularly aware ‘of the mounting danger of the continuation of the arms race’. In particular, they requested ‘negotiations on measures to prevent surprise attack, including technical measures’. They also requested all governments ‘to act for the discontinuance of all nuclear weapons tests’.181 However, this appeal was against rising international tensions, and soon afterwards the General Assembly solemnly appealed directly to the Soviets ‘to refrain from carrying out its intention to explode in the atmosphere a 50 megaton bomb’.182 The Soviets declined the request and carried out the largest nuclear test ever, on the planet. Nevertheless, this action was a stepping stone towards a comprehensive test ban treaty, which the United States, the United Kingdom, and the Soviet Union all pledged themselves to supporting in early 1963. However, a comprehensive treaty proved elusive due to difficulties over ensuring compliance as a result of a lack of established verification procedures such as seismic mechanisms or on-site inspections.183 Due to such concerns, the best the three superpowers could achieve was the 1963 Treaty Banning Nuclear Weapon Tests in the 178  Arts 1 and 4 of the 1973 Agreement on the Prevention of Nuclear War in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol II (NYC, Facts on File) 771. 179  Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico) 207, 210–17; Edwards, R ‘Greenham Fallout Penetrates Corridors of Power’ New Scientist (20 July 1996) 10. 180   UNGA Resolution (1959) 1402 (XIV) Suspension of Nuclear and Thermonuclear Tests. 181  S/RES/135 (1960, May 27). 182   UNGA Resolution (1961) 1632 (XVI) Continuation of Suspension of Nuclear Tests. 183   US–USSR Exchange of Views on a Nuclear Test Ban, 2 ILM (1963) 198–207; Verification and Response in Disarmament Treaties, 2 ILM (1963) 320–31; US Report On Nuclear Test Ban Treaty Safeguards, 3 ILM (1964) 664–65. Also, United States Takes Note of Soviet Nuclear Tests, 4 ILM (1965) 393.

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Atmosphere, Outer Space and Under Water. This treaty was positioned as a steppingstone toward ‘the discontinuance of all test explosions of nuclear weapons for all time’ and ‘the speediest possible achievement of an agreement on general and complete disarmament under strict international control’.184 The Parties were also ‘desiring to put an end to the contamination of man’s environment by radioactive substances’.185 Accordingly, they agreed to: [P]rohibit, prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control in the atmosphere; beyond its limits, including outer space; or under water, including territorial waters or high seas.186

The Parties were also prohibited to carry out any nuclear test ‘in any other environment if such explosion causes radioactive debris to be present outside the territorial limits of the State under whose jurisdiction or control such explosion is conducted’.187 The prohibition did not cover underground explosions, although the Parties did record their intention to reach ‘a treaty resulting in the permanent banning of all nuclear test explosions’.188 The Atmospheric Test Ban Treaty was signed by the United States, the Soviet Union and the United Kingdom. It was not signed by the other superpowers of France and China. France came to stop the atmospheric testing of its nuclear weapons in 1974 following cases brought against it by Australia189 and New Zealand190 at the ICJ. However, in both cases, the Court declined to comment on nuclear testing per se, as France had committed itself to move its nuclear testing underground. When New Zealand tried to challenge the French underground nuclear testing because of its environmental effect a little over 20 years later, the ICJ refused to entertain the case as they deemed the opening which New Zealand obtained from the 1974 decision, and which they used to persuade the ICJ to examine the issue of underground nuclear testing, was only applicable to atmospheric testing.191 International calls for the complete prohibition of nuclear weapons can be traced back to 1961. At this point, the United Nations General Assembly declared that the use of nuclear and thermo-nuclear weapons was contrary to the spirit, letter and aims of the United Nations and as such, were ‘a direct violation of the Charter of the United Nations’. This conclusion was because such weapons were likely to cause ‘indiscriminate suffering and the destruction to mankind and civilisation’.192 The General Assembly has never waivered in this assertion and the need for the complete abolition of all nuclear weapons. As such, they have called for the creation of treaties on the prohibition on the use of nuclear weapons,193 and interim treaties containing   Both of these sentences in quotes are from the Preamble of the Atmospheric Test Ban Treaty.   Preamble of the Atmospheric Test Ban Treaty. 186  Art I(1)(a). 187  Art 1(1)(b). 188  Art 1(1)(b). Note, this is the last sentence from this section. 189   Nuclear Tests Case (Australia v France), ICJ, 20 December 1974, General List No 58. 190   Nuclear Tests Case (New Zealand v France), ICJ, 20 December 1974, General List No 59. 191   Request for an Examination of the Situation in Accordance With Paragraph 63 of the 1974 Nuclear Tests Case, 22 September 1995, General List No 97. 192   UNGA Resolution (1961) 1653 (XVI). Declaration on the Prohibition of the Use of Nuclear and Thermo Nuclear Weapons. Note also UNGA Resolution (1983) 38/75 Condemnation of Nuclear War. 193   UNGA Resolution (2010) 64/59 Convention on the Prohibition of the Use of Nuclear Weapons. The draft convention can be found in (2007) 52/39. Also, Resolution (2010) 64/47 Renewed Determination Towards the Total Elimination of Nuclear Weapons. 184 185

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promises by nuclear-weapon possessing States of no-first use of nuclear weapons,194 and instruments on assurances to non-nuclear weapons States that they will never be attacked with nuclear weapons.195 They have also called for the reductions of nonstrategic nuclear weapons,196 the removal of nuclear weapons from high-alert basis,197 and reviews of national doctrines to ‘reduce the risks of unintentional and accidental use of nuclear weapons, including through the de-alerting and de-targetting of nuclear weapons’.198 However, none of these contemporary initiatives have resulted in binding international law. Rather, the only international convention of substance in this area, is the Non-Proliferation Treaty (NPT), which is now approaching 50 years in age. The NPT, after years of proposals and counter-proposals, was finally concluded in 1968.199 As at 2010, there were only three nations which had not signed the Treaty. These were India, Pakistan and Israel (the latter has come in for repeated criticism from the General Assembly in this area, as the catalyst for potential nuclear proliferation in the Middle East).200 North Korea, which had signed the NPT, withdrew in 2003. Several countries, including Argentina, Brazil, and South Africa suspended their nuclear weapons programmes and joined the NPT in the 1990s. Others, such as Belarus, Kazakhstan and the Ukraine gave up former Soviet weapons on their territories and joined the Treaty as non-nuclear weapon States in the 1990s. The 1967 NPT was built on the realisation that ‘the proliferation of nuclear weapons . . . seriously enhance[s] the danger of nuclear war’. Whilst accepting that every State has ‘the inalienable right . . . to develop research, production and use of nuclear energy for peaceful purposes’,201 it was clear there was no corresponding right to develop research, production and use of nuclear energy for non-peaceful purposes. Article I stipulated: Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.

Each non-nuclear weapon State Party to the Treaty undertook the reciprocal obligation not to acquire such nuclear technologies for the purposes of weaponry.202 The third article of the Treaty was that each non-nuclear weapon State Party to the Treaty, while nonetheless guaranteed unfettered access to the peaceful benefits of nuclear power, undertook:

  UNGA Resolution (2010) 64/53 Nuclear Disarmament.   UNGA Resolution (2010) 64/27 Conclusion of an Effective International Arrangement to Assure Non-Nuclear Weapon States Against the Use or Threat of Use of Nuclear Weapons. 196   UNGA Resolution (2004) 58/50 Reduction of Non-Strategic Nuclear Weapons. 197  UNGA Resolution (2009) 63/41 Decreasing the Operational Readiness of Nuclear Weapons Systems. 198   UNGA Resolution (2010) 64/37 Reducing Nuclear Danger. 199  Treaty on the Non-Proliferation of Nuclear Weapons, UNGA Resolution 2375 (XXII). Also, 7 ILM (1968) 809. For the earlier American and Soviet drafts, see 4 ILM (1965) 1149 and 7 ILM (1968) 155. 200  UNGA Resolution (2009) 63/84 The Risk of Nuclear Proliferation in the Middle East. Also, Resolution (2010) 64/26 Establishment of a Nuclear Weapon Free Zone in the Region of the Middle East. 201  NPT, Art 4(1). Note the importance of sharing this information for peaceful purposes, in Art 5. 202  NPT, Art 2. 194 195

130  Weapons of Mass Destruction [T]o accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.

This link between the IAEA safeguards system and compliance with the NPT was a key development that would define the relationship with States seeking to acquire nuclear weapons, and dominate the landscape of international debates in this area in the twenty-first century. The importance of these safeguards would be reiterated at most of the review conferences of the Treaty for the rest of the twentieth century and in the twenty-first century at the 2010 review.203 The importance of effective and overall disarmament of the existing nuclear powers was also recognised. Article 6 stipulated: Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control.

Finally, the possibility of Parties being able to withdraw from the Treaty if they decided ‘that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country’ was recognised.204 So too, was the creation of nuclear weapon-free zones.205 This last recognition was particularly timely as the year beforehand in 1967, the (Tlatelolco) Treaty for the Prohibition of Nuclear Weapons in Latin America, and subsequent protocols (whereby the nuclear powers promised not to target the area) had been agreed.206 The creation of such nuclear weapon-free zones was seen as being in direct support of the goals of the NPT. In the global sphere, the 1970s saw the first fractures in international attempts to constrain nuclear proliferation. On the one hand, the international community, and the Security Council in particular, was very concerned that South Africa was ‘at the threshold of producing nuclear weapons’ and urged all States to refrain from any form of cooperation with South Africa in this area.207 This concern was heightened as three years earlier, in 1974, India had managed to take plutonium produced in a Canadian supplied civil reactor and had utilised it to make a nuclear weapon. The original IAEA inspections had proven ineffective, useful only to check friendly countries for compliance, not for regimes determined to build nuclear weapons in secret, or with regimes which were on the verge of collapse. For example, fresh fuel assemblies used from the Atoms for Peace Programme, built in the Congo in 1958, though never used to produce HEU, went missing in the 1970s. One of them turned up in a sting operation in 203  See The Structure and Content of Agreements Between the Agency and States Required in Connection with the Treaty on the Non Proliferation of Nuclear Weapons, 10 ILM (1971) 855; 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/ CONF.2010/50, 3. 204  NPT, Art 10. 205  NPT, Art 7. 206   6 ILM (1967) 521. Also, Treaty for the Prohibition of Nuclear Weapons in Latin America, Protocols I and II, 28 ILM (1989) 1400. 207  S/RES/418 (1977, Nov 4).

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Rome at the end of the twentieth century, where it was offered for sale illegally. Nothing is known of the whereabouts of the second fuel assembly. Such developments helped lead to the creation of the Nuclear Suppliers Group which was founded in 1975. Members of this group agreed to a common (but voluntary) policy to restrict exports of certain goods such as uranium enrichment and plutonium reprocessing technology that could be used by proliferants, including dozens of so-called ‘dual-use’ technologies, to make nuclear weapons. This was quickly supplemented by IAEA Guidelines for the Export of Nuclear Material, Equipment and/or Technology.208 The other big developments in terms of nuclear arms control in the 1970s began as the United States became increasingly ensnared in a conflict it could not win in Vietnam. This situation was doubly insulting because Richard Nixon, despite blustering he would use nuclear weapons in the Vietnam War, was not believed by the North Vietnamese and the Americans were left as the superpower with the greatest military power in the world, yet unable to achieve victory.209 Nevertheless Nixon, like his Soviet counterpart, was clearly aware of the problem that the nuclear arms race represented and undertook a series of initiatives through the 1972 Treaty on the Limitation of Anti-Ballistic Missile Systems210 and the 1972 Interim Agreement on Certain Measures With Respect to the Limitation of Strategic Offensive Arms211 (collectively known as SALT I). Although both agreements were seen as stepping stones towards more complete measures for the limitation of strategic offensive arms,212 Nixon still suggested these two treaties were the ‘most important step in arms limitation ever taken by this country’.213 These two treaties were, however, not alone, and formed part of a raft of instruments that helped create a much more stable international environment. These other instruments, including a 1971 agreement, were concluded by requiring noti­ fication in the event of certain nuclear-related incidents214 and updating the direct communications link between the United States and the Soviet Union.215 In addition, the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-bed and the Ocean Floor and in the Subsoil Thereof (Seabed Treaty) was agreed, which recognised ‘the common interest of mankind in the reservation of the seabed and the ocean floor, exclusively for peaceful purposes’.216 In 1972, agreement was reached on measures to prevent incidents on and over the high seas,217 and the 1973 Convention on the Prevention of Nuclear War had the Parties ‘proceed from the premise that each Party will refrain from the threat or use of force against the other Party.218 1973 also saw the 208   IAEA Communications Related to Guidelines for the Export of Nuclear Material, 17 ILM (1978) 220. Nuclear Suppliers Group: Memorandum of Understanding Implementing Guidelines for Transfers of Nuclear Related Dual-Use Equipment, Material and Related Technology, 31 ILM (1992) 1094; Weiss, L ‘Atoms for Peace’ Bulletin of the Atomic Scientists (Nov 2003) 34–44; Mian, Z ‘A Frightening Nuclear Legacy’ Bulletin of the Atomic Scientists (Sept 2008) 42–47; Goldblat, J (2003) Arms Control (London, Sage) 116–19. 209  Tucker, S (1998) The Encyclopedia of the Vietnam War (Oxford, Oxford University Press) 246. 210   11 ILM (1972) 784. 211   11 ILM (1972) 791. 212  The 1974 Protocol on the Limitation of ABM Systems, 13 ILM (1974) 904. 213   President’s Message to the Senate Regarding the ABM and Interim Agreement, 11 ILM (1972) 923. 214   10 ILM (1971) 1173. 215  Memorandum of Understanding on the Direct Communications Link, 10 ILM (1971) 1172. 216   10 ILM (1971) 145. 217   11 ILM (1972) 778. 218   12 ILM (1973) 896, Arts 1 and 2.

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creation of a Standing Consultative Committee which was tasked to meet on a regular basis.219 The Interim Agreement on Strategic Offensive Arms imposed a freeze on the number of launchers for intercontinental ballistic missiles (ICBMs) and submarinelaunched ballistic missiles (SLBMs) that the United States and Soviet Union could each deploy. The Parties agreed that they would not begin construction of new ICBM launchers after the middle of 1972. At the time the United States had 1,054 ICBM launchers and the Soviet Union had 1,618. They also agreed to freeze their number of SLBM launchers and modern ballistic missile submarines, although they could add SLBM launchers if they retired old ICBM launchers. The Protocol to the Treaty indicated that the United States could deploy up to 710 SLBM launchers on 44 submarines and the Soviet Union could deploy up to 950 SLBM launchers on 62 submarines. In 1977 both nations agreed to observe the agreement until they completed the SALT II Treaty.220 Compliance in the Interim Agreement was difficult to achieve due to the sheer number and diversity of weapons covered. The Agreement dealt with each Party using ‘national technical means of verification at its disposal in a manner consistent with generally recognized principles of international law’. At this point of history, this phrase did not refer to site visits or direct physical inspection. Rather, it was referring to imagery produced from satellites and telemetry although, in time, this came to encompass electro-optical and radar sensors. Each Party also undertook not to ‘interfere’ with these means of verification or use deliberate concealment measures to impede verification. Assistance in achieving the objectives and implementation of the Interim Agreement was to be given through the Standing Consultative Commission of the Anti-Ballistic Missile Treaty.221 The 1972 Treaty Between the United States and the Soviet Union on the Limitation of Anti-Ballistic Missile (ABM) Systems222 recognised that ‘effective measures to limit anti-ballistic missile systems would be a substantial factor in curbing the race in strategic offensive arms and would lead to a decrease in the risk of outbreak of war involving nuclear weapons’.223 The core of the thinking behind the ABM treaty was the doctrine of Mutually Assured Destruction (MAD). The lineage of MAD can be traced to a musing from Sigmund Freud (1856–1939), who in a famous correspondence with Albert Einstein, published as Why War? stated bluntly that ‘man has within himself a lust for hatred and destruction’ and offered as the only hope of offsetting it 219  Agreement on the Establishment of a Standing Consultative Commission to Promote the Implementation of Certain Arms Controls Agreements, 12 ILM (1973) 46. 220   Interim Agreement, Arts I, II, III, IV and VIII. Note, the inequality in the numbers raised serious concerns in Congress which forced them to adopt a provision, known as the Jackson amendment, that mandated that all future arms control agreements would have to contain equal limits for the United States and Soviet Union. 221  Arts V and VI. For discussion of some of these technologies, see Anon ‘Spying on the Race to Arms’ New Scientist (2 Sept 2000) 12; Hafemeister, D ‘The Verification of Compliance With Arms Control Agreements’ Scientific American (Mar 1985) 29–35; Zimmerman, P ‘A New Resource for Arms Control’ New Scientist (23 Sept 1989) 20–25; Barnaby, F ‘Why SALT Won’t Crystallise’ New Scientist (6 Oct 1977) 2. 222   11 ILM (1972) 784. 223  According to Art II of the ABM, an ABM system is a system to counter strategic ballistic missiles or their elements in flight trajectory, currently consisting of interceptor missiles, ABM launchers and ABM radars. The Treaty imposed no restrictions on defences against aircraft, cruise missiles or theatre ballistic missiles.

