Siting indiscriminacy: India and the global movement to ban landmines - Term paper, research paper & custom essay writing service

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Siting indiscriminacy: India and the global movement to ban landmines

by J. Marshall Beier

In the mid-1990s, a unique confluence of activists, nongovernmental organizations (NGOs), and governments, unprecedented in the history of arms control, took shape as an international movement to ban antipersonnel (AP) landmines. Widely hailed as a triumph of an emergent global civil society, this hitherto unlikely coalition managed in only a few years to first stigmatize AP landmines as a humanitarian scourge and, ultimately, to parlay this re-presentation into a broadly respected ban backed with the force of an international treaty. (1) Since then, the International Campaign to Ban Landmines (ICBL)--a coordinating body through which the mobilizations of NGOs and activists are focused--has continued to work both together with and independent of interested governments to extend the ban and to monitor its implementation. The successes and continuing resonance of the campaign owe much to the generation and propagation of a taboo regarding AP landmines. At the beginning of the 1990s, even Canada, eventually amon g the most strident advocates of a ban, was dismissive of the suggestion that militaries would, should, or could give up their AP landmine stockpiles. But less than a decade later, these once unexceptional weapons, in widespread use for more than a century as "force multipliers" in war and as "sentinels" or deterrents in peacetime, had become so thoroughly stigmatized that states that had declined to accede to the Ottawa Convention were increasingly defensive about their intransigence. Though neither the weapons themselves nor their more insidious effects had changed appreciably, they had been reconstructed in the public mind as a humanitarian scourge. This discursive watershed, perhaps even more so than the key players themselves, is central to a full understanding of the successes of the movement to ban AP landmines, its limitations, and some uncomfortable implications of its rhetorical devices.

Pivotal to the rendering of an AP landmine taboo was the characterization of mines as indiscriminate--that is, the nature of the weapon, designed to lie in wait until triggered by an unsuspecting victim, is such that civilian populations are as vulnerable as combatants, and often more so. By itself this is ample reason to think that the world would be better off without AP landmines. The pursuit of a universal ban, however, left no room for deference to context; the mines themselves were cast as the site(s) of indiscriminacy in case it should otherwise be imagined that they might be employed without ill effect in some instances. To foreclose the possibility of any such notion, AP landmines have been rendered as a humanitarian scourge in an objective sense independent of context. This powerful rhetorical move precludes thinking about ways in which the indiscriminacy attributed to them might be attenuated in order to preserve some measure of legitimacy regarding their use. It thus lends well to the view that a universal ban is requisite, but it accomplishes this by way of an anthropomorphic turn that, as we shall see, imbues AP landmines with agency.

The academic literature on the movement to ban AP landmines is limited. There has been one edited volume (2) and a handful of journal articles. (3) Scattered mentions can also be found embedded in works dealing principally with other issues. In what follows, I hope to stimulate further reflection on the siting of indiscriminacy in rhetorical efforts to extend and, conversely, to resist the AP landmines ban. I consider the issue of agency as brought into focus in assessing whether India might be bound under customary international law to accede to the ban. This is a good vantage point inasmuch as the idea of a binding customary norm turns vitally on the degree to which the central validity claims of the AP landmines taboo can be said to have been accepted by India. Moreover, this case is instructive in light of India's own rhetorical machinations, by dint of which it has sought to have restrictions imposed on the use of AP landmines while preserving certain exemptions for itself - a justificatory feat made wo rkable only by a repositioning of the site of agency. Finally, the Indian case points up some important limitations of the taboo as a mechanism for impelling universal adherence to the ban. Though the successes in broadening the prohibition have been occasioned largely by the ascription of indiscriminacy to AP landmines themselves, the best course for advancing this cause, it will be shown, follows from an acceptance of India's reassignment of agency.

AP Landmines and Customary International Law: The Case of India

Since the signing of the Ottawa Convention by 122 original signatories in December 1997, the coalition of governments and NGOs that brought it about have turned their attention to the problem of securing universal adherence. A number of states, many of them notable as major producers of AP landmines, have, for various reasons, refused to accede to a ban. (4) In some instances, the dissenters have asserted a reserved right to use landmines should they assess some future need; in other cases, actual use is current and ongoing. Although efforts to universalize the ban have concentrated primarily on persuading the holdouts to acquiesce, the already widespread adherence has suggested another course: exploring the possibility that an emergent customary norm of international law banning AP landmines might be binding on some or all of these states. (5) Holding no less authority as international law than formal agreements between parties (and more so in its strongest articulation as a preemptory norm: jus cogens), cu stomary law may derive from behaviors suggesting acceptance of the central validity claims of a norm, notwithstanding that the norm might be violated in practice. Instructive in this regard are the prohibitions against practices such as torture, piracy, and slave trading--in each instance, the authority of a universally compulsory ban owes to widespread expressions of validity giving rise to a preemptory norm of international law. Thus, the basis for a binding norm might be found inherent in customary acceptance of the AP landmines taboo if not of the negotiated ban. What is especially promising about this approach is that it is suggestive of a possible basis on which to extend the obligation to implement the ban to some of the most intransigent nonsignatories, even though they might persist in the actual use of AP landmines.

