Disarmament Insight


Friday, 26 September 2008

IEDs a threat to peace and security

The Times ran an interesting article earlier this week entitled 'The success of the home-made bomb: increased use of improvised electronic devices poses threat to peace and security'. The article is the latest in a steady trickle of media reporting about what are frequently described as Improvised Explosive Devices (IEDs), which are a frequent weapon of insurgents in Iraq, the Taleban in Afghanistan and by various other violent actors in many conflicts around the world.

IEDs certainly aren't a new phenomenon, but they've become of increasing concern and profile for Western militaries this decade as they've found themselves in zones in which their troops are exposed to the weapons to a greater extent. The Times article mentioned above contends that up to 300 IEDs are detonated somewhere in the world every month. The countries affected include Algeria, Chechnya, Pakistan, Colombia and Sri Lanka as well as Afghanistan and Iraq mentioned already. Moreover, the Washington Post reported in July that suspected Shiite militiamen in Iraq have even begun using powerful rocket-propelled bombs described as Improvised Rocket Assisted Munitions, or IRAMs:

"They are propane tanks packed with hundreds of pounds of explosives and powered by 107mm rockets. They are often fired by remote control from the backs of trucks, sometimes in close succession. Rocket-propelled bombs have killed at least 21 people, including at least three U.S. soldiers, this year."
(You can see some pictures of IRAMs on the Long War Journal.)

Increasing amounts of money and other resources are being spent by some governments on detection and countermeasures in order to protect their troops. But, of course, beyond the military threats there are also the deadly hazards to civilians of IEDs - who usually have no protection whatsoever, and are, indeed, often the intended victims of IED attacks. Nor is this just a headache in places like Iraq: at least one media report indicates that the U.S. Department of Homeland Security and the FBI agree that "the homemade explosive devices that have wreaked havoc in Iraq pose a rising threat to the United States." Intelligence and law enforcement agencies in many other countries are also concerned.

More focused and systematic data collection about IEDs is needed, as well as some policy dialogue at the international level in the arms control field about whether and how work in this area might be of benefit. Unfortunately, we're headed into arms control silly season from here until the end of the year, with UN First Committee in New York, the biological weapons, anti-personnel mines and Certain Convention Weapons Conventions' meetings in Geneva, and the Convention on Cluster Munitions signing ceremony in Oslo where most multilateral arms control attention will be - not to mention an upcoming U.S. presidential election and an unfolding world financial crisis.

However, someone thinking and blogging on these things on a frequent basis is Landmine Action UK's Policy & Research Manager Richard Moyes, whose Explosive Violence blog Disarmament Insight also has a link to at right. Richard is also, it seems, keeping a useful ad hoc log of explosive violence incidents, many of which pertain to IED use: you can check that out here.

We certainly can't claim ignorance that IEDs are a problem, even if a lot more investigation and attention is needed.

John Borrie

Image credit: borrowed from Richard's Explosive Violence blog.

Monday, 22 September 2008

Losing Control

Unless you've been on Mars these last weeks, the unfolding international financial crisis centred on Wall Street can't have escaped your notice. Some of Wall Street's biggest names have disappeared, either having collapsed (such as Lehman Brothers) or having been pushed into commercial shotgun marriages (Bear Stearns bought by JPMorgan Chase, Merrill Lynch by Bank of America). The American taxpayer now owns the mortgage finance giants Fannie Mae and Freddie Mac, and early last week the U.S. Treasury stepped in to bail out and effectively nationalise American Insurance Group (AIG).

In the last day or so, after enjoying decades of being Wall Street darlings, Goldman Sachs and Morgan Stanley, the last of the Wall Street independent investment banks, have sought to become bank holding companies. Analysts have noted that this subjects the two institutions to far greater regulation and closer government supervision, but the banks' motive is to gain access to the full array of the U.S. Federal Reserve's lending facilities. Times are that tough.

The New York Times opined in a headline that "Goldman and Morgan Shift Marks End of Era in Finance". More bluntly, to paraphrase a a commentator I heard on CNBC today, it marks the impact point in a period in which Wall Street has enjoyed the profits and socialized its losses. The group picking up the tab for the U.S. Treasury's rescue package, which some estimates put at US$700 billion, is of course American taxpayers. (Central banks and Treasuries in other countries are mounting their own efforts, like those underway in Great Britain: these costs are not included and ultimately their taxpayers will foot the bill for their endeavours.)