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the development of a ‘well-founded dread of the form of future wars will take’.224 Although this idea failed to gain enough support to prevent the Second World War, it resurfaced after Hiroshima and gained a wide popularity in the context of nuclear weapons. According to the MAD doctrine, no country would attack another if it knew that the attacked side had the capacity to inflict unacceptable damage on the attacker. For the Soviet Union, ‘unacceptable damage’, as defined by the United States, would have meant the destruction of between 20 and 25 per cent of the Soviet population and 50 to 70 per cent of its industrial capacity. The credibility of the MAD doctrine rested on the survivability and vulnerability of nuclear forces. If the nuclear forces of one country were not survivable, that country might be tempted in a time of crisis to launch a nuclear strike to pre-empt its nuclear adversary. Moreover, if one country devised a way to defend itself against the other’s ability to strike it, a perverse incentive would be created to strike before it became defenceless. Accordingly, the ABM treaty set about trying to limit the defences against nuclear weapons. Thus, in addition to committing themselves to ‘continue active negotiations for limitations on strategic offensive arms’, each Party agreed to ‘limit anti-ballistic missile systems’.225 That is, the ABM treaty did not call for a complete and unconditional renunciation of defence against ballistic missiles, but rather, a substantive renunciation. As such, aside from allowing both sides to deploy ABM interceptors at two sites, one centred on the nation’s capital and one containing ICBM silo launchers; each Party undertook not to deploy ABM systems for defence of the territory of their country or their allies. The Treaty also obligated each nation not to develop, test or deploy ABM systems for the ‘defense of the territory of its country’ or provide a base for such a defence. It forbade testing and deployment of space-based, sea-based or air-based ABM systems or components and imposed a number of qualitative limits on missile defence programmes.226 The compliance provisions for ‘national technical means of verification’, in addition to the creation of a Standing Consultative Commission were the same as with the Interim Treaty.227 In a Protocol signed in 1974, each side agreed that it would deploy an ABM system at only one site (not the two sites agreed in 1972) either around the nation’s capital or around an ICBM deployment area. The Soviet Union deployed its site around Moscow. This system has been maintained and upgraded over subsequent years. The United States deployed its ABM system around ICBM silo launchers located near Grand Forks, North Dakota. However, this was a short-lived system due to considerations of cost and strategic viability.228 Two years later, the 1974 Treaty Between the United States and the Soviet Union on the Limitation of Underground Nuclear Weapons Tests was agreed.229 This was seen as part of the process of ‘strengthening peace and the further relaxation of international tension’230 within ongoing negotiations ‘with a view toward achieving . . . the   Freud, in Clark, R (1980) Freud (London, Penguin) 486.  ABM, Arts I and XI. 226  ABM, Arts I(2), III, V, VI and IX. 227  Art XII and XIII. 228   Protocol to the Treaty Between the United States of America and the Union of Soviet Socialist Republics, Art 1. Also, Kristensen, K ‘The Protection Paradox’ Bulletin of the Atomic Scientists (Mar 2004) 68–75. 229   13 ILM (1974) 906. 230  Preamble. 224 225

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cessation of all underground nuclear weapon tests’.231 Accordingly, the superpowers agreed to keep their underground nuclear weapons tests to ‘a minimum’ and never to exceed ‘a yield exceeding 150 kilotons at any place under its jurisdiction or control’.232 Compliance with this Treaty was to be achieved by the use of ‘national technical means of verification at its disposal in a manner consistent with the generally recognized principles of international law’. In this context, the means were space-based nuclear energy detection and infra-red sensors, in addition to geophysical intelligence from both seismic and acoustic sources.233 The only problem was that the 150 kiloton yield threshold was too high to be meaningful and the Parties did not experience onerous restraints in continuing their nuclear testing programmes. In any event, for many years the trend had been to improve the effectiveness of nuclear weapon systems by increasing the accuracy of missiles rather than by increasing the yield of warheads. As the 1974 Treaty of Nuclear Weapons Tests did not apply to explosions for peaceful purposes, a further Treaty on Underground Nuclear Explosions for Peaceful Purposes was agreed in 1976.234 This Treaty, which allowed each side the right to carry out nuclear explosions of yields not exceeding 150 kilotons in its territories at sites specified in the 1974 Treaty235 added that each side would furnish the other with information ‘and access to sites of explosions’ as set forth in the Protocol to the Treaty, as well as using ‘technical means of verification’ as outlined in 1974. The associated Protocol set down requirements of depth, limits on group explosions, and requirements for providing the other Party in advance with notice of the explosion, its purpose, location, types of rock to be exploded in, and a description of the technological features of the projects. The Soviets had offered to go further, accepting the principle of on-site inspection, and offered to give the United States teams geological and other data to measure and verify the yields of underground nuclear explosions. However, the United States Senate refused to ratify the Protocol.236 This was despite the fact that by the mid 1970s, after 27 tests, the United States terminated its programme of nuclear explosions for civilian purposes, because it found it impossible to establish applications which would be technically feasible, economically viable and publically acceptable.237 The Senate’s refusal to ratify coincided with their increasing belligerency towards the Soviet Union at the end of the 1970s. The best example of this was with what was known as SALT II (or the 1979 Treaty Between the United States and the Soviet Union on the Limitation of Strategic Offensive Arms).238 The core of this Treaty was  Art 1(3).  Art 1(1) and (2). 233  Art 2(1). In addition, each Party promised to promote the objectives and implementation of the provisions of this Treaty, as necessary, via consultation with each other, inquiries and the furnishing of information in response to such inquiries. The Protocol that accompanied this Treaty had the Parties exchange, on the basis of reciprocity, data on, inter alia, the geographic coordinates of each test site, information on the geology of the testing areas and the geographic coordinates of underground nuclear weapon tests, after they have been conducted. Yield, date, time, depth and coordinates for two nuclear weapon tests for calibration purposes from each geophysical distinct testing area where underground nuclear weapon tests have been and are to be conducted were also required. 234  1976 Treaty Between the USA and USSR on Underground Nuclear Explosions for Peaceful Purposes, 15 ILM (1976) 891. 235   1976 Treaty, Arts 3.2 and 4.1. 236   Protocol, Art 2. 237  Goldblat, J (2003) Arms Control (London, Sage) 55. 238   18 ILM (1979) 1138. 231 232

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an undertaking by each Party ‘to limit strategic offensive arms quantitatively and qualitatively [and] to exercise restraint in the development of new types of strategic offensive arms’.239 The limits were meant to be in the form of 2,400 strategic delivery vehicles (bombers and missiles) with this number declining to 2,250 by the beginning of 1981. No more than 1,320 of these were to be armed with multiple independent targetable re-entry vehicles (MIRVs, or missiles with multiple warheads). The good news was that SALT II, for the first time, planned to place a ceiling on bombers as well as missiles that could be fitted with MIRVs, although not on the total number of MIRVs; that is, the Treaty would not have limited the total number of warheads that could be carried on MIRVs, but they did agree that they would not increase the numbers of warheads on existing types of missiles and would not test new types of ICBMs with more than 10 warheads and new types of SLBMs with more than 14. Although there were questions over the actual limits being imposed, debate on the merits of SALT II never eventuated, as when the forces of the Soviet Union entered Afghanistan in December 1979, Jimmy Carter (b 1924) withdrew the Treaty from the Senate’s consideration.240 The early 1980s were bad years for international arms control. On the ground, accidents continued to occur. For example, the two most serious nuclear accidents in Britain occurred in this period. First a warhead within a container fell off a trailer (and was dented within the container); and secondly when a missile was being taken from a submarine, a crane accidently hoisted it into the air, causing it to swing wildly and crash into the trailer supports that it was meant to be being locked into.241 In the same period, the Israeli air force attacked a civilian nuclear reactor in Iraq. This self-justified ‘pre-emptive attack’ was condemned by the Security Council who stated that they were fully aware that Iraq was a Party to the NPT and Iraq had accepted the IAEA safeguards system on all of its activities. This was unlike Israel, which had probably created nuclear weapons as early as 1966 and was not a signatory to the NPT. The Security Council added that such an attack ‘constitute[d] a serious threat to the entire safeguards regime of the IAEA, which is the foundation of the Treaty on the Non Proliferation of Nuclear Weapons’.242 In turn, the Parties to the NPT were also highly critical of the Israeli attack at their review conference.243 Directly afterwards, but unbeknown to many members of the international community, Iraq sold the HEU they had produced to France (12.3 kilograms at 93 per cent enriched) and the Soviet Union (10 kilogrammes at 80 per cent enriched). This same reactor, along with one other research reactor, was targeted a second time and destroyed a decade later during the 1991 Gulf War.244 1981 was also the same year Ronald Reagan (1911–2004) entered the White House. Reagan attempted to strengthen the American military in terms of both conventional  Art 1.  Aspin, L ‘The Verification of the SALT II Agreement’ Scientific American (Feb 1979) 30–37; Barnaby, F ‘What SALT II Means’ New Scientist (14 June 1979) 905–908; Scoville, H ‘The SALT Negotiations’ Scientific American (Feb 1977) 24–31; Barnaby, F ‘Platitudes on Disarmament’ New Scientist (20 July 1978) 178–81. 241  Edwards, R ‘UK’s Nuclear Accidents Blamed on Poor Safety’ New Scientist (1 Sept 2007) 16. 242  S/RES/487 (1981, June 19). 243  Third Review Conference of the NPT, 26 ILM (1987) 202. 244   Bertell, R (2000) Planet Earth: The Latest Weapon of War (London, Women’s Press) 33; Charles, D ‘Iraq Opens Its Doors to Nuclear Inspectors’ New Scientist (24 Nov 1990) 6. 239 240

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weapons and weapons of mass destruction. Reagan ended up spending almost as much on defence in the first five years of his presidency as had former Presidents Ford, Nixon and Carter combined, more than the cost of both the Korean and Vietnam Wars. As such, he oversaw the largest peacetime buildup in American history. On the nuclear question, he appears to have entertained a conceptual willingness to utilise nuclear weapons and often behaved in particularly provocative ways towards the Soviets. At the same time, when he first met the Soviets in 1982, he proposed a nuclear arms control treaty, but one that would have placed much greater reductions on the Soviets than on the United States.245 Also in 1982, he broke off negotiations with the Soviets on the topic of a comprehensive test ban treaty. This followed (mistaken) assertions that the Soviets had violated the Threshold Test Ban Treaty. Reagan also quickly went about building up the United States nuclear stockpiles to levels that exceeded the proposed limits in the ill-fated SALT II agreement. The foremost example of this build-up was the Intermediate Range Nuclear Forces, which are weapons which have a range of between 300 and 3,400 miles. These systems were highly mobile and very accurate. If deployed on the outskirts of Western Europe, they could hit Moscow within 10 minutes of being launched. They clearly increased tension, as Reagan was aware when he authorised their deployment among his European allies in 1983, which forced the Soviets to leave the arms control negotiations of the period. Finally, Reagan took a direct interest in the development of new types of direct energy (or ‘laser’) weapons (euphemistically known as ‘star wars’) and their potential to shoot down incoming intercontinental missiles, despite Soviet allegations that his interests in this area threatened to undermine the ABM Treaty – even if it was, unknown to the Soviets, technologically unlikely to succeed.246 The cumulative results of all of these developments was that by the mid 1980s the total nuclear stockpile on Earth stood at about 50,000 bombs and warheads, with a combined explosive power of about 22,500 million tons of TNT equivalent, or 1.5 million Hiroshimas.247 245  Torrey, L ‘Reagan Plans for Fourth World War’ New Scientist (19 Jan 1984) 3; Joyce, C ‘Reagan Plans New Twist in Nuclear Arms Race’ New Scientist (8 Oct 1981) 86. 246  See Nincic, M ‘Can the US Trust the USSR?’ Scientific American (Apr 1986) 21–30; Torrey, L ‘Doubts About Reports of Russian Beam Weapons’ New Scientist (7 Aug 1980) 435; Hecht, J ‘Laser Beam Destroys Attacking Missile’ New Scientist (15 Dec 1983) 795; Joyce, C ‘US Report Calls For Research on Laser Weapons’ New Scientist (8 Jan 1981); Anon ‘Britain Opens the Door to Star Wars’ New Scientist (12 Dec 1985) 11; Johnstone, B ‘Japan Joins in Star Wars Research’ New Scientist (11 Sept 1986) 16; MacKenzie, D ‘Scientists Puzzled as Thatcher Backs Star Wars’ New Scientist (28 Feb 1985) 3; Joyce, C ‘Reagan Reaches for the Sky’ New Scientist (9 Feb 1984) 9; Anon ‘Launch of SDI Weapons Put at $1 Trillion’ New Scientist (24 Sept 1987) 26. Kiernan, V ‘Successful Star Wars Test Was Faked’ New Scientist (6 Aug 1994) 8; O’Neil, B ‘Fear and Laughing In the Kremlin’ New Scientist (20 Mar 1993) 34; Anon ‘Star Wars Tricks’ New Scientist (18 Sept 1993) 13; Nadis, S ‘Star Wars and the Asteroid’ New Scientist (22 Jan 1994) 36; Gavaghan, H ‘Star Wars Gives A Clear View of the Sky’ New Scientist (20 Apr 1991) 17; Hecht, J ‘Blinded by the Light’ New Scientist (20 Mar 1993) 29; Charles, D ‘Unhappy Birthday for Star Wars’ New Scientist (28 Mar 1992) 13; Joyce, C ‘Star Wars Must Wait Until Next Century’ New Scientist (30 Apr 1987) 22; Anon ‘Star Wars Will Be A Long Time Coming’ New Scientist (18 Feb 1988) 28; Gavaghan, H ‘New SDI Package Could Leave US Vulnerable’ New Scientist (21 Apr 1988) 25; Pike, J ‘Star Wars: The Impossible Dream’ New Scientist (1 Sept 1988) 47–52; Patel, K ‘Strategic Defence and Direct Energy Weapons’ Scientific American (Mar 1987) 31–37; Anderson, I ‘Teller’s Lies on SDI Effectiveness’ New Scientist (29 Oct 1987) 24; Hecht, J ‘Star Wars Researchers Cast Doubt on Space Bullets’ New Scientist (17 Sept 1987) 33; Berte, H ‘Space Based Ballistic Missile Defence’ Scientific American (Apr 1984) 37–47; Lamb, J ‘The Bugs in the Star Wars Program’ New Scientist (21 Nov 1985) 27–29; Epstein, W ‘A Critical Time for Nuclear Non-Proliferation’ Scientific American (Feb 1985) 23–40. 247   Rhodes, R (2007) Arsenals of Folly: The Making of the Nuclear Arms Race (London, Simon) 69.

Nuclear Weapons 137 B.  The End of the Cold War

By the middle of the 1980s, the tension in the Cold War was beginning to slacken. Whilst some regions attempted to exit themselves from the nuclear arms race, such as the South Pacific and their (Rarotonga) Nuclear Free Zone Treaty,248 the superpowers, under the wise leadership of both Ronald Reagan and Michail Gorbachev (b 1931) got down to business at their 1986 Reykjavik summit in Iceland. Two monumental breakthroughs occurred at this summit. The first came from strong Soviet concerns over the United States ‘star wars’ initiatives. Specifically, as part of the overall nuclear control negotiations, the Soviets wanted a ban on such research outside of the laboratory for at least 10 years. In this regard, the Soviets were successful, as the Americans promised not to withdraw from the ABM for at least 10 years providing that their testing and research could continue. The research was relabeled as the Ballistic Missile Defense Organization and moved into short-range missile defence, with one missile hitting another, moving away from the star wars ideals based on laser weapons.249 The second big achievement from the Reykjavik meeting was the establishment of the groundwork for the Treaty on the Elimination of Intermediate-Range and ShorterRange Missiles, which was finally sorted the following year in 1987.250 This Treaty was a significant milestone in arms control because it established an intrusive verification regime and eliminated an entire class of weapons that both sides regarded as modern and effective. In terms of weapons systems, the United States and Soviet Union agreed to destroy all intermediate-range and shorter-range nuclear-armed ballistic missiles and ground-launched cruise missiles, which are those missiles with a range between 300 and 3,400 miles. The missiles (but not necessarily the warheads and guidance systems, which could be reused elsewhere) and launchers associated with the controlled missiles were all destroyed by the middle of 1991. In numerical terms, the Soviets agreed to destroy approximately 1,750 missiles and the United States agreed to destroy 846 missiles. The agreement thereby established a principle that asymmetrical reductions were acceptable in order to achieve a goal of greater stability. The Treaty on the Elimination of Intermediate and Shorter-Range Missiles had the most intrusive and comprehensive verification regime ever concluded in the history of multilateral arms control treaties. The basic agreement involved exchanged lists of military facilities where missiles were produced, stored and deployed. Within three months of the Treaty being ratified, teams of inspectors started visiting the storage and deployment sites and took an inventory of all relevant equipment on each base. This involved visits to 34 American and 84 Soviet sites. In addition, each country was allowed to set up a permanently staffed observation station at one of the other’s key missile factories in the United States and in Russia. The inspectors had the right to weigh and measure shipments going in and out of the plants – but not to physically open the missiles to count the warheads, as this could divulge sensitive secrets. Although new developments that use gamma rays can now detect how many warheads are in a  The South Pacific Nuclear Free Zone Treaty, 24 ILM (1985) 1442.  Statements Concerning the Summit Meeting at Reykjavik, 26 ILM (1987) 209; Gavaghan, H ‘Star Wars Tests Jeopardise Missile Treaty’ New Scientist (24 Mar 1988) 34; Connor, S ‘A Way Out of the Reykjavik Impasse’ New Scientist (23 Oct 1986) 16; Anon ‘The Rise and Fall of Star Wars’ New Scientist (20 Mar 1993) 24. 250   27 ILM (1988) 84. Also, USSR-USA, Documents from the Geneva Summit, 25 ILM (1986) 102. 248 249