This builds from an established conception of norm generation that privileges a transgressor's sense that a particular behavior is opinio juris (proscribed) as primary determinant of an obligation to foreswear it--in conventional legal parlance, mens rea (criminal intent or awareness of wrongdoing) is accorded greater significance than actus reus (the proscribed behavior). The bare fact of even sustained transgressions, then, is relegated to a secondary order of importance. From this perspective, a norm proscribing a given practice may be binding when a transgressor demonstrates an acceptance of its central validity claims even though it might persist in violating these same principles. Thus, in a formulation that speaks directly to the issue of a ban on AP landmines, Susan Benesch, Glenn McGrory, Cristina Rodriguez, and Robert Sloane argue that a customary norm of international law may be found to be emergent when states cease to defend certain behaviors, notwithstanding that they may not have discontinued them in practice. (6) Potentially, a binding customary norm of international law compelling adherence to the ban on AP landmines could be found to inhere in disjunctures between a state's rhetoric and its actual practice. A state may thus be bound by a customary norm mandating a ban if, in their official capacities, its functionaries evince an acceptance of the central validity claims of the taboo. And this is so notwithstanding that the state might simultaneously persist in stockpiling or even using AP landmines. However, to the extent that it has consistently denied the central validity claims of the taboo, the state might escape obligation for want of demonstrable custom. (7)

Inasmuch as the movement for a total ban has been highly successful in its efforts to stigmatize AP landmines, the rhetorical stands of objector states have come under considerable pressure not to appear too bellicose from a public relations standpoint. Simultaneously, as Richard Price has observed, there has been a shift in the "burden of proof' regarding the question of the continuing military utility of AP landmines from the advocates of a total ban onto those who would oppose or resist it. (8) States refusing to accede to the ban have thus been put on the moral defensive even as the onus has been placed on them to demonstrate that a military imperative motivates their intransigence; indeed, the latter has been at least partly a function of the former. These developments have made it increasingly difficult for the holdouts to square their rhetoric with their actual conduct and, to the extent that they jockey to share in the new moral high ground associated with the prohibition on AP landmines, they are apt to find themselves bound by some measure of the obligations that accompany it.

As noted above, an important indicator of conditions favorable to the emergence of a customary norm proscribing the use of AP landmines resides in any evidence that a given transgressor state generally upholds the taboo associated with these weapons, and foundational to the taboo is the understanding that AP landmines are a humanitarian scourge due to their indiscriminate nature. The problem, as it has been constructed, is that mines do not distinguish between combatants and noncombatants and, at least so far as those that do not incorporate any self-destruction or self-deactivation safeguards are concerned, (9) they also do not distinguish between wartime and peacetime. These failings are compounded by practices such as remote delivery or "scattering" of mines and by the unfortunate circumstance that, even in the case of mines laid by hand, accurate records are too seldom kept for the purpose of facilitating subsequent demining of affected areas. In short, the taboo associated with AP landmines reflects the premise that they are inherently indiscriminate and that this has had dire human consequences that outweigh any arguable military utility. (10)

In official statements on the issue, India has advanced what amounts to a qualified rejection of the AP landmines taboo. Although consistently indicating that it is committed to measures that would put an end to the dire human consequences that give content to the taboo, India continues to defend its use of AP landmines. It remains committed to the position that a total ban can be achieved only with the development of "nonlethal alternative technologies that can perform cost-effectively" what it regards as "the legitimate defensive role of anti-personnel landmines" and that, in the meantime, "a phased approach will narrow the scope in which landmines can be used only for the defense of borders." (11) The sum of its rhetorical efforts at legitimation hold that India's conduct precludes damage of the sort associated with the taboo. This line of argument amounts to the articulation of a doctrine of "proper" use based on the following principles of conduct: the responsibility for AP landmines is reserved entirely to the army and is not delegated to police or paramilitary forces; use is authorized only to defend borders against hostile incursions, to protect specific locales in border areas, and to prevent enemy troops from easily clearing defensively laid antitank mines; India does not use mines in intemal conflicts; (12) mined areas are clearly marked, detailed maps and records are made of the placement of AP landmines, and these have been exchanged with adversaries on the transfer of territory at the cessation of hostilities for the expressed purpose of aiding the adversaries' subsequent demining efforts; (13) remotely delivered mines are not used because they defy effective marking of mined areas; (14) and India is committed to the principle that those who lay landmines are responsible for clearing them. (15) According to its external affairs ministry, "India's record in the responsible use of antipersonnel landmines has been internationally acknowledged." (16)

