 Disarmament Diplomacy
Issue No. 85, Summer 2007
The Road from Oslo: Emerging International Efforts on Cluster
Munitions
John Borrie
"There is no longer any doubt that the use of cluster
munitions causes untold human suffering. Unless progress is made in
the efforts to establish an international, legal instrument
regulating the use of cluster munitions, these heinous weapons may
become an even greater humanitarian problem than anti-personnel
mines used to be."
Jonas Gahr Støre, Norwegian Foreign Minister[1]
On February 23, 2007, 46 countries made an historic declaration
at a conference in the snow-covered hills above Oslo in Norway. The
Oslo Declaration contained commitments to complete an international
treaty by the end of 2008 to "prohibit the use, production,
transfer and stockpiling of cluster munitions that cause
unacceptable harm to civilians" and to "establish a framework for
cooperation and assistance that ensures adequate provision of care
and rehabilitation to survivors and their communities, clearance of
contaminated areas, risk education and destruction of stockpiles of
prohibited cluster munitions."[2]
Only one year earlier, such collective resolve on cluster bombs
was very hard to envisage. Belgium's parliament, conscious of the
moral leadership it had shown in banning anti-personnel mines more
than a decade before, passed a national law prohibiting cluster
munitions in February 2006.[3]
But it was alone. The only multilateral forum at that time talking
about cluster munitions was the UN Convention on Certain
Conventional Weapons (CCW), also known as the Inhumane Weapons
Convention. Little progress had been made toward cluster
munition-specific measures in the CCW's work since it adopted
commitments in 2001 on explosive remnants of war (ERW), and there
was no certainty that they would even remain on its official agenda
beyond 2006.[4]
What changed? What does the Oslo Declaration mean, and what
comes next? Does the Oslo Conference mark the beginning of another
"Ottawa process" - as some are proclaiming and others fear - which
a decade ago achieved a treaty banning anti-personnel mines? First,
however, what humanitarian problems do cluster munitions cause, and
what are the big political issues in dealing with them?
What are cluster munitions, and what's the problem?
While there is no universally accepted definition, it is
generally recognized that a cluster munition is a container or
dispenser from which explosive submunitions (also called bomblets)
are scattered. These bomblets are generally the dangerous parts of
a cluster munition because they explode on impact or after
time-delay and cause damage through blast and fragmentation. These
explosive submunitions can be delivered from aircraft or, as seems
increasingly the case, be surface-launched: besides artillery
shells containing submunitions, systems are also used that deploy
from rockets or mortar shells. The bomblets can become widely
dispersed, and may accumulate over a significant area, remaining in
streets, ditches, bombed buildings or agricultural lands. Sometimes
cluster munitions can fail to dispense their cargo of bomblets,
which poses a different kind of hazard.
Militaries with cluster munitions have put forward a variety of
reasons for their use. For example, the United States Air Force, in
its legal manual, notes: "Cluster bombs, or CBUs [Cluster Bomb
Units], are used to attack area targets such as concentrations of
military personnel, vehicles or armour. Among other things, the use
of cluster munitions reduces the risks to aircrews and equipment by
reducing the number of sorties required to effectively attack such
military objectives."[5] A
British working paper for the CCW in 2005 was notably blunt,
acknowledging that the purpose of cluster munitions was to release
"a number of bomblets onto the battlefield to cause the
destruction, neutralization or suppression of personnel or
materiel."[6]
Cluster munitions were originally invented during the Second
World War to break up concentrations of armoured vehicles and
infantry. However, right from the start they have posed
considerable risk to civilians. In 1943, for example, the German
Luftwaffe dropped SD-2 submunitions (referred to as
"butterfly bombs") on the British port of Grimsby. Only about
one-quarter of the thousand or so submunitions that had been
dropped exploded on impact or even within half an hour. These
killed 14 people and caused numerous fires. The majority of the
bomblets lay unexploded on roads and roofs and caught in trees and
hedges. Another 31 people were killed and many more injured within
an hour of air raid "all clear" signals as they interacted with
these unexploded bomblets. Despite immediate action by the
authorities it took more than 10,000 hours of work over the next 18
days to clear the submunitions and re-open the port.[7]
Later, both NATO and Warsaw Pact forces continued to develop
cluster munitions during the Cold War as part of preparations to
settle the desperate battle widely predicted to occur on the German
plains if war broke out. Matters never came to that. Instead,
because they were in arsenals, cluster munitions were used in a
wide variety of roles other than as the intended last-ditch weapons
in environments where concentrations of civilians were not expected
to be present. On the contrary, huge numbers of explosive
submunitions were dropped by American-led forces on civilian
villages, fields and in the jungle of South-East Asia in the 1960s
and 1970s to try to stem the flow of military aid to North Viet
Nam. The Soviets used cluster munitions on a wide scale in
Afghanistan in the 1980s, and since then Western forces have also
deployed these weapons there, especially as part of air strikes in
late 2001.
American-led forces made extensive use of the ground-launched
Multiple Launch Rocket System (MLRS) in both Iraq Wars in 1991 and
2003. The MLRS, often referred to by soldiers as the "grid-square
remover" because of its ability to obliterate entire areas
designated on a targeting map, deploys a volley of rockets from the
back of a truck, each rocket containing hundreds of explosive
submunitions.[8] Cluster
munitions have also been used elsewhere including in Chechnya,
Kosovo, Eritrea and Ethiopia, as well as in Southern Lebanon during
the summer of 2006. Consequently, their effects have become cause
for growing humanitarian concern.[9] Today, 75 countries are believed to stockpile
cluster munitions, and 34 states are known to have produced them.[10]
Although there is not space here to explore the humanitarian
consequences of cluster munitions use in detail, the hazards to and
effects on civilians are increasingly well documented.[11] Cluster bombs create humanitarian
problems in two ways: at time of use, and after use. This is
because of the wide-area dispersal of cluster munitions, and the
inaccuracy and unreliability of their explosive submunitions.
Unlike anti-personnel mines, cluster munitions are not
inherently indiscriminate. In line with their ostensible
purpose, however, cluster munitions have a wide-area effect that
can make them difficult to target accurately, for instance to avoid
concentrations of civilians in the vicinity. Moreover, in practice,
cluster munitions appear to be often used deliberately in the
vicinity of civilians, as the conflicts in Iraq and Southern
Lebanon showed, in ways that are at best questionable under
existing international humanitarian law.
