CCW: Hark, a new Chairman's text

In our post of 24 October ('A Global Year of Cluster Munitions') we noted that preparations are underway for the fifth round of expert talks as part of the UN Convention on Certain Conventional Weapons' attempts to "negotiate a proposal" on cluster munitions. One element impatiently awaited was a new text by the Chairman of the group of experts, Ambassador Bent Wigotski of Denmark, containing his take of a possible draft protocol.

At an informal consultation earlier this week, and having just arrived that morning from UN 1st Committee in New York, Ambassador Wigotski told those present that despite delays, he would bring out a new text before the end of the week. And so he has. As of earlier today this text could be downloaded from the webpage of the UN Office for Disarmament Affairs in Geneva.

A key Article in this Chairman's text - as he highlighted at his informal consultation - is Article 4, which contains general prohibitions and restrictions on cluster munitions. These were always likely to be less comprehensive or far-reaching than those of Article 2 of the Convention on Cluster Munitions (CCM) agreed in Dublin, Ireland on 30 May in view of the CCW's membership (including some big cluster munition user and producers who shunned the Oslo Process). The formulation of these provisions became a key point of difference at the preceding sessions of the Group of Governmental Experts (GGE) this year.

The newest version of Article 4 in the Chairman’s text is as follows:

"Article 4. General prohibitions and restrictions

1. It is prohibited for a High Contracting Party to use, develop, produce, transfer or otherwise acquire cluster munitions that do not meet the criteria in paragraph 2.

2. The prohibition in paragraph 1 shall not apply if:

(a) The cluster munition is capable of being directed to a pre-defined target area and each explosive submunition possesses one or more of the following safeguards that must effectively ensure that unexploded submunitions will no longer function as explosive submunitions:

(i) a self-destruct mechanism;
(ii) a self-neutralization mechanism;
(iii) a self-deactivating feature; or
(iv) two or more fuzing features.

or

(b) The cluster munition is capable of being directed to a pre-defined target area and incorporates a mechanism or design which, after dispersal, results in no more than 1% unexploded ordnance across the range of operational environments.

3. A High Contracting Party may defer compliance with Paragraph 1 of this Article for a transition period not exceeding [8/10/12/15] years from the Protocol’s entry into force for it. This deferral shall be announced by declaration at the time of its notification to be bound by this Protocol. In case a High Contracting Party is unable to comply with paragraph 1 of this Article within this [8/10/12/15] year period, it may notify a Conference of the High Contracting Parties that, with the exception of transfers, it will extend this period of deferred compliance for a period of up to [5] additional years.

4. Notwithstanding a High Contracting Party’s deferral, pursuant to paragraph 3, of the application of the provisions of paragraph 1, each High Contracting Party undertakes, immediately upon entry into force:

(a) Not to develop new cluster munitions which do not meet the requirements of paragraph 1;

(b) To use cluster munitions that do not meet the criteria in paragraph 1 only after approval by its highest-ranking operational commander in the area of operations;

(c) To take steps in any design, procurement, or production of cluster munitions to minimize the unexploded ordnance rate or incorporate additional safeguard mechanisms or designs;

(d) To improve, to the extent possible the accuracy of their cluster munitions;

(e) To endeavour to use only cluster munitions with the lowest possible unexploded ordnance rate, consistent with military requirements; and

(f) To complete an evaluation of the military requirements and remove the stocks of cluster munitions in excess of these requirements from active inventory as soon as possible and designate these stocks for destruction.

5. The obligations in this Article do not apply to cluster munitions acquired or retained in a limited number for the exclusive purpose of training in detection, clearance, and destruction techniques, or for the development of cluster munitions countermeasures.

6. The High Contracting Parties in a position to do so are encouraged, through bilateral or multilateral mechanisms established between them, to facilitate the exchange of equipment, material, and scientific and technological information that will lessen the humanitarian impact of cluster munitions."

We have only had a preliminary look at the new text. While we commend the Chairman for his efforts in drafting a text that he hopes might be adopted by consensus as a new protocol to the CCW, we are nevertheless slightly bewildered at the formulation of Article 4. The key question in our minds is: Will this version move the different poles of opinion within the CCW on the nature of core prohibitions closer together?

For instance, we were struck by the absence of previously included provisions, such as cumulative criteria that weapons would have to fulfill in order to be allowed (similar to Article 2 of the CCM), or a requirement that all submunitions be capable of engaging single point-targets. The brackets around the concept of a transition period have now been removed. Accordingly, a state party may defer application of article 4(1) for 8,10,12 or even 15 years, and even extend that period by another [5] years, if the concerned state feels it is unable to comply. Next week’s discussions at the CCW are going to be very interesting.

John Borrie and Maya Brehm

Photo Credit: 'le ring' by sgoralnick on Flickr.