In view of these precautions and its claim that they constitute "responsible use," India has not been inclined to accept the argument to relinquish its self-avowed right to produce, stockpile, and use AP landmines. Moreover, and frustrating hopes of finding that it might be bound by a customary norm of international law banning AP landmines, India has been consistent on this point. At the First Review Conference of the Convention on Certain Conventional Weapons (CCW) in 1995, India refused to consider a ban, citing concerns about border defense. (17) On 10 December 1996, India did vote in favor of a United Nations General Assembly (UNGA) resolution calling on all states to work vigorously toward the conclusion of an agreement banning AP landmines. (18) But lest this be mistaken for discontinuity in India's position, it should be noted that the resolution only urged completion of an agreement--it was silent on the substantive content of such an agreement. Indeed, India has always advocated a "phased approach" toward an eventual total ban, but only to the extent that such a program can accommodate what it regards as its "legitimate defense requirements." (19) This position was clearly articulated at a plenary meeting of the Conference on Disarmament in Geneva only a few months after it supported the call for an agreement. (20) Moreover, as soon as more substantive elements began to attach to subsequent resolutions, India's voting pattern changed: in 1997, it abstained in a vote on a UNGA draft resolution entitled "Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction"; (21) in 1998, India abstained in a vote on a subsequent draft resolution of the same title; (22) again in 1998, it abstained in a vote on a UNGA resolution that welcomed the addition of new states signatories to the Ottawa Convention and invited "all states that have not yet done so to sign or, after entry-into-force, to accede to, the convention"; (23) and, in 1999, India abs tained in a vote on .a draft resolution on the implementation of the Ottawa Convention as well as in a UNGA vote to accept the text of the Ottawa Convention that "would urge all States that had signed but not ratified the Convention to ratify it without delay, and invite all States that had not signed the Convention to accede to it without delay." (24) Additionally, in the negotiations over Protocol II of the CCW, India, among others, initially rejected calls for a requirement that nonremotely delivered mines incorporate self-destruction or self-deactivation safeguards; India's reluctance was a function of its long-term reliance on nonremotely delivered AP landmines for the defense of border areas. (25) Finally, in 1998, India joined several other countries in blocking a resolution by the Nonaligned Movement in support of the Ottawa Convention. (26)

Still, as its position implies, India has not been at all reluctant to see some restrictions put on AP landmines and their use. It has, for example, moved unilaterally to impose a moratorium of unlimited duration on the export of landmines and advocates a total ban on their use in internal conflicts. (27) In 1996, India signed the Amended Protocol II of the CCW, which imposed certain restrictions on the use of AP landmines but stopped short of a general prohibition. In August 1999, it ratified the protocol and deposited the instruments of ratification, leaving no doubt as to its continued commitment to the limitations imposed therein. Although it does not go nearly as far as a total ban, the Amended Protocol II does seek to ameliorate, to some extent, the more indiscriminate effects of AP landmine use. Accordingly, India has undertaken to render its stocks of AP landmines detectable and has begun trials of new self-destruction and self-deactivation devices. (28)

It should be emphasized that there is no inherent contradiction in India's endorsement of these sorts of safeguards and restrictions. In fact, the high standards of "proper" use to which it ties the legitimacy of AP landmines in defensive applications are consistent with its support for prohibitions on practices not subjected to the same rigors. The moratorium on transfers seems compatible with India's stance--after all, a wide range of goods are quite regularly prohibited for export by many states because others are not trusted to use them in ways deemed legitimate. And although India's stated desire to see a comprehensive ban implemented at some future time may be read as an indication that it subscribes to the central validity claims of the taboo, by itself it is quite weak evidence of this. This is because India has consistently been clear as to the preconditions for such a ban: that other practical means be found to address its legitimate defensive concerns, a requirement also insisted on by the United States. (29) Inasmuch as no aspect of the ban calls into question the legitimacy of militaries as expressions of the right of states to employ violence, there seems little difference between this position and more general hopes that nonlethal alternatives might be found to replace a host of weapons regularly deployed in the course of defensive provisions undertaken by states. Similarly, India's insistence that AP landmines only be used by militaries in the defense of borders reflects the fact that most military hardware is not regarded as being legitimately usable outside of this context. Here too, so long as the legitimacy of militaries is not called into question, India's position seems quite tenable.

