‘Case of the Week’ 2 (Stoa): Ban Landmines

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2012 sourcebook, and are frequently contributed by non-COG authors. You may find material and sources in these cases that would not appear in the sourcebook. That said, we hope these cases will be useful to you; enjoy!

About the Author: Daniel Gaskell is the developer of the popular Factsmith research software and the lead editor of COG 2012. He debated in the NCFCA and Stoa for six years, qualifying to both NCFCA Nationals and NITOC multiple times. Daniel attends Baylor University.

1AC: Ratify the Ottowa Treaty

By Daniel Gaskell

The United States claims to stand for peace and human rights around the world – yet, when an opportunity to advance peace and human rights came knocking on our door, we turned it down. It is because my partner and I believe that the United States should ratify the Ottowa Treaty banning the use of landmines that we stand Resolved: The United States Federal Government should substantially reform its foreign military presence and/or foreign military commitments.

Before we dive into the meat of our case, however, I’d like to make sure we’re all talking about the same thing in…

Part 1: Definitions

The Ottowa Treaty, or the Mine Ban Treaty, is an international agreement banning the use of landmines. According to Arthur Rizer:

Arthur L. Rizer III (JD from the Gonzoga University School of Law, 2003), 2012, forthcoming, “Lessons From Iraq And Afghanistan: Is It Time For The United States To Sign The Ottawa Treaty And End The Use Of Landmines?”, accessed July 19, 2012, works.bepress.com/arthur_rizer/1/ (page 18-19)

“This principle of the Treaty is simple: “civilians should not be killed or maimed by weapons that strike blindly and senselessly, either during or after conflicts. . .” To reach this goal the Treaty established that parties may not produce, transfer, and within a four year window, must destroy all landmine stockpiles, keeping only a small supply for the purpose of training in how to detect and disarm landmines. Further, the Treaty states that within 10 years of joining, a country should clear and destroy all landmines within its territory.”

A landmine is essentially a bomb that explodes when someone steps on it or walks near it. The technical definition from  the Ottowa Treaty is “a munition designed to be placed under, on or near the ground or other surface area and to be exploded by the presence, proximity or contact of a person or a vehicle.” (text of the Mine Ban Treaty, September 18, 1997, www.un.org/Depts/mine/UNDocs/ban_trty.htm)

With the key definitions in this round established, let’s turn to…

Part 2: Inherency

…or what’s happening right now. We have one simple point:

U.S. has not ratified Ottawa

Arthur L. Rizer III (JD from the Gonzoga University School of Law, 2003), 2012, forthcoming, “Lessons From Iraq And Afghanistan: Is It Time For The United States To Sign The Ottawa Treaty And End The Use Of Landmines?”, accessed July 19, 2012, works.bepress.com/arthur_rizer/1/ (page 16)

As of March 2012 the Ottawa Treaty, formally known as the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, had 159 parties. There are currently 35 countries that have not signed or ratified the treaty including, the People’s Republic of China, Iran, Russia, and the United States of America.”

We’ll get to why we think this is a bad thing in a minute, but first, let’s present:

Part 3: The Plan

Mandate: The President shall sign, and the Senate shall ratify, the Ottowa Treaty – aka the Mine Ban Convention, or the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction.

Timeline: This plan shall take effect as soon as possible.

Funding: Shall be provided through normal military budgeting procedures.

Let’s look at why with think this is a good idea in…

Part 4: Justifications

We have four justifications.

Justification 1: Unnecessary

The simple truth is that the United States doesn’t need landmines. We have two subpoints under this justification:

Point A: Unused. The U.S. doesn’t actually use the landmines it has.

Rachel Good (JD), Spring 2011, Northwestern Journal of International Human Rights, “Yes We Should: Why the U.S. Should Change Its Policy Toward the 1997 Mine Ban Treaty”, Vol. 9, No. 2, accessed July 19, 2012, www.law.northwestern.edu/journals/JIHR/v9/n2/4/Good.pdf (page 228)

The U.S. does not use, produce, or trade landmines. It reserves the right to, but does not use landmines with self-destruct or deactivation mechanisms. Landmines are not necessary for the protection of South Korea, nor can they be used in Iraq or Afghanistan without those countries violating the MBT. Finally, the U.S. has provided more humanitarian funding for mine action programs than any other nation. President Obama also has enough political support to join the Treaty. In May 2010, sixty-eight U.S. Senators sent President Obama a letter in support of the U.S. joining the MBT. The U.S. refusal to join the Treaty rests solely on the U.S. military’s desire to keep its stockpile of landmines, which it does not even use.”