Uprooting the Evil in the Fields

“Yet it is not our part to master all the tides of the world, but to do what is in us for the succour of those years wherein we are set, uprooting the evil in the fields that we know, so that those who live after may have clean earth to till.” Gandalf in J.R.R. TOLKIEN, The Lord of the Rings

As mentioned in an earlier post on this blog a team of UNIDIR researchers working on the project “The Road From Oslo: Analysis of Negotiations to Address the Humanitarian Effects of Cluster Munitions” recently spent a week in Southern Lebanon, with the generous support of the UN Mine Action Coordination Centre (UNMACC) there.

The 2006 conflict, during which Israel launched massive amounts of cluster munitions into Southern Lebanon, and its aftermath undeniably played an important role in pushing international efforts to ban cluster munitions that cause unacceptable harm to civilians forward. Although much has been written about how unexploded submunitions pose a humanitarian hazard and constrain development, to see the contaminated fields with one’s own eyes and hear the stories of survivors with one’s own ears conveys a different, deeper understanding of what it means to live and work on land that is contaminated by hundreds of thousands of unexploded submunitions.

Two years after the end of the conflict, people are still falling victims to dangerous unexploded submunitions lying around in their orchards and fields. 20 civilians were killed and 195 injured between August 2006 and September 2008 according to UN MACC (figures up until June ‘08 are available here) Farmers having no other source of income find themselves forced to harvest their crops and till their fields, knowing full well that these have not yet been cleared, or are only free of submunitions on the surface. Explosive submunitions can be ploughed into the earth or move underground because of rain and snow, and surface again much later. We met one farmer who suffered serious injuries to his arm when his tractor drove over a submunition in a field that he had ploughed around a dozen times since the end of the conflict.

Clearance personnel too have paid a heavy price already. 39 have been injured and 7 killed in clearance accidents, as per end of September 2008 according to UNMACC. One of the most recent victims was a Belgian UNIFIL deminer who died in the beginning of September.

Despite the urgency of preventing more cluster munitions victims and making the land save for agriculture and reconstruction, the interest of donor countries is at risk of dwindling, and clearance organizations fear running out of money for their operations in South Lebanon . When we were there, many of them told us that they would have to demobilize at least some of their clearance teams by the beginning of next year. One organization already shut down operations in the middle of this month. More recently, there are positive signs donors such as Australia and the U.S. are stepping up to the plate with further funds.

Cluster munitions clearance is a complicated affair, in many regards different from de-mining and it may be difficult for donors to understand why initial cost and time estimates continue to be revised and new funds are being asked for.

Cluster munitions clearance in South Lebanon has to take account of many factors and constraints besides the availability of financial resources and qualified personnel. Clearing residential areas, cultivated land and land required for infrastructure projects are given priority. The agricultural cycle has to be taken into account to allow harvesting of tobacco, olives and bananas in time, as well as seasonal constraints, moving clearance to coastal regions in winter when snow is falling inland. Systematic clearance of submunitions lying on the ground may be sufficient in some areas, but depending on soil conditions, others require additional sub-surface clearance, a much more time consuming and resource intensive process. All the wile, ensuring the safety of clearance personnel is paramount, though difficult.

Contrary to a systematically laid mine-field one cannot predict with certainty how many unexploded submunitions are within a cluster strike’s footprint and where the individual submunitions are located in the area to be cleared. In the days following the cease-fire, many unexploded submunitions were removed from streets and orchards by the Lebanese Army, Hezbollah and landowners (some Lebanese farmers paying Palestinians to collect the submunitions littering their plantations). This removed an immediate threat to civilians’ lives but because the locations of these submunitions were not recorded, it is all the more difficult to accurately determine the centre of a cluster munition strike today. And of course, there is the distinct possibility that more strike areas are yet to be discovered. In January this year, it was 10 new clearance sites per month.

Consequently, estimates concerning priorities, number and extent of areas to be cleared, and the resources and time required have had to be periodically revised.

The availability of Israeli cluster strike data would greatly facilitate matters. Israel "supplied maps to UNIFIL identifying areas suspected of containing unexploded ordnance, including cluster munitions", but these are inadequate for clearance purposes. With detailed, accurate and complete information about the quantity, type and location of cluster munitions dropped, UNMACC would know how many more strike areas there are and how many more square metres remain to be cleared. Clearance organizations would be in a position to better plan ahead and distribute their resources more efficiently. It should therefore be in everybody’s, not least in donors’ interest to call on Israel to release this data, as France did in September this year.


Maya Brehm

Photo: "Looking out from above Safaad al Battikh M42 clearance zone" by J. Borrie

A Global Year of Action on Cluster Munitions

Although in many senses, 2008 has been a whole global year of action on the weapon, next week (27 October - 2 November) has been declared Global Week of Action Against Cluster Munitions by the Cluster Munition Coalition (CMC), the consortium of Non-Governmental Organisations active in the Oslo Process that achieved a Convention on Cluster Munitions (CCM) in May.

The CMC hopes that the Global Week of Action will encourage all governments to sign the Convention at the Oslo Signing Ceremony on 3 December, and to promote awareness of the treaty. 107 states adopted the CCM in Dublin on 30 May, so it's a reasonable expectation that many - if not most - will sign on the dotted line (so to speak) in Norway.

