Reading the Tea Leaves: Obama and Cluster Bombs

What will US President Obama do about cluster bombs? The new administration announced immediate changes in some defense and national security related matters, most notably on interrogation methods and the closing of Guantanamo Bay detention center within the next year. No such quick action on cluster munitions took place, however. For clues about future action, we can look at President Obama’s voting record as a Senator, positions taken after the campaign, and the orientation of his senior and midlevel appointments in national security positions.

Obama’s Record in the Senate

In September 2006, Senator Obama voted for Senator Feinstein’s proposed amendment to the Defense Appropriations bill:

No funds appropriated or otherwise made available by this Act may be obligated or expended to acquire, utilize, sell, or transfer any cluster munition unless the rules of engagement applicable to the cluster munition ensure that the cluster munition will not be used in or near any concentrated population of civilians, whether permanent or temporary, including inhabited parts of cities or villages, camps or columns of refugees or evacuees, or camps or groups of nomads.

The amendment failed by a vote of 70-30. The proposal was certainly a modest one and came before the ban movement got traction, but that the future President was willing to take a positive stand is certainly an encouraging sign. While the focus of this blog is on the Obama administration, it should be noted that the US Congress is likely to consider similar legislation again this year.

After the Election

Following the election and on the eve of the signing of the Convention on Cluster Munitions (CCM) in Oslo, a spokesperson for the incoming President gave the following statement:

President-elect Obama is deeply concerned about the well-being of civilians in situations of conflict, as reflected by his support of the legislation in 2006 that would have prohibited the use of cluster munitions near concentrations of civilians. As president, he will carefully review the new treaty and work closely [with] other countries to ensure that the United States is doing everything feasible to promote protection of civilians in conflict.

Not a resounding endorsement of the Oslo treaty, but it holds some promise.

Do Obama’s cabinet and staff picks give us any clues?

Secretary of State Hillary Clinton voted against the September 2006 Feinstein amendment. As did Joe Biden (now the Vice President) and another cabinet member, Ken Salazar (now Secretary of the Interior). More recently, written questions about the broad principles that are likely to guide the Obama Administration’s policy review on cluster munitions were put to her as a part of Secretary of State confirmation procession in the US Senate. The written response was as follows:

The incoming Administration has not taken a position on the new cluster bomb treaty. I look forward to working with the President-elect and the rest of the national security team on this issue in order to develop a policy that upholds our moral obligations while protecting our troops. The new Administration will carefully review the treaty in consultation with military commanders and work closely with our friends and allies to ensure that the United States is doing everything feasible to promote protection of civilians - especially children.

In the words of one observer close to the process: “they punted.”

Secretary of Defense Robert Gates’ position on cluster munitions, while he was serving at the pleasure of President Bush is well known. On June 19, 2008, after the CCM had been adopted but not signed, Gates issued a new Department of Defense Policy on cluster munitions. That policy, in part, states that:

DoD recognizes that blanket elimination of cluster munitions is unacceptable due not only to negative military consequences but also due to potential negative consequences for civilians. Large-scale use of unitary weapons, as the only alternative to achieve military objectives, could result, in some cases, in unacceptable collateral damage and explosive remnants of war (ERW) issues.

President Obama decided to retain Gates as Defense Secretary. Will it be President Obama’s pleasure to change Gates’ mind?

National Security Advisor James Jones, Jr. is a retired marine who began his career as a platoon leader in Vietnam. In the late 1990s, he served as a military assistant to President Clinton’s Defense Secretary William Cohen.

It’s not clear how much he was involved in the formulation of the now abandoned Cohen policy on cluster munitions, which required all cluster munitions produced after 2005 to have a failure rate of no more than 1%.

US Ambassador to the United Nations Susan Rice was on the National Security Council (NSC) staff as Director for International Organizations and Peacekeeping and then became Special Assistant to the President and Senior Director for African Affairs during the Clinton Administration. Eventually, she moved over to the State Department as Assistant Secretary of State for African Affairs.

When the Eritrea/Ethiopia War broke out in 1998 , she was tasked with trying to negotiate a settlement. She likely remembers the carnage caused when the Eritrean air force dropped cluster bombs on Mekele, Ethiopia in the opening days of that conflict. In 1999, Rice co-wrote an op-ed piece in the International Herald Tribune castigating the conduct of the Sudanese government against its own people.

Rice is certainly no John Bolton (the former US ambassador to the UN who openly disdained the organization – he was eventually replaced by Zalmay Khalilzad), and will take a much more multilateral approach to issues. Being in New York may limit her impact on conventional arms control issues, though.

Mid Level Appointments

Deputy Secretary of Defense William Lynn has been the Senior Vice President for Government Operations and Strategy at Raytheon. Prior to that he has served in a variety of DoD positions. Raytheon manufactures various versions of the Joint Stand Off Weapon (JSOW), a “precision attack glide bomb”. Among the payloads for the JSOW are both the BLU-97 CEM bomblets (tagged as one of the “dirty dozen” cluster munitions by Human Rights Watch) and Textron’s Sensor Fuzed Weapon.

