Last week's meeting of states party to the Mine Ban Treaty (8MSP) in Jordan provided an opportunity for the International Campaign to Ban Landmines and the Cluster Munition Coalition (CMC) to offer a lunchtime briefing to states on the Oslo Process to address the humanitarian impacts of cluster munitions. Austrian Ambassador Wolfgang Petritsch shared information about next week's Vienna Conference, and CMC Coordinator Thomas Nash talked about campaigning against cluster munitions in general.
The briefing was timely: with 8MSP about to wrap up successfully, diplomats were beginning to turn their minds to the recently released "Vienna text" and reflect upon the tactical implications of the CCW's mandate to work on cluster munitions in 2008 agreed on 13 November in Geneva. 8MSP offered a good opportunity for Oslo process outreach with a number of countries party to the Mine Ban Treaty (which has 156 members) who either aren't members of the CCW (which has 103 members) or who are but don't often attend its meetings.
One question that came up in question-and-answer time was the following:
States hostile to banning or restricting cluster munitions are likely to be briefing their delegations around the world with bullet-point style arguments as to why their cluster munitions are necessary. What are likely to be the 3 main planks of their position, and what are responses to these?To me, actually there seem to be 4 characteristic generic arguments heard about cluster munitions. (There may be more, or maybe they could classified differently, but these rolled off the top of my head.) By request, I’ve set them out below. Sorry for the long blog post…
1. Cluster munitions are legitimate under international humanitarian law (IHL): unlike anti-personnel mines, cluster munitions aren’t inherently indiscriminate and were, besides, designed for a specific purpose - to destroy massed formations of infantry, armour and soft-skinned vehicles. If used “responsibly”, these weapons are consistent with IHL, it’s argued.
Moreover, cluster munitions do appear highly prone to indiscriminate use. This underlines the point that the effects of a weapon are context-dependent, not solely contingent on technical characteristics: self-destruct mechanisms in many explosive submunitions, for example, were shown in Southern Lebanon to have been ineffective, despite previous manufacturer and user claims about them rendering unexploded submunitions safe.
It should also be noted that – unless it’s banned – a weapon could be considered legitimate while still subject to specific legal restriction.
2. If we didn’t use cluster munitions, we’d have to use something worse: But IHL rules apply to the use of weapons generally - including any weapons of attack used as alternatives to cluster munitions. Principally, those rules are of (1) distinction between civilians and combatants and between civilian objects and military objectives, (2) the rule against indiscriminate attacks, (3) the proportionality rule and (4) the obligation on belligerents to take feasible precautions to minimize incidental loss of civilian lives, injuries to them or damage to civilian objects.
An ICRC expert has observed that cluster munitions raise important and persistent legal concerns under all of these rules (this is ultimately why there are international efforts underway to deal with them explicitly!). Nevertheless, the non-use of cluster munitions isn’t a “free pass” for the use of other weapons without the application of these general IHL rules.
3. Cluster munitions are what we have in stock: while often dressed up in different forms, this point is implicit in many arguments for continued use of cluster munitions based on “military utility”. Many states possess large stocks of explosive submunitions: the US for instance, appears to have 700-800 million in inventory, predominantly of older, more problematic types. For fiscal and logistical reasons, many militaries also deploy munitions from their arsenals on a “first-in, first to deploy” basis - using older lots first, a problem that compounds the humanitarian consequences of the use of the weapon because older submunitions tend to be less reliable.
To my way of thinking, using cluster munitions is in fact a political and moral question, not a strictly military issue. It’s about how societies choose to allocate resources.
Anecdotal evidence is that soldiers are not wedded to cluster munitions, and would prefer to use alternatives with lesser humanitarian risk and which pose less hazard to their own troops advancing through areas in which unexploded submunitions are scattered, for example. But they continue to use what they’ve have been provided for in military budgets, sometimes as legacies of purchasing decisions made decades ago to suit the exigencies of Cold War fighting in Europe. Ultimately, along with commitment to addressing the humanitarian impacts of cluster munitions, there needs to be recognition from governments that they must match it with financial commitment to providing alternative means for militaries to carry out their missions in ways consistent with IHL.
4. We don’t like being told what to do: this fourth argument actually has little to do with cluster munitions per se, but is really to do with concerns about “another Ottawa” emerging.
It’s self-evident that, by exploiting procedural tactics, an obstructive few are able - and sometimes do - prevent the emergence of multilateral cooperation through formal channels that could yield security benefit to all. The treatment of “mines other than anti-personnel mines” in the CCW process in recent years, in which a handful of states have obstructed general agreement on a new agreement, is a case in point.
The problem is this: if there’s evident need to negotiate a new norm (like on cluster munitions on humanitarian grounds), it’s probably emerged from the consequences of self-interested behaviour of users of the weapon. Logically, these users, who perceive that they derive benefit from that behaviour (i.e. use of cluster munitions), will then object to agreement of a robust norm restricting or banning that weapon by blocking consensus.
This underlines the conundrum for the CCW in agreeing on a new norm in the future. Its mandate for 2008 is about commencing work – not agreeing on any outcome – and both roadblocks and dilution of ambition are tactics will be encountered…
…which also highlights the importance of the Oslo process, both in its own right in addressing cluster munitions and in adjusting the perceptions of those who might otherwise resist consensus in the CCW on a final agreement there. Already, concerns about the Oslo process seem to have led states such as the US, China and Russia to change their policies in order to allow 2008 work in the CCW to proceed on cluster munitions - a new development without prospect before the Oslo Conference in February 2007. They are sure to have recognized that (unlike in the CCW) the consensus practice isn’t explicit in the Oslo process, nor is it customary in other IHL processes.
In the big picture, disagreement about the merits of "which process" just isn’t as important as achieving the goal of protecting civilians from weapons. Unfortunately, traditional multilateral structures and practices can obscure this at times. So multilateral decision-makers need to be creative and goal focused. It should be noted in this respect that the Mine Ban Treaty a decade ago actually reinvigorated the CCW for a time, and the Oslo process appears to be doing the same. So the issue here isn’t about CCW (the establishment) versus Oslo (the upstart) as some might have us believe. Meanwhile, the UN Secretary-General has been on record since February 2007 as supporting both processes, because what’s important is addressing the impact of cluster munitions on civilians.
John Borrie & Rosy Cave, “The humanitarian effects of cluster munitions: Why should we worry?”, Disarmament Forum, (Issue 4) 2006, pp. 5-13.
Human Rights Watch, Myths and Realities about Cluster Munitions.
Louis Maresca, “Cluster munitions: Moving toward specific regulation”, Disarmament Forum, (Issue 4) 2006, pp. 27-34.