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In November 2006, the Third Review Conference of the Convention on Certain Conventional Weapons (CCW) decided to convene a meeting of governmental and technical experts from 19-22nd June 2007, in order to “Consider further the application and implementation of existing international humanitarian law to specific munitions that may cause explosive remnants of war, with a 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 the use of these munitions.” With the surge in international attention to the humanitarian suffering caused by the use of cluster munitions and the growing political will to negotiate a treaty to ban the use of cluster munitions which cause unacceptable harm to civilians generated by the Oslo Process, the outcome of the 2007 Group of Governmental Expert (GGE) Meeting was much anticipated.
In 2006, the CCW was unable to move forward to address the issue of cluster munitions. Frustrated by its lack of action, Norway led an initiative to negotiate a free-standing treaty outside of the auspices of the UN that would ban the use of these inaccurate and indiscriminate weapons. At Oslo, in February 2007, 46 States pledged themselves to negotiate a new international instrument prohibiting the use of cluster munitions which cause unacceptable harm to civilians. In the follow-on meeting of the Oslo Process, held in Lima in May 2007, the number of participating States grew to almost 70. During the discussions in Oslo and Lima, many States raised the issue of the most appropriate forum for creating a treaty on cluster munitions—the CCW or the Oslo Process. A frequent argument was that the CCW contains the world’s major user and producer States and without them a new treaty would be meaningless. Many NGOs and pro-active States saw these arguments as diversionary and a cover-up for unwillingness to take action on the issue and a covert desire to bury the process in the stagnation of the consensus-based CCW. The CCW has had its chance to address the issue of the humanitarian suffering caused by cluster munitions and has done nothing, they said.
Many States who took part in the Oslo Process also advocated for work in the CCW. Germany submitted a Draft CCW Protocol on Cluster Munitions and a Draft CCW Negotiating Mandate on Cluster Munitions. While NGOs, such as the Cluster Munition Coalition, Human Rights Watch, and Handicap International, strongly condemned the approach taken by Germany in regulating cluster munitions as severely inadequate, the international community waited to see if the CCW, given one more chance, could deliver results on the issue of cluster munitions.
The outcome of the GGE Meeting seemed to validate NGO arguments about the inutility of the CCW as a forum to address cluster munitions. Germany’s negotiation mandate, which proposes that the CCW begin negotiations on a legally-binding instrument on cluster munitions by the end of 2008, was met with opposition from Russia, Brazil, China, and the Republic of Korea.
While many States declared they were willing to move forward on the issue of cluster munitions within the CCW, or within the CCW and the Oslo Process, the Procedural Report only states that the Group of Governmental Experts adopted a recommendation to the 2007 Meeting of High Contracting Parties to the CCW, that they should “decide how best to address the humanitarian impact of cluster munitions as a matter of urgency, including the possibility of a new instrument. Striking the right balance between military and humanitarian considerations should be part of the decision. The 2007 Meeting should take into account all documents put forward at the 2007 session of the GGE, as well as any other relevant documents and proposals.” Initially the recommendation was worded to specifically state that Germany’s negotiation mandate would be considered at the Meeting of High Contracting Parties, but even this language was omitted in the final version. Unable to agree on a negotiation mandate, the GGE Meeting could only recommend that the CCW try again in November.
The Meeting:
The purpose of the 2007 GGE Meeting was to consider international law pertaining to specific munitions that may cause explosive remnants of war, with a particular focus on cluster munitions, as well as the results of the ICRC meeting of experts on cluster munitions held in Montreux in April. Ambassador Janis Karklins of Latvia presided over the session and was assisted by Ms. Vera Bohle of the Geneva Center for Humanitarian Demining as the Chairperson of the meetings of the Military and Technical Experts. The GGE held seven plenary meetings on the following issues: the military use of cluster munitions; the humanitarian impact of cluster munitions; the technical aspects of cluster munitions; the legal aspects of cluster munitions; definitions; and other relevant issues.
During the Meeting, participants considered several working papers. Germany submitted its Draft Protocol on Cluster Munitions and Addendum on Alternative Weapons to Cluster Munitions, or Sensor-Fuzed Area Munitions (SEFAM). The German Draft CCW Protocol states that ‘unreliable’ or ‘inaccurate’ cluster munitions should be prohibited, but contains a provision allowing for ‘reliable’ and ‘accurate’ cluster munitions to be used for a period of 10 years. So-called ‘reliable’ cluster munitions are defined based on a failure rate of one percent. ‘Unreliable’ cluster munitions are those with failure rates higher than one percent. ‘Accurate’ cluster munitions are those which are “effective only within a pre-defined target area.” Target areas are not defined.
Ultimately, under the German draft text, cluster munitions will supposedly be replaced by alternative weapons, called “Sensor Fused Area Munitions (SEFAM).” These weapons will contain less submunitions and have radar, infrared, or radiometric sensors to improve accuracy to limit the effects of submunitions to the targeted areas. In the future, kinetic submunitions may be used which do not contain explosives and are inert post-impact.