Furthermore, explosive submunitions frequently fail to function
as intended, becoming de facto landmines, a post-conflict
hazard to anyone - civilian or soldier - encountering them. Of
course, all unexploded ordnance is hazardous. But explosive
submunitions are particularly nasty for civilians because they are
by nature deployed in such very large numbers and are highly
unstable when they fail. Moreover, submunitions are usually small
(often the size of a D-cell battery). Unlike anti-personnel mines,
they often kill rather than maim, and - even worse - are
inadvertently tempting to children because of their toy-like
appearance.
Humanitarian mine action programmes have been dealing with
unexploded submunitions for decades. For instance, in mine
clearance, all unexploded ordnance must be dealt with in
order to return land to safe use. Mine risk education deals with
landmines and unexploded ordnance like submunitions. And
survivor assistance programmes, where they exist, do not
discriminate between those injured by anti-personnel mines and
those injured by other ERW. Until recently, however, there was
little recognition among governments with cluster munitions that
explosive submunitions pose special hazards to civilians compared
to other forms of ERW, or that they pose heightened risk to
deminers. But things have changed, and it is to that growing
recognition that we now turn.
Things have changed
If the problems illustrated by the 1943 Grimsby attack were a
warning of the shape of things to come, it was largely ignored
until the early 1970s, when concern about cluster bomb effects on
civilians in South-East Asia emerged. This and related concerns
about the longer-term impact of that conflict eventually led to a
new protocol to the Geneva Conventions on the protection of victims
of international armed conflicts in 1977.[12]
These concerns also contributed to the establishment of rules
for specific weapon systems by means of the CCW in 1980. But they
did not result in explicit CCW rules on cluster munitions. Despite
sporadic discussion among governments, little more happened on the
issue until the late 1990s. Then, growing awareness about the
humanitarian impact of unexploded ordnance, particularly after use
of cluster munitions in Kosovo in 1999, became a catalyst for
re-engagement in the CCW.[13]
By then, the CCW was in a receptive mood. Widespread
international disappointment at the weak outcome of amendment
negotiations to CCW Protocol II on mines and booby traps in 1996
had contributed to emergence of a freestanding negotiation, the
so-called 'Ottawa Process', outside the UN system and orthodox
negotiating rules, which resulted in the Anti-Personnel Mine Ban
Convention in 1997. The Ottawa Process was inclusive of civil
society actors, especially deminers and victim assistance personnel
from the field. Besides being more focussed on humanitarian effects
of anti-personnel mines than their military utility, the Ottawa
Process was novel in that a self-selecting core group of small and
medium sized donor and affected states propelled it - very
different from the technically oriented CCW in which big military
powers were predominant. So, during the preparatory stages for the
second CCW review conference in late 2001 there was a feeling among
member states that the CCW's credibility was on the line. This
served to focus minds among national delegations and encourage
flexibility. Pressure from civil society and the ICRC also built,
especially as work on Mine Ban Convention implementation raised
overall awareness of the humanitarian problems caused by other
types of unexploded ordnance.[14]
The CCW review meeting in late 2001 agreed to set up a Group of
Governmental Experts (GGE) to work on "ways and means to address"
explosive remnants of war, among other issues. No specific
subsequent provision was made to look at cluster munitions, apart
from discussing "technical improvements and other means for
relevant types of munitions, including submunitions, which could
reduce the risk of such munitions becoming ERW".[15] Nevertheless, these efforts resulted in
agreement of a new, legally binding protocol on ERW in November
2003 - CCW Protocol V. This new protocol dealt with the
post-conflict effects of ERW and, among its provisions, contained
rules for information exchange between parties to a conflict,
marking and fencing of hazardous areas, and possible assistance and
cooperation between parties to the agreement.[16]
While Protocol V's generic measures captured some post-conflict
aspects of the humanitarian problems created by unexploded
submunitions, it contained no measures specific to them, despite
their particular hazard to civilians. It did not deal with problems
created by cluster munitions at time of use, like issues associated
with targeting. Nor is Protocol V, which entered into force in
November 2006, necessarily retroactive in application: its
provisions on areas already affected by unexploded submunitions and
other ERW prior to that time are only voluntary.
After 2003, it became increasingly apparent to nongovernmental
organizations (NGOs) and countries in the CCW process that generic
measures on post-conflict ERW effects had been the low-hanging
fruit among the issues in its 2001 work mandate. Efforts in the CCW
to agree on further modest measures to improve the detectability of
anti-vehicle mines (euphemistically described as "mines other than
anti-personnel mines" in the CCW) were resisted by China, Russia
and others. Meanwhile, a number of cluster munition-users like the
United States insisted that existing international humanitarian law
rules were adequate to deal with this weapon despite mounting
evidence to the contrary. Instead, the United States outlined
technical improvements to elements of its own arsenal in order to
improve explosive submunition reliability - encouraging others to
follow its example. Notably, it presented no evidence as to how
this could be measured realistically and so be sure to reduce
hazard in real terms. Meanwhile, many cluster-munition stockpilers
from the developing world were opposed to such measures becoming
adopted as general standards, allegedly on cost grounds.
As mentioned above, Belgium passed national legislation to ban
cluster munitions in early 2006, and a number of countries in the
CCW became increasingly vocal in calling for the humanitarian
problems associated with these weapons to be addressed. Even so,
the signs were not promising by the middle of 2006 that cluster
munitions would even garner much attention at the CCW's November
review meeting despite these and other efforts by the ICRC and
NGOs. This changed, when Israel launched a 34-day military campaign
against Hezbollah in Southern Lebanon.[17]
Between July 12 and August 14, Israel fired as many as four
million explosive submunitions into villages, farms and orchards in
Southern Lebanon. According to UN estimates, up to one million
items of unexploded submunitions were left on the ground.[18] The purpose of such massive use
of cluster munitions is unclear, particularly since much of it was
used in the last three days prior to the ceasefire, and appears to
have had no recognizable link with legitimate military strategy.[19]
According to research by the British NGO Landmine Action, about
60 per cent of Israeli cluster strikes hit built-up populated
areas. Many Israeli submunitions were more than thirty years old,
which made them especially unreliable. Some newer Israeli explosive
submunitions incorporated a self-destruct mechanism, but these
often failed to work, which meant they could persist as hazardous
duds. Cluster munition strikes were recorded in more than 90 towns
and villages; as of September 5 2006, civilian casualties during
the first month after the ceasefire were recorded at between three
and four per day on average. Contamination was massive and remains
a problem almost a year later. The unexploded bomblets have
endangered returning populations and even prevented some Lebanese
from returning home. For others, putting their lives and homes back
together, harvesting their crops, resuming their livelihoods and
even providing their children safe places to play have all been
made more hazardous.[20]
There is also evidence that Hezbollah deployed cluster munitions
among the weapons it targeted at Israeli civilians.[21] As cluster bombs can scatter
explosive submunitions in such large numbers, their proliferation
to armed non-state groups raises the prospect of the disruption of
humanitarian relief efforts and perhaps the deliberate use of these
weapons against civilians for terror purposes.