Point B: Useless. Military experts agree that landmines are essentially useless in modern warfare.

Rachel Good (JD), Spring 2011, Northwestern Journal of International Human Rights, “Yes We Should: Why the U.S. Should Change Its Policy Toward the 1997 Mine Ban Treaty”, Vol. 9, No. 2, accessed July 19, 2012, www.law.northwestern.edu/journals/JIHR/v9/n2/4/Good.pdf (page 213)

A study issued by the International Committee on the Red Cross (ICRC) and conducted by a group of active and retired military leaders from nineteen countries found that landmines have “little to no effect on the outcome of hostilities” and only “marginal tactical advantage” in certain specific circumstances. The group of military experts gathered by the ICRC asked the simple question of whether there was empirical data to demonstrate the high military utility of landmines. Of twenty-six major conflicts the experts studied, they failed to find a single case “in which the use of anti-personnel mines played a major role in determining the outcome of a conflict.” Although landmines do have utility in some circumstances, they are never outcome-determinative. In the 1991 Gulf War, Iraqi forces laid 9 million mines to delay coalition forces. Using large-scale mine plows, coalition forces cleared the minefield in only two hours. The increased use of armored tanks, coupled with specialized plows and rollers to clear minefields has decreased the effectiveness of landmines as a delay tactic.

Justification 2: Inhumane

Landmines kill civilians and cause horrific injuries

Canadian Red Cross, “The Landmine Epidemic”, last updated August 2008, accessed July 20, 2012, www.redcross.ca/article.asp?id=1945&tid=006

Mines cannot tell the difference between the footsteps of a child and those of a soldier. Landmines continue to find victims long after the end of an armed conflict. In Russia, for example, landmines from World War II continue to injure or kill civilians. Landmines are particularly inhumane weapons and the harm they cause is excessive. Mine injuries maim victims for life and require two to six times more blood transfusions during surgery than other war injuries. Landmines hinder a country’s development and cause a variety of medical, social and economic issues. Landmine Statistics: 75 per cent of mine victims are civilians. A single landmine can cost between $3 to $30 US dollars (USD). It can cost anywhere from $300 to $1000 USD to remove a mine.”

Now you might say, “well, what’s the problem if we don’t actually use landmines?” The problem is that our hypocritical stance on landmines encourages other nations to use them, even if we don’t. Thus, the mere fact that we haven’t ratified Ottowa – even if we never actually use our landmines – indirectly contributes to the death and injury described above.

Justification 3: Hypocrisy Encourages Use

Failure to ratify damages our moral high ground and justifies the use of landmines by other nations

Arthur L. Rizer III (JD from the Gonzoga University School of Law, 2003), 2012, forthcoming, “Lessons From Iraq And Afghanistan: Is It Time For The United States To Sign The Ottawa Treaty And End The Use Of Landmines?”, accessed July 19, 2012, works.bepress.com/arthur_rizer/1/ (page 38)

In many ways the United States has painted itself into a corner. The attitude of many other countries could be expressed as “how dare you lecture us on morality when you will not join something as simple as the Ottawa Treaty.” Indeed, many believe that this credibility gap is hurting the United States on strategic levels, making the lost moral high ground more powerful than the landmines themselves. There should be no illusion that joining the treaty would result in an idyllic world, with elimination of IEDs in Iraq and Afghanistan or a reduced threat from North Korea. However, the United States stands little chance of persuading the world to act more morally if we refuse to act in this area ourselves. As Senator Leahy stated, the United States should lead in stigmatizing these indiscriminate weapons so “the political price of using them serves as a deterrent. Will some rebel groups or rogue nations continue to defy the international norm? Undoubtedly the answer is yes. But by setting an example and using our influence we can reduce their numbers significantly to the benefit of our troops and the innocent.””