In the meantime, there are a number of cluster munition-related events happening. Many are in support of the CCM: there have been regional meetings in Sofia for Southeast European countries, in Kampala, Uganda for African states, a meeting this week in Lao PDR for ASEAN states, and one in Croatia. There will also be a workshop in Beirut in the second week of November for field practitioners in the region focusing on cluster munition clearance and a regional conference for states in Ecuador next month.

There is also the annual conference of the Convention on Certain Conventional Weapons (CCW), which will embark on its final week of work according to its November 2007 mandate to "negotiate a proposal" on cluster munitions, as well as time allocated to implementation of Amended Protocol II (on mines and booby traps) and Protocol V (on explosive remnants of war).
In the meantime, most disarmament diplomats in Geneva are in New York attending the annual UN General Assembly's First Committee, at which there will be both CCM and CCW resolutions. These are not in competition, and are basically procedural, so the expectation seems to be that both may attract consensus, or at least near consensus. (The good folks at WILPF are providing ongoing commentary of the First Committee, including on the CCM resolution, here.)

New York, of course, is also a good opportunity for the Chair of the CCW's Group of Governmental Experts, Ambassador Bent Wigotski of Denmark, to consult with delegations about how to proceed, following the events of the last round of talks in September.

There are two big, related questions: firstly, over whether Ambassador Wigotski will put forward a proposal for a draft protocol to CCW states, and whether they will be in a position to accept such a proposal by consensus. The CCW's September session saw some discord, and concern among many states that talks were headed toward a low common denominator outcome - one which might undermine or conflict with the obligations of the CCM already agreed. On the last day of those talks, the Chair allowed square-brackets to be inserted into key articles of his paper, which to some seemed to move the meeting's dynamic further away from (rather than nearer to) agreement.

The CCW Chair subsequently said he would develop a new text of his own to circulate to states by now, but one has yet to emerge publicly (at least to my knowledge). A proposal might well emerge shortly, or the CCW might decide to continue work next year, which at the very least would allow Denmark to conclude its 2008 period at the helm having taken the CCW cluster munition talks forward.

November's CCW meeting, then, will be interesting. For those who would like to know more about the story of the emergence of the Convention on Cluster Munitions, and the winding path of CCW work on these weapons over the last several years, you can of course read previous postings on this blog. In addition, I've just had an article published in 'Disarmament Diplomacy', which might be of interest.

John Borrie


References

John Borrie, 'How the Cluster Munition Ban Was Won: Oslo Treaty Negotiations Conclude in Dublin', Disarmament Diplomacy, Issue No. 88, Summer 2008.

John Borrie, 'The Road From Oslo: Emerging International Efforts on Cluster Munitions', Disarmament Diplomacy, Issue No. 85, Summer 2007.

Photo: 22/05/2008. Cluster Munitions Dublin Diplomatic Conference. Cluster bomb conference participants lying in O'Connell Street to make a cluster bomb shape with their bodies. Photo: Sasko Lazarov/Photocall Ireland.

High tech [cluster] munitions: more lingering questions

This is the last of four blogs addressing issues raised by Loren Thompson of the Lexington Institute about the Convention on Cluster Munitions (CCM). In last week’s blog, I raised some of the lingering concerns about Sensor Fuzed Weapons in general, and the BLU-108 in particular. Thompson had hailed the weapon as a humanitarian fix to outdated wide area cluster munitions, and complained that the CCM had banned it while other hi-tech weapons had been protected. [The brackets in the blog title make sense to those aware of the fact that under the CCM, weapons that are defined as cluster munitions are banned. Some high tech munitions with submunitions therefore are not “cluster munitions” under the CCM]. Thompson seems unaware of doubts raised about how well these weapons will work, whether banned by the CCM or not.

In last week’s blog, I also referenced critique of SFW technology by clearance specialist Rae McGrath. For readers interested in following up directly with McGrath, he’s informed me that he would welcome your questions (rae.mcgrath@hi-uk.org). The blog also prompted a cordial invitation from folks at Textron, the makers of the BLU-108, to meet with them to discuss their perspective, which I hope to be able to do.

Why size and numbers matter

It must be said that McGrath also criticized other sensor fuzed weapons like the German Smart 155 and the French BONUS systems. And those systems did have defenders in the Dublin CCM negotiations. CCM negotiators treated them as different from the BLU-108 based on numbers AND size – the logic being that the greater number of BLU-108 submunitions and their small size increase their potential for humanitarian harm.

Greater numbers of submunitions makes for more potential bits of unexploded ordnance around to cause trouble. The size of submunitions has long been a humanitarian concern – the smaller the size, the more easily greater numbers can be packed into munitions. Smaller submunitions are also harder to see (and thus avoid) and there is anecdotal evidence their miniaturized innards (especially if mechanical) make them less reliable. Ironically, smaller submunitions, when they are seen, have been “attractive nuisances” – children around the world pick them up to use as toys.

