While the main cherry blossom season is drawing to an end in Japan, the UN Convention on Certain Conventional Weapons (CCW) Group of Governmental Experts engaged in what was, from a legal point of view at least, something of a cherry picking exercise in Geneva last week. In its capacity as Friend of the Chair, Japan held several informal meetings to identify rules and principles of international humanitarian law (IHL) of particular relevance to the use of cluster munitions, and to elaborate new provisions and best practice guidelines to strengthen IHL implementation in this context. The results of this “fruitful debate” on IHL implementation (as Japan described it) were attached to the meeting’s procedural report as an annex (Annex III), in the form of “draft elements on international humanitarian law” and “draft elements of best practice guide” (this report should be up on the UN's CCW webpage soon).
Several states and the ICRC said these draft elements were cause for some concern. Whereas certain “draft elements on IHL” are taken verbatim from 1977 Additional Protocol I to the 1949 Geneva Conventions, others have been reproduced with wording that differs from the original text. For instance, articles 51(1) and (2) and 52 (1) of Additional Protocol I on the protection of civilians have been drawn together without reiterating the prohibition of reprisals against civilians and civilian objects and the prohibition against spreading terror among the civilian population.
Other rules that would appear to be highly relevant to the use of cluster munitions have not been included in the list at all. One notable omission is the explicit prohibition of indiscriminate attacks, as reflected in article 51(4) of Additional Protocol I. According to this provision, indiscriminate attacks are, inter alia, “those which employ a method or means of combat which cannot be directed at a specific military objective” or “the effects of which cannot be limited” as required by the protocol.
Selectiveness in the choice of norms and modification of their original wording risks creating the impression that certain rules and principles of IHL do not apply, or are of minor importance, to cluster munition use. This would create legal uncertainty for IHL implementation at the operational level. And the existing set of rules and principles on the conduct of hostilities that applies to all types of weapons could be undermined.
The “draft elements of best practice guide” add to this concern by listing under the heading of “voluntary” national mechanisms for IHL implementation several measures that a majority of states are already legally obliged to take. States parties to Additional Protocol I have, for example, a legal obligation to determine the lawfulness of new weapons (article 36). Other suggested measures are incumbent on all states as customary international law obligations, such as the obligation to provide instruction in IHL to their armed forces (see Rule 142 of the ICRC’s Customary Law Study).
Japan sought to reassure those involved in last week’s informal consultations that its work aimed at the mere restatement and application of existing IHL principles to cluster munitions – in contrast to the creation of new norms. This sounds like a simple task. Yet several draft elements on IHL are in brackets, which leads some to worry that states will not even agree on which principles are relevant.
But states’ difficulties are perhaps not so surprising. First, in a fragmentary international legal system, states are bound by different treaties. Second, their interpretations of indeterminate and general legal principles (such as the principle of proportionality) differ. Third, states often frame the factual issue to be regulated differently. This leads to divergent views as to which principles are relevant in a given context. In this case, there is disagreement over whether and to what extent the inherent characteristics of cluster munitions mean that they cause unacceptable harm to civilians.
Finally, the application of a general norm in a specific factual context always involves interpreting, specifying and adapting the norm itself, which results in its recreation in an ongoing dynamic process. A clear-cut distinction between “simple” restatement of existing norms and the creation of new ones is therefore something of an illusion.
Why should this work be of any interest to anyone but lawyers? Because it potentially has very real consequences for combatants and civilians both during and long after a conflict. This is why the CCW Group of Governmental Experts’ work last week is of broader concern, and should not be regarded as a routine and summary exercise.
This is a guest blog by Maya Brehm. Maya is a PhD fellow in public international law at the University of Copenhagen, and currently a visiting Disarmament as Humanitarian Action fellow at UNIDIR.
Photo by byte retrieved from Flickr.