Cluster Munitions: Vienna – tough talk on definitions

As foreshadowed in our preceding post about the first day of the Vienna international conference on cluster munitions, definitions were the focus of today's discussions.

Why are definitions important? February's Oslo Declaration contains a commitment for states to “prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians”. Article 2 of the Vienna discussion text arguably goes further – it doesn’t mention the phrase “that cause unacceptable harm to civilians”.

In setting out scope Article 1 says as follows:

“Each State Party undertakes never under any circumstances to:
a) Use cluster munitions.
b) Develop, produce, otherwise acquire, stockpile, retain or transfer to
anyone, directly or indirectly, cluster munitions.
c) Assist, encourage or induce anyone to engage in any activity prohibited
to a State Party under this Convention.”

And the Vienna discussion text defines cluster munitions broadly. There is also an explanatory annex in it to reflect the divergence of views expressed over a definition expressed at an earlier conference of the Oslo process in Lima, Peru in May.

Today’s discussions were a chance to test views on the new language, and to hear proposals, including for exceptions to a general prohibition.

Talks on this agenda took most of the day, co-chaired by New Zealand and Austria. It began, however, with a presentation from an expert, Colin King, and a presentation of a ground-breaking report he and colleagues at the NGO Norwegian People’s Aid produced entitled M85: an analysis of reliability pictured above.

M85 bomblets are considered ‘state-of-the-art’ cluster submunitions, with so-called self-destruct mechanisms. M85s, or their derivatives, were used in Iraq this decade by British forces and by Israel in Southern Lebanon in 2006.

The M85 analysis showed, among its findings, that claims of 1 percent failure rates are way off: instead, it was around 10 percent – a big concern in view of the large number of submunitions dispersed in any cluster munition attack. King’s presentation (drawing on the report) showed definitively that “there’s a lot to go wrong” in the M85 arming sequence, which results in the submunition malfunctioning and prevents the self-destruct mechanism from activating.

In many cases, the arming sequence can be completed by an accidental encounter. (Norwegian defence scientists spinning M85 bomblets in concrete mixers – with often fatal results for the mixer, around 40 "killed" so far.) It helps to underline that there is no such thing a “non-hazardous dud” submunition, a term sometimes heard.

It also shows that testing doesn’t offer a realistic indication of what will happen during actual cluster munition use because they’re always carried out under favourable conditions.

King’s powerful presentation set the scene for what was a constructive but occasionally fractious debate that continued from mid-morning until late this afternoon.

Many countries spoke. Some, such as France, Switzerland, Netherlands and the UK reiterated that they do not think all cluster munitions have unacceptable consequences for civilians, arguing that concepts of accuracy and reliability should be benchmarks for what is deemed acceptable or not – drawing on an ICRC formulation. The ICRC responded that its terminology was to describe the characteristics of cluster munitions unacceptable in terms of their harm to civilians (in its view, virtually all used to date) and not threshold criteria for a definition.

Germany again put forward proposals for exceptions to a total ban. It has crafted what it called a 3-step approach that while immediately banning some cluster munitions (step 1), would allow others to continue to be used for an as-yet unspecified period (step 2) before – optional – replacement with “alternative munitions” (step 3), as yet undetermined and possibly not invented. This met with considerable criticism from a range of states and the Cluster Munition Coalition (CMC). For its part, Norway acidly commented that it could not follow the German proposal’s logic.

The discussions underlined that there’s still a long way to go on definitions. Today’s talks were never intended by the co-chairs to be more than a ventilation of views, but they did make some progress on discussing less problematic exceptions to a comprehensive prohibition including mines (covered by other treaties), flare, smoke and chaff munitions and sub-munitions that are inert post impact. And, they paved the way for further talks this afternoon on Article 1 of the Vienna discussion text on general obligations and scope, in which military inter-operability concerns dominated. But that’s for another post.

John Borrie