During the negotiations of the CCM in Dublin, the “[International Committee of the Red Cross] supported the inclusion of weight restrictions as a further safeguard that could assist in preventing the miniaturization of submunitions and in ‘future proofing’ the Treaty.”

Just How Smart Are They?

Another unanswered question raised by McGrath in Dublin that many have been asking: What’s to stop Sensor Fuzed Weapons (SFWs) from actively targeting non-combatant vehicles like buses or ambulances or trucks that present a better profile target? Allowing machines to make the final decision about what target should be destroyed raises fundamental questions about the humanitarian law principle of distinguishing between military objectives and civilian objects. (Paul Marks, "Planned cluster bomb hunts targets down", New Scientist, September 27, 2008, p. 26.)

U.S. Policy Caught Between Rock and Hard Place

Thompson sees in the SFW BLU-108 a humanitarian alternative to outdated wide area cluster munitions. Even assuming the BLU-108 submunitions (and weapons using SFW technology that were NOT banned by the CCM) live up to their promise, they are designed to hit point targets over wide areas. Even assuming it can do that job, these SFWs do not address the whole range of other situations the U.S. Department of Defense outlines in its June 2008 policy for which old fashioned cluster munitions might be used:

There remains a military requirement to engage area targets that include massed formations of enemy forces, individual targets dispersed over a defined area, targets whose precise locations are not know, and time-sensitive or moving targets.

In most, if not all, of these situations, the U.S. may be expected to use old order cluster munitions. And this, although the U.S. delegation to the CCW GGE admitted in Geneva in September 2008 (see the post on this blog of September 5, 2008) that the vast majority of its cluster munitions would not meet the 1% standard proposed as one of the options in the CCW process. Nevertheless, the U.S. Department of Defense June 2008 policy says it must be able to use and transfer old-fashioned cluster munitions, albeit under some restrictions, for at least another ten years. That argument for transition periods never got traction in the CCM negotiations for humanitarian reasons. Neither should it in Geneva.

Virgil Wiebe

Photo downloaded from Flickr: 'Absolute faith in technology', from larrylorca's photostream.

Hi-Tech Cluster Munitions: Lingering Humanitarian Questions

This is the second to last of four blogs addressing issues raised by Loren Thompson of the Lexington Institute. While recognizing the dangers to children posed by old order cluster munitions, Thompson bemoans the fact that the United States' Sensor Fuzed Weapon (SFW) will be banned by the Convention on Cluster Munitions (CCM). Echoing the claims of Textron, the manufacturer of the SFW, Thompson posits that the SFW harms children less because using it to attack point targets is better than using outdated cluster munitions. Thompson takes those claims at face value, and seems unaware that SFW performance has been called into question. He also complains that the Europeans protected their hi-tech weapons, but not those of the U.S.
In this post and the next, I will address these points.

Humanitarian Parameters on Technical Fixes: What did the CCM do and why?

As has been reported on this blog over the course of the Oslo process, the hardest nut for the CCM negotiators to crack was how to define cluster munitions that cause “unacceptable harm to civilians.” The problem is dealt with in the CCM by excluding certain weapons that “avoid indiscriminate area effects and the risks posed by unexploded submunitions” from the definition of cluster munitions. These “smart” weapons are not cluster munitions under the CCM and therefore are not banned, so long as they have all of the following 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
mechanism;
(v) Each explosive submunition is equipped with an electronic
self-deactivating feature;

Each required characteristic responds to attributes that have made current submunitions indiscriminate and a danger to civilians. The scattering of huge numbers of small submunitions each incapable of engaging single targets creates hazards to civilians encountered in the field. Technical fixes involving mechanical (as opposed to electronic) self-destruction and self-deactivation features – like those in some variants of the M85 used in the 2006 Southern Lebanon conflict (see our last post) - have failed to meet expectations.

If a system that meets those technical requirements still results in unacceptable humanitarian harm, it arguably would still be banned under the CCM notwithstanding all of its bells and whistles.

Healthy Skepticism about Technical Solutions

Why is the CCM definition so stringent? Simply put, past claims made by militaries and munitions manufacturers have often turned out not to be true.

Example 1: In his history of anti-personnel weapons, The Technology of Killing (1995), Eric Prokosch relates how, in the mid-70s, a British military expert told government delegates at an international conference that banning cluster munitions was unnecessary. Why? Because the newly developed (British) BL-755 cluster munition had not only a very tightly defined “footprint,” but also such reliable fuzes on its bomblets that no duds would be left behind. It turns out that the footprint was up to a hundred times larger than claimed and the failure rate in the area of at least 10-12 percent, according to UN and British estimates.