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sealed missile, at the point the Treaty was concluded, the best the two sides could agree on was a ‘passive’ device that could detect emissions and patterns of neutrons. Although the Treaty did not permit ‘anywhere, anytime’ inspections, it did allow up to 20 shortnotice inspections of sites designated in the Treaty. The two sides agreed to an extensive data exchange, intended to account for all systems covered by the agreement. Each nation relied on its own intelligence network to make sure that the other side did not deploy its medium-range missiles elsewhere. The inspections under this Treaty continued until the middle of 1991, before they were subsumed within compliance measures for other conventions.251 The last achievements on nuclear arms control in the late 1980s involved the bilateral Agreement on the Prevention of Dangerous Military Activities,252 the Agreement on Notification of Launches of Inter-continental Ballistic Missiles and Submarine Launched Missiles253 and the Agreement on Reciprocal Advance Notification of Major Strategic Exercises.254 These agreements were supplemented by advances in technology that allowed greater levels of seismic surveillance than had previously been available. This technology, coupled with a willingness by both the Soviets and the Americans to allow independent and/or combined scientific missions close to the testing grounds of their nuclear weapons, allowed both sides to re-engage in the discussion about a comprehensive ban on nuclear testing. These discussions were supported by the Parties to the NPT at their review conference.255 The fruits of these negotiations on verification culminated in new protocols in 1990 to the Threshold256 and Peaceful Purposes257 Nuclear Treaties. The verification methods in the new protocols went even further, in allowing not only hydrodynamic yield measurement, but also on-site inspection and some seismic monitoring on the territory of the testing party. Under both Protocols, joint commissions were to be used to discuss implementation and verification. The new decade arrived with what was the crowning achievement of the negotiations that had progressed during the late 1980s, although these were now under the guidance of George HW Bush (b 1924). This achievement was the Strategic Arms 251  See the Agreement Regarding Inspections Relating to the Treaty Between the USA and the USSR on the Elimination of Their Intermediate -Range and Shorter-Range Missiles, 27 ILM (1988) 58. Also, the Protocol on Inspections to the Treaty on the Elimination of Their Intermediate-Range and Shorter-Range Missiles, 27 ILM (1988) 190. For the context of the discussions, see Charles, D ‘Gorbachov Asks Scientists To Back Disarmament’ New Scientist (17 Dec 1987) 3–4; Charles, D ‘Arms and the Ban’ New Scientist (29 July 1989) 30; Connor, S ‘Verification Pact Underscore Summit Success’ New Scientist (9 June 1988) 33–34; Leggett, J ‘Lifting the Lid on the Arms Treaty’ New Scientist (19 Nov 1987) 48–52. 252  The 1989 Agreement on the Prevention of Dangerous Military Activities, 28 ILM (1989) 877. 253  Agreement Between the United States and the Soviet Union on Notifications of Launches of ICBMs and Submarine Launched Ballistic Missiles, 27 ILM (1988) 1176. 254  Agreement on Reciprocal Advance Notification of Major Strategic Exercises, 28 ILM (1989) 1436. 255  Third Review Conference of the NPT, 26 ILM (1987) 202; Brown, W ‘Chinese Test Site Forced Into Public View’ New Scientist (2 Oct 1993) 5; Charles, D ‘US Hedges Its Bets On Nuclear Tests’ New Scientist (15 Dec 1990) 18; Anderson, I ‘US Scientists To Monitor Soviet Nuclear Tests’ New Scientist (7 Jan 1988) 32; MacKenzie, D ‘USSR Opens Door to Seismic Inspectors’ New Scientist (5 June 1986) 18; Connor, S ‘A Testing Time For Arms Control’ New Scientist (26 Feb 1987) 32–34; Connor, S ‘Britons To Monitor Weapons Tests in the USSR’ New Scientist (19 Feb 1987) 11; Joyce, C ‘Scientists Lead Way to Test Ban’ New Scientist (24 July 1986); Anon ‘US Turns Tables on Soviet Seismologists’ New Scientist (2 Oct 1986) 15; Anderson, I ‘Scientists Keep Tabs on Nuclear Tests’ New Scientist (11 Dec 1986); Joyce, C ‘New Method Lowers Yield of Soviet Tests’ New Scientist (17 Apr 1986); Anon ‘Reagan Challenged On Objections to Test Ban Treaty’ New Scientist (2 June 1986). 256   29 ILM (1990) 969. 257   29 ILM (1990) 1025.

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Reduction Treaty (START). This bilateral treaty between the Soviet Union (and its successor States) and the United States, once it had made its way through some difficult nomenclature and associated counting rules,258 restricted each side to 1,600 deployed ICBMs, SLBMs and heavy bombers. There was a limit of 6,000 ‘accountable’ warheads on ICBMs, SLBMs, and heavy bombers, of which no more than 4,900 could be on ICBMs and SLBMs, 1,540 on heavy missiles and 1,100 on mobile ICBMs. Separate ‘politically binding’ agreements limited sea-launched cruise missiles with ranges above 600 kilometres to 880 for each side and the Soviet Backfire bomber to 500. Large amounts of future developments on these weapons were restricted, as were placements for road and rail launchers.259 The verification mechanisms, as with those for the Treaty on Short and Intermediate Range missiles, included, inter alia, on-site inspection and continuous monitoring procedures of baseline data, new facilities, suspect sites, re-entry vehicle inspections, post-exercise dispersal inspections and close-out inspections. These were all supplemented by a Notification and Inspections Protocol.260 When the Cold War ended with the collapse of the Soviet Union in 1991, it was anticipated that the momentum of arms control for nuclear weapons would continue. New nuclear-free zones began to appear in Central Asia (especially following the initiatives of Mongolia)261 Southeast Asia262 and Africa.263 Brazil and Argentina gave up their quest for nuclear weapons, and allowed full IAEA access to all of their facil­ ities. South Africa, after years of international concern,264 not only signed the NPT in 1991, but also became the first State, ever, to voluntarily dismantle their nuclear infrastructure before they became fully democratic.265 The confidence with which these appeared, coupled with the end of the Cold War, led many to expect a complete moratorium on all testing of nuclear weapons. In technological terms, this was a relatively easy step to take because, for well-resourced countries (unlike countries such as India, North Korea and Pakistan), it was felt that the testing of nuclear weapons was no longer necessary to ensure their effectiveness. In political terms, the leadership of the United States, under first HW Bush, and then Bill Clinton (b 1946), in agreeing to a voluntary moratorium on such testing until an international agreement was reached, was monumental. This commitment, following the end of the Cold War, meant that the previous impasses of 1958 to 1963 and 1977 to 258   In particular, heavy bombers equipped with only bombs or short-range attack missiles (SRAMs) were counted as carrying one warhead each. American heavy bombers could carry no more than 20 long-range air-launched cruise missiles (ALCMs) each. The first 150 of these bombers counted as carrying only 10 ALCMs each. Soviet heavy bombers could carry no more than 16 ALCMs each. The first 180 of these bombers counted as carrying only eight ALCMs each. No more than 1,250 warheads may be ‘downloaded’ (removed from) and not counted as existing multiple-warhead ballistic missiles. See Arts 3 and 4. 259  START I, Arts 2, 5 and 6. 260  See Arts XI and XII of START I. For the foundations, see US–USSR Agreement on Principles of Implementing Trial Verification and Stability Measures, 28 ILM (1989) 1434; Hippel, F ‘Eliminating Nuclear Warheads’ Scientific American (Aug 1993) 32–37; Charles, D ‘US Joins Soviet Warhead Talks’ New Scientist (21 Dec 1991) 4; Graybeal, S ‘Getting Out of the STARTing Block’ Scientific American ( June 1989) 23–29; Gavaghan, H ‘Verification Fears Could Stall START Talks’ New Scientist (17 June 1989) 7. 261   UNGA Resolution (2010) 64/52 Treaties That Establish Nuclear Weapon Free Zones and Mongolia; also UNGA Resolution (2006) 61/87 Mongolia’s International Security and Nuclear Weapon Free Status. 262  Treaty on the Southeast Asia Nuclear Weapons Free Zone, UNTS (1981) No 33873. Also, 35 ILM (1996) 635. 263  The Treaty of Pelindaba A/50/426 Annex. 264  S/RES/569 (1985, July 26). 265  Homewood, B ‘Brazil and Argentina Open Up Nuclear Sites’ New Scientist (8 Dec 1990) 6.

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1980, on a total ban on the testing of nuclear weapons, were finally eclipsed. The other superpowers followed suit and, following some last-minute testing by countries such as France, the 1996 Comprehensive Test Ban Treaty (CTBT) was finally unveiled.266 It was recognised in this draft treaty, and the Security Council agreed,267 that ‘an end to all . . . nuclear explosions’ w[ould] not only contribute to the protection of the environment, it would also, ‘constitute a meaningful step in the realisation of a systematic process to achieve nuclear disarmament’.268 The basic obligation of the CTBT was that each Party undertook ‘not to carry out [or encourage] any nuclear weapon test explosion or any other nuclear explosion, and to prohibit and prevent any such nuclear explosion at any place under its jurisdiction or control’.269 To help achieve this goal a Comprehensive Nuclear Test-Ban Treaty Organization was created to ensure the implementation of the provisions of the Treaty, including those for international verification of compliance with it, and to provide a forum for consultation and cooperation among State Parties.270 The verification mechanism of the CTBT involved an International Monitoring System utilising seismic, radionuclide, hydro-acoustic and infrasound technologies; consultation and clarification; on-site inspections within 72 hours if demanded; and confidence-building measures such as helping with the calibration and stationing of the monitoring stations.271 The second place where progress was expected to be achieved in the post-Cold War environment in terms of bilateral reductions of nuclear weapons was in the ongoing negotiations between the United States and Russia. The vehicles by which this was to be achieved were START II and START III. START II aimed to limit each side to between 3,000 and 3,500 warheads by 2003. It also intended to ban all MIRVs and would have limited each side to 1,750 warheads on SLBMs. This move would have improved strategic stability through the elimination of MIRVed ICBMs, which – because of their lethality and vulnerability – were most likely to be launched in a preemptive attack. The verification regime was intended to be similar to the relatively intrusive regime of START I. The START III framework called for reductions of between 2,000 and 2,500 warheads for strategic offensive nuclear weapons from each Party, and the Treaty would include transparency of inventories and destruction.272 For the Americans, progress on START III was conditional on Russian acceptance of START II (and the removal of MIRVs, in particular). For the Russians, ultimate approval of START II was dependent upon overall nuclear stability between the superpowers and the endurance of the Anti-Ballistic Missile Treaty. The final source of optimism in this area in the mid 1990s came from the International Court of Justice after they were requested by the United Nations General Assembly to examine the legality of the threat or use of nuclear weapons.273 Their 266   35 ILM (1996) 1439; Anon ‘Nuclear Test Ban’ New Scientist (15 June 1996); Patel, T ‘Nuclear Treaty Flounders As Asia Steps Demands Up’ New Scientist (9 Mar 1996); Anon ‘Nuclear Moratorium’ New Scientist (11 Feb 1995); Anon ‘Test Ban Survives Despite Protests’ New Scientist (10 July 1993). 267  S/RES/1172 (1998, June 6). 268   CTBT, Preamble. 269  Art I(1). 270  Art II. 271  Art IV of the CTBT. Also, Part II of the Protocol to the CTBT. 272   US-Russian Statement on Future Reductions in Nuclear Forces, 36 ILM (1997) 1036. 273   UNGA Resolution (1994) 49/75 K. Request for An Advisory Opinion from the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons.

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conclusion in 1996 was that nuclear weapons were not, prima facie, illegal, and that every State had a fundamental right to self-defence and survival in which in some ‘extreme’ situations nuclear weapons may be legitimate. However: In the long run, international law, and with it the stability of the international order which it is intended to govern, are bound to suffer from the continuing difference of views with regard to the legal status of weapons as deadly as nuclear weapons. It is consequently import­ ant to put an end to this state of affairs: the long-promised complete nuclear disarmament appears to be the most appropriate means of achieving that result.

In this regard, the International Court of Justice placed a clear expectation (and the General Assembly has attempted to keep this in the spotlight) that good faith nego­ tiations for nuclear disarmament would occur.274 The position of the Court was a relatively easy position to reach, as the year earlier, the Security Council had itself emphasised the importance of future: [N]egotiations in good faith on effective measures relating to nuclear disarmament and on a treaty on general and complete disarmament under strict and effective control which remains a universal goal.275

Despite such clear pointers, the progress expected in nuclear arms control for the 1990s failed to eventuate due to two developments. The first was the failure of the United States to accept the Comprehensive Test Ban Treaty. This Treaty required 144 States, including the 44 States with nuclear reactors, to ratify it before it could enter into force. Despite the strong urgings of the General Assembly of the United Nations for a universal adherence to this treaty, of the 44 required nations for it to come into force, three refused to sign (India, North Korea and Pakistan) and a further 10 refused to ratify it, including the United States and China.276 With regards to the United States, although President Clinton signed the CTBT soon after it opened for signature and submitted the Treaty to the Senate for advice and consent in 1997, the Senate (in late 1999) narrowly rejected it on the grounds that computer simulations may not be sufficient to guarantee the effectiveness of the nuclear arsenal, and that the verification mechanisms to ensure compliance with the Convention were not sufficient. The United States could assert this because not only did the existing seismic monitoring networks under trial fail to detect the second small (0.2 to 0.6 kilotons) nuclear explosion by India in 1998, the United States confessed they had carried out more than 200 secret nuclear tests between 1963 and 1990 that seismologists in the United States and the former Soviet Union had failed to identify.277 Whether such secrecy would be possible in the future, with the current 321 monitoring stations which sense seismic

274   ICJ (1996) The Legality of Nuclear Weapons, paras 96–100, 103 and 105. UNGA Resolution (2010) 64/55 Follow Up on the Advisory Opinion of the International Court of Justice. 275  S/RES/984 (1995, Apr 11). 276   UNGA Resolution (1996) 50/245 Comprehensive Nuclear Test Ban Treaty. 277  Anon ‘Nuclear Stand Off ’ New Scientist (4 Aug 2007) 6; Kiernan, V ‘Secret Blasts Revive Test Ban Debate’ New Scientist (18 Dec 1993); Anon ‘Secret Bomb Tests’ New Scientist (21 Jan 1988) 24; Anon ‘British Scientists Head for Soviet Nuclear Testing Grounds’ New Scientist (16 Oct 1986) 19; MacKenzie, D ‘Making Waves’ New Scientist (13 June 1988) 18–19; Anon ‘Under a Cloud’ New Scientist (6 Nov 1999) 18; Editor ‘The Only Good Nuke’ New Scientist (6 June 1998) 3; Kiernan, V ‘Time for Virtual Nuclear Tests?’ New Scientist (19 June 1993) 13; Clery, D ‘Testing Time for a Total Test Ban’ New Scientist (5 Jan 1991) 15.

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tremors, sound waves and radioactivity in the atmosphere, is a matter of debate. When North Korea tested its bomb in 2006, 22 seismographs picked it up.278 The second failure in the 1990s that slowed up progress on nuclear arms control was the American decision to withdraw from the Anti-Ballistic Missile Treaty. American interest in this area had been sparked by the 1991 Gulf War, where the American Patriot missiles managed to shoot down (24 hits in 85 attempts) some incoming Iraqi scud missiles.279 Such successes reinvigorated interest in missile defence systems and, in an attempt to placate the Russians, the Americans made clear their intention was only to look at theatre missile defences and not strategic missile defences, and as such, would not undermine the Anti-Ballistic Missile Treaty.280 As work progressed on these ‘theatre’ based systems, Congress soon directed the effort to focus on a national anti-ballistic missile defence system that would be able to defend them against a rogue attack of one or two missiles – as opposed to a full-scale attack by a superpower such as Russia. The Russians were not convinced, fearing that the system could be expanded and could quickly negate their nuclear strike potential. By the time George W Bush (b 1946) entered office, the concerns of the Russians were not given precedence, and rather than attempting to reassure the opposing signatory of the Anti-Ballistic Missile Treaty, his administration chose to withdraw from the Treaty (as it was permitted to do), so they could develop robust missile defence systems, both individually and with their allies. George W Bush also attempted to invest (before Congress refused to continue funding) in a new generation of concentrated nuclear weapons known as ‘bunker busters’.281 Russia responded to such initiatives by withdrawing from the START II Treaty (and developing a new generation of counter-measures against such defences), and as the START III Treaty was dependant on the ratification of START II, it also went into the trash can.282 It was only a matter of fortitude from a number of other 278  Anon ‘Nuke Test Sniffer’ New Scientist (10 April 2010) 6; Anon ‘No Denying Nuke Tests’ New Scientist (30 May 2009) 4; Anon ‘Nuke Sniffer’ New Scientist (27 Oct 2007) 4; Dahlman, O ‘A Treaty’s Testing Times’ 48(1) IAEA Bulletin (2006) 52–53; Findlay, T ‘Watching the World’ Bulletin of the Atomic Scientists (Mar 2005) 58–66; MacKenzie, D ‘Making Waves’ New Scientist (13 June 1998) 18–19; Sykes, L ‘The Verification of a Comprehensive Nuclear Test Ban’ Scientific American (Oct 1982) 29–37; Anon ‘Nuclear Watchdogs Gather Seismic Eyes’ New Scientist (27 Mar 1986). 279   Charles, D ‘Big Bang Greets Slimmed Down Star Wars’ New Scientist (9 Feb 1991) 20; Kiernan, V ‘Clinton May Slash Star Wars’ New Scientist (3 Apr 1993) 7; Kiernan, V ‘Hurry, Hurry While Cold War Stocks Last’ New Scientist (25 June 1994) 8; Anon ‘Goodbye Star Wars’ New Scientist (22 May 1993) 10; Hecht, J ‘Congress Cuts Star Wars Down to Size’ New Scientist (7 Oct 1989) 6; Anon ‘The Rise and Fall of Star Wars’ New Scientist (20 Mar 1993) 24; Charles, D ‘Missiles Misled By Accidental Decoys’ New Scientist (15 Feb 1992) 20. 280   Russia–US Statement on the ABM Treaty, 36 ILM (1997) 1025. 281  Levi, M ‘Nuclear Bunker Buster Bombs’ Scientific American (Aug 2004) 50–57; Oppenheimer, A ‘Boom or Bust?’ Bulletin of the Atomic Scientists (Sept 2004); Edwards, R ‘Congress Slashes Nuclear Spending’ New Scientist (4 Dec 2004) 12; Hambling, D ‘Deep Impact’ New Scientist (8 Mar 2003) 38–41; Hambling, D ‘Bunker Busters Set To Go Nuclear’ New Scientist (9 Nov 2002) 6; Anon ‘Congress Approves Mini-Nukes’ New Scientist (22 Nov 2003) 4; Hambling, D ‘Nuclear Bunker Busters Come Under Scrutiny’ New Scientist (1 Mar 2003) 13. 282  Lewis, G ‘The European Missile Defence Folly’ Bulletin of the Atomic Scientists (May 2008) 33–39; Saini, A ‘A High Stakes Bluff ?’ New Scientist (29 Sept 2007) 20; Harding, L ‘Bush Fails to Sell Missile Plan to Putin’ Guardian Weekly (11 Apr 2008) 5; Evans, N ‘Missile Defense: Winning Minds, Not Hearts’ Bulletin of the Atomic Scientists (Sept 2004) 49–55; Anon ‘Missile Salvo’ New Scientist (8 Apr 2006) 6; Traynor, I ‘US Rejects Treaty Trade-Off for Star Wars’ Guardian Weekly (16 Aug 2001) 2; Cockburn, I ‘Putin Denies Breakthrough With US on Missile Defense’ Independent (24 July 2001); MacKenzie, D ‘Kaboom’ New Scientist (21 July 2001); Editor ‘The Best Defence’ New Scientist (15 July 2000) 3; MacKenzie, D ‘Farewell to Arms Control’ New Scientist (20 Jan 2001); Norton, R ‘NATO Snubs US On Missile Defence’ New Scientist (7 June 2001) 4; Cho, A ‘In the Line of Fire’ New Scientist (1 Sept 2001); Hadfield, P ‘Tokyo’s Missile Shield’ New Scientist (14 Nov 1998) 28.

