Will the CCW give birth to a mouse or a monster?

The 4th Review Conference of the Convention on Certain Conventional Weapons (CCW) will come to an end this Friday, 25 November. Until then, the negotiation of a protocol on cluster munitions to be annexed to the CCW is likely to take up most of delegates’ time. Even at this late stage in the negotiations, however, it remains unclear whether states parties to the CCW will be able to reach consensus on a text. If they do, based on draft texts presented this week, it is also unclear whether the CCW will finally give birth to a mouse or a monster.

Monster...

Several aspects of the CCW’s cluster munitions negotiations are disturbing from a humanitarian, international legal and multilateral negotiations perspective. In the view of many, as it stands now, the protocol fails to bring significant and immediate humanitarian benefits. Worse even, the present draft authorizes the use of certain types of cluster munitions. A number of states, the International Committee of the Red Cross (ICRC) and the Cluster Munition Coalition fear that this may result in greater investment in the development and production of cluster munitions that are known to cause grave harm to civilians, lead to growing use of these weapons, and therefore greater civilian casualties.

The CCW negotiations also raise a number of moral and legal questions (see e.g. this backgrounder by international law professor Nystuen). This morning, over 30 countries stated:

The current draft would represent the opposite of what we consider the overall goal of the Convention.

Indeed, a protocol that authorizes continued use of cluster munitions may run counter the very object and purpose of the CCW, whose preamble recalls “the general principle of the protection of the civilian population against the effects of hostilities” and reaffirms “the need to continue the codification and progressive development of the rules of international law applicable in armed conflict”.

As the ICRC - “guardian” of IHL - has pointed out repeatedly, agreeing to a treaty that sets a weaker standard in terms of civilian protection than the one set by the 2008 Convention on Cluster Munitions (CCM) would constitute a regrettable precedent of regression in IHL which would threaten the “coherence, effectiveness and integrity of this field of law”.

The normative effect of a CCW protocol on cluster munitions on the CCM should be of particular concern to states that are parties (or signatories) to both treaties. Mainly, because the CCM prohibits states from “assisting, encouraging and inducing” anyone to engage in prohibited activities, such as cluster munitions use (Art.1), and obliges states parties to take positive measures in their relations with states not party to the CCM to encourage adherence to the CCM, promote its norms and to make their “best efforts to discourage” them “from using cluster munitions” (Art. 21).

Continued involvement in and facilitation of negotiations, and a fortiori, participation in a consensus decision to adopt a CCW protocol that authorizes use of cluster munitions prohibited under the CCM, may constitute a violation of that convention. Support by CCM state parties of a CCW protocol that authorizes use of cluster munitions also constitutes state practice that risks rendering the positive obligations of Art. 21 meaningless. Finally, a CCW protocol that legitimises continued use of cluster munitions would be an obstacle to the extension of the norms embodied in the CCM by way of customary international law.

…mouse…

Few of the substantive elements in the draft texts presented to date enjoy a semblance of consensus. That cluster munitions produced before 1980 should not be used, stockpiled or transferred is one of them. Additional transfer restrictions, for example in relation to non-state actors, are also relatively undisputed. CCW states parties also seem to agree that civilians should be protected from indiscriminate effects of weapons and that the rules of international humanitarian law (IHL) are the relevant standard in this context.

But how to apply the rules of IHL to the weapon technology at hand, the very purpose of any CCW protocol, remains subject to dispute. Given the difficulty of adopting a comprehensive prohibition of cluster munitions in the CCW, attempts are being undertaken to translate general rules of IHL into specific prohibitions on the use of these explosive weapons. But in the latest draft text (Rev.2 of 23 November, 15h30) language previously introduced by Switzerland under the heading “Protection of civilians” was removed. Switzerland, supported by many other states, had suggested the inclusion of a prohibition on the use of cluster munitions in populated areas. A similar provision is contained in CCW protocol III on incendiary weapons and would (if not weakened by qualifiers or overridden by other provisions in the protocol) be of some humanitarian benefit.

Even if restrictions on the use and a prohibition of some (old) cluster munition types are retained in the final text, however, these provisions are hardly adequate and sufficient to address the humanitarian problem caused by cluster munitions. Especially, as other parts of the protocol may well outweigh these humanitarian benefits.

… or hedgehog?!

At the end of this week, states parties to the CCW will have to make up their minds and decide whether the text in front of them is a mouse or a monster. Of course, for musophobics the difference may be slight, but in the view of most, mice are relatively inoffensive and the damage they may cause by gnawing away at the normative structure of humanitarian protection is likely to be limited. The humanitarian and normative impact of a monstrous protocol may be far more damaging.

After years, nay, decades, of CCW talks on cluster munitions, member states still do not agree about the very objective of their endeavor, the frame of reference to assess whether that objective has been attained and/or their mandate fulfilled, let alone the methods to assess likely humanitarian impact (positive and negative) of particular provisions or the protocol as a whole.

It is hence difficult to foresee what comes out of this body on Friday - if anything at all. For many participants in this lengthy process it must by now feel like “giving birth to a hedgehog against the lie of its spines” - to quote one of my favorite Russian proverbs.

This is a guest blog by Maya Brehm. Maya is project manager at UNIDIR.

Photo: "Muppet monster 'Frazzle' is a growling monster on Sesame Street. His deceptively fierce visage hides a child-like personality and a desperate need to be included." (Source: Muppet Wiki)