Too little, too late in the CCW?
The conflict in Southern Lebanon provided irrefutable evidence
that cluster munitions, even when used by a professionally trained
army intimately familiar with international humanitarian law
requirements, are deeply problematic weapons in terms of their
impact on civilians. The aftermath of this conflict moved cluster
munitions to centre stage in the CCW. Many countries, with
encouragement from the ICRC and the Cluster Munition Coalition
(CMC) - a group of NGOs in the mold of the International Campaign
to Ban Landmines - pressed their wish for a negotiating mandate to
deal with the humanitarian effects of cluster bombs.[22]
Referring to their "atrocious, inhumane effects", UN
Secretary-General Kofi Annan called on CCW member states to freeze
the use of cluster munitions against military assets located in or
near populated areas, to stop transferring cluster munitions known
to be inaccurate or unreliable and to dispose of them. Also, he
asked states to develop technical requirements for new weapons in
order to reduce their risk to civilian populations.[23]
There are four principal international humanitarian law rules
relevant to the use of cluster munitions: the rule of distinction,
the rule against indiscriminate attack, the rule of proportionality
and the rule on feasible precautions. An ICRC legal expert noted
that cluster munitions "raise important concerns under all of these
rules."[24]
Discussions in the CCW between 2004 and 2006 had become
increasingly divided. Some states maintained that these existing
rules are adequate and that no new international law with specific
regard to cluster munitions is needed. A growing second group of
states and civil society actors argued that the design and use of
these weapons in practice, and evidence of the hazards of cluster
munitions to civilians, demands further legislation. Evidence from
Lebanon strengthened the second view.
There was initial optimism among this second group that a CCW
negotiating mandate might now be possible, an expectation that grew
during the first fortnight of the three week Review Conference.
They were encouraged on the eve of the Review Conference when a
letter from British International Development Minister Hilary Benn
to his cabinet colleagues leaked to the media; this called into
question British policies on the use and possession of cluster
munitions in view of their humanitarian impacts.[25] However, in a move that seemed to be intended
to cap pressure for a cluster munition negotiation mandate, in the
review meeting's final week the UK's CCW delegation insisted on a
weak, delaying text for the Review Conference's draft Final
Document. Appearing to act on behalf of its P-5 cohorts and a few
others such as India and Pakistan, the UK took the lead in
defending against attempts by Mexico, Canada and others, to
strengthen the text.
The relevant language, as eventually agreed, was:
"To convene, as a matter of urgency, an intersessional
meeting of governmental experts:
To consider further the application and implementation of existing
international humanitarian law to specific munitions that may cause
explosive remnants of war, with particular focus on cluster
munitions, including the factors affecting their reliability and
their technical and design characteristics, with a view to
minimizing the humanitarian impact of these munitions."[26]
Many regarded this as a cop out. Mexico declared for the record
that it disassociated itself from the outcome, although it did not
block consensus on the final document. Some of the UK's colleagues
in the European Union were also clearly displeased, as it undid
their work for more robust language on cluster munitions as part of
a joint proposal on ERW.
While technically a 'success' in that it achieved a final
document, the 2006 Review Conference showed again how threadbare
the CCW process had become in humanitarian terms. Some government
representatives congratulated each other that the CCW process was
preserved, in that it would at least continue to discuss cluster
munitions in 2007. Beyond a further meeting in 2007, however, the
mandate stated little more than the obvious - that after adoption
of Protocol V and the Southern Lebanon conflict, attention had
turned to cluster munitions. It thus contributed to an emerging
view that efforts to address the specific effects of cluster
weapons on civilians might be strung along perpetually in the CCW
without tangible results. The text dispelled hopes that states like
China and Russia might act more constructively on cluster munitions
in those talks, particularly as they had not wavered in their
opposition to new rules on anti-vehicle mines and blocked moves
toward such an agreement at the Review Conference.
Oslo
Norway had already seen the writing on the wall. On the
second-to-last day of the CCW review meeting, Foreign Minister J.
Gahr Støre announced: "Norway will organize an
international conference in Oslo to start a process towards an
international ban on cluster munitions that have unacceptable
humanitarian consequences. [...] We must take advantage of the
political will now evident in many countries to prohibit cluster
munitions that cause unacceptable humanitarian harm. The time is
ripe to establish broad cooperation on a concerted effort to
achieve a ban."[27]
A member of the NATO military alliance and a stockpiler of
cluster munitions, Norway had previously been hesitant about
proposals to regulate or prohibit their use. But in the year
leading up to the CCW review meeting it had altered its stance
after a change of government, and due in part to well-targeted
advocacy efforts by NGOs like Norwegian People's Aid, boosted by
growing domestic public feeling, especially after the Lebanon
conflict, that using cluster munitions would be at odds with
Norway's humanitarian credentials. It was also bolstered by a
recommendation from Norway's Government Petroleum Fund Advisory
Council on Ethics in 2005 that Norway should stop investing in
overseas companies manufacturing key components of cluster
munitions because of evidence that "through normal use [they] may
violate fundamental humanitarian principles."[28] Furthermore, after being instructed to test
manufacturers' claims, Norwegian defence scientists found a higher
than claimed failure rate for the cluster munitions in the national
arsenal, and Norwegian experts were even more disturbed by the high
rate of failure of explosive submunitions in the on-the-ground
conditions in Lebanon after the 2006 conflict.[29]
Norway's initiative was not universally welcomed. Ronald
Bettauer, head of the US CCW delegation, said Washington was
"disappointed" with Norway and claimed that the "effort to go
outside this framework is not healthy for the CCW" and would
"weaken the international humanitarian law" effort.[30] Others were more positive, though
some viewed the Norwegian proposal for a conference on cluster
munitions as a leap in the dark.
