War crimes: providing the means

“People or companies that conduct (international) trade... in weapons or raw materials used for their production, should be warned that – if they do not exercise increased vigilance – they can become involved in most serious criminal offences. It should be made clear to them that they will face prosecution and long-term prison sentences...”

Court of Appeal The Hague, Judgment, 9 May 2007

Earlier this month, the Supreme Court of the Netherlands upheld the conviction of a Dutch businessman, Frans van Anraat, for being an accessory to war crimes committed by the Iraqi regime in the 1980s. It thereby confirmed in most regards a 2007 judgment by the Court of Appeal in The Hague, which had found Van Anraat guilty of being an accessory to a violation of the laws and customs of war for having 'intentionally provided the opportunity and means' for attacks with mustard gas carried out in 1987 and 1988.

Between 1980 and 1988, Van Anraat had supplied Saddam Hussein's regime with at least 1'160 tons of TDG. TDG (short for 'Thiodiglycol' ) can be used to make mustard gas, a poisonous gas first used in World War I. This gas was used by Iraq in multiple attacks during the war with Iran on places in that country, as well as on the border region between Iraq and Iran, which is mainly inhabited by Kurds. Mustard gas, as well as TDG, today fall under the 1993 Chemical Weapons Convention (CWC).

In the Court's view, Van Anraat knew that the TDG he supplied would be used for the production of mustard gas. Although TDG also has civilian applications, the Appeals Court considered that in the quantities as supplied by Van Anraat, the TDG could not have been used for non-military purposes. And, because Iraq was at war, Anraat was also 'very aware of the fact that – 'in the ordinary course of events' – the gas was going to be used', and that this use was actually taking place.

It should be noted that Dutch export control law did not require a special license for the export of TDG until the beginning of 1985. And of course, the Chemical Weapons Convention only entered into force in 1997. The 1925 Geneva Protocol certainly prohibited the use of mustard gas in war, but it said nothing about the possession, production or transfer of chemical weapon precursors. In addition, it was arguably only applicable in international armed conflicts, (although the customary international law norm against chemical weapons use was possibly already broader in scope and applied also to internal armed conflicts).

Van Anraat did not commit war crimes himself, nor did he supply the weapons with which they were committed. He 'only' furnished a precursor thereof (although an essential one) - a chemical moreover, that has legitimate civilian applications. Nevertheless, Van Anraat was convicted of a crime (a separate civil case will also be brought against him by victims of the attacks) because the Court found that 'it is beyond doubt that the regime in Bagdad...committed extensive and extremely gross violations of the international humanitarian law' – violations, to which Anraat made a 'conscious' and 'substantial contribution'.

In finding that serious violations of the laws of war had been committed, the Court did not exclusively base itself on the fact that a prohibited weapon had been used. Therefore, this judgment should also be of interest to persons trading in other types of weapons, including small arms and light weapons (SALW). The judgment sets another important precedent for holding criminally responsible persons who transfer arms that are likely to be used to commit gross violations of human rights law or serious violations of international humanitarian law. Hopefully, a future Arms Trade Treaty will ensure greater accountability in the international arms trade.

Maya Brehm

Photo Credit: Adapted from 'Justitia in Frankfurt' by chaouki on Flickr.

References:

• Gerechtshof 's-Gravenhage (Court of Appeal The Hague), Judgment, 9 May 2007, LJN: BA6734.

• Hoge Raad der Nederlanden (Supreme Court of the Netherlands), Judgment, 30 June 2009, LJN: BG4822.
  

On this day…change can happen !

29 May is a memorable date indeed. On this day, in 1953, two men for the first time reached the summit of Mount Everest and conquered the top of the World. Similar feelings of exhilaration and relief (and also of exhaustion) prevailed on that same day, in 2008, when 107 States adopted the Convention on Cluster Munitions (CCM) in Dublin – a treaty that outlaws virtually all cluster munitions that have been used to date, provides for assistance to victims, the clearance of contaminated land, and the destruction of existing stockpiles.

Today’s launch of the report ‘Banning Cluster Munitions – Government Policy and Practice’ marks the first anniversary of the CCM’s adoption and the beginning of the Global Week of Action on Cluster munitions. The 288 pages long report was written by Human Rights Watch (HRW) in partnership with Landmine Action and produced by Landmine Monitor. Compiled in record time, the report gives an introduction to cluster munitions, the ‘Oslo Process on Cluster Munitions’ and to the CCM itself. It provides up-to-date figures on cluster munitions use, production, stockpiling, transfer and disinvestment in cluster munitions manufacturers. And, most importantly, it documents government statements, parliamentary actions and civil society initiatives on cluster munitions in 150 States, that is, all States that took part in the ‘Oslo Process', and all States that are known to stockpile cluster munitions today.