By invoking its high standards, India has, in effect, been arguing that landmines are not indiscriminate when subjected to the rigors of proper use to which it adheres. This is reinforced by clear indications that it does regard less disciplined practices in the use of AP landmines as illegitimate on humanitarian grounds. Evidence of this is found in India's ratification of the Amended Protocol II and its advocacy for a ban on remotely delivered mines. More particularly, in a statement at the First Annual Conference of the States Parties to the Amended Protocol II, Indian ambassador Savitri Kunadi proclaimed that, despite its opposition to a total ban, India was committed to "ameliorating the humanitarian crises that have resulted from ... [the] irresponsible transfer and indiscriminate use of landmines." Especially relevant in the context of India's refusal to disavow its own use of AP landmines, he also called on the international community to "redouble its efforts for mine clearance and transfer of resourc es and technologies so that mines that are actually causing death and destruction are removed." Further, he offered that his country's position was based on "the belief that the true focus should be the protection of civilian life and livelihood from the menace of landmines." Significantly, he cited this latter conviction as the "guiding principle" motivating India's support of the Amended Protocol II. (30)

Ambassador Kunadi's comments echoed those made in 1995 by H. E. Arundhati Ghose, India's permanent representative at the UN office in Geneva, who proffered that "the true focus of our efforts here should be the civilian whose life and livelihood must be protected from the menace of landmines." Moreover, he continued, "the only answer to the land mine problem, from this standpoint, lies in attacking the basic causes for the exposure of civilians to this danger." After citing the use of landmines in internal conflicts as one such "basic cause" and reiterating that "use of anti-personnel landmines should only be permitted for long term defense of borders, perimeters and peripheries of states," Ambassador Ghose outlined the rudiments of a doctrine of proper use:

We have succeeded in ensuring that henceforth all anti-personnel landmines which do not possess self-destructing and self-deactivating mechanisms will be used within a perimeter marked area that is monitored by military personnel and protected by fencing or other means, to ensure the effective exclusion of civilians. In our view, these are fairly rigorous restrictions on the use of detectable long-lived emplaced mines. However, as we all know, remotely delivered mines with or without self-destruct mechanisms can neither be accurately perimetered nor can accurate maps be made about their deployment. And more and more mines being produced today are remotely delivered mines. This is why the Indian delegation has consistently called for a complete ban on the use of remotely delivered mines. Mere technical fixes relating to self-destruction or self-deactivation are not enough for every live remotely delivered mine will claim an innocent victim. What is needed is resolute political will to prohibit the use of these weapons. (31)

Apart from its illustration--vis-a-vis Ambassador Kunadi's remarks more than four years later--of the continuity in India's position over time, (32) this earlier text also highlights India's rejection of the central validity claims of the taboo. The invocation of elements of a doctrine of proper use, the explicitly expressed purpose of which is to secure civilians from harm, follows directly from the declaration that the threat to civilian life and livelihood" is the scourge to be eradicated. (33) The consistency in India's position resides in the fact that it does not accept the rendering of AP landmines as the referent object of the taboo, as agents of dire human consequences. What India seems to regard as taboo, then, is not the use of AP landmines per se, but particular practices that it views as the true source of indiscriminacy. When viewed from this perspective, the mines themselves are not inherently indiscriminate and, significantly, they are divested of rhetorical agency.

India's rhetorical solution to the shift of the burden of proof identified by Price has thus been to shift the referent object of the taboo in response. Landmines, by this logic, are not illegitimate-only such practices as result in dire human consequences. This makes for a very convincing argument, and one with ample precedent in both statutory and customary law. If India has been successful in implementing measures that guarantee that the only potential victims of the landmines it implants are invaders, it is difficult to find fault with its claim that this constitutes legitimate use. It also marks it apart from a central validity claim of the general taboo: the notion of landmines as inherently indiscriminate and, consequently, a humanitarian scourge. Moreover, there is actually room to argue that India's use of AP landmines may be a relatively humane alternative to other available means of border defense since its standards of practice dictate that mined areas be clearly marked, thus affording even invaders the opportunity to avoid them.

All of this, however, leaves little basis on which to find that a customary norm banning AP landmines is emergent in the Indian context, much less binding. This is not to preclude the possibility that as yet unforeseen changes in terms of opinio juris may precipitate the future applicability of such a norm. But, for the present, circumstances do not recommend this as a course by which India might be obliged to accede to the ban. Furthermore, advocates of a comprehensive ban might be well advised to resist arguing that such norm-derived obligations are binding on India since they clearly do not fit well and might weaken the credibility of the case in contexts where it is more relevant and appropriate.

An Alternate Route Toward an Indian Ban

India's justificatory rhetoric has been remarkably consistent and, at least on the face if it, seems quite convincing. However, the price of its rhetorical persuasiveness is a standard of conduct in the use of AP landmines that appears to be so impracticably high that the legitimacy of its rejection of the ban might not be sustainable. Though, in the end, it precisely follows neither the approach of seeking India's assent to the instruments of the voluntary ban nor the course that would implicate it in a binding customary norm of international law proscribing AP landmines, the foregoing analysis nevertheless reveals a potentially compelling basis on which to argue that India is obligated to reverse its stand. If India stakes the legitimacy of its use of AP landmines on the notion that its particular practices in this regard preclude dire human consequences, then it has implicitly acknowledged the illegitimacy of usages of AP landmines that do have such consequences. This is quite clearly borne out in official expressions of its position, perhaps most explicitly in the remarks by Ambassadors Ghose and Kunadi. The means by which India has sought to legitimize its own use of AP landmines as against the illegitimacy of improper use makes for a very convincing case at first, but one that may be enormously difficult-if not altogether impossible-to live up to.