Example 2: In December 2001, the Swiss government proposed to members of the UN Convention on Certain Conventional Weapons (CCW) that future production of submunitions would have to include a fuze mechanism ensuring the deactivation and self-destruction of all explosives to at least a 98% standard. Switzerland was perhaps convinced that its newly designed submunition would surpass that standard. What was that submunition? An M-85 variant. Yet two M-85 variants were found wanting when used in Iraq and Lebanon, as detailed in a report that rocked the Vienna CCM conference last year. Rather than a 1% failure rate, on average every tenth bomblet failed to explode on impact.

How the U.S. Arsenal Failed to Smarten up

Thompson claims that all cluster bombs in the U.S. arsenal would become illegal. To begin with, there are precious few weapons with “smart” submunitions in the U.S. inventory because programs failed to meet production standards. One example is the Sense and Destroy Armor (SADARM) 155mm smart artillery munition with individually targetable submunitions. While some prototypes did enter service and were used in the Iraq War in 2003, Congress had cancelled the program in 2001 after SADARM fell “just short of meeting its 80 percent submunition reliability requirement.” (Neil Baumgardner, “3rd Infantry Division Commander Praises C2V, Communications During OIF,” Defense Daily, May 16, 2003.)

What about the BLU-108 and its Skeets? Thompson focuses on what sounds like the U.S. BLU-108 Sensor Fuzed Weapon and its “smart” skeet submunitions, a “smart” weapon that remains in the U.S. arsenal. He is correct to say that it will be banned under the CCM - because of numbers (40 submunitions per SFW) and size (each submunition weighs less than 4kg).

Thompson’s description of the system is remarkably similar to that of the manufacturer. If the system works as claimed, a carrier munition deploys ten subunit “posts”, each in turn containing four explosive “skeet” submunitions designed to seek out and destroy individual targets.
Submunitions that don’t find a target reportedly either self-destruct or self-deactivate.

But why didn’t the BLU-108 SFW survive in the CCM negotiations in Dublin? Diplomats there heard from Rae McGrath, an experienced deminer, about failures of the SFW to live up to the claims of the manufacturer when deployed in Iraq. Among his observations were the following:

This research . . . raises a number of serious questions regarding the reliability of BLU-108, especially when measured against claims made for the weapon by manufacturers, specifically as follows:

- 99% reliability: While it has not been possible to calculate a percentage reliability without full details of the number of weapons actually deployed in the Mosul area, it is clear from the clearance team’s overview and generally available figures for use of BLU108 during Operation Iraqi Freedom that the percentage of submunitions which have failed is higher than 1%. Perhaps substantially so.

- No Hazardous UXO: It seems probable that manufacturers and users would claim that the failed submunitions had self-neutralised and were therefore non-hazardous. However, given that many of the submunitions appear to have failed to operate as designed this is not a safe assumption. At best, these unexploded submunitions would deny access to land for civilian communities until cleared.

McGrath provided multiple photos of SFWs where “failures have occurred at different times in the deployment cycle.” The photos bear a look. There are for instance submunitions still attached to the “posts” (suggesting complete failure of the munitions); others lay scattered about on the ground. He also noted that the copper in unexploded submunitions make them prime targets for scavengers.

At the July 2008 CCW Group of Governmental Experts meeting in Geneva, Textron made its own presentation, likely because it saw the market for its weapon suddenly start to shrink with the impending signature and ratification of the CCM. (The Textron presentation was shown but not made publicly available.) Textron stated that a mine clearance specialist in Iraq had shot at an unexploded skeet submunition and that it had failed to detonate.

In communications with McGrath since then, he has raised some additional concerns with me. Firing at such weapons is not a controlled means of destroying them, as it may put them in an even more sensitive state if they survive the high velocity round. Ironically, the option of firing a bullet at the SFW submunition is a method sometimes used with the old fashioned and highly unstable BLU-97B, the submunition this SFW is intended to replace. Shooting at cylindrical unexploded submunitions causes them to tumble. This makes them potentially more unstable and also could turn them on their sides (most of the time they land face down). The shaped charge that makes them so devastating against tank armor could therefore travel up to a kilometer if detonated, rather than firing down into the ground.

When the subunit “posts” entirely fail to eject their four submunitions, they present a tempting target for the hacksaws and hammers of scavengers – tools that might well detonate the weapon. In sum, humanitarian concerns remain about the BLU-108.



Virgil Wiebe.

Southern Lebanon: (Still) living with the legacy of cluster munitions

There were no updates to Disarmament Insight’s blog last week as John and Maya were in Southern Lebanon. For a week we were based at the headquarters of the United Nations Mine Action Coordination Centre (UN MACC SL) in Tyre, about 25km north of the ‘Blue Line’ separating Southern Lebanon from Israel, and which is monitored by UNIFIL troops.

Why were we there? In July and August 2006, ongoing incidents between the Israeli Defence Force (IDF) and Hezbollah, a non-state armed group, escalated massively, and saw cluster munitions used by both sides.

Hezbollah continued to fire katyusha-style rockets from Southern Lebanon at civilian settlements in Northern Israel – inaccurate ground launched weapons at least some of which contained Chinese-manufactured MZD2 submunitions.