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countries that the NPT did not end up in the same place. That is, under the leadership of the Bush administration, the 2005 review meeting of the Treaty was so turbulent that, aside a record of conference data and the payment of the meeting cost, nothing at all was agreed. There were no substantive recommendations agreed by consensus, as in the years 1975, 1980, 1985, 1990, 1995, 2000 and later, 2010. This failure was due to a remarkable divergence of opinions over what to do with the newly emerging nuclear countries, and the existing ones like the United States who appeared to be on the cusp of repudiating a number of fundamental arms control treaties.283 Despite the setbacks with regards to the meeting of the Parties to the NPT, the AntiBallistic Missile Treaty, and START II and III, the Russians and the American still managed to update their shared Nuclear Risk Reduction centres284 and achieve an arms control agreement in 2001. In doing so, President George W Bush announced that the United States would reduce its ‘operationally deployed’ strategic nuclear warheads to a level between 1,700 and 2,200 warheads during the next decade. Whilst President Bush stated that the United States would reduce its forces unilaterally, without signing a formal agreement, President Vladimir Putin indicated that Russia wanted to use the formal arms control process, emphasising that the two sides should focus on ‘reaching a reliable and verifiable agreement’. Specifically, Russia sought a ‘legally binding document’ that would provide ‘predictability and transparency’ and ensure for the ‘irreversibility of the reduction of nuclear forces’.285 The document that was finally created to meet the Russian demands was the 2002 Strategic Offensive Reductions Treaty (SORT).286 The primary obligation of this Treaty was that by the end of 2012 ‘the aggregate number of such warheads does not exceed 1,700 to 2,200 for each Party’. It was for each Party to ‘determine for itself the composition and structure of its strategic offensive arms, based on the established aggregate limit for the number of such warheads’.287 The text did not define ‘strategic nuclear warheads’ and therefore did not indicate whether the Parties would count only those warheads that were ‘operationally deployed’, all warheads that counted under the START counting rules, or some other quantity of nuclear warheads. The Treaty did not limit delivery vehicles or impose limits on specific types of weapons systems. Although SORT did create a Bilateral Implementation Commission for the purposes of implementing the agreement, it did not contain any monitoring or verification provisions. The Bush Administration has noted that the United States and Russia already collect information about strategic nuclear forces under START I, and as SORT noted, the START Treaty remained in force. Unusually, SORT also stated that either Party could withdraw from the Treaty with three months’ notice, as opposed to the standard six.288 All of the setbacks on nuclear disarmament that George W Bush achieved were undone when Barack Obama (b 1961) entered the White House. Obama has, from the 283   Johnson, R ‘All Talk, No Action’ Bulletin of the Atomic Scientists (Aug 2005) 19–20; Anon ‘Nuclear Fallout’ New Scientist (15 Jan 2005) 5; Editor ‘With Friends Like These: Who Needs Nuke Treaties’ New Scientist (23 July 2005) 3, 5; Klerk, P ‘Under Fire’ 45(2) IAEA Bulletin (2004) 31–35; Edwards, R ‘The Final Straw for a Fragile Treaty?’ New Scientist (19 June 2004) 7. 284  Agreement on the Establishment of Nuclear Risk Reduction Centres, 27 ILM (1988) 76. 285   Cornwell, R ‘Bush and Putin Agree To Reduce Nuclear Arms’ Independent (14 Nov 2001) 8. 286  The Treaty Between the United States of America and the Russian Federation on Strategic Offensive Reductions, 41 ILM (2002) 799. 287  Art 1. 288  Arts II, III and IV of SORT.

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outset of his presidency, been clear in his commitment to a ‘world without nuclear weapons’.289 One of his first efforts in this direction was to scale back the work on antiballistic missile defence, both within the United States and with his allies – of which he abandoned plans to place missile shields in either Poland or the Czech Republic. Aside the continuing technological difficulties of hitting a missile which travels six times faster than a bullet, he was clear that the most likely threats, namely Iran and North Korea, do not use the types of missiles that the missile shield was aiming to prevent, preferring to launch short and medium-range missiles, of which they would be more likely to launch hundreds at the same time, not one or two under ideal conditions.290 This rationality, which was warmly welcomed by Russia, helped pave the way for the 2010 Treaty Between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms (the ‘New Start’ Treaty).291 The core of this new Treaty was in Article II, specifically: Each Party shall reduce and limit its ICBMs and ICBM launchers, SLBMs and SLBM launchers, heavy bombers, ICBM warheads, SLBM warheads, and heavy bomber nuclear armaments, so that seven years after entry into force of this Treaty and thereafter, the aggregate numbers, as counted in accordance with . . . this Treaty, do not exceed: (a) 700 for deployed ICBMs, deployed SLBMs, and deployed heavy bombers; (b) 1,550 for warheads on deployed ICBMs, warheads on deployed SLBMs, and nuclear warheads counted for deployed heavy bombers; (c) 800 for deployed and non-deployed ICBM launchers, deployed and non-deployed SLBM launchers, and deployed and non-deployed heavy bombers.

The verification measures for the ‘New Start’ Treaty were in accordance with the earlier START I. Accordingly, in addition to the usual ‘national technical means of verification’, Article XI went even further than its predecessors in allowing: For the purpose of confirming the accuracy of declared data on strategic offensive arms subject to this Treaty and ensuring verification of compliance with the provisions of this Treaty, each Party shall have the right to conduct inspection activities in accordance with . . . this treaty . . . at ICBM bases, submarine bases, and air bases.

These developments were welcomed at the 2010 NPT Review Conference, at which, inter alia, the United States recommitted itself to the strict control and disarmament of nuclear weapons and the ratification of the CTBT.292 C.  The New Conventional Threats

Whilst most of the international attention on nuclear issues during the 1990s and in the new century was upon the bilateral relationship between the United States and the 289  Anon ‘An End to Nukes’ Economist (11 Apr 2009). The full vision of this speech was made clear the following year with the Department of Defence (2010) Nuclear Posture Review (Washington, DoD). 290  Hecht, J ‘Back to Square One for Missile Busting Laser Weapons’ New Scientist (27 Feb 2010) 22; Hecht, J ‘US Military Takes to the Air to Destroy Missiles With Airborne Laser’ New Scientist (12 Sept 2009) 22; MacKenzie, D ‘Why the US’s Star Wars Missile Defence Lives On’ New Scientist (26 Sept 2009) 11. 291   Baker, P ‘Next After Historic Arms Treaty’ Herald Tribune (9 Apr 2010) A1; Anon ‘Big Nukes Deal’ New Scientist (11 July 2009) 5; MacKenzie, D ‘Obama Ushers in New Deal for Worldwide Arms Control’ New Scientist (6 Dec 2008). 292   2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.2010/50, 10–12, 14, 19–20, 22.

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Soviet Union/Russia, in addition to a number of multilateral initiatives, a number of States quietly attempted to proliferate their way into joining the nuclear club. These were/are Iran, Iraq, Pakistan and North Korea. Although the Iraqis had suffered a large setback in their nuclear programme following the 1981 attack on their research reactor and their subsequent sales of whatever HEU they had made, by the late 1980s, with the assistance of the former Soviet Union, China and France they were back on track to building a nuclear weapon by the time of the 1991 Gulf War. Iraq was so advanced in this area that prior to the Gulf War the Security Council was demanding that they allow the IAEA ‘urgent on-site inspections’ to establish compliance with their non-proliferation obligations. Moreover, they were requested to ‘halt all nuclear activities of any kind, except for the use of isotopes for medical, agricultural or industrial purposes’.293 After the war, it was shown that although Iraq had produced less plutonium than expected (6 kilogrammes), they had nonetheless managed to do this outside of international attention.294 Accordingly, once the conflict ended, the Security Council demanded that Iraq would unconditionally reaffirm its obligations under the NPT and: unconditionally agree not to acquire or develop nuclear weapons or nuclear weapon usable material or any subsystems or components or any research, development, support of manufacturing facilities related to the above.295

These actions were seen as part of the goal of ‘establishing in the Middle East a zone free from weapons of mass destruction’ which was first advocated by the Security Council in 1991,296 and later by the 2010 Review Conference of the NPT.297 Aside this hopeful thinking of a nuclear-free zone in the Middle East, where progress was to be achieved via a tightening of IAEA inspections, this was a clear necessity, as prior to 1991 the IAEA inspections had been designed to check friendly countries for compliance. They were not designed to be overtly intrusive to detect if a regime was attempting to build nuclear weapons in secret, as Iraq was. As a result of this, the IAEA launched a systematic change in its inspection efforts, in what was known as the Model Additional Protocol. This instrument, which was formally adopted by the IAEA in 1997, boosted the IAEA’s ability to detect undeclared nuclear activities, including those with no connection to the civil fuel cycle. The innovations included the collection of considerably more information on nuclear and nuclear-related activities, including research and development, production of uranium and thorium, and nuclear-related imports and exports. IAEA inspectors were also to be given greater rights of access to any suspect location at short notice (for example, within two hours) and the ability to  S/RES/687 (1991, Apr 3); S/RES/699 (1991, June 17); S/RES/707 (1991, Aug 15).   Bin, A (1998) Desert Storm. A Forgotten War (Westport, Prager) 230; Charles, D ‘Iraq’s Atom Bomb’ New Scientist (12 Oct 1991) 15; Charles, D ‘Defector Exposes Saddam’s Nuclear Secrets’ New Scientist (29 June 1991) 7; Anon ‘UN Watchdog to Verify Fate of Iraq’s Nuclear Fuel’ New Scientist (4 May 1991) 7; Charles, D ‘Iraq Clings To Its Nuclear Secrets’ New Scientist (27 July 1991) 10; Charles, D ‘Iraqis Economical With Nuclear Truths’ New Scientist (15 Aug 1991) 4; Charles, D ‘Iraq: Nuclear Secrets or Rumours’ New Scientist (5 Jan 1991) 10–11; Anon ‘China Fuels Iraq Nuclear Power’ New Scientist (6 July 1991) 15; Anon ‘Iraq Signs Nuclear Deal With Soviet Union’ New Scientist (29 Mar 1984) 4; Milne, R ‘Iraq Rebuilds Its Nuclear Strength’ New Scientist (30 Apr 1984) 26; Lloyd, A ‘Can France Stop the Iraqi Bomb?’ New Scientist (22 Apr 1982) 201. 295  S/RES/687 (1991, Apr 3). 296  S/RES/687 (1991, Apr 3). 297   2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.2010/50, 29–30. 293 294

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deploy environmental sampling and remote monitoring techniques. Some of these measures could be accommodated within the existing regime, but others required further legal authority to be conferred through an Additional Protocol with the IAEA. Such authority must be agreed by each non-weapon State within the IAEA, as a supplement to any existing comprehensive safeguards agreement. As at 2010, 166 States had brought into force comprehensive safeguards agreements with the IAEA (although 18 had not), and 127 countries had signed the Model Additional Protocol, with 102 bringing them into force. This meant that more than 900 facilities with a connection to nuclear activities were regularly visited by IAEA inspectors.298 Although the Additional Protocol was a clear progression in controlling the unauthorised proliferation of nuclear weapons, it is important to recognise that ultimately the strength of the IAEA safeguards system depends upon three interrelated elements. These are the extent to which the IAEA is aware of the nature and locations of the nuclear and nuclear-related activities within a state; the extent to which IAEA inspectors have physical access to relevant locations for the purpose of providing independent verification of the exclusively peaceful intent of a State’s nuclear programme; and ultimately, the will of the international community through the United Nations Security Council to take action against States that are not complying with their safeguard commitments to the IAEA. All three of these elements have been displayed in the instances of Iraq, North Korea, Iran and Pakistan in the years since 1990. In the first instance, following the first Gulf War, clear instructions were given from the Security Council to Iraq to allow the IAEA to have unrestrained access to all areas of interest. However, Iraq impeded and/or refused certain IAEA visits, despite the Council warning Iraq that ‘any violation would have the severest consequences’.299 The failure of Iraq to take these matters seriously ultimately led to the downfall of Saddam Hussein (1937–2006) as the United States and the United Kingdom based their invasion of Iraq in 2003 on the presumption that he had, or was very close to acquiring, nuclear weapons. This presumption was ultimately shown to be ill-founded, as four years of monitoring, verification and inspection after the 2003 invasion failed to find evidence of substantive non-compliance with his non-proliferation obligations.300 The second instance involves North Korea. Both North and South Korea explored the possibilities of making nuclear weapons outside of IAEA oversight.301 However, only the North was successful. This process became public in 1992 when North Korea revealed it had stocks of weapons-grade plutonium and welcomed the IAEA to verify 298   2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, 3–4.NPT/CONF.2010/50; Tett, G ‘US Urges Boost for Nuclear Agency’ Financial Times (17 June 2003). 299  S/RES/1154 (1998, Mar 2); S/RES/1194 (1998, Sept 9); S/RES/1205 (1998, Nov 5); S/RES/1060 (1996, June 12); S/RES/1115 (1997, Mar 21); S/RES/1134 (1997, Oct 23); S/RES/1137 (1997, Nov 12); S/RES/1284 (1999, Dec 17); S/RES/1441 (2002, Nov 8). 300   Borger, J ‘A Global Intelligence Failure’ Guardian Weekly (16 July 2004) 1; Catan, T ‘Senate Report to Lash CIA Over WMD Intelligence’ Financial Times (9 July 2004); Catan, T ‘CIA Attacked Over Attack Iraq Intelligence’ Financial Times (11 July 2004) 1; MacKenzie, D ‘Hunt The Bomb’ New Scientist (16 Oct 2004) 21; White, R ‘Report Blames Group Think For Iraq Mistakes’ Guardian Weekly (23 July 2004) 8; Fidler, S ‘UK’s Iraq Intelligence Was Rushed’ Financial Times (9 July 2004) 3; Anon ‘Nuclear Booty’ New Scientist (16 Oct 2004) 5; Campbell, D ‘Powell Admits WMD May Not Be Found’ Guardian Weekly (29 Jan 2004) 2. 301  Anon ‘As One Nuke Crisis Ends’ New Scientist (20 Nov 2004) 4; Kang, J ‘South Korea’s Nuclear Surprise’ Bulletin of the Atomic Scientists ( Jan 2005) 40–49; Traynor, I ‘South Korea Provoke Worry Over Enriched Uranium’ Guardian Weekly (17 Sept 2004) 4.