The whole case for legitimacy turns on the argument that India uses AP landmines in humanitarianly sound ways and that this renders them legitimate in this context. This logic responds to the characterization of AP landmines as a humanitarian scourge and advances the argument that India's practices do not give rise to dire human consequences--that is, only invaders are endangered. The basis for an exemption from an emergent norm banning AP landmine use might reside in India's apparent "persistent objector" status. But India has itself qualified this position, basing it on a re-siting of indiscriminacy so as not to legitimize the use of mines and improvised explosive devices by local insurgents. A promising issue on which to focus further research, then, is the extent to which even the "proper" use of AP landmines by India can rightly be understood as a humanitarian scourge. If use by India can be shown to have dire human consequences in spite of its best efforts and intentions, its own justificatory rhetoric , ironically, manifests as the basis on which to challenge the legitimacy of its conduct. In raising the rhetorical threshold of acceptable conduct, India has simultaneously raised the standard according to which actual conduct, however responsibly conceived, can be judged acceptable--the absence of dire consequences that affect the lives and livelihoods of civilians becomes requisite to sustaining legitimacy. That the most conscientiously conceived of precautions may have been undertaken to safeguard the well-being of civilians from harm by AP landmines is made entirely inconsequential if they fail to do so. This is so because India has freed the mines from the rhetorical responsibility implied by the general taboo, staking the legitimacy of its refusal to accede to the ban solely on its own professed ability to use them without dire human consequences.

In official statements, it is consistently indiscriminate use that is identified as the source of the scourge from India's perspective. (34) In shifting the referent object of the central validity claims of the taboo, India has transformed indiscriminacy from an inherent and impersonal feature of AP landmines themselves into a condition resulting from attributable acts or omissions on the part of states that would use them. As a result, an issue of agency is introduced where it was not found before, and with it moral liability. The fact that the general ban on AP landmines does not seek to delegitimize state usages of violence through their militaries means that, in this instance, it is an inherently "bad" weapon that needs to be eradicated. Were it otherwise, it would hardly make sense to condemn AP landmines in isolation from other instruments of violence, to say nothing of those who would employ them. If there is an agent of the dire human consequences attributed to AP landmines by way of the general tabo o, then, it is in the form of a fatal flaw in the weapons themselves that makes their effects intolerably indiscriminate. India's justificatory rhetoric, however, absolves AP landmines of this charge and places responsibility for indiscriminacy squarely on those who (mis)use them. This legitimizes the weapon but leaves no room for India to escape culpability for any dire human consequences that may arise from its (mis)use. It is thus that even accidents become instances in which the reconstituted taboo has been violated and for which the state cannot be absolved of its moral liability. Such is the precarious foundation for avoidance of an obligation under customary law to accede to the ban.

To date, no comprehensive survey of the effects of AP landmines in border areas in India is available. There is, nevertheless, a fair amount of evidence to suggest that government-laid mines have not been as benign in their effects on civilians as the rhetorical defense mounted on their behalf would have it. Dipankar Banerjee and Mallika Joseph point out that the ad hoc demands of war sometimes do not lend well to proper marking and mapping of minefields and suggest that the idea of responsible use has led India to underestimate the potential for dire consequences from its use of AP landmines in a future war. (35) Other effects might be more immediate. Civilians may, for example, be compelled by economic necessity to risk death or injury to retrieve livestock, which are not at all dissuaded by warning signs. Indeed, civilians in border villages fall victim to mines even when they are marked with warning signs in local languages; although mines and improvised explosive devices laid by insurgents are a much la rger problem, reports that touch on the issue of civilian casualties caused by government-laid mines in border areas can also be found in media dispatches. (36) Of course, the most accurately detailed minefield maps are useless in instances where rain or shifting snow causes even anchored mines to "drift" out of place. (37) Still, India maintains that it "is not a mine afflicted country." (38) But despite this claim, research into the extent of the dire consequences suffered by civilians in border areas as a result of government-laid AP landmines may be the most promising avenue by which India's obligation to accede to the ban might be established--an obligation that would have the virtue of having been forged in terms of India's own making.