To put this 700 billion dollar Wall Street rescue package into perspective, according to the International Institute for Strategic Studies' 2008 Military Balance, the U.S. National Defense Budget Authority request for this year was estimated to be 695 billion dollars, plus loose change of a few tens of millions. This included supplemental funding requests of almost 190 billion dollars for the so-called Global War on Terror (GWOT). (Incidentally, according to IISS, with the supplemental enacted as of May 2007, Congress had approved a total of around 610 billion dollars since 11 September 2001 - more than two-thirds of it spent in Iraq.) Although the figures are not neat, it's clear that we're not talking loose change here - either for a Wall Street bail out or the GWOT.

No doubt these expensive financial rescues are necessary under the circumstances, although it's by no means certain whether they'll actually serve to prevent the global financial meltdown, the prospect of which frightens governments and investors alike. Political and financial leaders, with the spectre of the Great Depression of the 1930s over their shoulders, are doing their best to soothe fragile investor confidence. And, of course, the public is worried too: in a globalized world anyone with a bank account, a job, a car loan or even a warranty on a toaster is stuck in this together.

Meanwhile, economists talk about the externalities of economic decisions. This sounds more abstract than it is. To quote that paragon of accuracy (it serves well here), Wikipedia:

"Standard economic theory implies that any voluntary exchange is mutually beneficial to both parties involved in the trade. This is because if either the buyer and the seller would not benefit from the trade, they would refuse it. An exchange, however, can result in additional effects on third parties. From the perspective of those affected, these effects may be negative (pollution from a factory), or positive (honey bees that pollinate the garden)."
Rising interest rates are an externality of recent aggregated economic decisions: positive if you have money in the bank (although inflation is rising too), but negative if you have a mortgage or other debts. Many people are finding this out the hard way, and an approaching backlash is palpable. I was in the UK last week, and the newspapers all contain increasing numbers of stories about fat-cat city boys, especially if they're getting their comeuppance in a falling property market or a courtroom. Some stories verged on the nasty, but underline the resentment growing about the allegedly greedy and amoral activities of those involved in high finance.

The fact is that such blatant moral hazard - in which an elite reap the majority of benefits from some activity, but others largely pay the price (or seem to) - is hardly limited to international finance. We have only to look to the international arms trade and its effects. The reality is that, in much of the world, many communities are suffering the effects - the externalities - of transactions of arms they weren't involved in. The effects on civilians of weapons like anti-personnel mines and unexploded cluster submunitions are cases in point. Another is the illicit trafficking in small arms and light weapons such as assault rifles. Many were supplied by the superpowers during the Cold War to their proxies in brushfire conflicts, but now these weapons slosh from insecure environment to insecure environment arming paramilitaries, violent insurgents and criminal gangs. The people who suffer from the presence and use of these weapons aren't just the ones who wield them, but ordinary people whose lives and livelihoods they threaten.

So spare a thought for those who endure such externalities and lend your support to ways to reduce their insecurity. Following the Wall Street crisis, governments and voters are going to be more wary (at least for a while) of unconstrained market activity as an end in itself. We should be similarly wary of the international arms trade in its current form: even when legal the longer term effects of the arms trade can be hard to predict, and can come back to haunt us. All the more reason for an Arms Trade Treaty, and continued implementation of the Programme of Action on curbing the illicit trade in small arms.

John Borrie


International Institute for Strategic Studies, The Military Balance 2008 (London: Routledge/IISS: February 2008).

Paul Rogers' book Losing Control: Global Security in the Twenty-first Century (2nd edn), (London: Pluto Press: 2002) explores and analyzes big themes such as the proliferation of weapons of mass destruction, the impact of human activity on the environment, paramilitaries and the growth of hypercapitalism and attendant inequality, poverty and insecurity. Paul's Open Democracy column is also well worth following.

Picture credit: 'Free Fall in the City' by cactusbones (8 January 2008) downloaded from Flickr.

Wednesday, 17 September 2008

Run with the Hare and Hunt with the Hounds?