‘Change can happen!’ exclaimed the representative of HRW at today's launch event. The report provides a historical record of how numerous States’ policies and practices on cluster munitions have changed over the course of the last few years. To date, 96 States have signed the CCM, of which 35 have at some stage in the past used, produced, stockpiled or transferred cluster munitions. And 7 States have already ratified treaty. Several more have indicated that they would deposit their instrument of ratification shortly, so that the treaty can be expected to enter into force in 2010.

Importantly, as the report notes, policy shifts also took place in States not involved in the ‘Oslo Process’. The U.S., for instance, has recently enacted a permanent ban on cluster munitions exports. Such practices also contribute to the stigmatization of cluster munitions as weapons that are unacceptable because of their negative humanitarian impacts.

The report will also serve as a baseline for the future implementation of the CCM by State Parties. Remarkably, Spain has already destroyed all of its cluster munitions stockpiles, even prior to the treaty’s entry into force. This bodes well for the effective translation of treaty obligations into concrete national implementation measures, and several other States are expected to destroy their stockpiles in the course of 2009. In support of the timely implementation of this particular treaty obligation Germany will host a Conference on the destruction of cluster munitions stockpiles in Berlin next month.

Change also happened elsewhere in Geneva today: after a decade-long struggle, the Conference on Disarmament (CD) finally adopted a Programme of Work! Some diplomats already suspect they will soon remember with fondness the days of fruitless discussions and blockage in the CD in view of the daunting negotiations that lie ahead of a treaty banning the production of fissile material for nuclear weapons - the only negotiation mandate included in the Programme of Work.

But the adoption of the CD's Programme of Work is a major breakthrough, and after an exhausting week for the Geneva disarmament community, with the Mine Ban Treaty Standing Committee Meetings and the CD going on at the same time, those diplomats who drew the short straw and had to go to the CD were rewarded this time, taking part in an historic event.

Maya Brehm

Photo Credit: Alfred Gregory, May 28, 1953 [Copyright National Geographic Society]

References: 'Banning Cluster Munitions: Government Policy and Practice' by HRW, Landmine Action et al., May 2009.

A corrupt trade

Yesterday, South Africans headed to the polls to elect their national and provincial leaders in the fourth democratic elections since the end of Apartheid. In spite of bad weather conditions and various other difficulties that have beleaguered these elections, the leader of the African National Congress (ANC), Jakob Zuma is widely expected to take over as South Africa’s next President.

Until recently, Zuma faced charges of corruption relating to a massive arms deal signed in 1999 to modernize the South African defence force. The procurement package comprised the acquisition of aircraft, helicopters, submarines and ships at a cost of 29 billion Rand (then 4.8 billion USD). Evidence supporting allegations that Zuma had accepted bribes came to light in 2005 during the trial of his former financial advisor Shabir Shaik, who was convicted for his role in the deal. But earlier this month, the National Prosecuting Authority dropped the charges against Zuma on procedural grounds.

Zuma is by no means the only high ranking government official to be implicated in a defence-related corruption scandal, nor is it the first time that an investigation into such a scandal has been called off before it could unearth the whole truth. According to Transparency International, a leading civil society organization in the fight against corruption, the defence sector is among the top three sectors for bribery and corruption. The industry’s share of corruption is grossly disproportionate to its share of trade. Arguably, corruption in the arms trade accounts for about half of all corrupt transactions globally.

The controversial South African arms deal involved companies from Germany, Italy, Sweden, Britain, France and South Africa. The French arms manufacturer Thales, for instance, allegedly paid Zuma 500’000 Rand a year (about 85’000 USD in 1999) as an incentive to sign a 400 million USD contract for South Africa’s new warships and in exchange for protecting Thales against an investigation into the arms deal. The French police raided Thales’ headquarters in Paris, but the case was allowed to go cold after a visit by former South African President Mbeki to France. Thales has been the subject of several other judicial inquiries, including its 1991 sale of six La Fayette frigates to Taiwan. French industrialists are suspected of having paid hefty commissions to politicians in Taiwan and of having organized a system of payback of money to French politicians. In 2003 Taiwan sued Thales to recover 590 million USD in kickbacks deposited in Swiss banks.

Also involved in the South African arms deal was the British arms manufacturer BAE and its Swedish partner Saab. According to the British Guardian newspaper, BAE paid more than 100 million GBP in commissions through various secret routes, including Swiss bank accounts and a Swiss-based off-shore company, to win a contract to supply fighter jets to South Africa. BAE has also been the subject of investigations by British and foreign authorities regarding its activities in Bosnia, Nigeria, Zambia, Costa Rica and Egypt, Tanzania, Romania, Chile, the Czech Republic, Qatar and Saudi Arabia. The investigation by the British Serious Fraud Office (SFO) into the Saudi arms deals was stopped after threats from the Saudi ruling family and the intervention of then British Prime Minister Tony Blair (read all about it here). This caused international uproar and Britain was severely criticised by the OECD in a 2008 report. A month ago, the British government finally acted on one of the OECD’s demands and submitted a draft bribery bill to Parliament.