The fact that India does live up to the practices of what it may deem to be proper use is inconsequential if those practices do not meet the standards laid out to characterize them as proper in the first place. That dire human consequences might be counter to India's best designs and intentions is also irrelevant; the whole premise of the general taboo is precisely that landmines are indiscriminate and India has based the legitimacy of its use of them on the counterclaim that its practices mean that its mines, in effect, do discriminate. The important value-based commitment that India has accepted and that should bind it, then, is not a ban on the use of landmines, but a ban on the dire human consequences of landmine use. That this is a position that India has been keen to propagate is also noteworthy, since reasonably wide acceptance would give rise to a customary norm. If India's practices can be shown to be at all unequal to this rigid standard, then, it will have violated a principle that it has both rea ffirmed and sought to elevate to (and can thus be assumed to regard as) a norm: that dire human consequences wrought by AP landmines are indefensible. And having put all of its rhetorical eggs in one basket, as it were, India would also be left without a basis to defend its rejection of the central validity claims of the broader ban. This is in consequence of its straddling stand on the issue by way of which it has endeavored to characterize the indiscriminate uses of AP landmines by some actors (notably, insurgency groups within India) as illegitimate. In so doing, it has marked out its acceptance of the very standards of illegitimacy by which its own practices may be indicted.

Conclusion: Embracing the Rhetorical Turn

Perhaps the most striking implication of the siting of indiscriminacy and the concomitant siting of agency in the general taboo is that responsibility for dire human consequences falls on landmines themselves, not on those who laid them. This unfortunate logic is consistent with the fact that the movement to ban landmines has not fundamentally challenged the legitimacy of violence committed by states through their militaries. (39) This has resulted in what amounts to a general moral amnesty for those states that have acceded to the ban; the consequences of their past practices using "indiscriminate" AP landmines are blamed on the instruments rather than the architects. Moreover, the construction of AP landmines as an objective scourge actually renders these very states victims of a sort to the extent that they now share in the view that these "bad" weapons have somehow subverted their best designs and intentions. Now they too have been freed from the scourge of AP landmines, though they may, even as they st ake out a place on the new moral high ground of the prohibition, continue to menace the lives and livelihoods of civilians in other frightening ways.

This bizarre situation is born directly of the fact that the referent object of the general taboo is the weapon itself, not the tragic effects it has on civilian populations. This is certainly not to say, however, that dire human consequences have not been a concern of the movement to ban landmines. On the contrary, the dedicated people who have worked so hard and to such great effect to rid the world of AP landmines have been motivated by a sincere desire to see an end to the suffering with which these weapons have become virtually synonymous. In practice, however, the strategy has been to cast landmines as a humanitarian scourge, as indiscriminate, and by extension, as agents. Of course, the successes of the ban movement owe much to this disaggregation of landmines from other means of state violence and, to be sure, from issues of state responsibility. It is quite unlikely, after all, that there would be a great many signatories to the Ottawa Convention if it significantly hamstrung military conduct more b roadly or raised the specter of state liability. But in spite of whatever practical necessity may have recommended such an approach, the inference is that landmines are the cause of this carnage, not those who implanted them.

The Indian case points up these implications and the practical limitations to which they give rise. Upon destabilizing the claim that AP landmines are inherently indiscriminate, India has divested the taboo of substance and called into question the logic underwriting the ban. This enables a rendering of landmines as a wholly legitimate part of the arsenals of states. So long as we accept the legitimacy of the use of deadly force by the state, it is difficult to argue with India's protestations to this effect--at least within the terms of the general taboo. The prevailing rhetorical siting of indicriminacy (that is, landmines are indiscriminate and, by extension, have agency) has been very well suited to advancing the ban to this point but may have outlived its usefulness once it runs up against a re-siting of agency/indiscriminacy such as India has done. But India may have done the ban movement a considerable service in shifting indiscriminacy from landmines to certain practices associated with them and shif ting agency from landmines to those who use them. The former construction (the general taboo) was most effective for the purposes of convincing the states that have voluntarily signed on to the ban to do so; the latter (India's reconstituted taboo) may be much more appropriate if the task at hand now is compelling the holdouts to acquiesce.

In the end, India's rhetoric is virtually unimpeachable except, ironically, on its own terms--it is itself the author of the very standards by which the legitimacy of its use of AP landmines is called into question. But its transformation of the taboo from indiscriminate landmines to landmines used indiscriminately signals more than that an alternate approach is in order to impel India's acquiescence to the ban. It also alerts us to some unwelcome implications of the rhetoric thus far deployed in furtherance of the aims of the movement to ban landmines. These compromises were arguably worthwhile so long as they aided in persuading states to voluntarily accede. Now that the course that necessitated them appears to be reaching its limits, however, they might be judged rather less sympathetically. If the foregoing analysis, like India's response to the call for a universal ban on AP landmines, unsettles prevailing sitings of agency and indiscriminacy, it also suggests that it might be time for the movement to b an landmines to undergo a conceptual retooling. The general taboo does not lend well to a prohibition on other state exercises of violence affecting civilian populations, so that one is left to wonder where we would go from a total ban on landmines. India's reconstituted taboo, though, holds considerable promise as the basis of a norm proscribing a range of state behaviors imperiling the well-being of civilians. Having convinced those states that seem susceptible of being convinced, the movement can now afford to reprivilege dire human consequences--the referent that induced its adherents to work toward a ban in the first place--as the referent object of the taboo. Indeed, as this course may be better suited to responding to key intransigents like India, we might reasonably conclude that it can ill afford not to.