At least 25 countries had lent their support to a joint
statement at the CCW Review Conference to do something about
cluster munitions.[31] While
Norway had already gathered a group of states prepared to
participate in the Oslo Conference, which included Austria,
Belgium, the Holy See, Ireland, Lebanon, Mexico, New Zealand, Peru,
Sweden and Switzerland, the question of who else to invite - and
who would be prepared to come - was very sensitive. The attitudes
of many cluster munition user, possessor and producer states were
unclear. Moreover, would there be sufficient interest from
countries in the developing world, under-represented in the CCW and
important to the legitimacy of any alternative international
process?
As it happened, the Oslo Conference quickly became
over-subscribed. Initially envisaged as a two-day meeting of less
than 30 states, 49 countries ultimately participated. The purpose
of the Conference was made very clear in advance: "to be a first
step to develop a common understanding of what the elements and
issues involved in such an agreement should be, and how to
translate humanitarian concerns into practical international
action."[33]
Although it was not originally envisaged as an outcome, NGOs
convinced Norway that this understanding should be captured in a
declaration. Early drafts of this declaration resembled UN First
Committee omnibus resolutions in their structure and tone. But by
the time the Conference began on February 23, Norway and its
co-chairs, New Zealand and Mexico, had in their back pockets a
short text of less than one page, written in relatively plain
language.
Nevertheless, simple as the Oslo Conference's aim might have
seemed, there was no assurance that cluster munition user states
attending the meeting (including the United Kingdom, France and
Germany) would buy in to a declaration. There was also the fear
that the Conference aim of developing political momentum would
become distracted by diplomats' side-negotiations on the textual
intricacies of an outcome document. So the Norwegian delegation,
led by Ambassador Steffen Kongstad, let it be known that it was not
interested in entertaining textual amendments unless absolutely
necessary. As host, Norway would consult with others, take the
pulse of the Conference as best it could, and try to deliver a
suitable Declaration.
Oslo Conference co-chairs Norway and Mexico presented the
Declaration on the meeting's final day. One by one, delegations
associated themselves with this text, which had evolved since the
version circulated at the start of the Conference to reflect its
nature as a political commitment rather than a legally binding
document. Some states noted the importance to them of paragraph 3,
to "Continue to address the humanitarian challenges posed by
cluster munitions within the framework of international
humanitarian law and in all relevant fora" - the latter being code
for the CCW. This Declaration formulation worked for most, but
Japan, Poland and Romania stood aside.
The Oslo Conference was important in several ways:
First, it created an atmosphere in which humanitarian concerns -
rather than the perceived military utility of cluster munitions -
were the central focus, something that for a variety of reasons had
never been possible in the CCW. This was felt to be key to making
it difficult for countries participating in the Oslo Conference to
distance themselves from the Declaration.
Next, it translated these concerns into a clear objective ("to
effectively address the humanitarian concerns caused by cluster
munitions") although the Oslo Conference did not try to
pre-negotiate key understandings crucial to achieving this - like
how to define "cluster munitions that cause unacceptable harm to
civilians".[34] This was smart
in that it allowed the possible concerns of some participants about
how the Declaration's goal would fit in with other multilateral
institutions and processes to be deferred, enabling them to join
the agreement. But such ambiguities have created new challenges of
their own. These came to the fore at the Lima Conference (see
below), and have yet to be resolved.
Third, the Oslo Declaration created a concrete timetable for
progress toward a legally binding instrument on cluster munitions,
one not necessarily contingent on CCW meetings and consensus
decision-making there, with further meetings to be held in Lima
(late May), Vienna (early December), Wellington (February 2008) and
then Dublin.
Montreux
On the eve of the CCW review meeting in November 2006 and, in a
move pre-dating Norway's announcement of a conference in Oslo, the
ICRC publicly offered to host an international meeting of experts
in 2007 to discuss future rules of international humanitarian law
that would better protect civilians from the effects of cluster
munitions.[35] The ICRC had
held such expert meetings before - on blinding lasers and
anti-personnel mines during the 1990s, and in 2000 on ERW - and
these events had helped to catalyze international negotiations on
those issues. The ICRC's new proposal was enthusiastically taken up
at the CCW review meeting, and even mentioned in the decision on
its work programme for 2007.[36]
A major difference between the Montreux event and previous ICRC
expert meetings on weapons was its timing: the success of the Oslo
Conference in February meant that an international negotiating
process to address the humanitarian problems created by cluster
munitions was already underway. It could be argued that events had
overtaken the need for yet more deliberative discussions, which
might even act as a drag against international action. None were
more sensitive to this than the ICRC itself. In welcoming the Oslo
Declaration at the outset of the meeting of around 90 governmental
and other invited experts in Montreux, a senior ICRC official
expressed the hope that "this expert meeting will deepen insights,
identify options and speed up efforts, thus bringing closer the day
when the tragic impact of cluster munitions is a thing of the
past."[37]
Rhetoric aside, the ICRC's meeting was an unrivalled opportunity
to evaluate the logic of the various positions on whether and how
to address the humanitarian, military and legal challenges of
cluster munitions - including as it did many military powers with
cluster munitions as well as practitioners from the humanitarian
community.[38]
On the whole, states arguing for continued retention and use of
this weapon, like the United States, Russia and China, came off
second-best in discussions at Montreux, in the face of opposing
perspectives from other governments, humanitarian deminers and NGOs
such as the CMC, Handicap International, Human Rights Watch,
Landmine Action and Norwegian People's Aid. Moreover, in the course
of the meeting it became increasingly apparent to a growing number
of diplomatic participants that technical solutions, in themselves,
could not be sufficient for dealing with all aspects of the
humanitarian problems that cluster munitions create. This growing
realization cast those clinging to the CCW as the
negotiating forum in a new, more negative, light - a tactical
defeat for those countries, like the United States, who maintained
their position of unwillingness to negotiate new international
rules, while acknowledging that cluster munitions cause
humanitarian problems. Moreover, Chinese and American positions
were further exposed as mutually contradictory - China opposes any
technical solutions for improving submunitions - further
underlining the bleak prospects for effective action in the
consensus-based decision making environment of the CCW.