Justification 4: Harms Our Image

U.S. “regularly faces condemnation” for not ratifying

Arthur L. Rizer III (JD from the Gonzoga University School of Law, 2003), 2012, forthcoming, “Lessons From Iraq And Afghanistan: Is It Time For The United States To Sign The Ottawa Treaty And End The Use Of Landmines?”, accessed July 19, 2012, works.bepress.com/arthur_rizer/1/

“The United States also was one of the first countries to sign the CCW, which went into effect 19 months before the Ottawa Treaty. Despite this, the United States regularly faces condemnation for not joining the Ottawa Treaty. Critics cite this failure as proof of U.S. exceptionalism and “reflects the U.S. refusal to subscribe to ‘multilateralism of any kind that either defines or enforces basic values’ and evidences U.S. hostility to ‘the development of international law and institutions.'””

The facts are simple: landmines are unnecessary and inhumane, and the mere fact that we haven’t ratified Ottowa – even if we never use them – damages our image and contributes to their ongoing use by other nations. It’s time to end this tragedy by doing what we should have done years ago, and formally eliminating our stockpile of landmines.

I’d like to close with a quote from Arthur Rizer that I think summarizes our position:

Arthur L. Rizer III (JD from the Gonzoga University School of Law, 2003), 2012, forthcoming, “Lessons From Iraq And Afghanistan: Is It Time For The United States To Sign The Ottawa Treaty And End The Use Of Landmines?”, accessed July 19, 2012, works.bepress.com/arthur_rizer/1/ (page 53)

“Not only are APL mines one “of the most insidious weapons ever developed,” the fact that they are in the American arsenal has hurt the national security. The United States has alienated its allies over a weapon that is not effective as a strategic weapon and is only used in one country. Maintaining a stockpile of these weapons has lost the United States a certain amount of moral prestige and credibility as a principled nation, as John McCain said concerning torture, “it is not about who they are, it is about who we are.” It should not be about how the enemy is using landmines in Iraq and Afghanistan, but rather, as a people, what standards does the United States maintain.”

Backup: Ratify the Ottowa Treaty

TOPICALITY

You may run into topicality attacks on this case. The problem is that “foreign military commitment” is a very vague phrase. One possible strategy would be to emphasize that the U.S. has never considered using landmines on its own territory, so the plan is primarily establishing a policy that we will never use landmines in foreign nations (esp. South Korea.) Thus, it’s a reform to how our military behaves in foreign nations – which is arguably a foreign military commitment.

An argument by analogy may help. Is signing a treaty saying that you will never send troops to a foreign country a reform to our foreign military commitments? Obviously. Is signing a treaty saying that you will never send landmines to a foreign country a reform to a foreign military commitment? It’s pretty much the same thing. The only difference is that we currently have troops in foreign countries, whereas we do not currently have landmines in foreign countries. However, nowhere in the resolution does it restrict you to reforming currently-present foreign military commitments.

Alternately, you could take a different interpretation of “commitment” and argue that signing a treaty is a “commitment” to the international community.

It would help a lot to find a good, inclusive definition of “foreign military commitment”; I didn’t bother to find one for this draft. Check around.

INHERENCY

CCW wasn’t as restrictive – only requires some mines to self-deactivate

Eve La Haye (legal adviser to the Red Cross) and Peter Herby (head of the Arms Unit at the Red Cross), December 2007, Arms Control Today, “How Does It Stack Up? The Anti-Personnel Mine Ban Convention at 10”, accessed July 19, 2012, www.armscontrol.org/act/2007_12/Herby

“In agreeing in 1997 to completely prohibit anti-personnel mines, signatories concluded that the regulation of these weapons in Amended Protocol II of the Convention on Certain Conventional Weapons (CCW), adopted just 19 months earlier, was an inadequate response to the growing scourge of anti-personnel mines. The protocol sought to prevent casualties by requiring some, but not all, anti-personnel mines to contain self-destruct or self-deactivation features so that their effects would not persist after the military need for them ended.”

JUSTIFICATIONS

Inhumane: Cascading impact – families, health centers, infrastructure, and refugees all harmed

Penny McMillin and Vinothan Naidoo, November 1997, Institute for Security Studies, “Towards Ottawa: A Total Ban Treaty On Anti-personnel Landmines”, accessed July 19, 2012, dspace.cigilibrary.org/jspui/bitstream/123456789/31578/1/paper_26.pdf?1

“The indiscriminate and irresponsible use of anti-personnel landmines (APMs) over the past fifty years has created a legacy of suffering and instability that those most affected are ill-equipped to deal with. The individual tragedy of each landmine victim has wider implications for the rebuilding and socio-economic development of a country years after the end of conflict: individuals become incapacitated and a burden on their families and communities, health facilities are placed under strain, large tracts of land and infrastructural sites are inaccessible, and refugees are unable to return to their land.”