This blog has repeatedly reported on the two “complementary and mutually reinforcing” processes currently underway to address the humanitarian impact of cluster munitions. The Oslo Process, which culminated in the adoption of the Convention on Cluster Munitions (CCM) in May this year, and the Convention on Certain Conventional Weapons (CCW) which has mandated a Group of Governmental Experts (GGE) to “negotiate a proposal to address urgently the humanitarian impact of cluster munitions”.

In November, the GGE will meet for the last time this year, perhaps producing a Protocol VI on cluster munitions. The CCM will be opened for signature in Oslo a month later. For States that intend to sign the CCM in December, some interesting legal questions arise as to the CCM’s relationship with a future CCW protocol on cluster munitions.

Defeating the Object and Purpose of a Cluster Munitions Ban?
States that sign the CCM become bound by its provisions as soon as the treaty enters into force for them through ratification. Until such time, all signatories are under a legal obligation not to defeat the CCM’s object and purpose (art. 18 Vienna Convention on the Law of Treaties (VCLT)). As such, they may not engage in actions that undermine the CCM’s aim “to put an end for all time to the suffering and casualties caused by cluster munitions”, to ensure the rapid destruction of cluster munitions stockpiles, effectively and efficiently clear cluster munitions remnants and to ensure the full realization of victims’ rights – in short to completely ban cluster munitions.

In all likelihood, a protocol on cluster munitions emerging from the CCW will be much more permissive than the CCM. The transfer and even the use of many existing types of cluster munitions would be allowed in certain situations, in particular during an initial “transition period” (see our last blog). Are CCM signatories that continue to partake in negotiations on a CCW protocol (in case no text is agreed in November) and that sign or ratify such a protocol defeating the CCM’s object and purpose? - Especially since the CCM prohibits to “assist, encourage or induce anyone to engage in any activity prohibited to a State Party” under the CCM? “It depends”, would probably be the lawyer’s answer, on whether the prohibition to encourage others forms part of the CCM's object and purpose, and on whether negotiating, signing or ratifying an instrument that regulates rather than prohibits cluster munitions is in itself an act of encouragement – encouragement being quite an open concept.

A Succession of Treaties on Cluster Munitions.
Under the assumption that the CCM enters into force before a future CCW protocol, how will that impact on the CCM?
In accordance with the Vienna Convention on the Law of Treaties, the CCM’s provisions will prevail over those of the CCW protocol only if the CCW protocol provides that “it is subject to or that it is not to be considered as incompatible with” the CCM (art. 30 VCLT). If however - as is presently the case - both treaties are silent on their mutual relationship, the provisions of the earlier treaty - most probably the CCM - will only apply “to the extent that they are compatible with the provisions of the later treaty”, i.e. the CCW protocol. Depending on how this “compatibility” requirement is interpreted, the CCM’s impact could be significantly reduced. For instance, if the CCW protocol allows the use of cluster munitions with a self-destruct mechanism (such as the M85, which wreaked havoc in Lebanon), the CCM’s obligation never under any circumstances to use cluster munitions would be incompatible and would simply not apply.

States wishing to prevent this could clarify in the CCW protocol’s text that its provisions are without prejudice to any more restrictive rules on cluster munitions by which the parties are bound. A phrase reserving the continued applicability of international humanitarian law (IHL) is already included in the Chairman’s draft text (art. 1(4)):
This Protocol is without prejudice to existing or future international humanitarian law [which provide for stricter obligations or which have wider applicability] [applicable to the High Contracting Parties establishing [stricter] obligations][which specifically addresses the subject matter of this Protocol].
To avoid ambiguity (Is the CCM an IHL treaty, a disarmament treaty, or both?) the brackets in this paragraph could be removed and a specific reference to a cluster munitions treaty binding on the parties could be introduced. Additionally, parties to the CCM could declare upon signature and/or ratification of a CCW protocol that the CCM continues to govern their mutual relations. The provisions of the CCW protocol would then only apply to the relations between States Parties to both treaties on the one hand and States Parties to the CCW protocol only on the other.

Complementary but Mutually Exclusive?
Under international law, States have to perform all treaties they are bound by in good faith. Assuming that some States will in the future be bound both by the CCM and a CCW protocol on cluster munitions, how will States implement two differing sets of rules on cluster munitions?