Another significant development at Montreux was the unveiling of
a non-paper by Germany, later submitted as a working paper for the
June CCW expert meeting in Geneva, which contained a draft text for
a new protocol on cluster munitions.[39] Although welcomed as a signal of Germany's
political commitment, this proposal, closely based on the
provisions of previous CCW protocols like Amended Protocol II on
mines and booby traps, drew sharp criticism from NGOs and some
states for its perceived lack of ambition and clarity on key issues
such as scope.[40]
Lima
The appearance of the German proposal persuaded so-called core
group states in what was now being described as the 'Oslo Process'
to circulate a textual proposal of their own (this group comprised
Austria, Ireland, Mexico, New Zealand, Norway and Peru). Drafting
work had already been going on for some time among interested
individuals. Building on this, in late March Norway shared with its
Oslo core group partners its initial stab at a text, which in many
respects resembled the Mine Ban Convention. These governments
further debated and revised the language. Ten days or so before the
three-day long Lima Conference was scheduled to start on May 23,
Peru, in its capacity as Chair, circulated an adapted text to all
participants as a discussion paper.[41]
Peru also circulated an agenda for the Lima Conference just
before it commenced. This agenda was structured around thematic
discussion instead of the textual negotiation the earlier
discussion paper had implied would take place at the Conference.
Moreover, time allocated to discussion of definitions - an issue
foremost in the minds of some - was scheduled for the last day,
with issues like victim assistance, clearance of unexploded
submunitions, storage and stockpile destruction as well as
transparency reporting, national implementation and compliance all
to be discussed first. The Lima Conference organizers clearly
intended this agenda to emphasize the Oslo Process's humanitarian
priorities, especially to participating countries, now including
many Asian, African and Latin American states. Strong statements of
support for this humanitarian approach at the meeting's outset,
including from representatives of affected countries like Cambodia
and Lebanon, bolstered that message.
Nevertheless, France challenged the agenda on the floor, wishing
to move definitions to the top of the agenda, and its argument was
then echoed by others such as Argentina, Australia, Egypt, Germany,
Italy, the Netherlands and Britain. Austria proposed a winning
compromise - to swap definition discussions from the last morning
to the afternoon of the middle day.
Why all the fuss about when to talk about definitions? Those
calling for the agenda change argued that the Lima Conference
should make it clear from the beginning exactly what weapons were
being discussed in the context of regulation or prohibition. In
other words, a broad definition might go beyond the comfort zones
of user states present. For instance, would cluster munitions with
sensor-guided submunitions, or self-destruct mechanisms, or other
specific technical characteristics thought likely to lessen the
dangers to civilians - or, for that matter, weapons using explosive
submunitions only in small numbers - be included or excluded?[42] How could there be any
negotiation if states could not be certain what they were
bargaining about?
While this was a logical concern, it was based on the Lima
Conference being a forum for textual negotiation, whereas Peru's
agenda had already sent the message that the time was not yet ripe
for treaty drafting. In overlooking this signal, those arguing for
the agenda change may have unintentionally conveyed the impression
that they did not share others' emphasis on humanitarian priorities
- a perspective not popular with developing countries and those
worst affected by cluster munitions.
Once the misunderstandings were resolved, however, thematic
discussions in Lima proved constructive and largely
uncontroversial. NGOs, well prepared and fired up after a civil
society forum the day before commencement of the formal meeting,
made a strong showing, with many proposals. There were thoughtful
discussions on the necessary elements of a humanitarian legal
instrument, including cautions that such a treaty should not just
carry over elements of other agreements like the Mine Ban
Convention, but should improve on them where possible, for instance
on victim assistance.
Just as important as the substantive issues it canvassed, the
Lima Conference avoided a potentially damaging and highly public
split among states supporting the collective undertakings of the
Oslo Declaration over an issue - definitions - that could not
realistically be settled until the endgame of any negotiation. In
part this was achieved because the emphasis on thematic discussion
rather than textual drafting was maintained through skilled
chairing, as it had been in Oslo. It also reflected how the
participation in the Oslo Process was evolving: in Oslo, the great
majority of the 49 participating states were developed countries
with a Western bias. In Lima, many additional developing countries
from Latin America, Asia and Africa took part. Most of these were
more concerned with the effects of cluster munitions than with
their military utility.
The Lima Conference also resulted in regional-level undertakings
being announced, including a call by Peru for a Latin American zone
free of cluster munitions, as well as some national measures.
Substantive discussions in Lima meanwhile helped to bring some
countries new to the issues up to speed, and to prepare all for the
challenging negotiations on treaty text to take place later.
Another Ottawa process?
Based on this synopsis, it might be tempting to see the emergent
Oslo Process as a clone of the campaign more than a decade ago to
achieve a treaty banning anti-personnel mines. Indeed, there are
many apparent similarities: the importance of humanitarian
perspectives, including voices from the field; the perceived
shortcomings of work in the CCW; the leadership shown by a group of
small and medium-sized countries in a core group; the important
roles played by civil society actors both individually as NGOs and
as members of a consortium, and investment in the process by
developing countries, including by affected states.
There are also some important differences. The large-scale and
highly publicized hazards to civilians from the use of cluster
munitions during the 2006 Southern Lebanon conflict created a
paradigm shift, one without apparent equivalent during the
emergence of the international campaign to ban anti-personnel mines
in the 1990s. In the case of landmines, the high profile
involvement of celebrities like Princess Diana of Wales represented
the culmination of a successful, mature international campaigning
effort, whereas the conflict in Lebanon had an immediate effect in
elevating public attention and general concern about the effects of
cluster munitions to a much higher level, giving national and
international campaigning efforts much greater traction with some
governments and the media.
Evidence already existed, of course, to show the hazards to
civilians of cluster munitions in conflicts like South East Asia,
Kosovo and Afghanistan. But these conflicts were in the past. Nor
is it denied that the CMC and its member NGOs, the ICRC and others
had been gradually building pressure in fora like the CCW and among
the public in countries like Belgium, France, Norway and the UK.