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this. The IAEA duly visited six out of seven sites that needed to be inspected in North Korea and recognised that North Korea was in a state of non-compliance. The Security Council called upon North Korea to allow full IAEA access, at which point North Korea signaled its intention to leave the NPT. In the negotiations that followed, between 1994 and 2005, North Korea continued to look for access to different forms of technology, which included nuclear, before withdrawing from the NPT in 2003 and finally detonating their own atomic bomb in 2006, much to the condemnation of the Security Council.302 The question of how to respond to this act was instantly problematic as North Korea’s friends on the Security Council, notably China, restrained efforts to have far-reaching sanctions imposed on the regime. Nevertheless, sanctions were eventually agreed upon luxury goods, military goods, and material listed in separate Annexes.303 Although North Korea then agreed to allow the IAEA back into the country to help close down and seal the plant where the plutonium was made, the strong feeling has been that they have other secret plants and, by now, an established weaponry of nuclear bombs.304 Iran is the third country which has been involved in a game of cat and mouse with the international community over its attempts to make nuclear weapons. Iranian interest in this area began in the in the early 1970s when the then Shah of Iran wanted to build more than 20 nuclear reactors with the help of the IAEA. This never occurred, but by the time of their revolution in 1979, they had a strong interest in this area. This interest continued into the 1980s, when as early as 1984, question marks were being raised over their ambitions with regards to nuclear weapons. Recurring concerns appeared in the 1990s and again, most clearly, in 2003 when Iran was suspected of not fully complying with the NPT by starting and stopping IAEA access to their nuclear facilities. These requests have been linked to the need for Iran to satisfactorily explain their connections to their enrichment activities and the plutonium that has been made, often in a secretive manner. That is, the justifications that it has been needed for civilian-based medical research have been commonly seen as inadequate, as what it has been making is often unsuitable for what it says it needs. Iran’s reaction to being caught out was to threaten to pull out of the NPT.305 By 2006, Iran’s repeated intransigence and a collection of mixed reports from the IAEA over its compliance with this issue had provoked the Security Council to express their concern about ‘the proliferation risks presented by the Iranian nuclear programme’, and they called upon Iran to take the steps required by the IAEA which are essential to build confidence in the 302  S/RES/1695 (2006, July 15). For the early negotiations, see Letter to the Security Council, 32 ILM (1993) 602; North Korean Agreement for the Application of Safeguards in Connection With the Proliferation of Nuclear Weapons, 33 ILM (1994) 315; Agreed Framework to Negotiate Resolution of the Nuclear Issue on the Korean Peninsula, 34 ILM (1995) 603; Agreement on the Establishment of the Korean Peninsula Energy Development Organisation, 34 ILM (1995) 608. For the context, see Hymann, J ‘North Korea’s Nuclear Neurosis?’ Bulletin of the Atomic Scientists (May 2007) 45–49; Fifield, A ‘North Korea Defies the World’ Financial Times (10 Oct 2006) 1; Anon ‘Nuclear Ping-pong’ New Scientist (24 Sept 2005) 5; Anon ‘North Korea’s Nuclear Boast’ New Scientist (19 Feb 2005) 5; Clemens, W ‘Almost Back to Square One’ Bulletin of the Atomic Scientists (Sept 2004) 22–25; Sigal, L ‘Negotiating With the North’ Bulletin of the Atomic Scientists (Nov 2003) 19–25; Anon ‘North Korea’s Nuclear Guessing Game’ New Scientist (23 May 1992) 9; Charles, D ‘What Lies At the Core of North Korea’s Nuclear Plans’ New Scientist (23 June 1992) 10. 303  S/RES/825 (1993, May 11); S/RES/1718 (2006, Oct 14). Also reprinted in 45 ILM 1237 (2006); Turner, M ‘China Urges UN Caution Over North Korea’ Financial Times (13 Oct 2006) 2. 304   Reuters ‘North Korea’s Nuclear Closure Verified’ New Zealand Herald (19 July 2007) B1. 305  Albright, D ‘Iran, Player or Rogue?’ 59(5) Bulletin of the Atomic Scientists (March 2003) 52–59; Schwarzbach, D ‘Iran’s Nuclear Puzzle’ Scientific American ( June 1997) 50–53.

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exclusively peaceful purpose of its nuclear programme, including the suspension of all enrichment-related and reprocessing activities, including research and development, and allowing full IAEA access so that their compliance could be verified.306 Despite the Security Council reiterating this approach over the following years, by 2007 they were beginning to apply relatively soft sanctions in terms of travel and economic restrictions on certain Iranian officials involved in their nuclear programme and any possible materials that may be of use in this area. These initial sanctions forced Iran to open some of their doors to the IAEA over the coming two years, but not to the extent that the IAEA could suggest with any confidence that Iran was not attempting to make nuclear weapons. This impasse continued into 2010, as Iran tried to open a ‘dual track’ approach whereby they traded some of their base uranium (with Turkey) for the enriched uranium they required for their medical research reactor in Tehran.307 The final example involves Pakistan. Pakistan appears to have been interested in possessing nuclear weapons as early as 1972. This interest was greatly heightened when its neighbour, India, successfully tested a nuclear weapon in 1974. With assist­ ance from France and China and through illicit means, by 1998 Pakistan had managed to explode their own nuclear bombs. Although these nuclear tests (and the responding ones from India) were condemned by the Security Council, who also iterated the importance of the NPT,308 there was a surprising silence about trying to force Pakistan to accept the intrusions of the IAEA. In large part, this was due to the fact that Pakistan, like India, was, and is, not a Party to the NPT. This has made it relatively difficult for an international response to Pakistan and India, although following their mutual tests in 1998, the Security Council did call upon all countries to prevent the export to either of these countries of equipment, materials or technology that could in any way assist their programmes for the development of further nuclear weapons or their delivery systems.309 Aside this resolution, and beyond supporting their bilateral Lahore Accords of 1999, which provided a joint moratorium on future nuclear tests, there has been relative silence. Moreover, due to the strategic importance of Pakistan to the United States in its conflicts in Afghanistan, both indirectly in the 1980s and directly post-1999, American criticism of this nuclear regime has been muted. Similarly, China, which had become a preferred supplier of nuclear technology to Pakistan, has helped ensure that their activities have remained largely off the agenda for the Security Council, and many (but by no means all) of their key nuclear areas, outside of the auspice of IAEA inspections. This has been particularly problematic as in recent decades, Pakistan, beyond any other country, has been at the forefront of proliferating nuclear weapons abroad. In this regard, Pakistan may have been involved  S/RES/1696 (2006, July 31).  IAEA (2009) Implementation of the NEPT Safeguards and Relevant Provisions of the Security Council Resolutions on Iran, GOV/2009/55/ Aug 28; S/RES/1737 (2006, Dec 31). Note the commentary on 1737 with Notar, S (2007) Resolution 1747, International Legal Materials, 46, 501; S/RES/1747 (2007, Mar 24); S/RES/1803 (2008, Mar 3); S/RES/1835 (2008, Sept 27). For commentary, see Anon ‘Iran’s Uranium’ New Scientist (13 Feb 2010) 6; Anon ‘Uranium Swap’ New Scientist (22 May 2010) 7; Anon ‘Time for Tougher Sanctions’ Economist (9 Jan 2010) 10; Dinmore, G ‘Wary US Backs Away from Strong Sanctions on Iran’ Financial Times (26 Mar 2007) A7; Gerstenzang, J ‘Iran is Still Dangerous, Bush Warns’ Los Angeles Times (5 Dec 2007) A1; Anon ‘Impatient Iran’ New Scientist (6 Aug 2005) 6; New Scientist (2004) 4; Anon ‘Iran Vindicated?’ New Scientist (14 Aug 2004) 5; Perera, J ‘Iran’s Bomb: The Making of a Myth’ New Scientist (3 May 1984) 6. 308  S/RES/1172 (1998, June 6). 309  S/RES/1172 (1998, June 6). 306 307

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in helping Iraq, Iran and North Korea pursue nuclear weapons. They were certainly involved in helping Libya, for when Libya decided to realign itself with the West in 2003, it disclosed the full extent of Pakistani (and Soviet and Chinese) assistance in their pursuit of nuclear weaponry. The nuclear smuggling network, masterminded by Abdul Qadeer Khan (b 1936), the father of Pakistan’s atomic bombs, was uncovered in 2003. Khan carried out the smuggling, in part, to stop the ‘nuclear apartheid’ and ‘neutralise the pressure’ put on countries by the West, and to make Pakistan ‘self-­ sufficient in technologies that are either totally restricted or rationed to us’.310 Once the extent of Khan’s nuclear network became apparent, Pakistan’s former military President, Pervez Musharraf (b 1947) resisted calls from the IAEA to interview Khan or allow him to be extradited, preferring to put him under house arrest for the crime of nuclear proliferation. Khan was freed from house arrest in 2009.311 The solution to many of the above problems would be a mechanism that prevents countries attempting to make their own potentially weapons-grade nuclear materials, yet also ensures that each country gets the nuclear materials they need in a safe form. The United States first proposed the core of this idea in 1946, with their suggestion that the international community negotiate a ban on the production of fissile material (plutonium and enriched uranium) that could be used in nuclear weapons. Negotiators of the NPT also realised that fissile material usable for nuclear weapons could still be produced under the guise of peaceful nuclear activities. Consequently, a fissile material production ban via international treaty has been mooted by the General Assembly.312 The core of this would be the control on the production of all fissile material. Many of the superpowers like this idea because they already have large stockpiles of fissile material and do not need to produce any more to make new weapons. The debate has been whether this should be over all new fissile material created especially for military purposes, or all fissile material created from civilian processes and/or all existing stockpiles of such material. As it currently stands, about 1,900 tonnes of HEU is now in the possession of 46 countries. Another 1,855 tonnes of plutonium, about a quarter of it reprocessed and separated, has been stored around the world, mostly in France, Japan, Russia and the United Kingdom. The reprocessed plutonium alone is enough to build more than 100,000 nuclear bombs. In essence, to stop this problem, all stockpiles and enrichment and reprocessing plants should be brought under international control, and all the nuclear needs of countries should be sourced safely from central multilateral enrichment sources, rather than each nation attempting to fulfil its own needs, and fundamentally, the supplies of fissile materials necessary for the construction of nuclear weapons would be stopped. These negotiations became invigorated in 1993 when Bill   Khan in Masood, E ‘Nuclear Know-How For Sale’ New Scientist (16 July 2005) 7.  Langewiesche, W (2007) The Atomic Bazaar (London, Penguin) 70–127, 150–79; Bokhari, F ‘US Attacks Nuclear Scientists Release’ Financial Times (7 Feb 2009) A5; Butler, K ‘Where Is the Justice: The Khan Network’ Bulletin of the Atomic Scientists (Dec 2006) 25–41; Prados, J ‘How Qaddafi Came Clean’ Bulletin of the Atomic Scientists (Nov 2005) 26–30; Whitaker, B ‘UN Sees Secret Libyan Sites’ Guardian Weekly (8 Jan 2004) 5; Weiss, L ‘It’s Déjà Vu All Over Again’ Bulletin of the Atomic Scientists (May 2004) 52–56; Traynor, I ‘Nuclear Chief Tells of Bomb Black Market’ Guardian Weekly (29 Jan 2004) 7; Anon ‘Libya Exposes Nuclear Trade’ New Scientist (10 Jan 2004) 6; Editor ‘When the Wind Blows’ New Scientist (3 June 2000) 3; Perera, J ‘Pakistan Slips Into the Nuclear Fold’ New Scientist (7 Aug 1986) 21; Holderness, M ‘Special Steel Evidence of Pakistan’s Nuclear Plans’ New Scientist (30 July 1987) 24; Anon ‘Pakistan Puts Khomeini On the Nuclear Road’ New Scientist (15 July 1982) 143. 312  UNGA Resolution (2010) 64/29 Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices. 310 311

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Clinton proposed at the United Nations that a multilateral convention banning the production of fissile materials for nuclear explosives outside international safeguards would be a commendable objective. The administration of George W Bush also broadly supported this goal, although it questioned the possibilities of effective verification for any such regime. Conversely, when Barack Obama came to power, he came to cast his weight behind a new treaty which verifiably ended the production of fissile materials intended for use in State nuclear weapons. The same idea was later supported at the 2010 Review of the NPT.313 D.  The New Unconventional Threats

In the 1980s a combination of loose security and unscrupulous countries allowed other countries to get close to producing nuclear weapons, as dozens, if not hundreds, of kilogrammes of weapons-grade material was lost, misplaced or ended up in the wrong hands.314 However, many of the figures from this period are speculative, and it was only in the mid 1990s that some certainty was created in this area by the IAEA Illegal Trafficking Database. This database shows that, since its inception, there have 1,340 confirmed incidents in terms of theft or recovery. This database is far from complete, having only 100 countries contributing data. Moreover, as with any kind of illegal activity, only a small percentage of what is going on is actually recorded. Estimates suggest that currently only 5 to 10 per cent of the illegal traffic in radioactive material is being detected. With the figures that are available, it is clear that of the 1,340 confirmed incidents, the vast majority involve low-enriched uranium, usually in the form of nuclear reactor fuel, fuel pellets, natural uranium or depleted uranium which is not of nuclear weapon quality. However, 18 incidents since 1995 have involved thefts or recovery of weapons grade HEU or plutonium, although most of these have been of amounts which have not been sufficient to construct the fissile core of a nuclear explosive device. The largest reported recorded theft was 2.972 kilogrammes of HEU stolen from a Russian nuclear facility in March 1994. This is 17 kilogrammes less than what is required to make a nuclear device. In another case, 0.3 kilogrammes of plutonium was seized. This was 0.7 kilogrammes less than what would be needed to make a bomb of the size that destroyed Hiroshima.315 313   2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.2010/50, 23; Anon ‘A World Nuclear Bank’ New Scientist (25 Sept 2010) 7; MacKenzie, D ‘Could a Fuel Bank Curb Proliferation’ New Scientist (10 Jan 2009) 6–7; Rauf, T ‘A Secure Nuclear Future’ IAEA Bulletin (2009) 51-61, 1013; Rauf, T ‘Fuel for Thought’ 49(2) IAEA Bulletin (2008) 59–62; Epstein, W ‘A Ban on the Production of Fissionable Material for Weapons’ Scientific American ( Jan 1980) 31–40. 314   Pearce, F ‘More Clues in the Plutonium Puzzle’ New Scientist (8 Sept 1985) 19; Anon ‘Britain Faces More Charges of Diverting Plutonium for Bombs’ New Scientist ( June 23 1988) 28; Anon ‘Ministry Admits Errors Over Plutonium’ New Scientist (12 Nov 1988) 22; Toro, T ‘Uranium Fuel Rods: Lost or Stolen?’ New Scientist (5 Oct 1991) 12; Anon ‘Germans At Loss Over Missing Nuclear Fuels’ New Scientist (14 Sept 1991) 15; Torrey, L ‘Search for Missing Uranium’ New Scientist (9 Feb 1984) 5; Milne, R ‘Some of Our Uranium Is Still Missing’ New Scientist (1 Feb 1992) 17; Joyce, C ‘British Plutonium’s Fate Still Obscure’ New Scientist (22 Mar 1984) 9. 315  Anon ‘Nuclear Drain’ New Scientist (23 Feb 2008) 5; Hoksings, R ‘Threats and Risks in Trafficking’ IAEA Bulletin (2008) 49; Jerch, K ‘Hard to Track’ Bulletin of the Atomic Scientists (Sept 2007) 12; Harding, L ‘Russian Jailed for Trying to Sell Weapons Grade Uranium’ Guardian (26 Jan 2007) A6; Anon ‘Plutonium Returned’ New Scientist (6 Nov 2004) 7; IAEA ‘Illicit Traffic of Nuclear and Radioactive Material’ 46(1) IAEA Bulletin (2004) 55; Edwards, R ‘Plutonium For Sale’ New Scientist (26 May 2001) 10–11; Williams, P

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The fear is that terrorists have developed a strong interest in possessing nuclear weapons. It has long been known that nuclear facilities are key terrorist targets. Nuclear plants were attacked in 1973 in Argentina, in 1976 in Brittany in France and in 1979 near Bilbao in the Basque country of Spain. The forces of the African National Congress damaged two nuclear reactors in South Africa in 1982. The Taliban are also known to have attacked nuclear strongholds in Pakistan on a number of occasions.316 The difference in the new century is that terrorists who are renowned for their indiscriminate attacks on civilians, such as Osama Bin Laden (1957–2011), are on record for actively seeking the possession of nuclear weapons (as well as other agents of mass destruction) for his own military objectives.317 On the one hand, countries which are likely targets, such as the United States, have gone to great lengths to detect the importation of illegal nuclear materials into their country, through the placement of thousands of radiation detectors at key points of transit, although the effectiveness of trying to police something like 42 million shipping containers – not to mention railcars, aircraft and small boats – which arrive in the United States each year is more than a daunting task.318 On the other hand, the United States and other like-minded countries have gone to great lengths to attempt to control the potential sources for much of the nuclear material. As it stands, it would appear that a good deal of the material in, or likely to be, illicit trade and of great interest to a new generation of terrorists, has originated from the former Soviet Union, which began to leak nuclear materials after it dissolved in 1991. In late 1991 to assist the Russians in meeting their wider arms controls commitments in this area and also to reduce the overall threat of nuclear weapons getting into the wrong hands, the American Congress authorised the transfer of US$400 million under what became known as the Cooperative Threat Reduction Program, and from the following year the Global Threat Reduction Program, to help the republics that inherited the Soviet nuclear and chemical weapons stockpile, namely, Belarus, Kazakhstan and Ukraine, – and later, Bulgaria, the Czech Republic, Latvia, Romania, Serbia and Uzbekistan – transport and dismantle these weapons. This programme later expanded into attempting to help prevent the diversion of scientific expertise from the former Soviet Union (which involved between 30,000 and 70,000 senior scientists), to expand military-to-military contacts between officers in the United States and the former Soviet Union and to facilitate the safe demilitarisation of defence industries, and ensuring that the core of weapons of mass destruction did not end up in the wrong hands. These efforts grew substantially over the coming 15 years, with Congress appropriating more than US$1 billion each year for non-proliferation and threat reduction programmes. In time, the efforts of the United States came to have an overlap with the ‘The Real Threat of Nuclear Smuggling’ Scientific American ( Jan 1996) 26–30; Edwards, R ‘Fissile Fingerprints’ New Scientist (13 Aug 1995) 22–23; Edwards, R ‘Germany Issues Nuclear Smuggling Alert’ New Scientist (20 Aug 1994) 5. 316  Gurr, N (2000) The New Face of Terrorism (London, Taurus) 1–25, 102–05; AP ‘Nuclear Arsenal is Safe, Clinton Says’ New Zealand Herald (13 Oct 2009) A15; Edwards, R ‘Only a Matter of Time’ New Scientist (5 June 2004) 8; Sinclair, A (2003) An Anatomy of Terror (London, Macmillan) 315. 317  Lawrence, B (ed) Messages to the World: The Statements of Osama Bin Laden (London, Verso) 72–73; Coll, S (2005) Ghost Wars (London, Penguin) 491–92. 318  Anon ‘Any Nukes to Declare?’ New Scientist (10 July 2010) 5; Cochran, T ‘Detecting Nuclear Smuggling’ Scientific American (Apr 2008) 76–81; Scigliano, E ‘Last Line of Defence’ New Scientist (19 Aug 2006) 40–44; MacKenzie, D ‘Can We Keep Tabs on Stockpiles of Nuclear Fuel’ New Scientist (24 Apr 2010) 9.