Inhumane: Cascading impact – long-lasting psychological, social, and economic damage

Rachel Good (JD), Spring 2011, Northwestern Journal of International Human Rights, “Yes We Should: Why the U.S. Should Change Its Policy Toward the 1997 Mine Ban Treaty”, Vol. 9, No. 2, accessed July 19, 2012, www.law.northwestern.edu/journals/JIHR/v9/n2/4/Good.pdf (page 214)

“In communities where people struggle to sustain themselves, landmine survivors are often seen as a drain on resources because they are limited in their ability to work and provide for themselves. Because landmine survivors are predominately located in poor areas, they are often stigmatized in their communities for their disabilities. This stigmatization, and the resulting sense of helplessness, leads many landmine survivors to feel depressed and angry. At the community level, landmines can also have a devastating economic impact by making swaths of land unusable for transportation and trade, farming, herding, or animal grazing. The civilian impact of landmines goes beyond the immediate physical injury to the individual.”

Inhumane: A/T “self-destruct mechanisms”: Still regularly fail – various test examples

United States General Accountability Office, September 2002, “MILITARY OPERATIONS: Information on U.S. Use of Land Mines in the Persian Gulf War”, accessed July 19, 2012, www.gao.gov/new.items/d021003.pdf

CMS explosives disposal personnel stated that they had personally experienced what they thought were Gator duds exploding on the battlefield in Kuwait, caused by no apparent triggering event, over a year after the Gulf War ended. CMS experts speculated that these detonations might have been caused by the extreme heat in a desert environment. DOD has been unable to explain the circumstances that caused the nearly 2,000 U.S. self-destruct land mine duds found in the CMS disposal sector of the Kuwaiti battlefield not to self-destruct.

[later, in the same context:]

Other DOD experts in explosive ordnance disposal confirmed in interviews that scatterable mine duds can exist after their self-destruct times have elapsed and that these duds may be hazardous.

[later, in the same context:]

“However, DOD did provide some post-Gulf War test records that document reliability problems with eight of its self-destruct land mine systems. Specifically, testing showed that some land mines did not self-destruct at the selected times. For example, a July 2000 Army study of dud rates for ammunition reports that the submunition dud rate for RAAM land mines with short duration fuzes is over 7 percent, and the dud rate for RAAM land mines with long duration fuzes is over 10 percent. In an Ammunition Stockpile Reliability Program test for the ADAM, the Army suspended one lot because it failed. In a test for the Volcano system, 66 out of 564 land mines failed the test. Among the failures were 1 hazardous dud (meaning that it could explode), 24 nonhazardous duds (meaning that they had not armed), 6 mines that detonated early, and 1 mine that detonated late. In another case, DOD testing of the Selectable Lightweight Attack Munition (SLAM) land mine showed that it also did not destruct at the selected time. While this problem was investigated, SLAM use was suspended and a safety-of-use message was put into effect advising personnel “never to approach an M2 SLAM that has been armed” and, in training, “to assure that it can be detonated if it fails to go off as intended.” According to DOD, the same self-destruct and self-deactivation design has been used in all U.S. mines since 1970. Because of this design similarity, it is possible that U.S. self-destruct land mines could be subject to similar failures. Failures of self-destruct land mines that are induced by extremes in temperature and other variations in environmental conditions are well-documented in service field manuals and after-action reports. Field manuals state that the reliability of self-destruct land mines degrades when they are employed on sand, vegetation, hillsides, snow, or hard surfaces. Also, self-destruct land mines have reportedly “reduced effectiveness” on hard surfaces such as concrete and asphalt. They break apart and can easily be seen.

[later, in the same context:]

Various other problems can affect a mine’s explosion. For example, one antitank mine did not explode when triggered, but it did activate when it was picked up and shaken.”

Encourage Use: Failure to ratify helps justify other nations’ use of mines

Eve La Haye (legal adviser to the Red Cross) and Peter Herby (head of the Arms Unit at the Red Cross), December 2007, Arms Control Today, “How Does It Stack Up? The Anti-Personnel Mine Ban Convention at 10”, accessed July 19, 2012, www.armscontrol.org/act/2007_12/Herby

“Yet, as long as states remain outside of the convention and continue to produce new anti-personnel mines, to retain large stockpiles, and to reserve the right to use them, these mines will remain a persistent humanitarian problem. When states anywhere in the world remain outside of the anti-personnel mine ban norm, their absence can be used by others, whether they be states or insurgent groups, to justify the continued use of anti-personnel mines.”