Nevertheless, prospects for an international treaty on cluster
munitions were not great until the Lebanese conflict propelled the
issue onto the public and diplomatic stage in 2006.
Major user states in the CCW resisting new international rules
on cluster munitions were slow to adapt their approaches, as new
arguments were put forward to challenge the conventional wisdom of
the weapon's military indispensability. Initially these challenges
came from NGOs and former military people, some now humanitarian
deminers, who argued that cluster munitions had become a "weapon of
convenience".[43]
Additionally, Norway's careful government tests of cluster
munitions undermined confidence in submunition reliability figures
commonly cited by cluster munition manufacturers and users and bore
out others' criticisms about the military utility of cluster
munitions. In Montreux and at the Lima Conference, NGOs argued that
if militaries cannot predict the reliability of their explosive
submunitions, it is impossible to assess either whether the
humanitarian cost of a weapon or its military utility is
acceptable, which makes a mockery of the legal calculus some states
deploying cluster munitions claim justifies use of the weapon.
One major difference often cited between the Ottawa Process and
efforts on cluster munitions is that characterizing "unacceptable"
cluster munitions and solutions is thought to be much more
difficult than it was for anti-personnel mines during the 1990s.
However, this point can obscure the reality that the acceptability
of cluster munitions as a weapon, like anti-personnel mines,
ultimately depends on political - and not solely legal or military
- calculations. In taking cluster munitions out of a technical and
legal process like the CCW, the Oslo Process has raised the
political profile of the challenges these weapons pose, and created
a dynamic in which humanitarian concerns may have more influence on
governments' decision-making about the weapons. In other words,
more significant than the characteristics of the differing weapons
tackled in the Ottawa and Oslo Processes is that both have
broadened the overall decision-making context surrounding the
acceptability of such weapons, presenting new options for
addressing the humanitarian consequences of their use.
In late February, the new UN Secretary-General, Ban Ki-moon,
described the CCW and work in Oslo as "complementary and mutually
reinforcing". Even so, several major cluster munition producers and
users, such as the US, China and Russia, remain hostile to the Oslo
Process.[44] Moreover, there
are efforts underway by states involved in both processes to
achieve a negotiating mandate in the CCW this year despite the work
already started in Oslo and Lima. In early June 2007, after lengthy
negotiations, the European Union submitted for consideration at the
CCW's Group of Governmental Experts meeting scheduled later that
month a proposal for a negotiating mandate for a treaty by the end
of 2008 to prohibit cluster munitions "that cause unacceptable harm
to civilians and includes provisions on cooperation and
assistance".[45]
This one-week CCW meeting covered much of the same ground as the
Montreux Meeting, although in less depth. While representing a step
forward for discussions in the CCW, it further highlighted the
difficulty of developing enough momentum to overcome institutional
hurdles there to address the humanitarian impact of cluster
munitions through a comprehensive legal instrument.
In CCW informal consultations during the months leading up to
the June expert meeting, major cluster munition users such as the
US and Russia had nuanced their statements and even made approving
(though non-specific) noises about the prospect of a negotiating
mandate on cluster munitions in the CCW. The day before the June
expert meeting commenced, the head of the US delegation told
journalists that the US now supported launching negotiations in the
CCW on a "global treaty to reduce civilian casualties from cluster
bombs, but does not back a ban on the weapons".[46] During the ensuing CCW meeting, Richard Kidd,
Director of the US State Department's Office of Weapons Removal and
Abatement, outlined some "practical steps" that "merit
examination". However, he limited these to post-conflict effects
and argued that the threat cluster munitions pose to civilians "is
episodic, manageable within current response mechanisms and, on a
global scale, less harmful than threat[s] posed by other types of
unexploded munitions."[47] He
omitted any reference to hazards to civilians that cluster
munitions pose at time of use, or the likely humanitarian
consequences of their proliferation. Ominously, while Washington
said it supported initiation of a negotiation in the CCW, it
was careful to clarify that it had "taken no position as to the
outcome of the negotiations."[48]
The apparent change in the US position with regard to CCW
negotiations suggests use of the time-honoured 'ping-pong'
diplomatic tactic[49] , and
may have been intended to prevent mass defections to an 'Oslo
Treaty'. Moreover, Washington likely recognizes that sustaining
uncertainty about the limits of its ambition on an international
law instrument is useful, at least until the CCW's November Meeting
of States Parties. Russia, meanwhile, cannot have been blind to the
potential for the cluster munition issue to cause strains within
NATO at little cost to itself, and has nuanced its reluctance about
new rules accordingly. Nevertheless, China, Pakistan and Cuba are
likely to remain opposed to negotiations on new legal rules for
cluster munitions, regardless of any newfound US and - possible -
Russian flexibility.
The June expert meeting's recommendation to the CCW Meeting of
States Parties this November could not wholly paper over this
fissure. It suggested the November meeting make some sort of
decision about whether and how the CCW is to address humanitarian
impacts of cluster munitions. But the heavily qualified language of
the final document did not offer a clear pointer about what that
decision should be. Instead it is merely a shrug and a good luck
handshake for further work in a process in which states remain
divided over whether there should even be a negotiation, let alone
what its scope should be.
Until November, the Oslo Process and any work in the CCW will
continue in parallel. If the CCW confounded expectations and
achieved a substantive negotiating mandate in November it would
pose a dilemma for some states engaged in both processes. With
almost 70 countries now involved in the Oslo Process - already more
geographically spread than the CCW, with more likely to join - it
is probably too late to snuff this alternative process out.
However, the Oslo core group has steered away from negotiating
definitions, preferring to build international support for the
process first. Definitions - what exactly is to be banned or
regulated - lie at the heart of the debate over forum and process,
and will be a critical and unavoidable focus of attention in Vienna
and beyond.
Meanwhile, the non-participation of some major user states in
the Oslo Process such as China, Russia, Israel and the United
States itself worries some American allies. With an eye to
Washington, the UK, Germany and Japan have argued in the past that
there is no point negotiating a treaty unless these major users are
on board first. But this assumes that "clusters of cooperators"
(like those in the Oslo Process) have no effect on the behaviour of
others, which I have tried to show elsewhere is not the case.[50] And it ignores the
importance of engaging more than 70 other states stockpiling
cluster munitions - mainly of the older, less reliable, most
problematic types. An international agreement taking these
stockpiles of cluster munitions out of circulation would have
immense value in preventing humanitarian problems later. Moreover,
it would it set a powerful example for major users like the United
States, which currently stockpiles nearly a billion submunitions.
