Landmines and the Obama Administration

Where is the Obama administration currently on the Ottawa Landmines Ban Convention?  The question is on the public table with the opening in a few days of the Cartagena Review Conference, the second diplomatic conference to review the treaty.

The Ottawa Convention banning landmines was opened for signature in 1997 and entered into force in 1999.  The treaty currently has some 150+ parties, but the US has not joined.  I was one of the first NGO organizers of the International Campaign to Ban Landmines, and, if I remember correctly, drafted as a sort-of-joke-but-not-quite the very first draft of the landmines ban treaty.  (It was a sort-of-joke because it was probably the shortest treaty text ever drafted, I suppose, more or less.  It is easy to draft a short treaty if all it does is prohibit things, without exceptions or qualifications.  Three sentences or so of pure categoricals.)  The final, full, serious treaty text as worked up in the 1990s negotiating sessions can be found here.

I think the treaty was a good idea and I’m proud after all these years to have been associated with it.  I’ll leave for another post, however, some of the bigger questions that the passage of time has raised for me, both about the treaty and its substantive content, and also about the effects that the process had in the 1990s in transforming the international NGO sector’s vision of itself as global actors and the development of “global civil society.” But that list of questions starts with the fact that it is not just the US that has not joined the treaty.  Nor is it a list of international bad guys.  Rather, the list of countries that have not joined is pretty much the set of countries that anticipate they might have to fight a war using conventional weapons, in which the outcome could be genuinely contested, and in which mines could make a significant difference to the outcome.  They include China, Egypt, Israel, Finland, Pakistan, India, South Korea, Iran, Libya, Syria, and more.

That, and international perimeter demarcation particularly in flat terrain, specifically for the United States and South Korea in the Korean peninsula.  I discussed this question in an article a few years ago on the rhetoric of the US military on human rights law issues such as the landmines ban.   (Co-Conspirator Eric also has an important, short discussion of the Ottawa Convention and international law in his fine book The Perils of Global Legalism (pp. 62-64).  Eric’s skepticism is in this general line of thinking, to the effect that the apparent widespread acceptance of the treaty masks a list of non-participants coinciding with countries that might actually make war, and he asks whether this reflects the “tug” and “pull” of international law or merely an unsurprising co-incidence of different states sorting their interests in landmines differently.)

The Clinton administration wanted to join the treaty, but Korea was seen as making it a non-starter at the Pentagon.  So the US adopted a fuzzy, sympathetic to the purposes of the treaty, etc., approach to the Convention along with important material support for humanitarian de-mining, and a promise to continue re-evaluating internally down the road.  The Bush administration was much less sympathetic, but once the post 9-11 wars began, there wasn’t really going to be any discussion one way or the other – although the US has followed the convention generally, without having signed on, except for its possession of some 10 million mines and support for border use of mines in Korea.

Meanwhile, the NGO ban movement was gradually transforming into a broader campaign against explosive remnants of war and cluster munitions – see the ICBL or HRW websites over time for a sense of the gradual shift in international NGO campaigning.  Cluster munitions raise very different issues, which I won’t go into here.  In addition to the technical and military doctrine issues, however, they also raise a whole different set of consideration if you take as your starting point, as some of the NGOs do, that their use much or even all of the time, even on US-style rules of engagement and evaluation for proportionality, constitutes a violation of the laws of war.

Discussion of the issue of cluster munitions certainly gets much harder if, in other words, you want to open discussions with military forces about doctrine surrounding the use of a weapon you are already implicitly, or explicitly, calling illegal or even possibly criminal; it tends to dampen the desire for either negotiations or technical innovation.  NGOs often have peculiar ideas about incentives, at least from the standpoint of negotiation in the ordinary sense – but not if one’s long-term view is that one can stigmatize the weapon and the user, so as to bend the curve of what constitutes acceptable discussion of the issue.  It largely worked in the case of the landmines campaign, and the  holy grail of international advocacy campaigning ever since has been to duplicate the form of that success, based around a “stigmatization” strategy.  Wonder how well this will work with China?