Notes

(1.) Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, commonly referred to as the Ottawa Convention.

(2.) Maxwell A. Cameron, Robert J. Lawson, and Brian W. Tomlin, eds., To Walk Without Fear: The Global Movement to Ban Landmines (Toronto: Oxford University Press, 1998).

(3.) The journal Canadian Foreign Policy dedicated its spring 1998 issue to the subject. Elsewhere, a few solitary articles can be found in journals across a range of academic disciplines.

(4.) These include China, India, Russia, and the United States-all of them conspicuous non-signatories.

(5.) For an analysis of the potential for a proscriptive norm arising from the emergent taboo regarding AP landmines in the 1990s, see Richard Price, "Compliance with International Norms and the Mines Taboo," in Cameron, Lawson, and Tomlin, To Walk Without Fear.

(6.) See Susan Benesche, Glenn McGrory, Cristina Rodriguez, and Robert Sloane, "International Customary Law and Antipersonnel Landmines: Emergence of a New Customary Norm," in International Campaign to Ban Landmines, Landmine Monitor Report 1999: Toward a Mine-Free World (New York: Human Rights Watch, 1999), p. 1027.

(7.) The applicable standard under international law turns on whether the state in question might be regarded as a "persistent objector"--a principle that might warrant an exemption even from jus cogens norms. See G. M. Danilenko, Law-Making in the International Community (Dordrecht: M. Nijhoff, 1993).

(8.) See Richard Price, "Reversing the Gun Sights: Transnational Civil Society Targets Land Mines," International Organization 52, no. 3 (summer 1998): 631-637.

(9.) The vast majority of the AP landmines laid and stockpiled around the world incorporate no such safeguards. In any event, this addresses only the temporal dimension of their indiscriminate nature.

(10.) See, for example, Centers for Disease Control and Prevention, "Landmine-Related Injuries, 1993-1996," JAMA, The Journal of the American Medical Association 278, no. 8 (27 August 1997): 621; Mary H. Cooper, "Banning Land Mines: Should the U.S. Support a Total Global Ban?" CQ Researcher 7, no. 30 (8 August 1997): 699--716; Anita Parlow notes that most victims of landmines are "poor farmers, women, or often children who are collecting firewood, tending cattle, or gathering food in an area that was previously a battleground." Anita Parlow, "Banning Land Mines," Human Rights Quarterly 16, no. 4 (November 1994): 718-719.

(11.) India, Permanent Mission of India to the United Nations Office, Geneva, "Statement by Ambassador Savitri Kunadi, Permanent Representative of India, in the First Annual Conference of the States Parties to the Amended Protocol-II 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," Geneva, 15 December 1999.

(12.) Dipankar Banerjee and Mallika Joseph, Anti-Personnel Landmines: A South Asian Regional Survey (New Delhi: 1999), pp. 20-21; Balkrishna Kurvey, "India," in International Campaign to Ban Landmines, Landmine Monitor Report 1999, p. 468.

(13.) International Committee of the Red Cross, Anti-Personnel Landmines: Friend or Foe? (Geneva: International Committee of the Red Cross, 1996).

(14.) As early as the fall 1995 Review Conference of the Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (Convention on Certain Conventional Weapons - CCW), India called for a ban on remotely delivered mines but was forced by a lack of support to amend this position into a call for restrictions. Alicia H. Petrarca, "An Impetus of Human Wreckage? The 1996 Amended Landmine Protocol," California Western International Law Journal 27, no. 1 (fall 1996): 229.

(15.) See, for example, India, Permanent Mission of India to the United Nations Office, Geneva, 1999.

(16.) India, Ministry of External Affairs, Annual Report 199 7-98, p. 92.

(17.) Andrew C. S. Efaw, "The United States Refusal to Ban Landmines: The Intersection Between Tactics, Strategy, Policy, and International Law," Military Law Review 159 (March 1999): 101; Sarah Walkling, "First CCW Review Conference Ends in Discord Over Landmines," Arms Control Today 25, no. 9 (November 1995): 26.

(18.) Noel Stott and Alex Vines, The Non-Aligned Movement (NAM) and the Global Campaign Against Anti-Personnel Landmines (Braamfontein: South African Campaign to Ban Landmines, 1998), P. 7.

(19.) India, Permanent Mission of India to the United Nations Office, Geneva, 1999; India, Ministry of Defense, Annual Report 1997--98, p. 6.