Notably, it would stigmatize use of the weapon in general, as the
Mine Ban Convention has done for anti-personnel mines.
Conclusion
Fear of a parallel international process to address the
humanitarian impacts of cluster munitions is already having a
galvanizing effect on some in the CCW. If, as seems on balance
likely, the CCW cannot even then achieve a robust negotiating
mandate in November, the next Oslo Process meeting in Vienna in
early December will provide an opportunity for states to make good
on the sentiments they have expressed in the CCW and commitments
some have made at the national level, and, for many, in the Oslo
Declaration: namely, to tackle the humanitarian effects of cluster
munitions and as UN Under-Secretary General Jan Egelund told the
Security Council last December, to help put cluster munitions "in
the garbage cans of history, along with landmines".[51]
Notes
[1] J. Gahr Støre,
'Special Comment on Cluster Munitions', Disarmament Forum,
no. 4 (2006), p.3.
[2] The Oslo Declaration
is available from the website of the Norwegian Ministry of Foreign
Affairs:
http://www.regjeringen.no/en/dep/ud/selected-topics/Humanitarian-efforts/
The-Norwegian-Governments-initiative-for/conference.html?id=449312.
[3]
Belgium's legislation, in Flemish and French, is at: http://www.lachambre.be/FLWB/PDF/51/1935/51K1935001.pdf.
[4] According to CCW
Protocol V, 'explosive remnants of war' are unexploded ordnance and
abandoned explosive ordnance. The term excludes mines and booby
traps, but includes unexploded submunitions.
[5] Air Force
Operations and the Law, The Judge Advocate General's
Department, United States Air Force (1st edn.), 2002, p.296, quoted
in W.H. Boothby, Cluster bombs: is there a case for new law?
Harvard University Program on Humanitarian Policy and Conflict
Research Occasional Paper Series Number 5 (Fall 2005), p.4.
[6] United Kingdom,
'Working Paper on the Military Utility of Cluster Munitions
(CCW/GGE/X/WG.1/WP.1, February 21, 2005).
[7] See C. King,
Explosive Remnants of War: Submunitions and Other Unexploded
Ordnance, International Committee of the Red Cross (Geneva,
2000), pp.10-11.
[8] Human Rights Watch,
Off Target: the conduct of the war and civilian casualties in
Iraq, (December 2003) http://hrw.org/reports/2003/usa1203/.
[9] For instance, see
Landmine Action, Explosive Remnants of War and Mines Other than
Anti-Personnel Mines: Global Survey 2003-2004, Landmine Action
(London, 2005) and Human Rights Watch, Fatal Strikes: Israel's
indiscriminate attacks against civilians in Lebanon, Volume 18,
No. 3(E) (August 2006).
[10] Human Rights Watch
fact-sheet, A Dirty Dozen Cluster Munitions (February 2007):
http://hrw.org/campaigns/clusters/chart/index.htm.
[11] See John Borrie &
R. Cave, 'The humanitarian effects of cluster munitions: Why should
we worry?' Disarmament Forum, no. 4 (2006), pp 5-13. See
also See Handicap International, Circle of Impact: the Fatal
Footprint of Cluster Munitions on People and Communities, (May
2007): http://en.handicapinternational.be.
[12] 1977 Additional
Protocol I to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed
Conflicts (Protocol I). This had been championed by Sweden, the
International Committee of the Red Cross (ICRC) and others.
[13] International
Committee of the Red Cross, Cluster Bombs and Landmines in
Kosovo: Explosive Remnants of War, (Geneva, 2000 (revised
2001)).
[14] See R. Cave,
'Disarmament as Humanitarian Action? Comparing negotiations on
anti-personnel mines and explosive remnants of war' Disarmament
as Humanitarian Action: From Perspective to Practice in John
Borrie & Vanessa Martin Randin (eds.), UNIDIR (Geneva, 2006),
pp. 51-78.
[15] Final Document of
the Second Review Conference of the States Parties to the CCW,
Geneva, December 11-21, 2001 (CCW/CONF.II/2).
[16] Protocol on Explosive
Remnants of War (Protocol V to the 1980 Convention on Certain
Conventional Weapons), (CCW/MSP/2003/3, Appendix 2), November 28,
2003.
[17] Lebanon already had a
problem with unexploded ordnance, including submunitions, dating
back to Israeli military operations between 1978 and 1982 and that
still claimed civilian lives 25 years later. R. Moyes & T.
Nash, Cluster Munitions in Lebanon, Landmine Action (London,
2005).
[18] United Nations Mine
Action Coordination Centre South Lebanon, 'South Lebanon Cluster
Bomb Information Sheet as at November 4, 2006': http://www.maccsl.org/War%202006.htm.
[19] Meron Rappaport,
'Israeli Defence Force commander: We fired more than a million
cluster bombs in Lebanon', Haaretz, September 12, 2006: http://www.haaretz.com/hasen/spages/761781.html.
[20] T. Nash,
Foreseeable Harm: The use and impact of cluster munitions in
Lebanon: 2006, Landmine Action (London, 2006).
[21] Lebanon/Israel:
Hezbollah Hit Israel with Cluster Munitions During Conflict,
Human Rights Watch press release, October 18 2006: http://hrw.org/english/docs/2006/10/18/lebano14412.htm.
[22] Proposal for a
mandate to negotiate a legally-binding instrument that addresses
the humanitarian concerns posed by cluster munitions presented
by Austria, Holy See, Ireland, Mexico, New Zealand and Sweden
(CCW/CONF.III/WP.1*, 25 October 2006).
[23] United Nations
Secretary-General, Message to the Third Review Conference of the
Convention on Certain Conventional Weapons (CCW)', November 7
2006.
[24] L. Maresca, 'Cluster
munitions: moving toward specific regulation', Disarmament
Forum, no. 4, (2006) pp. 27-34, p. 29.
[25] 'Benn slams cluster
bombs', Sunday Times, 5 November 2006.