Following a Hezbollah ambush and kidnapping of IDF soldiers that ignited the conflagration, it seems that Israeli military forces also used the opportunity to try to destroy Hezbollah rocket sites. The IDF itself used cluster munitions, initially airdropped bombs like the CBU58, on various targets in the area. But in the last three days of the conflict (and between negotiation of a ceasefire and its entry into force) Israel used very large quantities of predominantly ground launched cluster munitions such as the M42, M46, M77 and M85. These littered villages, roads and agricultural land with massive numbers of unexploded cluster submunitions.

In future posts we’ll explore some hazards of, and responses to, unexploded ordnance contamination as seen in Southern Lebanon. Suffice to say in this post that the 2006 conflict and its aftermath served to highlight the problems the use of cluster munitions creates for civilians both at time of use and post-conflict in terms of clearance and socioeconomic recovery. The 2006 conflict’s consequences added to efforts to raise the alarm about the humanitarian problems that use of cluster munitions cause and, eventually, to the emergence of Oslo Process from February 2007. This process had the goal of achieving a treaty to ban cluster munitions that “cause unacceptable harm to civilians”, and adopted a Convention on Cluster Munitions (CCM) in Dublin on 30 May 2008.

So it’s difficult to tell the story of the Oslo Process without understanding what happened in Southern Lebanon in 2006 – and seeing it with our own eyes. And we do intend to tell that story through a negotiating history of the Convention on Cluster Munitions to be published by the UN next summer.

Meanwhile, large-scale battle area clearance of unexploded submunitions from villages and agricultural lands continues more than two years after the August 2006 ceasefire.

It’s currently the UN MACC SL’s job to coordinate the efforts of a variety of battle area clearance and explosive ordnance disposal assets to tackle the problem of unexploded ordnance. Our week based in the MACC accompanying their staff – to which we are very grateful for their patience and generosity - gave us some insight into the practical challenges they, clearance teams and locals face on a daily basis from unexploded submunitions. More about that in future posts.

John Borrie & Maya Brehm

Photo by John Borrie.

Facts get in the way of Lexington cluster munition "issue brief"

This is the second blog post in response to two "issue briefs" by Loren Thompson of the Lexington Institute. In July, Thompson opined about the new Convention on Cluster Munitions (CCM) that this "cluster bomb treaty could be hazardous to children". On 22 September he contended that the "United Nations Has a Better Solution for Cluster Bombs" referring to the UN Convention on Certain Conventional Weapons (CCW) talks in Geneva, which we will focus on below.

As regular readers of this blog know, we've closely followed both the ongoing CCW talks and the Oslo Process which led to the CCM in Dublin in late May of this year at first hand. We don't share Thompson's view or his approach. Instead, we've stressed repeatedly that it's important the CCW and Oslo Processes don't descend into a "my band is better than your band" contest. There are roles for both - provided they meet the criterion of tackling the humanitarian risks caused by cluster munitions to civilians.

Thompson's arguments that the CCM actually creates the possibility of creating more humanitarian harm as compared with the CCW are frankly weak as Virgil Wiebe showed in the preceding post on this blog. The fact that 107 states supported the CCM's agreement in late May in Dublin - which was hailed by none less than the UN Secretary General, the International Committee of the Red Cross and cluster munition survivors - also contradict Thompson's assertion. In fact, Thompson's arguments (like those governments who pooh-poohed the CCM during the July and September sessions of the CCW expert meetings in Geneva) underline that the existence of such a new legal norm is threatening to those who would like to continue to use cluster munitions as a weapon of convenience.

Thompson also misses the point when he argues that the CCW is a "better" process on the ground of inclusiveness (which is, by the way, not the case). More states negotiated in Dublin than belong to the CCW. Nobody excluded the U.S. or others. Instead, the big problem for major users and producers shunning the Oslo Process was - and still is - its greater level of humanitarian ambition, not the structure of its efforts. It’s worth recalling that the U.S. government has been happy to work in ad hoc international processes (such as the Proliferation Security Initiative) when it has suited. And the U.S. brought considerable diplomatic pressure to bear on some of its close allies participating in the Dublin negotiations in order to squeeze out concessions on the issue of “interoperability.” Meanwhile, the contrary U.S. voices of Senators Diane Feinstein and Patrick Leahy sent a letter to the Dublin negotiators stating, "we want you to know that there is support within the United States Congress, and among the American people, for your efforts" and wishing success in "crafting the strongest possible treaty".

In July, this blog observed the following of CCW expert meetings then underway in the wake of the Dublin agreement:

"China, India, Israel, Pakistan, Russia and the United States (all CCW members) said the CCW was the appropriate place to negotiate on cluster munitions. Nobody would disagree, but it's indisputable that the Oslo Process emerged because of the CCW's failure to act. Yet in November 2007, as it by coincidence, the CCW achieved a mandate to work, although clearly less ambitious than the February 2007 Oslo Declaration, which called on states to "prohibit cluster munitions that cause unacceptable harm to civilians."