While sensor fused area munitions may seem like a suitable alternative to cluster munitions, Landmine Action and other civil society groups argue that there is little or no data on these weapons. They are designed to detect and target certain heat sources and raise several areas for concern. What civilian objects might emit the same level of heat and be targeted by mistake? What margin of error do these weapons have? Will there be commander responsibility to check targets and the presence of civilians or civilian objects in the area? Ultimately, the majority of these weapons are not even available yet. Sensor-fuzed weapons will do nothing to remedy the current dangers presented by ordinary cluster munitions, still in use and still stockpiled in the billions around the globe.
The CMC summarized its opposition to the German Draft shortly after it was first circulated in April 2007, stating that, “This new German proposal falls far short of the CMC’s expectations for this process and does not represent an appropriate basis for the work of those states genuinely committed to the protection of civilians.”
Germany also submitted a negotiation mandate on cluster munitions which would allow the CCW to begin negotiating a new instrument on cluster munitions. The mandate did not gain consensus however.
France also submitted a working paper on cluster munitions advocating for the negotiation of a legally binding instrument, which “could take the form of an additional protocol to the CCW (Protocol VI).” While France has tended to favor work in the CCW, the working paper it submitted to the GGE specifically mentions that it is a participant in the Oslo Process and that “the ‘Oslo process’ that was thus set in train does not conflict with current procedures under the Convention: on the contrary, the two should be mutually complementary and reinforcing. The Oslo process has thus given a political impulse to the work of the Convention with a view to encouraging the earliest possible outcome.”
The UK submitted two working papers—one suggesting a possible definition of a cluster munition and a submunition and another analyzing legal aspects of cluster munitions and proposing a framework for the implementation of IHL with the use of cluster munitions. The UK’s proposed definition of cluster munitions includes a disclaimer that a proposal to prohibit the use of ‘basic’ cluster munitions should include a transition period, allowing States to keep their unacceptable cluster munitions for a certain period of time. The Cluster Munition Coalition and other concerned NGOs have advocated strongly against the inclusion of transition periods in a future instrument as they are contrary to the spirit of a ban.
Regarding the legal aspects of cluster munitions, the UK’s proposal contained little more than suggestions for better training of military personnel to follow current rules of international humanitarian law which could be taken to “form the basis of a generic ‘best practice’ guide…to assist in the training and conduct of operations.” Improving existing international humanitarian law by better training military officials hardly seems a solution—IHL does not specifically cover the use of cluster munitions and the bombs have been used repeatedly by commanders who would claim that they were used in accordance with the provisions of international law.
Regarding the question of legitimacy of cluster munitions under IHL, the ICRC submitted a working paper listing the numerous “serious questions” the use of cluster munitions poses under several fundamental principles of IHL. The specific characteristics and inherent design of cluster munitions present troubling questions (and probably violate) the principles of distinction, proportionality, the prohibition of indiscriminate attacks, and the rule on feasible precautions. The ICRC concluded that “new and specific regulation” of cluster munitions was needed under IHL. The ICRC also submitted excerpts from its Meeting of Experts in Montreux.
The issue of a definition of cluster munitions and thus the scope and application of a future treaty has been a much contested issue, in both the CCW and the Oslo Process. The Geneva International Centre for Humanitarian Demining submitted a working paper providing an overview of existing and proposed definitions. The paper divides the definitions into three categories: those with a broad approach (such as proposed by international organizations and NGOs in favor of a more comprehensive ban); those presented in a regulatory context (like Germany’s Draft Protocol and the Lima Discussion Text); and a those reflected in national legislation (such as Belgium’s national moratorium on cluster munitions). For a very useful chart of currently proposed definitions, click here.
The reactions and statements made by States Parties during the GGE Meeting were varied. Brazil, Russia, China, and the Republic of Korea opposed a negotiation mandate and adamantly maintained that the CCW was the only appropriate forum for discussing cluster munitions. Argentina, Australia, France, Germany, the Holy See, Italy, Japan, Ukraine, the UK, and Venezuela made statements advocating for work within the CCW. Others specifically referred to the Oslo Process and emphasized that the CCW and Oslo Process could be seen as complementary and could pursue work in both fora, such as Belgium, Bosnia & Herzegovina, Canada, France, Germany, the Holy See, and Venezuela.