[26] Final Document of
the Third Review Conference of the High Contracting Parties to the
CCW, Geneva, 7-17 November 2006 (CCW/CONF.III/11(Part II),
Decision 1).
[27] Norwegian Ministry of
Foreign Affairs, 'Press Release: Norway takes the initiative for a
ban on cluster munitions' (no. 104/06), November 17 2006.
[28] The Advisory Council
on Ethics for the Norwegian Government Petroleum Fund,
Recommendation on Exclusion of Cluster Weapons from the
Government Petroleum Fund, June 16 2005.
[29] Ove Dullum, Norwegian
Forsvarets Forskningsinstitutt, presentation on 'Reliability of
Tests', ICRC Montreux Experts Meeting (19 April 2007). See also
Forsvarets Forskningsinstitutt, FFI Facts: Cargo Ammunition:
http://www.mil.no/felles/
ffi/english/start/article.jhtml?articleID=136450.
[30] R.J. Bettauer, Head
of the US Delegation to the Closing Plenary Session of the Third
CCW Review Conference (November 17 2006).
[31] 'Declaration on
Cluster Munitions by Austria, Belgium, Bosnia-Herzegovina, Croatia,
Costa Rica, Czech Republic, Denmark, Germany, Holy See, Hungary,
Ireland, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, New
Zealand, Norway, Peru, Portugal, Serbia, Slovakia, Slovenia, Sweden
and Switzerland', Statement made by Sweden to the Third CCW Review
Conference, Geneva, November 17, 2006.
[32] Delegations from
Afghanistan, Angola, Argentina, Austria, Belgium, Bosnia and
Herzegovina, Canada, Chile, Colombia, Croatia, the NGO Cluster
Munition Coalition, Costa Rica, Czech Republic, Denmark, Egypt,
Finland, France, Germany, Guatemala, Holy See, Hungary, Iceland,
ICRC, Indonesia, Ireland, Italy, Japan, Jordan, Latvia, Lebanon,
Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Mozambique,
Netherlands, New Zealand, Norway, Peru, Poland, Portugal, Romania,
Serbia, Slovakia, Slovenia, South Africa, Spain, Sweden,
Switzerland, UN Office for the Coordination of Humanitarian
Affairs, UNIDIR, UNDP, UNHCR, UNICEF, United Kingdom took part, as
well as individual invited participants.
[33] Norway, Addressing
the humanitarian impacts of cluster munitions: key issues -
background paper to the Oslo Conference on Cluster Munitions, 22-23
February 2007.
[34] Ibid.
[35] 'Cluster munitions:
ICRC calls for urgent action', ICRC press release: November 6,
2006.
[36] Final Document of
the Third Review Conference of the High Contracting Parties to the
CCW, Geneva, 7-17 November 2006 (CCW/CONF.III/11(Part II),
Decision 1).
[37] Dr. Philip Spoerri,
Director for International Law and Cooperation with the Movement,
ICRC, statement at Montreux, April 18 2007.
[38] See Expert Meeting
Report: 'Humanitarian, Military, Technical and Legal Challenges of
Cluster Munitions: Montreux, Switzerland, 18-20 April 2007,
ICRC: Geneva, 2007:
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/cluster-munition-montreux-310507.
[39] Germany, 'Draft CCW
Protocol on cluster munitions', (CCW/GGE/2007/WP.1, 1 May
2007).
[40] See Cluster Munition
Coalition, 'German proposal is not a basis for a new cluster
munition treaty' (27 April 2007): www.stopclustermunitions.org.
[41] The Lima discussion
paper is available on the Cluster Munition Coalition's website: www.stopclustermunitions.org.
[42] See M. Hiznay,
'Operational and technical aspects of cluster munitions',
Disarmament Forum, no. 4 (2006), pp 15-25.
[43] See, for instance,
Simon Conway, 'Cluster munitions: historical overview of use and
human impacts', ICRC Expert Meeting Report op cit,
pp.13-18.
[44] Statement
attributable to the Spokesperson for the UN Secretary-General, 'On
cluster munitions', New York, February 23, 2007.
[45] See Draft CCW
Negotiating Mandate on Cluster Munitions submitted by Germany on
Behalf of the European Union, (no official CCW working paper
number yet),
http://www.unog.ch/80256EDD006B8954/(httpAssets)/
1A2369B7CDAFCC10C12572ED0058DB86/$file/CM+mandate.pdf.
[46] 'U.S. open to
negotiations on cluster bombs but no ban', Reuters, June 18
2007, http://www.reuters.com/article/newsOne/idUSL1874660120070618.
[47] Richard G. Kidd IV,
Director, Office of Weapons Removal and Abatement, 'U.S.
Intervention on Humanitarian Impacts of Cluster Munitions', June
20, 2007: http://www.ccwtreaty.com/press/0620CCWGGE.html.
[48] Ronald J. Bettauer,
Deputy Legal Adviser, US Department of State and Head of the U.S.
Delegation, Statement on the Outcome of the CCW Group of
Governmental Experts Meeting, Geneva, Switzerland June 22, 2007, http://www.ccwtreaty.com/press/2207CCW-GGE.html.
[49] For discussion of
'ping-pong' and other negotiating tactics, see Rebecca Johnson,
'Changing Perceptions and Practice in Multilateral Arms-Control
Negotiations', in John Borrie and Vanessa Martin Randin (eds.),
Thinking Outside the Box in Multilateral Disarmament and Arms
Control Negotiations (UNIDIR, Geneva, 2006).
[50] John Borrie,
'Cooperation and Defection in the Conference on Disarmament',
Disarmament Diplomacy 82, (Spring 2006).
[51] United Nations,
'United action needed to protect civilians in armed conflict, says
departing Under-Secretary-General for humanitarian affairs',
transcript of 5577th UN Security Council meeting, 4 December 2006
for media.
John Borrie, formerly a diplomat with the New
Zealand government, leads the project 'Disarmament as Humanitarian
Action: Making Multilateral Negotiations Work' at the United
Nations Institute for Disarmament Research (UNIDIR) in Geneva. He
is co-founder of the Disarmament Insight initiative (www.disarmamentinsight.blogspot.com).
The views in this paper are the sole responsibility of the author
and do not necessarily reflect the views or opinions of the United
Nations, UNIDIR, its staff members or sponsors.
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