(20.) Tani Freedman, "India Eases Stance on Landmines in Geneva Talks," Agence France-Presse, 22 May 1997. Similar statements of this position have followed in other forums. See, for example, "Excerpts from the Statement by Mr. Sharad Pawar, Leader of the Opposition in Parliament and Leader of the Indian Delegation, at the General Debate of First Committee of the United Nations in New York on October 14, 1998," India News 29/98 (26 October 1998), available online at http://docuweb.ca/India/news/9810.html, accessed 20 March 2000. See also India, Permanent Mission of India to the United Nations Office, Geneva, 1999.

(21.) UN document A/RES/52/38A. India's representative gave a statement in which he indicated that he had abstained in the vote on the draft resolution because, while India supported an eventual ban on AP landmines, it favored a phased approach that took account of the defensive requirements of states. He also indicated that the development of alternative nonlethal technologies could accelerate this process; United Nations press release, 12 November 1997, UN document GA/DIS/3097.

(22.) UN document A/RES/53/77N.

(23.) International Committee to Ban Landmines, "UNGA Resolution AC.1/53/L.33," 20 November 1998, available online at http://www.icbl.orgl prerelease/1998/nov20a.htm, accessed 10 April 2000. In explaining her country's abstention, the representative of India reiterated the commitment to a "non-discriminatory and universal ban" and cited border defense as a legitimate security concern of some states. United Nations press release, 2 November 1998, UN document GA/DIS/3 128.

(24.) The representative of India identified a continuing commitment to a "non-discriminatory and universal ban" and also cited the requirements of border defense and the prerequisite of the development of nonlethal technologies before a total ban. United Nations press release, 8 November 1999, UN document GA/DIS/3 162.

(25.) Michael J. Matheson, "Current Development: The Revision of the Mines Protocol," American Journal of International Law 91 (January 1997): 159; Yvette Politis, "The Regulation of An Invisible Enemy: The International Community's Response to Land Mine Proliferation," Boston College International and Comparative Law Review 22, no. 2 (spring 1999): 479.

(26.) International Committee to Ban Landmines press release, "Five NAM Members Block Landmine Ban Resolution," 3 September 1998.

(27.) India, Permanent Mission of India to the United Nations Office, Geneva, 1999.

(28.) Ibid.

(29.) See George K. Walker, "Anticipatory Collective Self-Defense in the Charter Era: What the Treaties Have Said," Cornell International Law Journal 31, no. 2 (1998): note 341; Michael J. Matheson, "The Twelfth Waldemar A. Solf Lecture in International Law," Military Law Review 161 (September 1999): 192.

(30.) India, Permanent Mission of India to the United Nations Office, Geneva, 1999.

(31.) India, Permanent Mission of India to the United Nations Office, Geneva, "Statement by H. E. Arundhati Ghose, Permanent Representative of India to the UN Office in Geneva, at the Review Conference on the Inhumane Weapons Convention," Geneva, 26 September 1995.

(32.) A circumstance that is not favorable to the idea of a binding proscriptive norm.

(33.) This connection is also made in a now familiar-sounding statement issued by the Indian High Commission in Canada: "Given the casualties resulting from the indiscriminate use of anti-personnel landmines (APLs), India's position on APLs has been governed by the belief that the true focus of our efforts should be the civilian, whose life and livelihood must be protected from the menace of landmines." India, Indian High Commission in Canada, "India's Stand on Anti-Personnel Landmines Issue," 4 October 1999, available online at http://www.docuweb.ca/India/news/misc/991004.html, accessed 1 May 2000.

(34.) See, for example, India, Permanent Mission of India to the United Nations Office Geneva (1995); India, Ministry of Defense; India, Ministry of External Affairs; India, Permanent Mission of India to the United Nations Office, Geneva, 1999.

(35.) Banerjee and Joseph, Anti-Personnel Landrnines, pp. 31-33.

(36.) "Army to Provide Artificial Limbs: 25 Lose Limbs in Kupuwara Landmine Explosions," Kashmir Times, 9 August 1997.

(37.) See Balkrishna Kurvey, "India," in International Campaign to Ban Landmines, Landmine Monitor Report 2000: Toward a Mine-Free World (New York: Human Rights Watch, 2000), p. 493; Kurvey, "India," p. 468.

(38.) India, Permanent Mission of India to the United Nations Office, Geneva, 1999); Kurvey, "India," p. 492.

(39.) See J. Marshall Beier and Ann Denholm Crosby, "Harnessing Change for Continuity: The Play of Political and Economic Forces Behind the Ottawa Process," in Cameron, Lawson, and Tomlin, To Walk Without Fear.

J. Marshall Beier is associate director of York University's Centre for International and Security Studies and assistant professor of political science at McMaster University.

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