Clearly, the CCM is wider in scope than any future CCW protocol on cluster munitions. The CCM applies at all times, whereas a CCW protocol will probably only apply during international and non-international armed conflict. Furthermore, the CCM binds State parties in their relations to all other States and reservations are not permitted, whereas a CCW protocol will normally not govern the relations between a State Party to the protocol and a State not party to it. Reservations and objections to those reservations will further bi-lateralise treaty relations under the CCW protocol. Finally, the CCM bans all activities with weapons it defines as cluster munitions (with few exceptions), whereas the CCW protocol will probably only regulate or ban a portion of the weapons it defines as cluster munitions (although its definition of what weapons are cluster munitions is wider). Given the CCM’s broad scope, States bound by both treaties are unlikely to violate the CCW protocol by simply applying the provisions of the CCM in all aspects regulated by both treaties.

As mentioned above, however, once the CCM enters into force, States Parties to it are under a legal obligation never under any circumstances to “assist, encourage or induce anyone to engage in any activity prohibited” under the CCM (art. 1(c)). As but one example of a potential conflict, in the latest draft of the GGE Chairman’s room paper there is a provision (art. 1(4)) that encourages (Option A) or obliges (Option B) States “in a position to do so” to “facilitate the exchange of equipment, material, and scientific and technological information” to improve cluster munitions. Clearly, such assistance would contribute to the development, production, stockpiling, transfer or use of cluster munitions that are banned under the CCM. Providing assistance in this way must be considered a violation of the CCM.

One way out of these conflicting obligations for States Parties to both treaties is to argue that they are not “in a position to” facilitate technology exchange. Another, somewhat cynical argument is that in military cooperation and operations with States not parties to the CCM, technology exchange is allowed under infamous article 21 of the CCM (see our previous posts). That, however, would probably contravene the obligation on CCM States Parties to promote the norms of the CCM in situations of military cooperation with non-party States (art. 21(2)).

Legitimize or Stigmatize?
After 3 December 2008, CCM signatories have to give some serious thought to whether their continued participation in negotiations of a “weak” CCW protocol and eventually its signature and ratification are compatible with their obligations under the CCM. If States end up being bound by both instruments they have to clearly address their mutual relationship so as to avoid replacing the CCM with a subsequent “weaker” CCW protocol. As to the substantive obligations, the CCM’s provisions, which are likely to be wider in scope and more restrictive, will in practice overshadow those of the CCW protocol. All this raises serious doubts about the added benefit of negotiating and joining a “weak” CCW protocol on cluster munitions.

This should, however, not be a reason for States wishing to urgently and effectively address the humanitarian impact of cluster munitions to defer signature of the CCM until after a CCW protocol has entered into force - especially as such entry into force may be a long time in coming. Rather, States should sign the CCM and, if they remain engaged in the CCW process, do their utmost to ensure that any future CCW protocol on cluster munitions does not legitimize weapons that the CCM bans. A strong, though partial solution, such as a complete and immediate transfer ban on all cluster munitions, would be one solution.

Maya Brehm and Virgil Wiebe.

Photo Credit: "Dog 'shooting' rabbit" by Kaspar's Butlers on Flickr.

Wednesday, 10 September 2008

The CCW: Can it find its way?

This blog has provided a lot of commentary on both the CCW’s work over the last year-and-a-half and on the Oslo Process that emerged in early 2007 because of frustration among many counties about the slow pace of the CCW’s work. Last week the UN Convention on Certain Conventional Weapons (CCW)’s fourth round of talks this year tried to make further progress on its mandate to “negotiate a proposal” to address the humanitarian impacts of cluster munitions “while striking a balance between military and humanitarian considerations”. We provide some further thoughts on our observations from last week below.

The Oslo Process culminated in a Convention on Cluster Munitions (CCM) in Dublin in May 2008, which has a humanitarian emphasis and bans all cluster munitions that cause unacceptable harm to civilians – describing this through a complicated but quite comprehensive formula in its Article 2. Such a formula is probably too rich for the blood of some of the major producers, stockpilers and exporters of cluster munitions such as China, India, Israel, Pakistan, Russia and the United States. These countries shunned the Oslo Process but were nevertheless prodded to do something in response to the humanitarian impacts of cluster munitions in the CCW, to which they all belong.

