Disarmament Insight


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.