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2002 G-8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction. This also had an emphasis on strengthening the physical security of the materials and facilities that hold the raw materials for weapons of mass destruction, stricter border controls and law enforcement, as well as managing and disposing of fissile material stocks that are no longer required for defence purposes. Under this partnership, US$20 billion was pledged in 2002 and again in 2005. Over time, the influence has come to also encompass the removal or enhanced security of hundreds of tons of HEU, and its conversion into low-enriched uranium which is usable directly in current operating power reactors. A similar programme was outlined for plutonium, although this was very slow in coming to fruition.319 The Proliferation Security Initiative (PSI) was added to this mix of soft instruments in 2003. This initiative is primarily a diplomatic tool developed by the United States to gain support for interdicting shipments of weapons of mass destruction-related equipment and materials. Through the PSI, the Administration of the United States sought to ‘create a web of counter-proliferation partnerships through which proliferators will have difficulty carrying out their trade in WMD and missile-related technology’. The States involved in the PSI have agreed to review their national legal authorities for interdiction, provide consent for other States to board and search their own flag vessels and conclude ship-boarding agreements. In this regard, the United States has pursued the conclusion of ship-boarding agreements with key States that have high volumes of international shipping such as Panama, Liberia and the Marshall Islands. The Security Council followed suit in 2004 when they adopted Resolution 1540. This required all States to ‘criminalize proliferation, enact strict export controls and secure all sensitive materials within their borders’. They were also obliged to enforce effective domestic controls over all weapons of mass destruction and related materials in production, use, storage and transport; to maintain effective border controls, and to develop national export and trans-shipment controls over such items. Although the Resolution did not provide for any enforcement authority, nor specifically mention interdiction, it did establish a dedicated Committee to monitor this area and receive reports from States on how they were complying with the Resolution.320 The import­ ance of this work was reiterated in 2006 and 2008.321 The work of the Security Council was supplemented by two developments the following year. First, the 2005 International Convention for the Suppression of Acts of

319  Agreement Between the United States and Russia on Scientific and Technical Cooperation in the Management of Plutonium That Has Been Withdrawn from Nuclear Military Programmes, 37 ILM (1998) 1296; Edwards, R ‘Nuclear Security in Russia Disturbing’ New Scientist (1 Dec 2007) 18; Edwards, R ‘60 Years On, Is the World Any Safer?’ New Scientist (16 July 2005) 6, 8; Lugar, R ‘Redefining the Threat’ Bulletin of the Atomic Scientists (Sept 2005) 20–21; MacKenzie, D ‘Nuclear Warning’ New Scientist (19 May 2001) 6; Kiernan, V ‘PC Stands Guard Over Russian Uranium’ New Scientist (15 Apr 1995); Bluth, C ‘What Do You Do With A Nuclear Arsenal?’ New Scientist (18 July 1992) 26–30; Rich, V ‘Uranium For Sale Rumours Spark New Proliferation Fears’ New Scientist (18 Jan 1992) 14; Kleiner, K ‘Will Russia’s Criminal Underworld Go Nuclear?’ New Scientist (6 July 1996) 10; Editor ‘Russia’s Dangerous Game’ New Scientist (20 Apr 1996) 3; Charles, D ‘Nuclear Mercenaries Name Their Price’ New Scientist (16 Nov 1991); O’Neil, B ‘What Can You Do With A Missile Designer?’ New Scientist (1 May 1993) 35–39. See Statement by G8 Leaders on the Global Partnership Against the Spread of Weapons and Materials of Mass Destruction. Available from www.g7.utoronto.ca/summit/2002kananaskis/arms.html. 320  S/RES/1540 (2004, Apr 28). 321  S/RES/1673 (2006, Apr 27); S/RES/1810 (2008, Apr 25).

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Nuclear Terrorism was agreed.322 This Convention made it a crime for anyone not in the established military forces acting in an international context to possess, threaten or use radioactive material or a nuclear device with the intention of causing death, injury and/or damage to the environment.323 The essence of the international support to this Convention has been the Global Initiative to Combat Nuclear Terrorism, which Russia and the United States created in 2006. Like the PSI, this initiative is also non-binding. This Global Initiative seeks to promote greater information sharing among participating States and the Statement of Principles includes commitments to improve each nation’s ability to, inter alia, secure radioactive and nuclear material and prevent illicit trafficking by improving detection of such material. The second development to support the above initiatives was the substantial amendment of the Convention on the Physical Protection of Nuclear Material which was first signed in 1980.324 Although the original Convention was aware of ‘the potential dangers posed by the unlawful taking and use of nuclear materials’, the focus of the Convention was very much upon the protection of non-military nuclear material in international transport, rather than when in ‘domestic use and/or storage’ and transport (although rules on safety and security were linked).325 Thus, for example, the transportation of two kilograms or more of plutonium or of five or more kilograms of enriched uranium must take place under constant surveillance by escorts and under conditions which ensure close communications with ‘appropriate response forces’. The rules on bringing those to justice who were involved in trying to, inter alia, steal or illegally use nuclear materials, ranged from information sharing between States through to assisting extradition. This approach, when amended in 2005, was fundamentally changed as the name of the amended Convention – the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities (my italics) reflected.326 The Preamble added that the Contracting Parties desired: To avert the potential dangers posed by illicit trafficking, the unlawful taking and use of nuclear material and the sabotage of nuclear material and nuclear facilities, and noting that physical protection against such acts has become a matter of increased national and inter­ national concern.

When dealing with non-military nuclear materials, the importance of each State Party establishing, implementing and maintaining an appropriate physical protection regime applicable to nuclear material and nuclear facilities under its jurisdiction, with the aim of, inter alia, protecting against theft and other unlawful taking of nuclear material in use, storage and transport, was agreed. This agreement was supplemented by 12 principles to ensure the protection of stored nuclear material, ranging from legislative and regulatory frameworks through to a security culture and ‘defence in depth’ (for all institutions).327 322   International Convention for the Suppression of Nuclear Terrorism, 44 ILM (2005) 815. Note also UNGA Resolution (2010) 64/38 Measures to Prevent Terrorists from Acquiring Weapons of Mass Destruction; Also, UNGA Resolution (2006) 60/73 Preventing the Risk of Radiological Terrorism. 323  Arts 2, 4, 4(4). 324   IAEA, INFCIRC/274/Rev 1. 325  See Arts 3 and 4. 326   IAEA, GOV/INF/2005/10-GC(49)/INF/6. 327  Anon ‘Uranium Theft Risk’ New Scientist (17 Apr 2010) 4. Note also IAEA Measures to Improve the Security of Nuclear Materials and Other Radioactive Materials. Reprinted in 41 ILM (2002) 737; Khripunov, I ‘Nuclear Security: Attitude Check’ Bulletin of the Atomic Scientists ( Jan 2005) 58–66.

Conclusion

F

or the purposes of this study, I set myself three questions by which to assess whether there was ‘progress’ (or not) in the way that humanity has dealt with the issues of arms control over the last 5,000 years. These three questions related to the trade of weapons, and weapons which were either unnecessarily cruel or indiscriminant. 1.  Has the Stockpiling and Flow of Weaponry to Places Where it

Inflames Conflict Improved? This is a difficult question to answer, as unlike when I began this study, I no longer think of the arms trade as an absolutely bad thing. Sometimes it is necessary to provide weaponry to people or States which are being wrongfully attacked. The question, in this instance, becomes not whether or not to trade, but with whom to trade and on what grounds. Despite this revised conclusion, for me this issue of whom to deal with has never been adequately dealt with by the international community. Since the beginnings of recorded history, States have valued the importance of being well armed. This goal has been supplemented, at least since 1500 BCE, by a vibrant trade in weapons. After conflicts ended, large strategic-based weapons, such as triremes or siege engines, would often be confiscated by the victor of the conflict. Small-scale weapons, such as swords or suits of armour, were rarely of concern to victors. The concerns of most sovereigns for the next 3,000 years were not about restrictions, but about access and monopolies in the collection and trade of conventional weapons and/or the raw material they were made from. This was particularly so with early attempts to control gunpowder-based weapons, which proliferated quickly from the Renaissance onwards. In this regard, all of the sovereigns attempted to create monopolies on the key ingredients and technologies, but most failed as both production and lethality increased exponentially over the centuries. By the eighteenth century, firearms were being produced in the millions, and their distribution became global. By the nineteenth century, the arms trade was not only global, but also without scruple, as both developers and countries took opportunities to arm one, or both, sides in conflicts. Although discussions about multilateral restrictions on both the possession and trade in weaponry began in the second half of the nineteenth century, it was not until after the First World War that the principles of arms control were pursued within the treaties forced on the defeated nations. These were later supplemented by some difficult attempts whereby the victors tried to control the build-up of large military vessels. Accordingly, the main reasons why conventional weapons were controlled for the first thousands of years of recorded history was because of strategic advantage and forced

Weapons which Cause Unnecessary Pain 155

arms reductions on losers of a conflict as part of the price of defeat. It has only been in the last 150 years that strategic advantage has been joined by mutual advantage (as in helping to secure the chances of peace). The difficulty with this change of emphasis, as manifested most clearly in the Naval Treaties of the inter-war period in the twentieth century, was that as the restrictions on the Versailles Treaties became undone, the multilateral efforts unravelled over the same time period after the Allies ended up negotiating between themselves. Attempts aimed at controlling the international trade in arms and ammunition so that each weapon could be traced and sent only to lawful sources, also repeatedly failed. Accordingly, it fell to international embargoes via the League of Nations to stop, where possible, the flow of weapons into areas of conflict. However, the League failed to be cohesive on this count, and most of the restrictions or furtherance of the trade in weaponry, fell to the choices of each country. Sometimes the provision of weapons via trade was at the direct cost to democratically elected governments, such as in Spain. At other times, such as with the United Kingdom, and arguably the Soviet Union, it allowed them to stay in the Second World War. That is, without a trade in conventional weapons at this point in history, the Allies would not have won the Second World War. This point was not lost on the victors of the Second World War, and in the decades that followed, the vast majority of multilateral attempts to control the trade and stockpiling of conventional weapons were futile. There were a few exceptions with regards to areas such as South Africa and the Middle East, but attempts at both multilateral embargo and control failed dismally as both areas became expert in the manufacture and supply of weapons. In between these places, countries which were hot zones in the Cold War period were often flooded, by both sides, with the weaponry necessary to wage proxy wars. As such, it was only when the Cold War started to end, that substantive attempts were made to control the flow of conventional weapons. These substantive attempts, as manifested in Europe, have been spectacular, where the superpowers have radically scaled back the arsenals that opposed each other. However, outside Europe, progress has been less stellar. This is not to suggest that attempts have not been made in this area. Indeed, the Security Council has issued a number of embargoes that have attempted to stop the flow of conventional weapons to certain countries. However, these embargoes have often had questionable impact, and in various regions, somewhat deeper attempts have been made to control the flow of conventional weapons. This is particularly so with small arms, which have proven more difficult to control than all types of other conventional military hardware. The trend that is developing in this area is that all conventional weapons which are trace­ able can be traded to sovereign States. Whilst traceability is a step forward, the larger question about the trade of weapons to States which use them irresponsibly against their own citizens (outside of the embargoes of the Security Council), has not been adequately addressed. 2.  Are Weapons which Cause Unnecessary Pain Restricted?

The absence of focus on small weapons has often been replicated, historically, within societies whereby there was little control on what a person could acquire in times of peace. Whilst some weapons, such as arrows and other artillery, were viewed with disdain in some epochs (such as with chivalry and the feudal age), these were social

156  Conclusion

prohibitions, and no attempts were made to restrict them legally. That was not the case with crossbows, by which attempts were made within Christendom to prohibit a weapon by which a commoner could down a knight. This prohibition never took hold because belligerents were always too willing to utilise the technology that gave them the edge in combat. The multilateral restrictions on conventional weapons that evolved in the latter half of the nineteenth century were not introduced because the weapons were unchivalrous, but because some weapons caused superfluous injury. Regarding superfluous injury, dum-dum bullets were the exemplar. In the second case with regards to indiscriminate weapons, sea mines were the technology in point. In both cases, the international community came to enforce restrictions that would provide the guiding principles when these topics were revisited at the end of the twentieth century. In the case of superfluous injury, although the prohibition on dum-dum bullets held, no other weapons would be controlled on this ground for another 100 years, despite the compelling arguments for weapons such as flame-throwers to be included in this bracket. The only time the bracket reopened was in the last decades of the twentieth century, when weapons which leave untraceable fragments and lasers which blind, were added to the list of inter­ national prohibitions. Although future work in this area is needed, such as with smallcalibre bullets which spin, progress at the end of the twentieth century came to follow – only – in the footsteps of what was achieved at the end of the nineteenth century. 3.  What are the Customs and Practices with Indiscriminate Weapons?

The final question which this book sought to examine was over the practice of indiscriminate weapons. Progress in this area began in the first decade of the twentieth century. Basic principles were agreed with regards to sea mines, with the fundamental ideal being that these should not become weapons with an indiscriminate impact. The problem was that sea mines did, to a relative degree, become weapons of indiscrim­ inate impact in both the First and Second World Wars. Further progress in this area became apparent in the late 1970s and 1980s when a number of States attempted to control weaponry which was increasingly indiscriminate in impact. Accordingly, a collection of protocols on topics such as explosive remnants have created obligations upon Parties to clean up their explosive ordnance that they leave behind after a conflict has ended. Additional work in this area, such as that on landmines, has fractured between two approaches. On the one hand, a number of the superpowers have attempted to regulate landmines so they are not used indiscriminately. On the other hand, a group of countries has attempted to outlaw completely these weapons. Either way, there is a clear trend away from their indiscriminate usage as became entrenched in a number of conflicts following the Second World War. A very similar situation has occurred with cluster bombs, whereby a group of countries have outlawed these weapons from their own use. However, unlike with landmines, there is no alternative ‘regulation’ type of approach with the countries which wish to continue using them, and undoubtedly, some of the countries which have retained this weapon have continued to use them indiscriminately. This situation suggests a type of mixed progress, although the limits on what is considered superfluous and the overall limits on how far landmines and cluster bombs are really controlled are serious caveats in this area.

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The other area where recent decades have witnessed a type of progress, has been in attempts to control the ultimate indiscriminate weapons – weapons of mass destruction. This area is particularly important, as unlike all other weapons, weapons of mass destruction have the capacity to kill, without discrimination, large numbers of noncombatants. If used in large numbers, and/or cumulatively, it is possible that these weapons represent the ultimate threat to humanity and the ecosystem we exist in. Although nuclear weapons are of a new lineage, chemical and biological weapons have long been used in human warfare. However, from the outset, there has been distaste for the use of these weapons, with poison in particular, being considered with disfavour. It was viewed in this way because it has, for over 2,000 years, been associated with underhand methods of warfare. Poison was not condemned because it was not originally indiscriminate in impact. This approach continued after the First World War, when chemical weapons had been released en masse against rival combatants. Following this conflict, despite relatively clear prohibitions on its use before the war, the prohibition was made much more explicit. This prohibition was due to the perceived inhumanity of these weapons, not to their indiscriminate nature. Despite this prohibition, chemical weapons were used by belligerents, formal and informal, both prior to and after, the Second World War. They were not, however, used between 1939 and 1945 by most of the belligerents. Aside the actions of Japan, this was a remarkable outcome as all sides possessed these weapons. Following four decades of further technological development of these weapons during the Cold War, they were finally renounced by the superpowers in 1993. This renunciation, codified in international law via treaty, has been supplemented by a strong regime which has supported the principle with a robust compliance mechanism which ensures that all of the signatories to this Convention are keeping their promises. This Convention and its implementation represent a profound success as an entire class of weapon of mass destruction has been prohibited, and this prohibition can be proved. Unlike the micro use of chemical weapons, the mass destruction of combatants and non-combatants via biological agents is well known over thousands of years of history. However, the impact of biological agents was rarely controlled or intended. These results were, more often than not, the result of diseases which thrived in the conditions of warfare. This was not always the case. There are instances from the Middle Ages onwards when attempts were made to utilise biological agents as weapons of war. The injunctions against biological weapons were never as clear as those against chemical weapons. It was only after the First World War that these weapons were banned in conjunction with chemical ones. Aside the practices of Japan, these weapons, too, were not used in the Second World War. Post the Second World War, there has been significant technological developments with these weapons to the point that they represent the ultimate indiscriminate, repeating, weapon. Despite the lethal nature of these weapons, the main belligerents who have expressed a willingness to use them have been informal combatants, not States. Progress in this area was made in 1972 when the international community agreed not to use, develop or stockpile these weapons. However, the reduction and control of these weapons has been consistently hamstrung throughout the last decades of the twentieth century due to there being no compliance mechanism to ensure that the signatories were keeping their promises. As such, the progress in this area has been limited. Whilst the principles are correct, the absence of verification mechanisms invites legitimate scepticism.

