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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