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Commentary on Protocol IV on Blinding Laser Weapons*

Published online by Cambridge University Press:  17 February 2009

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On the modern battlefield, lasers are employed for a variety of military tasks, including rangefinding, target designation, jamming or destruction of optical or electro-optical systems. Sweden and the ICRC, in particular, alerted the international community to the fact that many existing and currently developed laser systems might well be used to blind enemy combatants. They argued that intentional blinding causes unnecessary suffering and pushed for an international agreement which would explicitly prohibit the use of lasers for blinding as a method of warfare. More than 20 years after the first discussions about regulation of laser weapons, the Review Conference of States Parties to the UN Conventional Weapons Convention adopted Protocol IV on Blinding Laser Weapons on 13 October 1995.

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Copyright © T.M.C. Asser Instituut and the Authors 1998

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1. For an overview of such laser employments, see Hewish, M., ‘Battlefield Lasers’, 2 International Defense Review (1995) pp. 3944Google Scholar; Hecht, J., Beam Weapons — The Next Arms Race (1984)Google Scholar; Anderberg, B. & Wolbarsht, M., Laser Weapons — The Dawn of a New Military Age (1992)Google Scholar; O'Leary, A., ed., Jane's Electro-Optic Systems, 3rd edn., 1997Google Scholar.

2. L. Doswald-Beck, ed., Blinding Weapons — Reports of the Meetings of Experts Convened by the International Committee of the Red Cross on Battlefield Laser Weapons 1989–1991 (1993); Human Rights Watch Arms Project, ‘Blinding Laser Weapons - The Need to Ban a Cruel and Inhumane Weapon’ (September 1995).

3. For the text of Protocol IV, see infra p. 594.

4. The Preparatory Conference held four sessions between February 1994 and January 1995. See Final Report of the Group of Governmental Experts to Prepare the Review Conference, Doc. CCW/CONF.I/GE/23.

5. On the Vienna Conference, see the partially diverging accounts of these negotiations by Parks, W. Hays, ‘Travaux Préparatoires and Legal Analysis of Blinding Laser Weapons Protocol’, The Army Lawyer (06 1997) pp. 3341Google Scholar; Doswald-Beck, L., ‘Le nouveau Protocole sur les armes à laser aveuglantes’, RICR (1996) pp. 289321Google Scholar.

6. The Protocol entered into force on 30 July 1998 in accordance with Article 2 of the Additional Protocol.

7. On the ophthalmological aspects of laser radiation see e.g., B. Stuck & M. Belkin, eds., ‘Laser-Inflicted Eye Injuries’ (SPIE-Proceedings Vol. 2674, 1996); B. Stuck & A. Katzir, eds., ‘Laser and Noncoherent Ocular Effects’ (SPIE-Proceedings Vol. 2974, 1997).

8. Cf. testimony of the ophthalmologist Prof. Marshall at the Vienna Review Conference, see L. Doswald-Beck, op. cit. n. 5, at p. 315 et seq.

9. On the ocular hazards of existing laser systems, see Wolfe, J., ‘Laser Retinal Injury’, 150 Military Medicine (1985) pp. 177185CrossRefGoogle ScholarPubMed; Mellerio, J. et al. , ‘Battlefield laser weapons: an assessment of systems, hazards, injuries and ophthalmic resources required for treatment’, 4 Laser and Light in Ophthalmology (1991) pp. 4167Google Scholar.

10. Only the Austrian delegation had proposed an explicit definition of the term ‘weapon’. See Doc. CCW/CONF.I/MCII/WP.2 (26 September 1995), Art. 2.

11. C. Greenwood, ‘Battlefield laser weapons in the context of the law on conventional weapons’, in Doswald-Beck, op. cit. n. 2, p. 71, at p. 73.

12. See e.g., Hays Parks, loc. cit. n. 5, at p. 37.

13. So far only China North Industries Corp. has publicly advertised that one of the major applications of its ZM-87 laser system would be ‘by high power laser pulses, to injure or dizzy the eyes of an enemy combatant’, see Cook, , ‘Chinese laser “blinder” weapon for export’, 23 Jane's Defence Weekly (27 05 1995) at p. 3Google Scholar. Even more disturbing than this anouncement as such is the prediction ‘now that an international standard against deliberate blinding has been adopted, such advertising can be expected to cease’, Carnahan, B. & Robertson, M., ‘The Protocol on “Blinding Laser Weapons”’, 90 AJIL (1996) p. 484 (at p. 489)CrossRefGoogle Scholar.

14. In a letter to Congressman Evans, US Secretary of Defence Perry confirmed that ‘… [u]nder both the CCW and DoD policy, laser weapons designed specifically to cause permanent blindness may not be used against an individual enemy combatant’, Letter of 8 May 1996 (on file at Human Rights Watch, Washington, D.C). See also Memorandum from the Secretary of Defence, dated 17 January 1997, prohibiting the use of laser weapons ‘specificially designed to cause permanent blindness’, infra p. 595.

15. Such lasers do not qualify as anti-optic lasers but are in fact anti-personnel lasers. Other commentators seem to reject any anti-optical use of lasers and do not exempt lasers capable of incapacitating optical systems, cf. Peters, A., ‘Blinding Laser Weapons’, 18 Loy. L.A. Int'l & Comp. L.J. (1996) p. 733 (at p. 757 et seq.)Google Scholar; Doswald-Beck, loc. cit. n. 5, at p. 314.

16. See the report of the negotiations in Doswald-Beck, loc. cit. n. 5, at p. 316 et seq.

17. See Art. 57 et seq. and Art. 85 et seq. of Additional Protocol I on precautionary measures and criminal charges for violations of these provisions.

18. ‘Where there is an eye-safe solution available today it should replace any older, unsafe system. Not only would this guarantee compliance with the protocol, it would also represent the best practice the industry offers,’ O'Leary, A., Jane's Electro-optic Systems, 3rd edn. (1997) p. 11Google Scholar.

19. For example, the declarations of Australia, Germany, Greece, Ireland, Liechtenstein, Sweden and Switzerland.

20. ICTY, Appeals Chamber, Tadić Case (No. IT-94-1-AR72), Decision on the defence motion for interlocutory appeal on jurisdiction (2 October 1995), reprinted in 16 HRLJ (1995), p. 437 (at 462, para. 119)Google Scholar. See also Turku-Declaration of Minimum Humanitarian Standards, reprinted in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its 45th Session, Commission on Human Rights, 51st Sess., Provisional Agenda Item 19, p. 4, UN-Doc. E/CN.4/1995/116 (1995).

21. See e.g., Cassese, A., ‘Weapons Causing Unnecessary Suffering: Are They Prohibited?’, Rivista di Diritto Internazionale (1975) p. 12 (at p. 40)Google Scholar; Hannikainen, L., Peremptory Norms (1988) p. 701 et seq.Google Scholar; David, E., Principes de droit des conflits armés (1994) p. 273 et seq.Google Scholar; Anderberg, B. & Bring, O., ‘Battlefield Laser Weapons and International Law’, 57 Nordic Journal of International Law (1988) pp. 457469CrossRefGoogle Scholar.

22. For a more detailed analysis of the prohibition of unnecessary suffering as applied to the use of laser systems see Zöckler, M., Das Verbot unnötiger Leiden and der Einsatz personenschädigender Lasersysteme (forthcoming)Google Scholar.

23. This distinction has been reaffirmed in the discussions on blinding laser weapons. See ‘Blinding Weapons under the Laws on Armed Conflict. Working Paper Submitted by the Netherlands’, Doc. CCW/CONF.I/MCIII/WP.1, at p. 6 et seq.