158  Conclusion

The final weapons of mass destruction are nuclear. Nuclear weapons are the one type of weapon of mass destruction for which humanity has a clear vision of what could happen if they were used in anger. These weapons that ended the Second World War have acted as a spectre over humanity for the following decades. For the first 50 years, the control of these weapons was about a collection of interrelated principles linked to one overall goal. The overall goal is the total abolition of all nuclear weapons. The principles to achieve this have been linked to confidence building, and preventing the testing and proliferation of nuclear weapons. The primary confidence-building mechanism during the Cold War was the prohibition on the building of defences against nuclear weapons, thus preventing an incentive for one country to strike first due to a fear that their weapons may become redundant. This confidence-building mechanism was dealt with in the Anti-Ballistic Missile Treaty. The testing of nuclear weapons was restricted by controlling the areas and size of weapons that could be tested. The controls on proliferation were detailed through the 1969 Non-Proliferation Treaty, whereby all of those who possessed nuclear weapons promised not to pass the technology onto others, and those without the technology promised not to seek it, as those who possessed nuclear weapons were committing themselves to disarming. The dismantling of the nuclear stockpiles has always been in the bilateral context between the United States and the Soviet Union/Russia. There have been progressive treaties continually rachetting down the numbers of these weapons during every decade since the 1970s. Moreover, since the 1980s, these treaties have been supplemented by invasive compliance regimes to ensure that both Parties have been keeping their word. These regimes were instrumental in governing the incredibly dangerous years of the Cold War. Unfortunately, this progress has been offset by the failure to conclude a comprehensive test ban treaty on nuclear weapons, the collapse of the Anti-ballistic Missile Treaty, and the proliferation of nuclear weapons to a number of ‘new’ countries in the 1990s and first decade of the twenty-first century. The proliferation of nuclear weapon States, post Cold War, has been supplemented by a growth of interest from non-State actors in acquiring nuclear weapons. In short, there was some progress in the control of the nuclear arms race during the Cold War through the formation of an inter-linked regime. This regime has, however, proved inadequate to completely control the proliferation or testing of nuclear weapons in the twenty-first century. As such, any claims that there has been substantial progress in this area are considerably over-optimistic when facing the weapon systems that may ultimately cause the end of humanity.

Index acetylcholinesterase (enzyme) 85–6 Achilles 87 acoustic weapons 86 Adams, John Quincy 27 Admiral Scheer (pocket battleship) 30 Afghanistan    British weapons in 20    cluster bombs 66    landmines 59    laser weapons 50    Soviet invasion 49–50 Africa    arms control (19th cent) 21    arms embargo, post-Cold War 74–8   arms trade     19th cent 17–18     Cold War 44–5    ECOWAS Convention on Small and Light Weapons 79 Agent Orange 87 Ahmadu, king 18 aircraft carriers, restrictions, post-WWI 31–2 AK47s 43–4, 48, 49 Al Qaida 49 Albania 52, 71, 98 Alexander the Great 88 Alexander II, czar 23 Ali, Caliph 88 American Civil War see under United States American War of Independence 16–17, 27, 104 Amyntas, king 10 Angola    arms embargo 74–5    arms supplies 44–5    chemical weapons 96    landmines 59 anthrax 101, 105, 106, 108, 109, 110 anti-ballistic missile (ABM) systems 131, 132 anti-personnel see landmines Antiochus III 10–11 antipersonal mines, definition 25 Arab Revolutionary Council 94 Arab-Israeli war (1948–49), Tripartite Declaration 46–7 Argentina 21, 45, 105, 129, 139 Aristide, Jean-Bertrand 74 Armenia 74 arms control    19th-early 20th cents 18–19, 20–2    basic questions 6    indiscriminate injury 26, 28–9    post-WWI 35–43, 154–5     conferences/conventions 35–7     disarmament 29, 36–7     early-WWII 39–41     rearmament 36–7    post-WWII 42–3

   pre-modern 155    progress 4–6, 154–5   superfluous injury see under superfluous injury   see also arms trade Arms Exports, European Code of Conduct 80 Arms Sale Code of Conduct, International 81 arms trade    19th cent 17–19, 21    1980s 47–50    abandoned stockpiles 47    conflict inflammation 154–5    inter-war 36, 37–9    post-WWII 43–50   see also arms control arrows 12, 155–6 assassins/assassination 14, 89, 103 Assize of Arms 11 Assize of Northhampton 11 Atlantic Charter 42 atomic bomb see nuclear weapons Attlee, Clement 124 Aum Shinrikyo 94, 110 Auschwitz 92 Australia    bioweapon inspections 114    nuclear tests in 93, 122 Australia group 96, 112–13 Austria    bioweapon inspections 114    Maxim gun purchase 19 Bacon, Roger 13 bacteria 101, 109 Ballistic Missile Defence Organization 137 Baoshan 108 Barbara, Saint 15 Bard, Ralph A 118 Bari 93 Baruch, Bernard 124 Batista, Fulgencio 45 Battle of Britain 65 battleships    pocket 30, 34    rebuilding, pre-WWII 33–4    restrictions, post-WWI 31–2 Belarus 129 Belgium 45 Benedict XVI, Pope 56 beriberi 103 Biafran independence 45 Bible 8 Bill of Rights (US) 16 biological weapons 100–2    classification 100–1    Cold War 108–9     post-war 109–10    consequences 101–2

160  Index biological weapons (cont):    control progress 157     see also Biological Weapons (Bioweapons) Convention 1972    conventions 105–6   conventions see also Biological Weapons (Bioweapons) Convention 1972    economics 102    pre-modern 103–4    terrorist use 110   WWI/post-WWI see under First World War   WWII/post-WWII see under Second World War   see also chemical weapons; disease Biological Weapons (Bioweapons) Convention 1972 110–16    aim 111    background 110–11    declarations/destructions 112–13    permitted research 111    scope 100    verification process 113–16 Bismark (warship) 33–4 Boer War 105 Bohr, Niels 124 Bolivia 37 booby traps 26    definition 25 botulinum toxins 101 Boxer Rebellion 21 Braufort’s Dyke 57 Brazil 48    bioweapon inspections 114    nuclear weapons 129, 139 Brest-Litovsk Treaty 41 Britain    Anglo/German Naval Agreement (1935) 33–4    Arab-Israeli wars 46–7   arms supplies     post-WWII 48      to Soviets, WWII 40     WWII 155    arms trade (19th cent) 18, 21    army disease, 18th–19th cents 104   biological weapons     Cold War 109     inspections 114     post-WWI control/WWII 106     terrorist use 110   chemical weapons     post-Cold War 98     remnant 57     WWII/post-WWII see under Second World War    firearms manufacture (18th-19th cents) 17    flame-throwers 25    Gatling gun purchase 19    lend-lease, WWII 40    machine guns, WWI 19    naval disease 104    naval mines, deployment 42    naval restrictions, post-WWI      capital ships (1922) 32      Second Naval Treaty (1936) 34–5      smaller vessels (1930) 32–3   nuclear weapons     control 124, 125

     test ban treaties 128     tests 122, 123    rearmament/arms trade, pre-WWII 37   see also England/English Bronze Age 7–8 Brown Bess flintlock 17 brucellosis 108, 109 Brussels Act 1890 21 Brussels Peace Conference 1848 20 Brussels Project (1874) 90 bubonic plague 101, 103 Bulgaria 46, 71, 81, 110 bullets    conical/hollow/dum-dum 23–4, 51    explosive 51 Bush, George HW 138, 139 Bush, George W 142–4, 150 Bushnell, David 27 Bynkershoek, Cornelius von 89 Caesar, Julius 25 caltrops 25–30 Cambodia 59, 65 Carter, Jimmy 46, 135 Carthage 9, 10 castle building 11 Castro, Fidel 45 Celts 9 Central America 48–9 Cerventes, Miguel de 14 CFE (Convention on Armed Forces in Europe) 69–71 Chaco War 37 Chalcis/Chalcidians 8, 10 Chamberlain, Neville 37 Charles the Great 11 Chaucer, Geoffrey 13 Chechnya 69    dirty bomb, rebel use 117    riot control weapons 99 chemical weapons    biochemical weapons, ancient world 87–8    civilian/soldier death ratios 85   Cold War see Chemical Weapons Convention 1993 (CWC)    control progress 157    conventions 57–8, 85, 90, 91–2     see also Chemical Weapons Convention 1993 (CWC)    definition 85    first/second generation 85–6    humanitarian justification 90–1    medical effects 86–7    non-lethal impacts 86    poison, use 87–99, 157    pre-modern use 87–9    remnant 57    stockpile 86    terrorist use 94   WWI see under First World War   WWII/post-WWII see under Second World War   see also biological weapons; disease Chemical Weapons Convention 1993 (CWC) 95–100    Cold war background 95, 157    core aims 96–7    destruction process 97–8

Index 161    post-Cold war background 95–6    ratification 96    relative threat, distinctions 97    riot control weapons 98–9    verification 99–100 Chile 21, 39, 45 China    arms imports, inter-war 39   biological weapons      evasion of obligations 114–15     WWII use 107–8    Boxer Rebellion 21    Bronze Age 7    caltrops 26    chemical weapons 95    cluster bombs 67    flaming rafts/exploding boats 27    gunpowder 13    laser weapons 50    nuclear arsenal 120–1    poison, use 89    remnant chemical weapons 57    support for Nationalists (US) 40–1 choking gases 85 cholera 104, 105 Churchill, Winston   chemical weapons     non-lethal 91     WWII 93    flame-throwers 25    lend-lease, WWII 40    naval holiday, attempt 31    nuclear weapons 124 Clinton, Bill 139, 149–50 cluster bombs 64–8    19th–20th cents 65–6    control 156    conventions/prohibition 67–8    stockpiles/trade 67–8    types 64–5 Cold War    arms supplies 155   biological weapons see under biological weapons   chemical weapons see Chemical Weapons Convention 1993 (CWC); under chemical weapons    conventional weapons 43–50    indiscriminate injuries, post-war 52–68    Middle East politics 47–50   nuclear weapons see under nuclear weapons    post-war, indiscriminate injury see under indiscriminate injury/weapons    superfluous injuries, post-war 50–1 Columbia 49 Comprehensive Test Ban Treaty (CTBT) 139–40, 141–2, 144 Concentration Camps, British 105 Congo    arms embargo 77    mercenaries 44    nuclear fuel 130–1 conical bullets 23–4 Conrad III, emperor 12 Convention on Armed Forces in Europe (CFE) 69–71 Conventional Arms, UN Register of 69, 70–1, 81–2

Corfu Channel case 52 Crimean War 104    arms control, post-war 20    chemical weapons, use 89    naval mines 27    superfluous injury 23 crossbows 12–13, 15, 156 crusades/crusaders    arms trade 12    poison, use 88 CTBT (Comprehensive Test Ban Treaty) 139–40, 141–2, 144 Cuba    nuclear alerts 127    post-WWII 45, 46    War of Independence 18–19 CWC see Chemical Weapons Convention 1993 (CWC) Cyprus 88 Czech Republic 81 Czechoslovakia 45, 46 Dachau concentration camp 86 Dacian war 9 Denmark 124 depth charges 26 Deutschland (pocket battleship) 30 diphosgene 85 dirty bombs 117 disarmament, post-WWI see under arms control disease    15th–18th cents 103–4    19th cent 104–5    ancient/medieval worlds 102–3    exploration/colonisation 103–4    WWI 105   see also biological weapons; chemical weapons Dreadnought HMS 22, 31 du Pont (manufacturer) 19, 39 Dual-use Goods and Technologies, Wassenaar Arrangements on Export Controls 72–3 dum-dum bullets 23–4, 51, 156 dynamite 23 East Germany    arms supplier 46    rearming, post-WWII 44    stockpile disposal 71 Ebola virus 101, 110 ECOWAS Convention on Small and Light Weapons 79 Egypt/Egyptians    ancient 7, 8    arms supplier/supplies 46, 47    chemical weapons 95, 96    landmines, WWII 42 Einstein, Albert 117, 132 Eisenhower, Dwight 118 El Salvador 20, 45, 46 encephalomyelitis 109 England/English    fire ships 27   firearms     16th cent 14      18th–19th cents 15, 17–18

162  Index England/English (cont):    Gunpowder Plot 16    powder-mills 16   see also Britain enhanced radiation weapons 116 Entente Cordiale 31 Eritrea 8, 78 Ethiopia    arms supplies 45, 46, 74    invasion 38 Euripides 8 Europe, Convention on Armed Forces in (CFE) 69–71 European Code of Conduct on Arms Exports 80 explosive bullets 51 explosive remnants    conventions 57–8    post-Cold War 55–8 Exxon Valdez (tanker) 55 factual content 3–4 Falklands War, laser weapons 50 Fawkes, Guido (Guy) 16 fentanyl 99 fire ships 27 Firearms Protocol (2001) 83–4 firearms/firepower    15th and 16th cents 13–15    18th cent 15, 16–17    19th–20th cents 17–18, 19–20, 22–4   see also small-arms First World War    biological weapons 105    chemical weapons 24–5, 85, 87, 90–1    disease 105    flame-throwers 25    landmines 26    machine guns 19    naval mines 28–9   post-war     arms control see arms control, post-WWI      biological weapons, control 105–6      disarmament issues 29, 36–7      forced arms reduction 29–30     indiscriminate weapons 41–2     naval conventions see naval conventions, post-WWI     Spanish Influenza 105 flame-throwers 25, 156 foot-and-mouth disease 108 Ford motors 39 Fort Pitt 104 France/French    Arab-Israeli wars 46–7   arms trade     19th cent 18     post-WWII 45, 48    biological weapons, post-WWI control 106    explosive remnants 56    fire ships 27   firearms     16th cent 14      18th cent 16, 17    flame-throwers 25

   heavy weapons, invisible trade in (post-WWII) 44    Napoleonic firepower 15    naval restrictions, post-WWI      capital ships (1922) 32     evasion 30, 32      Second Naval Treaty (1936) 34      smaller vessels (1930) 32–3    nuclear tests 123, 128    Revolution 89    Spain, planes supplied to 38 Franco-Prussian War 104 Franks 11–12 French-Anglo Naval Limitation Pact (1787) 20 Freud, Sigmund 132–3 Fulton, Robert 27 Gallipoli 20 gases see chemical weapons Gatling, Jordan 19, 23 General Motors 39 Geneva Conventions 124 Germans/Germany    Air Pact (1935) 36    arms restrictions/evasions, post-WWI 30   arms trade     19th cent 18     20th cent 18    atomic bomb programme 117–18   biological warfare     WWI 105     WWII 106–7   chemical weapons     WWI 85–6     WWII 93    cluster bombs, WWII 65    explosive remnants 56    flame-throwers 25    Maxim gun purchase 19    naval build-up, pre-WWII 33–5   naval mines     post-war clearance 52–3     WWII 41, 42    rearmament, post-WWI 36–7, 39    Spain, arms supplied to 38   see also East Germany; West Germany glanders 105 Gold Coast 104 Goldsboro B-52 incident 127 Gorbachev, Michail 137 Graf Spee (pocket battleship) 30 Greece/Greeks    ancient, arms control 8    arms stockpiles, post-WWII 49 Greenham Common airbase accident 127 Gromyko, Andrei 124 Guantanamo Bay 99 Guatemala 45 Gulf Wars    biological weapons 116    chemical weapons 94, 116    landmines 59    munitions used 66    Scud missiles 48, 94 gunpowder 13–15, 16 Gunpowder Plot 16