Lynn’s confirmation ran into a snag because of the new president’s ethics rules that “ban lobbyists who join his administration for two years from working on issues they were previously involved with.” Not to worry – President Obama waived that rule for Lynn.

Under Secretary of Defense for Policy Michele Flournoy, president and co-founder of the Center for a New American Security, is counted among the “counterinsurgents”. She held several positions in the Clinton administration (including Deputy Assistant Secretary of Defense for Strategy). She does not appear to have directly addressed the issue of cluster munitions, but an approach that stresses connecting with local populations would likely place a premium on reducing harm to civilians. In a piece published in October of 2008, Flournoy and Shawn Brimley called on “the new civilian leadership in the Pentagon” to “adopt an ethic of responsible stewardship.”

Department of Defense General Counsel Jeh Charles Johnson has been a partner at the DC office of the Paul Weiss law firm. Beginning in 1998, he served for 27 months as General Counsel to the Department of the Air Force. In that position he very likely had to consider the legality of the use of cluster munitions, as the weapon was used extensively by the USAF in the Kosovo campaign. Johnson is certainly a change from William Haynes III, his predecessor, who has been seen as one of the most aggressive defenders of the Bush era interrogation policies.

Deputy Secretary of State for Policy Jim Steinberg served as Deputy National Security Advisor under Clinton from 1996 to 2000, covering the time of the Kosovo campaign. He held other positions in the State Department and served as Director of Foreign Policy Studies at the Brooking Institution. Along with Kurt Campbell, Steinberg recently launched a book entitled Difficult Transitions: Foreign Policy Troubles at the Outset of Presidential Power in which they caution against quick changes in policy, but also the need to consult with allies.

So, what does all this reading of the tea leaves tell us?

Unlike the immediate decisions to reverse Bush administration policies on torture and the Guantanamo Bay Detention Center, no such quick turnaround in policy will likely result on cluster munitions unless there is considerable pressure to do so. That said, there is a general sense of “out with the old and in with the new.” The new administration is committed to multilateralism and listening in a way not usually associated with the Bush administration, so there is room for strong NATO proponents of the CCM to make an impact. The decision makers discussed above at least on the surface appear to have a greater respect for the opinions of their military counterparts. If US allies who are supporters of the Oslo Treaty are to have a positive impact, they will need to be working at convincing not only civilians in the new administration, but also their US military colleagues.

This is a guest blog by Virgil Wiebe, Director of Clinical Education and Associate Professor at the University of St. Thomas School of Law, Minneapolis.

Photo: ‘Paragon Fortune Telling Teacup’ by Beads by Laura on Flickr.

White Phosphorus: Setting off Firestorms of Protest

Along with the global financial crisis and Obama’s presidential inauguration, events in Gaza have occupied news headlines for the last three weeks as Israel undertook a military campaign it said was to stop Hamas’ indiscriminate rocket attacks on surrounding Israeli settlements. Despite Israel’s denial of access to international journalists to see what was happening in Gaza for themselves, reports from inside the Palestinian enclave indicate massive destruction from Israeli bombardment, and an escalating humanitarian crisis. Yesterday ‘The Times’, a British newspaper, estimated the terrible damage to the 1.5 million people in Gaza, who had nowhere to run during the conflict: 1,300 men, women, and children dead, 5,000 maimed and injured, 100,000 homeless, and 14 per cent of Gaza’s buildings damaged or destroyed.

Humanitarian agencies are now taking advantage of the Gaza cease-fire to try to deliver much-needed aid, and in due course a more detailed sense of the full scale of the suffering and devastation will come to light. The dreadful conditions in which much of the civilian population are made to live, and the fact that the majority of direct casualties from the fighting are civilians, has led to sharp criticism about the way in which the war was conducted by both Israel and Hamas.

Some incidents, such as the killing of refugees at UN schools, the bombing of the UN Relief and Works Agency’s compound with white phosphorus (burning, in the process, a large quantity of food and medical supplies), and the failure to provide medical aid to wounded civilians were particularly shocking. In a rare public rebuke, the International Committee of the Red Cross (ICRC) has publicly stated with respect to one incident that it believed 'the Israeli military failed to meet its obligation under international humanitarian law to care for and evacuate the wounded' and that the delay in allowing rescue services access was 'unacceptable'.

These incidents have led to a renewed debate about Israel’s targeting decisions and weapons choices. In particular, Israel was accused of using cluster munitions, although currently there seems little evidence to support that claim. In contrast, there is ample evidence emerging that Israel used devices containing white phosphorus (WP). WP is a toxic chemical agent that ignites when exposed to air. It produces extremely high temperatures, is luminous in the dark and emits white smoke: its potential for use on the battlefield was noted as early as 1789, according to SIPRI’s 1975 report on incendiary weapons, although use was sporadic until World War I. WP was deployed extensively during World War II, and later in Vietnam. Since then WP has been used in Grozny, Chechnya (1994) and Iraq. Its use by US forces in Fallujah (2004) was the subject of much controversy.