Encourage Use: Use of “smart” mines could encourage use of “dumb” mines by other countries

Arthur L. Rizer III (JD from the Gonzoga University School of Law, 2003), 2012, forthcoming, “Lessons From Iraq And Afghanistan: Is It Time For The United States To Sign The Ottawa Treaty And End The Use Of Landmines?”, accessed July 19, 2012, works.bepress.com/arthur_rizer/1/ (page 16)

“The countries that signed the Ottawa Treaty say that the only way to eliminate the civilian cost of landmines is to ban all landmines, not just the low-tech versions. According to the Ottawa signers, because only wealthy countries will be able to afford the “smart” self-destructing mines as outlined in the CCW, poorer countries will argue that because they can only afford the dumb mines, and because the wealthy countries can purchase smart mines, they must have at least dumb mines.”

Image: Failure to follow international standards damages our image and emboldens our enemies

Prof. David Glazier (JD, associate professor of law at Loyola Law School), 2008-2009, University of Pennsylvania Journal of International Law, “Missing In Action? United States Leadership In The Law Of War”, Vol. 30, accessed July 19, 2012 (page 1344)

These departures from the law of war [including failure to ratify landmine and cluster munition treaties, violations of the Geneva Convention, etc. – context too lengthy and complicated to quote here] have had real consequences, undermining world public opinion in the U.S. conduct of the “war on terror,” and making foreign nations reluctant to cooperate with the United States. They have also furthered the cause of America’s adversaries, motivating support and even recruitment for both terrorist groups and the Iraqi resistance. The reality is that law of war compliance is much more than a humanitarian ideal; it is also a practical tool facilitating the overall achievement of national political objectives, as American political-military leaders dating back to George Washington have long recognized.”

DISADVANTAGE RESPONSE: SOUTH KOREA

Don’t actually have any mines there!

Prof. David Glazier (JD, associate professor of law at Loyola Law School), 2008-2009, University of Pennsylvania Journal of International Law, “Missing In Action? United States Leadership In The Law Of War”, Vol. 30, accessed July 19, 2012

“The Convention now has 156 state parties. But while the United States no longer exports mines, and has contributed substantially to landmine clearance around the world, it has refused to join this treaty, asserting that anti-personnel mines are essential for the defense of Korea, even though the United States has no minefields under its control there.”

Don’t actually have any mines there – and we only say that because the Pentagon didn’t want to overrule a commander

Arthur L. Rizer III (JD from the Gonzoga University School of Law, 2003), 2012, forthcoming, “Lessons From Iraq And Afghanistan: Is It Time For The United States To Sign The Ottawa Treaty And End The Use Of Landmines?”, accessed July 19, 2012, works.bepress.com/arthur_rizer/1/ (page 40)

“Director [of the James Madison University Mine Action Information Center James] Barlow went on to say that using Korea as an example on why landmines are a military necessity is a red herring. Specifically, he asserted that the landmines deployed in Korea do not belong to the United States and in fact are R.O.K. [South Korean] landmines. Moreover, Director Barlow stated that he was working at the Pentagon when this debate started.” His observations of what transpired were that there was some support for the Ottawa Treaty within the Pentagon. It was not until “the U.S. commander in Korea, declared ‘I need them’ that both the White House and the Pentagon backed off,” because the administration did not want to look like it was overruling an on the ground commander.”

Next to useless (according to the former U.S. Korean commander)

Rachel Good (JD), Spring 2011, Northwestern Journal of International Human Rights, “Yes We Should: Why the U.S. Should Change Its Policy Toward the 1997 Mine Ban Treaty”, Vol. 9, No. 2, accessed July 19, 2012, http://www.law.northwestern.edu/journals/JIHR/v9/n2/4/Good.pdf (page 227)

“Landmines are not an effective measure against a possible invasion of South Korea. The former commander of U.S. forces in Korea, Lt. Gen. James Hollingsworth rated the utility of landmines in Korea as “minimal.” Hollingsworth never relied on landmines to “make much of a difference” because “[t]o be blunt, if we are relying on these weapons to defend the Korean peninsula, we are in big trouble.””

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