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.