While there were two international processes underway, there was hope among some states participating in both that the CCW, even if less ambitious than the CCM, would at least capture these countries in some sort of humanitarian standard on cluster munitions that goes beyond the general rules of international humanitarian law (IHL). That is, a CCW agreement would make them at least part of the solution rather than the problem, even if it is not as good as joining the CCM.

It is our view that the direction in which the CCW Group of Governmental Experts is heading will leave it teetering on the brink of whether it helps or hinders in alleviating the hazards to civilians posed by cluster munitions. Moreover, it seems we're not alone. By the end of last week’s round of talks, it was clear that CCW delegations disagree quite deeply on what approach to take to defining, prohibiting or regulating cluster munitions there.

Political, technical, legal and procedural factors are all key elements in treaty negotiations - procedures being the practices through which the other elements play out. Pertinently, the International Committee of the Red Cross (ICRC) observed last week that a diplomatic (or procedural) success could nevertheless be a humanitarian disaster. The ICRC recalled that the original CCW Protocol II on landmines in 1980 did nothing to prevent the subsequent exponential growth in the use of anti-personnel mines. For that matter, Amended Protocol II is not necessarily an unambiguous improvement: some of its state parties have chosen to defer compliance with cornerstone provisions on detectability of mines, self-destruction and self-deactivation set out it its Technical Annex.

Scope of any regulation or prohibition.
There is a real danger, in our assessment, that the smorgasbord approach of Article 4 in the current CCW text (a Chairman’s room paper – and to our knowledge not yet available on the web) will serve to legitimize the status quo, if eventually agreed.

Article 4(1) offers options within options as to cluster munitions that will NOT be prohibited. For instance, the version of Option (A) discussed toward the end of last week would allow for a cluster munition to be exempted from the Protocols prohibitions if it has any one of five more or (rather) less defined features that would “effectively ensure that unexploded submunitions would not longer function as explosive submunitions.”

But as this blog noted last week, “effectively” is a very open term. Allowable would be submunitions with (i) a self destruct mechanism (like the discredited M85); OR (ii) a self-neutralization mechanism OR (iii) a self-deactivating mechanism OR (iv) two or more fuzing features (like the deadly U.S. manufactured BLU-97) OR (v) “any other mechanism or design” (again, not defined in any way).

A new version of Option (A), presented at the very end of the meeting remains essentially unchanged, except that, thanks to a Swiss proposal, the requirement that any safeguard “effectively ensure that the unexploded submunitions will no longer function as explosive submunitions” is now put into brackets. This is not an encouraging prospect.

The latest version of Option (B) contains heavily bracketed, alternative sub-options (a), (b) and (c).

Sub-Option (B)(a) represents a moderate improvement on Option (A) in that it includes additional criteria, some of them cumulative and omits the “two or more fuzing features” and the “any other mechanism or design” criteria. It reads as follows:
Each explosive submunition [is designed to detect and engage a single target object and] contains a[n electronic] self-destruct mechanism and either an independent self-neutralization or [electronic] self-deactivation [feature] [mechanism] which effectively ensures that the unexploded submunitions no longer function as explosive submunitions
Sub-Option (B)(b) is the 1% solution offered by the United States. An unspecified mechanism is to ensure - not only in testing, but across the range of “[intended] operational environments” - that the failure rate is no more than 1 %. Many questions were raised about how to assure such a rate, what would happen in “unintended” operational environments, and how this would alleviate the humanitarian impact of submunitions when very high numbers are being used.

The latest version of Sub-Option (B)(c) draws on the cumulative approach of the CCM. Allowed are cluster munitions with [all] five or with [two or more] of the listed characteristics:
(i) Each munition contains fewer than ten explosive submunitions;
(ii) Each explosive submunition weighs more than four kilograms;
(iii) Each explosive submunition is designed to detect and engage a single target object;
(iv) Each explosive submunition is equipped with an electronic self-destruction
(v) Each explosive submunition is equipped with an electronic
self-deactivating feature;
Although, at first glance, this seems to mirror Article 2 of the CCM, it is significantly weaker than the CCM’s approach because it would allow states to choose any TWO criteria rather than having to adhere to them all, enabling them to merely address a cluster munition’s lack of reliability or its inaccuracy / area-effect but not necessarily both.