The use of WP as an incendiary weapon (for instance, to set off firestorms like those that devastated Hamburg in 1943) is greatly restricted by 1980 Protocol III (on Incendiary Weapons) to the Convention on Certain Conventional Weapons (CCW). And the 1993 Chemical Weapons Convention prohibits the reliance on the toxic properties of WP as a method of warfare. (A legal analysis of WP under these conventions is available here.) But phosphorous compounds are used by military forces in devices such as artillery shells as an illuminant, to mark targets, or to create a smoke screen. These uses of WP are not specifically prohibited under international law.

Nevertheless, the fallout from air-burst WP covers a wide area, as photographs from Israeli use over Gaza published in various newspapers appear to show. The danger this creates to civilians can be enormous, both through their direct contact with WP and due to the fires it causes. In contact with the skin, WP causes painful, deep chemical burn injuries that require specialized medical treatment. Burning WP is very difficult to put out, and it burns until the material is consumed or deprived of oxygen (see a film here).

Until yesterday, the Israeli authorities would neither deny nor confirm allegations of WP use, but said that all weapons their forces deployed in Gaza were used in accordance with international law. Now, they acknowledge that its troops may have used WP shells in contravention of international law.

Israel is neither a party to Protocol III to the CCW, nor to the Chemical Weapons Convention. But Israel is bound by conventional and customary international rules on the conduct of hostilities and is therefore prohibited from employing a weapon the effects of which cannot be limited as required by international humanitarian law (IHL) and which is consequently of a nature to strike combatants and civilians without distinction. Israel also has to take all feasible precautions in the choice of the weapons it uses. When incendiary weapons are used, customary law requires that 'particular care' be taken to 'avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.' (Rule 84, ICRC Study on Customary International Humanitarian Law). In the opinion of NGOs like Human Rights Watch, the use of WP in densely populated areas as seen in Gaza violated this requirement.

Israel has always claimed that its use of cluster munitions in the 2006 war in Southern Lebanon did not violate international law either. And, cluster munitions were not prohibited at that time. But the hazards of cluster munition use as shown by such conflicts has since led to an international treaty banning them on the basis that the harm they cause to civilians is unacceptable – whatever their purported military utility. Although there are important differences between cluster munitions and WP, both can affect a wide area and are unable to discriminate between civilians and combatants.

The question with regard to WP should therefore not so much be whether an existing treaty prohibits every one of its many uses (incendiary, target marker or smoke screen) or whether it would in principle be permissible under existing international law. Rather, we should ask what the effects of WP on civilians and combatants really are in conflicts where they have been used. We should document these, collect victims’ statements and consult health professionals on the matter. And militaries should be expected to convincingly demonstrate why the harm WP use causes is acceptable. Arguably, WP is another case where 'the necessities of war ought to yield to the requirements of humanity'.



Maya Brehm

Reference: Stockholm International Peace Research Institute (SIPRI), Incendiary Weapons (Cambridge, Mass., MIT Press, 1975).

2009: Learn, adapt, succeed report now out...

Well, we're back for the New Year, and we hope all of our readers had happy holidays.

In November last year, we convened a two-day symposium as part of the Disarmament Insight initiative in Glion, Switzerland, entitled Learn, Adapt, Succeed: Potential Lessons from the Ottawa and Oslo Processes for other disarmament and arms control challenges, which brought together more than thirty individuals from invited governments, United Nations agencies, the International Committee of the Red Cross and representatives of civil society.

My quick post about the DI symposium in late-ish November before grabbing my bag for a couple of weeks of travel to the UK, and to Oslo for the Convention on Cluster Munitions signing ceremony, didn't go into much detail about the discussions in Glion. So I'm pleased to say that a summary report of the meeting can now be downloaded in PDF format from the 'Disarmament as Humanitarian Action' project page on UNIDIR's website by following this link. (Click on the 'DI Glion seminar report' link to Open, or right-click to see the Save option, on most computers.)

The symposium was conducted according to the Chatham House Rule, which means that we didn't identify individual speakers or affiliations there. But we hope that the report conveys a sense of what was a very thought-provoking and positive discussion on a range of human security related themes and processes - involving, for instance, ongoing efforts to curb the illicit trade in small arms and light weapons, the Arms Trade Treaty, the Geneva Declaration on Armed Violence and Development and, of course, the CCW and new CCM.

This week a certain North American country will inaugurate a new President. His campaign catchphrase - "We can do it" - is already gently lampooned, even among his many supporters. Maybe, along with renewed sense of hope, there is a gnawing collective sense that no person can live it up to such expectations, especially in a country with so varied and even conflicting interests, and the massive challenges before it.

Well, maybe so. But the slogan isn't a bad one: the Ottawa and Oslo processes on anti-personnel mines and cluster munitions respectively, and to some extent progress in other arms control domains like implementing the UN Programme of Action on small arms, do show that positive change and progress on human security objectives is possible at the multilateral level, even in a pretty unpromising political environment over the last few years. It'll be interesting to see to what extent that improves with the new guy.

John Borrie

Picture by John Borrie.