At this moment, in the general euphoria surrounding post-Bush foreign policy, the Obama administration was pushed by the NGOs to review its landmines policy, with an eye to a timeline, even if a long one, for joining the Ottawa convention.   Pressure to give out some kind of statement intensified as the second review conference on the Ottawa Convention, the “Cartagena Review Conference,” has got closer in date – it opens in a few days.  So where does the Obama administration currently stand on its policy review?

After some “clarifications,” it appears that the US is conducting a “broad” review of antipersonnel landmine policy and the Ottawa Convention, while maintaining the previous Bush administration stance on an “interim” basis.  This Reuter’s story, in the Washington Post, gives some of the ins and outs.  Meanwhile, the Cartagena review conference on the Ottawa Convention shortly opens; GenevaLunch blog has details.  From the WP story:

A review of U.S. landmines policy is ongoing and will take awhile to complete, a State Department spokesman said on Wednesday, clarifying an earlier comment that the Obama administration had concluded it needed the weapons.

“The administration is committed to a comprehensive review of its landmines policy. That review is still ongoing,” spokesman Ian Kelly said in a statement.

Speaking ahead of a review conference next weekend in Cartagena, Colombia, on the 10-year-old international Mine Ban Treaty, Kelly said the U.S. policy review was “going to take some time” and while it continued the current policy of declining to join the accord would remain in force.

This “clarification” followed an earlier briefing in which the Obama administration indicated that its review had concluded, to the contrary, that the US needed the weapons.  Following criticism by Senator Leahy, the new statement was issued:

Kelly had told a briefing on Tuesday the “administration undertook a policy review and we decided that our land mine policy remains in effect.”

“We determined that we would not be able to meet our national defense needs nor our security commitments to our friends and allies if we signed this convention,” he said.

Those comments had drawn fire from Senator Patrick Leahy, a Democrat who is a longtime advocate of the treaty, and expressions of concerns from anti-mine campaigners.

A U.S. official, speaking on condition of anonymity, said on Wednesday said the administration had conducted an interim review in light of the upcoming summit in Cartagena, and decided the old policy should remain in force so long as the broader review continued.

My assumption, and everyone else’s, is that the “broader” policy review will be underway so long as North Korea is and, in the meantime, the “interim” position will be just fine with the Obama administration.

That said, one of the interesting questions for international legal academics is what, in any direction, one should make of the fact that known landmine casualties worldwide a dozen or so years ago were on the order of 20,000 a year (I haven’t gone back to pull up the estimates, but these are in the general order, and good enough for this point; usual data source is Landmine Monitor).  Whereas last year, known casualties were listed as 5,197, according the International Campaign to Ban Landmines.

I would say that the decline is likely attributable to the reduced use of landmines and the stigma surrounding their use, largely on account of the treaty.  But one might question that, I suppose, and instead look to a general decline in warfare of the kind in which indiscriminate use of landmines is found (for various reasons, I don’t think that is causally right, but I won’t try to explain that here).

Much more importantly, however, even at 20,000 casualties a year, well, the US drunk driving fatality rate is somewhere around 40,000 a year.  In a world of 6,800,000,000 people, 5,197 is not even a tremor.  What would one say if one were to apply cost benefit analysis of, for example, the kind that John “Overblown” Mueller applies to terrorism risks (likelihood of being killed in a terrorism attack versus being killed by lightning strike, e.g.), to the money, time, efforts, etc., put into the landmines ban campaign?  Should it instead have gone into malaria or AIDS reduction?

I think the Mueller comparisons on terrorism are an unsophisticated-at-best way of approaching risk analysis and cost benefit analysis – the alternatives under comparison have to be genuine policy alternatives, not merely hypotheticals.  (I tried to explain this, and not very successfully, I’m afraid, in this paper on the assumptions underlying CBA in war on terror discussions.  But in any case, people who are awe-struck by Mueller’s methods should take a look at his writing to the same effect in the Cold War; had his advice been followed then, we would almost certainly still be in it.)  But if this method is tendentious in landmines analysis of whether the effort to ban mines was “worth it” for 5,000 or so casualties (casualities, note, not necessarily lives), and I agree it is, it is tendentious for the same reasons that it is in the case of terrorism-lightning comparisons.

(I have some other things to say re the Cartagena review conference, but I’ll hold them for another post.)