Transition Period.
A transition period of yet unspecified duration, riddled with inconsistencies and qualifiers, remains in the latest room paper. Yet another baffling alternative (in brackets) incorporates India’s proposal that the “shelf-life” of cluster munitions a state possesses should determine the length of that transition period. Yet a clear majority of delegations are fundamentally opposed to the very concept of a transition period - indeed, the CCW negotiation process showed that arguments for them hold no water. It seems indeed difficult to reconcile transition periods with the urgency with which the CCW agreed in its 2007 mandate it should address the humanitarian impact of cluster munitions. Supporters of the concept are mainly concerned with the cost implications of destroying cluster munitions and replacing them with other weapons.

Storage, Destruction, Transfers.
While a line-by-line discussion of articles 5 & 6 occurred on Thursday, the discussions did not advance substantively much beyond the debate earlier last week. India, Israel, Korea, the US, Russia, and Pakistan questioned the need for any specific timeline at all for destruction of prohibited weapons. Safe storage until feasible destruction (or, in India’s opinion, until cluster munitions go sour on the shelf) is all that’s needed. Others, as might be expected, supported stockpile destruction under firm deadlines.

One interesting area of agreement between states usually on opposing sides of the issue was hearing Germany, Canada and Korea call for an immediate transfer ban on cluster munitions that cause unacceptable harm to civilians – something mooted on this blog in July. Also, some discussion was had last week about how to keep cluster munitions, whether prohibited or not, out of the hands of non-state actors. This is certainly not a bad idea in view of the reported use by Hezbollah of cluster munitions in the 2006 war with Israel.

The way forward?
The fifth and last meeting of the GGE in 2008 is scheduled to take place in early November, a month before the signing ceremony of the CCM. With only five working days left for negotiations (and informal discussions planned for the end of October), there appear to be three possible outcomes:
  • Outcome 1: a repeat performance of the CCW’s Anti-Vehicle Mine negotiations earlier this decade – a failure to reach consensus on even the most fundamental of issues, such as the approach to defining the object of regulation, let alone the more detailed provisions on what should be prohibited or not under the Protocol.

  • Outcome 2: a repeat performance of CCW Protocol II on mines – an agreement for the sake of an agreement that leaves observers scratching their heads in vague confusion and States Parties with few actual constraints on behaviour.

  • Outcome 3: a protocol that contains clear provisions on those cluster munitions that are most problematic in humanitarian terms, such as a complete and immediate prohibition on their use, production and transfer, coupled with clear restrictions on other cluster munitions that measurably constrain the behaviour of those states that feel, as yet, unable to join the CCM.
As of writing, Outcome 3 does not look as likely as the others, which again begs the question we asked in this blog’s last posting – is nothing better than something, if that something doesn’t make a difference to people on the ground?

Virgil Wiebe, Maya Brehm & John Borrie

Photo credit:Day 126: No Direction Home” by Berserker on Flickr.

Friday, 5 September 2008

CCW: None of the above?

In late 2007, the Convention on Certain Conventional Weapons (CCW) agreed on a mandate to ‘negotiate a proposal’ on cluster munitions during 2008, if possible. Today, its fourth round of Group of Governmental Experts (GGE) meetings this year concluded, and its outputs are liberally square-bracketed - in particular, the text in Article 4, the core of a notional draft protocol.

There is nothing especially surprising about the use of square brackets in drafting disarmament agreements in negotiating processes like the CCW. (In contrast, the Convention on Cluster Munitions (CCM) agreed in Dublin in May was highly unusual in that this orthodox approach was not used.) But until today, the Chair of the GGE, Ambassador Bent Wigotski of Denmark, had mainly avoided their use in his evolving Chair’s papers presented periodically to delegations over the course of the year.

The latest Chairman’s paper, which has evolved into a working draft, effectively arrived in the hands of most delegations on Thursday morning, having been faxed to missions on Wednesday night. Reportedly, the text resulted primarily from consultations with members of the permanent five of the UN Security Council. CCW delegations spent Thursday and Friday debating that proposal, along with the articles on [storage,] [destruction,] and [transfers]. (We warned you dear reader - there are a lot of square brackets.)