Index 163 Haber, Fritz 90–1 Habre, Hissene 74 Hague Conferences 21, 24, 31 Haiti 74, 89, 104 Hannibal 88 Henry II 11 Henry VIII 14 Hercules 87 Hiroshima, destruction 118–20, 133, 136 Hitler, Adolf    biological weapons 106    as chemical weapons victim 86    naval mines 41    rearmament 36–7    Soviet Union, inter-war relationship 39    as victim of chemical weapon 90 Holland 14 hollow bullets 23–4 Holocaust 85, 86, 92 Homer 8, 87 Honduras 20 Hosho (Japanese navy) 32 Hundred Years War 88, 103 Hungary 46 hydatid disease 109 IAEA (International Atomic Energy Agency) 125–6, 129–30 Ichang 92 ICRC see International Committee of the Red Cross (ICRC) Iliad (Homer) 8 Improvised Explosive Devices (IEDs), definitions 25 India    ancient, biochemical weapons 87–8    arms stockpiles 20, 49   chemical weapons     post-Cold War 98     tests 93    nuclear weapons 121, 129, 139 Indian Mutiny 104 indiscriminate injury/weapons    control progress 156–8    post-Cold War 52–68      Additional Protocol I 53–4     chemical weapons see chemical weapons      Convention on Prohibitions (1980) 54     explosive remnants 55–8     landmines see landmines     seamines see naval mines    pre-WWI 25–8    WWI 28–9    WWII 41–2   see also cluster bombs; landmines; naval mines insecticides 86 intercontinental ballistic missiles (ICBMs), limitation 131–2, 137–9 Intermediate Range Nuclear Forces 136 International Atomic Energy Agency (IAEA) 125–6, 129–30, 145–9 International Committee of the Red Cross (ICRC)    chemical weapons, WWI 91, 92    formation 23    nuclear weapons, control 124    representative at Hiroshima 119

   superfluous injury 50–1 International Court of Justice 121, 128, 140–1 International Criminal Court, chemical weapons 97 Iran   biological weapons      evasion of obligations 114–15     inspections 114    chemical weapons 95    nuclear weapons 145, 147–8, 149    Shah’s regime 47    small arms embargo 74    weapons from 46, 48, 50 Iran-Iraq War 48, 93, 95 Iraq    arms supply/embargo 46, 74    biological weapons 109–10    chemical weapons 87, 93, 95–6     post-2003 94    nuclear reactor attacked 135    nuclear weapons 145, 146, 149    war munitions 66 Irish Republican Army (IRA) 74 Iron Age 7–8 irritants (weapons) 86 Isaac II Angelus, emperor 12 Islam    firearms, refusal to adopt 14–15    poison, use 88 Israel    ancient 7, 8    arms supplier 44, 46    biological weapons, evasion of obligations 114–15    chemical weapons 95, 96    cluster bombs 66    nuclear reactor, attack on 135    nuclear weapons 120, 127 Italy/Italians    arms control (19th cent) 20–1   arms trade     19th cent 18     post-WWII 48    Ethiopia, invasion 38    heavy weapons, invisible trade in (post-WWII) 44    Maxim gun purchase 19    naval restrictions, post-WWI      capital ships 30, 32      smaller vessels (1930) 32    rearmament, inter-war 36–7    Spain, arms supplied to 38 Iwo Jima, capture 118 Japan    arms control (19th cent) 20–1    arms imports, inter-war 39    atomic bombs, WWII     attacks on 118–20     programme 117   biological weapons     terrorist use 110     WWII 107–8, 157   chemical weapons     terrorist use 94     WWII 92–3, 157    explosive remnants, post-WWII 56    firearms, refusal to adopt 14

164  Index Japan (cont):    Gatling gun purchase 19    leaves League of Nations 33    military rebuild, post-WWII 44    naval mines, deployment against 42    naval restrictions, post-WWI 32, 33, 34    Pearl Harbour 40–1 Jerusalem    medieval 12    siege (70 AD) 103 Joan of Arc 12 Jordan 46 Justinian, emperor 103 Kaffa 103 Kalashnikova, Mikhail 43 Kazakhstan 129 Khan, Abdul Qadeer 149 Komnene, Anna 12 Korean War    biological weapons 108    landmines 58    nuclear weapons 125   see also North Korea; South Korea Kosovo 66 Krupps (manufacturer) 18 Kurds, chemical weapons used against 93 Kuwait 74 landmines    19th cent/WWI 26    control 156    current production/stockpiles 64    infected areas/removal 60–1    post-Cold War 59–64    post-WWII 58–9    prohibition 61–4   see also naval mines Laos 65 laser weapons 50–1, 156 Lateran Councils 12 Latin America 18, 45–6    landmines 59    poison, use 88 League of Nations    arms control 35–8 passim, 155    chemical weapons 92    disarmament 29    flame-throwers 25    Japan leaves 33 Lebanon 66 Lee-Enfield rifles 20, 49 Lelantine war 8 Lenin, V 31 Liberia, arms embargo 76 Libya    arms supplier 46, 48, 74    biological weapons, evasion of obligations 114–15    chemical weapons 95, 96 Lieber Code 90 light weapons see small-arms Livens Projector 25 Lloyd George, David 38 Lockheed 39

long-range projectiles 8 LSD 86 Macedon, ancient 10 Machiavelli 88 machine guns    light 43    WWI 19 MAD (mutually assured destruction) doctrine 132–3 Mamelukes 14–15 man man Manchuria 33 Manhattan Project 124 MANPADS (Stinger Air Defence Systems)    Afghanistan 49–50    control 72–3    as small arms 70–1 Maori tribes 17 Markov , Georgi 110 Martens Clause 24 Maxim, Hiram 19 medieval era 11–13, 155–6 mercenaries, Congo 44 Merneptah, battle 8 Mexican wars (19th and 20th cents) 18–19 mines    definitions 25    landmines 26    mining activity 26    pre-modern 25–6 mining/miners 26 MIRVs (multiple independent targetable re-entry vehicles) 135 missile defence systems 142–4 missiles, covert, ancient world 8 Mississinewa USS 55 Mithridates 88 Mombassa 103 Mongols/Mongolia 26, 103, 139 Montecuccoli, Riamondo de 103 Moscow 117 mouse-pox virus 101 multiple independent targetable re-entry vehicles (MIRVs) 135 Musharraf, Pervez 149 muskets 13–14 Mussolini, Benito    chemical weapons 92    disarmament 36–7    invasion of Ethiopia 38 mustard gas 85, 87, 91, 92, 93, 94 mutually assured destruction (MAD) doctrine 132–3 Myanmar 96 Mzerbaijani 74 Nagasaki, destruction 116, 119–20 Nanchang, battle 92 Napoleon/Napoleonic wars    chemical weapons, use 89    disease 104    firepower 15 NATO, CFE Treaty 69, 70 naval conventions, post-WWI 30–5, 155    capital ship restrictions (1922) 31–2, 33–4

Index 165    conferences 31    evasions 30    pre-war build-up 31    Second Naval Treaty (1936) 34–5    signatories 31    smaller vessels (1930) 32–3 naval mines 26–9    18th–19th cents 27    control 156    definition 26    early 20th cent 28    fire ships 27    inter-war 41, 42    post-Cold War 52–3    post-WWII 52–3    WWI 28–9    WWII 41–2   see also landmines naval warfare    ancient Rome, ship-building control 9, 10–11    firepower (18th cent) 15    iron/steel battleships 22    limitation on forces     17th–18th cents 20      late 19th-early 20th cents 20    nuclear submarines, decommissioned 55   restrictions, post-WWI see naval conventions, post-WWI Nepal 20 nerve agents/gas 85–6, 94 neutron bombs 116 New World, European diseases 103 New Zealand 17 Nicaragua    arms supplies 48–9    mines 52 Nicolas II, czar 24 Nigeria, civil war 45 Nixon, Richard 45, 131 Nobel, Alfred 23 non-lethal weapons 86 North America, French/Indian Wars 104 North Korea    arms supplies 48    biological weapons, evasion of obligations 114–15    chemical weapons 95, 96    nuclear weapons 121, 129, 139, 142, 146–7, 149 North Vietnam 47, 59   see also Vietnam War Northern Ireland 74 Northhampton, Assize of 11 Norway 105, 118 Nuclear Forces, Intermediate Range 136 Nuclear Free Zone Treaty (Rarotonga) 137 nuclear submarines, decommissioned 55 Nuclear Suppliers Group 131 nuclear weapons    arsenals 120–1    categories 116–17    civilian/soldier death ratios 85    Cold War control 124–36, 158      arms limitation 131–3, 134–6, 137–9     communication links 126–7     end of 137–9     final build-up 135–6

    IAEA 125–6, 129–30     MIRVs 135     non-proliferation treaties/constraints 128–31, 135      recognition of need 124–5      test ban treaties 127–8, 133–4    Comprehensive Test Ban Treaty (CTBT) 139–40, 141–2, 144    destructiveness 120–1    dirty bombs 117    fissile material production, prevention 149–50    illegal nuclear material 150–3     conventions 152–3     detection 151–2     incidence 150–1    Limited Test Ban Treaty 123    MAD doctrine 132–3    neutron bombs 116    post-Cold War control 139–44     arms control 139–44     bilateral reductions 140    proliferation, post-Cold War 144–50    Proliferation Security Initiative (PSI) 152–3    retaliation doctrine 125    tests 121–3, 127    WWII 116, 117–20     programmes 117–18      use against Japan 118–20 Obama, Barack 143–4, 150 Odyssey 87 Okinawa, capture 118 Opium Wars 27 Oregon 110 Organization for Security and Cooperation in Europe (OSCE) 80–1 Ottoman Turks   firearms     British supply 20      refusal to adopt 14–15    naval limitation (19th cent) 20 Oxford Companion of the Laws of War/Manual 28, 90 Pakistan 20, 49    nuclear weapons 121, 129, 139, 148–9 Palestine Liberation Organization (PLO) 46 Palmerston, Lord 23 Papal States 15 Paraguay 37 Pearl Harbour 40–1 Perciddas, king 10 Perdiccas, king 10 Perry, Commodore 14 petard 26 Philip II (of Spain) 103 Philistines 8 Philp V (of Macedon) 10 Pisan, Christine de 12, 88 plastic explosives 71–2 plutonium 116, 117 poison, use 87–99, 157 Poland 42, 56 Portugal 14 Potsdam Declaration 118–19

166  Index progress    arms control 4–6, 154–5    concept 1–2 projectiles    ancient 8    explosive (19th cent) 22   MANPADS see MANPADS    medieval 12–13    superfluous injury 24–5 psittacosis 109 Punic Wars 9, 10 Putin, Vladimir 99, 143 Q fever 108, 109 Queen Elizabeth HMS 31 Rachel, Samuel 88 Rains, General 26 Ramses II 8 Reagan, Ronald 46, 135–6, 137 Red Cross see International Committee of the Red Cross (ICRC) reductions of weapons see arms control Register of Conventional Arms (UN) 69, 70–1, 81–2 Reykjavik Summit 137 Rhodes, ancient 10 Rhodesia    arms embargo 44–5    bioweapons 109 Richard I (the Lionheart) 12, 88 Richard Montgomery USS 55 rifles    19th cent 17    bolt action 19–20 riot control weapons 98–9 Romania 105 Rome/Romans   ancient     arms control 8–11      ship-building control 9, 10–11    fire ships 27    poison, use 88 Roosevelt, Franklin D 117    arms supply, inter-war/early WWII 39–40    nuclear weapons 124 Royal Navy, disease 104 Russia/Russians    biological weapons, evasion of obligations 114–15    chemical weapons, post-Cold War 98    cluster bombs 66, 67    conventional arms limitation 69–70    firearms (18th cent) 16    Gatling gun purchase 19    illegal nuclear material 151    missile defence systems 142–4    naval limitation (19th cent) 20    naval mines (19th–early 20th cents) 27    nuclear arsenal 120   see also Soviet Union Russo-Japanese War 27–8 Rwanda    arms embargo 76–7    genocide 5

Saddam Hussein 74, 94 Saipan, capture 118 Saladin 12, 88 Salisbury, John of 88 salmonella 110 SALT I and II 131, 134–5 Samuel, book of 8 San Remo Manual 52 Sarecens 12 sarin gas 86, 94, 101, 110 Schneider (manufacturer) 18 Scud missiles 48, 94 scurvy 104 Scythians 87 sea mines see naval mines Seabed Treaty 131 Second World War    arms embargo/supplies 40–1, 155    biological weapons 106–8    chemical weapons 85–6, 92–3     post-war 93   post-war     arms control 42–3     arms trade 43–50     biological weapons 108     chemical weapons 85–6     explosive remnants 55–6 Sevastopol, siege 104 Seven Years’ War 15, 104 Sevres, Treaty 91 shipbuilding restrictions see naval conventions, post-WWI; naval warfare Shrapnel, Lieutenant Henry 22 sling shot 13 Small Arms and Light Weapons, Policy Statement/ Code on (OSCE) 80–1 small-arms    AK47s 43–4, 48, 49    manufacture (US), early 19th cent 17    post-Cold War control     conventions 82–3     embargoes 73–8     European 69–71      Five Powers Communique/guidelines 78–9      history of individual weapons, mechanism 84     illegal/irresponsible trade 78–84     MANPADS see MANPADS     plastic explosives 71–2      Programme of Action (2001) 82     trade 68     Wassenaar Arrangements 72–3   see also firearms/firepower smallpox 104, 108 Soccer War (1969) 20 Somalia    arms embargo 75–6    chemical weapons 96 Somaliland, French 18 South Africa    arms embargo/trade 44–5, 155    nuclear weapons 129, 139 South Korea 98, 146 South Ossetia 67 South Vietnam 47   see also Vietnam War

Index 167 South West Africa 79 Southern Africa, small arms control 83–4 Southern Rhodesia, arms embargo 44–5 Soviet Union    Afghanistan, invasion 49–50    arms control discussions, inter-war 36   arms supplies      Cold War 44, 45, 46, 47, 48, 49–50     WWII 40, 155    atomic bomb programme 117   biological weapons     inspections 114     post-WWI control 106     post-WWII 108     WWII 107    chemical weapons, Cold War/post-Cold War 96    Civil War 35    cluster bombs, WWII 65    decommissioned nuclear submarines 55    German assistance, inter-war 39    landmines, WWII 42    naval mines, inter-war 41    naval restrictions, post-WWI 31, 33, 34   nuclear weapons      control 124–5, 126–7, 137, 138–9     deployment 133     final build-up 136      test ban treaties 127–8, 133–4     tests 122–3, 127    remnant chemical weapons 57    Spain, arms supplied to 38   see also Russia/Russians Spain/Spanish 16    Armada 15, 27    arms supplier, post-WWII 46    Civil War 38, 39, 155    Gatling gun purchase 19    Influenza 105    musket 13–14    poison, use 88    rebellion of colonies 18, 19 Spanish-American War (1898) 104–5 Spartans 87 spotted fever 109 Stalin, Joseph, naval restrictions, post-WWI 33 star wars weapons 136, 137 START I, II and III 140, 142–3, 144 steam-powered gun 22 Stimson, Henry 107 Studebaker cars 39 Sudan 74 sulphur/sulphur dioxide 88, 89 Sumer/Sumerians 7 superfluous injury    arms control 22–5, 155–6    control progress 155–6    Crimean War 23    ICRC 50–1    post-Cold War 50–1    projectiles 24–5 Swabia, Circle of 89 Sweden 14 Syria 47, 48    biological weapons, evasion of obligations 114–15

   chemical weapons 96 Szilard, Leo 118 tabun 86 Taiwan, biological weapons, evasion of obligations 114–15 taser (weapon) 86 Taylor, Charles 79 terrorism    arms supplies 46    biological weapons 110    chemical weapons 94    nuclear weapons 151    war on terror 81 Theodoric the Ostrogoth 9 Thrasamund 9 Thucydides 10 Thutmose III 8 Tirpitz, Albert von 21–2 Tirpitz (warship) 33–4 toxicon 87 toxins 101 Troy, siege 8 Truman, Harry S 118, 120 Truman-Atlee-King statement 124 tularaemia 108, 109 typhoid 104 typhus 103, 105, 106 Ukraine 71, 129 UN Charter 43 UN General Assembly, nuclear weapons, control 124, 127, 128 UN Register of Conventional Arms 69, 70–1, 81–2 UN Security Council 43–5, 115–16, 127, 135, 148, 152, 155 Unit 731 108 United Kingdom see Britain United States    Arab-Israeli wars 46–7    arms embargo/supplies, WWII 40–1    arms supply, inter-war/early WWII 39–40   arms trade      early 20th cent 18     post-WWII 45–6   biological weapons     Cold War 109     inspections 114–15     post-WWII 108     terrorist use 110     WWII 106–7   chemical weapons      Cold War/post-Cold War 96, 98, 99     post-WWI conventions 92     post-WWII 86, 93     remnant 57     WWII see under Second World War    Civil War 19, 26, 27     arms trade 19      chemical weapons, use 89     disease 104     landmines 26     naval mines 27    cluster bombs, post-WWII 65–6, 67    illegal nuclear material 151–2

168  Index United States (cont):    Iran-Contra arms supplies 48    landmines, post-WWII 59    laser weapons 50    Mexican wars 18–19    naval mines, deployment 42    naval restrictions, post-WWI      capital ships (1922) 32      Second Naval Treaty (1936) 34      smaller vessels (1930) 32–3   nuclear weapons     arsenal 120, 127      control 124–5, 126–7, 137, 138–9, 142–4     CTBT 141–2, 144     deployment 133     final build-up 135–6      missile defence systems 142–4     retaliation doctrine 125      test ban treaties 127–8, 133–4     tests 122–3     see also nuclear weapons    small-arms manufacture (early 19th cent) 17    War of 1812 27    War of Independence 16–17, 27, 104 uranium 116–17 Urban II, Pope 12 Vandals 9 Venice, siege 104 Versailles Treaty 30, 41, 91 Vettius (Roman knight) 9 Victory HMS 22 Vietnam    arms supplier 46   see also North Vietnam; South Vietnam Vietnam War    chemical weapons 87

   cluster bombs 65–6    landmines 58–9    laser weapons 50    nuclear weapons 131 viruses 101 vishkanyas 88 Warsaw Pact 69, 70 Washington, George 27, 104 Wassenaar Arrangements 72–3 weapons, control/trade see arms control; arms trade weapons of mass destruction (WMD) 5, 157   see also biological weapons; chemical weapons; indiscriminate injury/weapons; nuclear weapons; superfluous injury West Germany, rearming, post-WWII 44 West Indies, disease 104 wheat stem rusts 108 Wheaton, Henry 26 William I (the Conqueror) 11 William of Orange 14 WMD see weapons of mass destruction (WMD) Wolfe, General 27 Wolff, Christian 89 Woolwich Arsenal 17 World Health Organization 100 Wurttemberg, Duchy of 89 WWI see First World War WWII see Second World War Yamato class (battleships) 33 Yemen 47, 93 Ypres, battle 90 Yugoslavia, former, small arms embargo 73 Zulu wars 18 Zychlon B 85, 92