Most countries in the Oslo Process echoed the UN Secretary-General's statement that the two processes on cluster munitions were "complementary" and "mutually-reinforcing". Many delegations worked in both, and some (especially the Europeans) argued that the CCW could deliver added value to any treaty agreed in Dublin by achieving CCW standards that would capture the big users and producers not in the Oslo Process, even if these benchmarks were lower. And, while the political stewardship of the CCW has been (in part because of its consensus practice) markedly imperfect, the CCW is an important international legal norm, and its protocols do have value and deserve universal support and adherence."

Solid indications that the CCW will add value in protecting civilians from the hazards of cluster munitions are hard to see yet. The CCW Chair's best efforts this year so far have resulted in increasing polarisation within the talks on "negotiating a proposal", in our view. Many delegations have expressed frustration at being left out of negotiations going on behind the scenes in the CCW in their statements on the floor.

Meanwhile, certain CCW states still seem determined that a draft protocol stop short of any prohibitions on even the worst humanitarian offenders among cluster munitions in the face of a slew of evidence. They know this causes difficulties for many CCW member states who also support the CCM (including, for some, their own friends and allies) but clearly want to embed the alleged legitimacy of the use of these weapons, even as some of them have begun publicly to acknowledge the risks to civilians cluster munitions create. In earlier blogs, we addressed how this is emerging in the current CCW proposals.

No matter that some in the CCW call this balancing humanitarian and military interests - there is a gaping logical and moral inconsistency here. And the states shunning the Oslo Process know it. Recently, British academic Brian Rappert of Exeter University wrote in a report on the impact of stigmatization of weapons by treaties like the Biological and Chemical Weapons Conventions and the Anti-Personnel Mine Ban Convention that:

"The history of attempts to limit the methods and means of warfare illustrates that agreed conventions can have a wide-ranging standard setting function that goes beyond their terms and signatories. The stigmatization of certain categories of weapons has been a very important outcome of past deliberations and international treaties."

This is what those governments currently shunning the CCM fear, we suspect. Ironically (yet also tragically) use of cluster munitions (for instance, in Southern Lebanon in 2006) contributed to the stigmatisation of these weapons long before the CCM came into being. To their immense credit, some of the main possessors and/or past users of cluster munitions such as the UK have recognised this and concluded that these weapons cannot remain within their arsenals because of the unacceptable harm they inflict on civilians. In fact, many of the U.S.'s NATO allies look likely to be early signers of the CCM.

Efforts to try to force the CCW into the position of fig leaf for continued use and retention of cluster munitions may end up harming it in the end. As a first step, states in CCW might be well advised to agree on a cluster munition transfer ban (as this blog has suggested previously), which would have concrete humanitarian benefits and could build trust and confidence among CCW member states toward further steps. This would give new momentum on the CCW side to the UN Secretary General's statement that the CCW and Oslo Processes are "complementary" and "mutually-reinforcing".

John Borrie & Virgil Wiebe

Image: "Just the facts" from Harrity's photostream downloaded from Flickr.

Verdun, via Oslo?

Recent columns (dated 22 July and 22 September, 2008) by the Lexington Institute’s Loren Thompson raise questions about the Convention on Cluster Munitions (CCM). In the coming days, I’ll address three of Thompson's central arguments - arguments which track US government positions in many respects:

1. (1) taking cluster munitions out of service will result in greater humanitarian suffering due to the use of more high explosive unitary weapons as the only alternative;
2. (2) that the Oslo Convention on Cluster Munitions (CCM) is a flawed process, while the more inclusive UN Convention on Conventional Weapons (CCW) offers a more hopeful and reasonable outcome; and
3. (3) Thompson's contention that high tech solutions like the U.S. BLU-108 Sensor Fuzed Weapon are an answer to humanitarian concerns.

So, on to the first question: will banning cluster munitions result in the unintended consequence of great humanitarian harm from unitary weapons?

Thompson argues that “a blanket ban on all cluster munitions will not end the desire of military forces to deny use of contested areas to enemies, and therefore might perversely encourage the use of more lethal ‘unitary’ munitions.” This echoes, almost verbatim, the final paragraph of the 19 June 2008 policy memorandum issued by U.S. Secretary of Defense Robert Gates.

Among the most extreme examples of lethal uses of unitary warheads are the artillery exchanges in the Battle of Verdun in 1916, during which the French and the Germans slaughtered one another’s’ soldiers and civilians en masse with high explosive artillery shells.

According to the US policy memo, cluster munitions supposedly offer a more humanitarian answer. Their presumed genius is to distribute a large amount of explosive power in small packages over a large area using relatively few pieces of equipment, as opposed to many pieces of equipment sending high explosive warheads on lots of single targets. Some militaries like the shot-gun blasts of cluster munitions to attack moving targets, troop concentrations, tank formations and artillery formations. Take these away, so goes the argument, and you create conditions for another Verdun, or at least saturation bombing on a localized level. If we can’t use lots of little bombs to attack contested areas, so goes the argument, we’ll be forced to use lots and lots of big bombs to do the same job. Even more civilians will be injured or killed in process.