Two of the largest producer and user States—the US and Russia—both made alarming presentations which drastically diminished the threat posed by cluster munitions and down-played the serious humanitarian consequences of the use of the weapon. Richard Kidd, Director of the Office of Weapons Removal and Abatement of the United States, made a presentation in which he claimed that the problems associated with cluster munitions are not nearly as bad as other ERW, the impact of cluster munitions “is episodic and limited in scope, scale and duration,” and rather shockingly added that, “In sum, there simply is no large scale demand for financial resources to clear cluster munitions. Additional or separate institutions or conferences specifically focused on cluster munitions would be, in the opinion of the United States, a misuse of funds that could be better spent elsewhere.” (emphasis added) He concluded that the problems created by the use of cluster munitions are “manageable within current response mechanisms and, on a global scale, less harmful than the threat caused by other types of unexploded munitions.” He may be lucky that cluster munitions have not been used in the scale that other munitions have…yet.
Russia likewise diminished the threat that cluster munitions pose to civilians. In the position paper it submitted to the GGE, Russia claims that “the various types of modern cluster munitions are reliable and safe to use, and ensure highly effective strikes against a very wide range of targets.” Russia argued that existing international humanitarian law is sufficient to deal with the problem of cluster munitions as long as it is implemented properly, but added that it will take part in constructive discussions. Russia also stated that “it is premature to impose legally binding quantitative restrictions on the technical characteristics of cluster munitions. It would be better to draw up recommendations on best practice in this field, including perhaps, the design of cluster munitions.”
During the meeting, the following presentations were given:
The Group of Governmental Experts heard presentations by Germany on “Benchmarks
for Alternative Munitions to Cluster Munitions. Sensor Fused Area Munitions (SEFAM)”;
Russian Federation on “Technical Aspects of Cluster Munitions”; United Kingdom of Great
Britain and Northern Ireland on “Legal Aspects of Cluster Munitions - A Possible Framework for IHL Implementation – Draft Proposals” and “Possible Definition of a Cluster Munition and a Submunition – Draft Proposals”; United States of America on “The Ongoing Military Utility and Role of Cluster Munitions” and “Designing Self Destruct Fuzes”; UNDP on “Humanitarian Impact of Cluster Munitions”; ICRC on “Legal Issues related to the Use of Cluster Munitions”; GICHD on “Cluster Munitions: Overview of Existing and Proposed Definitions”, “Technical Note on Mine Action. Lessons Learned from Cluster Munitions Clearance in Lebanon”, and on the “Guide to Cluster Munitions”; Colin King of C. King Associates Ltd. on “The Evolution of Cluster Munitions” and “Cluster Munitions Technical Issues”; Human Rights Watch on “Humanitarian Issues Resulting from the Use of Cluster Munitions”; Mine Advisory Group on ”Humanitarian Impact of Cluster Munitions”.
Little substantive progress was made at the GGE Meeting on the issue of cluster munitions. The 2007 Meeting of High Contracting Parties in November will have to address the issue and the international community waits to see if the CCW can indeed take action on an issue of pressing humanitarian concern.
--Report by Katherine Harrison
August 2007
LIST OF DOCUMENTS
of the 2007 Session of the Group Of Governmental Experts
19 - 22 June 2007
CCW/GGE/2007/1 Provisional Agenda, proposal by the Chairperson
CCW/GGE/2007/2 Provisional Programme of Work, submitted by the
Chairperson
CCW/GGE/2007/3 Procedural Report, submitted by the Secretariat
CCW/GGE/2007/WP.1 and Corr.1 Draft CCW Protocol on Cluster Munitions, submitted by Germany
CCW/GGE/2007/WP.1/Add.1 Benchmarks for alternative munitions to cluster munitions “sensor fused area munitions” (sefam) - additional explanatory information to the draft CCW protocol on cluster munitions, submitted by Germany
CCW/GGE/2007/WP.2 Cluster munitions, submitted by France
CCW/GGE/2007/WP.3 Draft CCW negotiating mandate on cluster munitions, submitted by Germany on behalf of the European Union
CCW/GGE/2007/WP.4 Report of the Expert Meeting on the Humanitarian, Military, Technical and Legal Challenges of Cluster Munitions held in Montreux, Switzerland, 18 to 20 April 2007, submitted by the International Committee of the Red Cross at the request of the Chairperson of the Group of Governmental Experts
CCW/GGE/2007/WP.5 Overview of existing and proposed definitions, Submitted by the Geneva International Centre for Humanitarian Demining (GICHD)
CCW/GGE/2007/WP.6 Position paper on cluster munitions, submitted by the Russian Federation
CCW/GGE/2007/WP.7 Treaty Principles, submitted by Cluster Munition Coalition (CMC)
CCW/GGE/2007/WP.8 Observations on the Legal Issues Related to the Use of Cluster Munitions, submitted by the International Committee of the Red Cross
CCW/GGE/2007/WP.9 Possible Definition of a Cluster Munition and a Submunition – Draft Proposals, submitted by the United Kingdom of Great Britain and Northern Ireland
CCW/GGE/2007/WP.10 Legal Aspects of Cluster Munitions - A Possible Framework for IHL Implementation – Draft Proposals, submitted by the United Kingdom of Great Britain and
Northern Ireland
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