Article 4 of the draft – concerning any prohibitions on use, development, production or acquisition of any cluster munition employing explosive submunitions - is odd. It would give parties to the protocol three options to choose from in terms of what submunitions it could use, develop, produce, or otherwise acquire. The weakest option allows for use of submunitions with "safeguards" that have proven not only ineffective but downright dangerous in actual practice. An example is the use of "two or more fuzing features" - something that can effectively turn a submunition into an anti-personnel landmine with an anti-handling device. The qualifier on such safeguards is that they must "effectively ensure" that unexploded submunitions will no longer function as explosive submunitions. But what in the name of humanitarian urgency does that mean?

The next option calls for a 1 percent unexploded ordnance rate "across the range of intended operational environments." Determining failure rates in testing as well as practice has proven difficult at best. And what about "unintended" operational environments?

The third option, the strongest, is based on the Oslo CCM. Even this option could lead to legal confusion because it takes from the CCM an exclusionary definition. Under the CCM, a weapon with certain characteristics (i.e. a weapon with fewer than ten submunitions, each of which weigh less than 4 kilograms and are equipped with redundant electronic safeguards) is NOT a cluster munition. Under Article 4 of the proposed CCW protocol, such a weapon IS a cluster munition, but is not prohibited. Confused? You should be, especially if you are from a delegation of a country planning to sign both treaties.

Finally, these prohibitions would not go into effect until after a long transition period [as yet to be determined], during which time use and transfer of defective submunitions could continue.

New Zealand put the question to major producers and users - what does this mean in actual practice? Which systems will be off the table as a result of the least of these options? To its credit, the United States came back to say that the practical effects of the one percent option (option B in the Chair’s paper) on stockpiles would affect nearly all of its current systems, including the entire MLRS M74 and M76 submunitions, the 155mm APCIM and DPICM (M42, M43, M46), all BLU-97s including JSOW, and MK20 Rockeye.

No other country ventured into such specifics. The Russian Federation said only that the implementation of the conditions would require it to take "significant steps in transforming the existing arsenal of cluster munitions." More specific elaboration would be welcome, but in light of earlier statements in the week that it had not used cluster munitions at all in Georgia, one has to wonder how much more forthcoming it will be.

The result of the week was the promise of a further thoroughly bracketed Chairman's text to be forthcoming in a number of weeks. Indeed, this was foreshadowed by another room paper on Article 4 circulated at the very end of the meeting. The question at this point running through the minds of some delegations in the negotiation is likely to be: "is [nothing] better than [something]?"

This is a guest blog by Virgil Wiebe. Virgil is an Associate Professor of Law at the University of St. Thomas in Minnesota, and a Visiting Research Fellow at UNIDIR. Next week DI will provide an overview of this week’s CCW meeting, but it’s Friday night and we’re going to the pub.

Wednesday, 3 September 2008

New Cold War? Not at the CCW.

"We can support what has been said by the US." Those words constituted the entirety of the Russian delegation's comment to the Group of Governmental Experts (GGE) meeting of the UN Convention on Certain Conventional Weapons (CCW) on Tuesday, the fourth round of such talks this year. Refreshingly brief when one considers a lengthy and inconclusive war of words in the GGE meeting on Monday between Georgia and Russia concerning use of weapons in the recent conflict.

That comment prompted one observer to mutter under his breath, "So much for the new cold war." The Russian comment came after the United States stated that the destruction of stockpiles of prohibited cluster munitions wasn't really necessary. Just lock them up and there will be no worries. This presumed, of course, that there would be such a prohibition - just minutes later, an Indian representative prefaced his comments by explicitly presuming that there would not be any prohibitions, just "regulation." Spending money to destroy prohibited cluster munitions would be wasteful in the eyes of the US - money that could be spent so much more wisely in building better cluster bombs. The day before both India and Pakistan had expressed their concerns about the costs of technical improvements and the economic status of states parties.

How to unite the world's major military powers? Raise the shocking specter of destroying defective armaments. A side benefit will then be heightened concern about responsible defense spending.

This is a guest post by Virgil Wiebe. Virgil is an Associate Professor of Law at the University of St. Thomas in Minnesota, and a Visiting Research Fellow at UNIDIR.