In other words, the argument is as follows: if we cannot use one means of warfare (i.e., cluster munitions) that results in indiscriminate and disproportionate attacks, we will be forced to use means or methods that are even more indiscriminate and disproportionate (e.g., saturation bombing with unitary weapons). For states that respect the rule of humanitarian law as it has developed over the past fifty years, such an argument runs into considerable trouble.

The bedrock principles of distinction, proportionality and the legal obligation to take precautionary measures are enshrined in Additional Protocol I to the Geneva Conventions. These principles are considered by many to have reached customary status (see, for example, the Red Cross Customary Humanitarian Law Study) or at the very least worthy of inclusion in military law manuals (see, for instance, chapter 2 of the US Military’s Operational Law Handbook)) Taking indiscriminate cluster munitions out of a state’s arsenal does not relieve its armed forces from these obligations.

The fundamental principle of distinction requires that “Attacks shall be limited strictly to military objectives.” [Protocol I, Art. 52]

Furthermore, attacks have to be proportionate. Article 51(5)(b) of Protocol I spells out the proportionality rule: an “attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” is legally unacceptable.

In light of these humanitarian law principles, for a course of action to be acceptable, the military advantage of the attack must outweigh the anticipated collateral damage. Importantly, the balancing test of the proportionality principle is not between an attack that is less costly to civilians as opposed to another attack that is more costly to civilians. If neither alternative results in an anticipated military advantage that outweighs the anticipated collateral damage of either action, then neither course of action is acceptable. I have written about this elsewhere before the adoption of the CCM (see pp. 40-41, of this article).

In the 2007 Martić case before the International Criminal Tribunal for the Former Yugoslavia (ICTY) the defence advanced the “unitaries would be worse” argument (See also a recent Landmine Action report). In that case, Milan Martić ordered rocket attacks on Zagreb in 1995 in response to the Croatian army’s offensive to retake the breakaway region of Krajina. The attacks killed seven people and injured 214, both directly and because of hazardous unexploded duds.

The weapon chosen by Martić’s commanders? The Orkan rocket system, equipped with cluster submunitions – a weapon that is very similar to the U.S. Multiple Launch Rocket System (MLRS). Martić argued in his defence brief that his armed forces were aiming at military targets in the city and that their only other weapon option was a powerful unitary rocket that would have caused greater damage to civilians. If we cannot use clusters, we would be forced to use unitaries, argued Martić.

How did the court respond? The court found that the Orkan rocket was an indiscriminate weapon, even assuming Martić’s forces were aiming at legitimate military targets in Zagreb:

[T]he Trial Chamber notes the characteristics of the weapon, it being a non-guided high dispersion weapon. The Trial Chamber therefore concludes that the M-87 Orkan, by virtue of its characteristics and the firing range in this specific instance, was incapable of hitting specific targets. For these reasons, the Trial Chamber also finds that the M-87 Orkan is an indiscriminate weapon, the use of which in densely populated civilian areas, such as Zagreb, will result in the infliction of severe casualties. [para. 463].

The court did not respond to the “unitary rockets would be worse” argument directly, evidently finding it without merit. In its silence, the court could have been relying on Article 35(1) of Protocol I, that the right of belligerents to choose the means and methods of warfare is not unlimited. Regardless of what other weapons were at hand, cluster munitions were not appropriate to attack the specified military targets in Zagreb. It follows logically that if the only other alternative would be something causing even worse civilian injuries, that alternative would also be prohibited.

Martić is now serving a 35 year sentence. He has renewed the “unitaries would have been worse” argument on appeal. Interestingly, the prosecutor’s office has argued in response that a single unitary rocket aimed at each target actually would have been better, not worse. The prosecutor’s office therefore did not reject entirely the use of unitary weapons, but neither did it endorse their indiscriminate use in large numbers.

History also gets in the way of “unitaries would be worse” argument. One might expect that cluster munition use might reduce the use of unitary weapons. Practice has sometimes shown the opposite – extensive use of such area weapons may well encourage or reinforce the use of large numbers of unitary weapons. The example of Laos immediately comes to mind – the most heavily bombed country in the history of the world was blanketed not only with cluster munitions, but also with rockets, mortars, shells and large general purpose bombs. The availability of vast quantities of cluster munitions did not prevent the use of large numbers of other types of ordnance. And clearance officials consider the unexploded cluster bomblets to be a much greater risk to civilians than the unexploded general purpose bombs.

Visitors to Southern Lebanon following the 2006 war between Israel and Hezbollah can attest to a similar outcome – heavy shelling and bombardment included both cluster munitions and weapons with unitary warheads by the Israeli Defense Forces. Many credit the 2006 war with creating the tipping point for the CCM.

Virgil Wiebe


Photo Credit: “p011902.jpg” by PhotosNormandie on Flickr.