Corruption, it appears, is not peripheral to the arms trade, it is at the centre of procurement decision-making. But why is the international arms trade so prone to corruption? Among the factors that contribute to this sordid state of affairs, Transparency International lists excessive secrecy invoked in the name of national security, the technical complexity of arms deals and the high value of products, widespread use of off-sets in the form of investments in the local economy by the company winning the contract, widespread use of agents and embedded networks of intermediaries, extensive use of single source bidding, use of military expenditures not approved by Parliament, and lack of implementation of the OECD Anti-Bribery Convention by States Parties.

The payment of huge bribes and corruption in the arms trade distorts and inflates the prices. It leads to unnecessary spending and waste of resources in both, importing and exporting countries and hampers economic development. In exporting countries tax payers’ money is used to pay massive subsidies to the indigenous arms industry and for export credit guarantees. Governments thereby become complicit in defence companies’ bribery. Corruption scandals can seriously undermine public confidence in democratic institutions, as a German case demonstrates, where some of the profits from an arms deal with Saudi Arabia in the early 1990s flowed back to Germany in the form of party donations to the Christian Democrats.

As roughly two thirds of arms transfers are to developing countries, corruption in the arms trade diverts colossal sums away from much needed investment in public health, education and infrastructure projects. This represents a huge opportunity cost for the citizens of these countries. In addition, the supply of arms can contribute to the destabilization of regions, exacerbate arms races and increases the global burden of armed violence.

Some believe that if the international legal arms trade ‘ceased to be a honey-pot for the enrichment of the well-connected, it would dwindle into an irreducible strategic reality.’ Consequently ‘removing or even significantly reducing corruption would do more to reform the trade than any other single act.’ Transparency International and other NGOs have undertaken important initiatives to that effect. Their recommendations include the creation of industry consortia against corruption, integrity pacts, the development of good practices, the strengthening of national and international instruments against bribery in the defence sector and their effective application, increased civil oversight into the defence establishment, democratic control of the procurement sector and parliamentary oversight over all military expenditures, as well as procurement reforms and external periodic procurement reviews as part of broader security sector reform.

Military procurement has always been an intensely political activity, but today, it is perhaps ‘realistic - and increasingly possible - for civil society organizations to play an active and critical role in defence governance’.

Maya Brehm


References:

• Tranparency International, Reducing Corruption in the Defence & Security Sectors, Update Note 3, 30 April 2006.
• Roeber, Joe, Parallel Markets: Corruption in the International Arms Trade, Goodwin Paper no. 3, Campaign Against Arms Trade, June 2005.
• The Guardian, The BAE files.

Photo Credit: 'South Africa's Latest Fighter - Gripen from Sweden' by DanieVDM on Flickr.

A step towards a U.S. cluster munitions ban?

On March 11, U.S. President Obama signed the Omnibus Appropriations Act for fiscal year 2009. Some have called this piece of legislation a ‘major turnaround in U.S. arms policy’. It contains the following passage:

No military assistance shall be furnished for cluster munitions, no defense export license for cluster munitions may be issued, and no cluster munitions or cluster munitions technology shall be sold or transferred, unless
(1) the submunitions of the cluster munitions have a 99 percent or higher functioning
rate; and
(2) the agreement applicable to the assistance, transfer, or sale of the cluster munitions or cluster munitions technology specifies that the cluster munitions will only be used against clearly defined military targets and will not be used where civilians are known to be present.

A similar restriction on the export of cluster munitions was first introduced in the 2008 Consolidated Appropriations Act in December 2007. Compared to the 2008 Act, this year’s law represents advancement, but some of its wording calls for further clarification. Questions arise in particular regarding the ‘agreements’ concluded with the recipients of US cluster munition exports. These agreements usually not being public, how will recipients’ compliance be assessed and how will they be held accountable if they do not respect the terms of the agreement?

As to the content of these agreements, what is meant by ‘clearly defined military targets’, for instance? Will recipients be held to the generally accepted standards on the conduct of hostilities and the definition of a ‘military objective’ contained in Additional Protocol I to the 1949 Geneva Conventions - a treaty that the U.S. has never ratified? Further, the phrase ‘where civilians are known to be present’ raises questions about the level of knowledge that is required at any time during and preceding an attack. Will it for instance be in order to use cluster munitions where civilians are possibly or probably present? What measures does the attacker have to take to ascertain whether there are civilians in the area? And if there are civilians, can the attacker assume that they are no longer present after they have been warned of an impending attack?

Apart from these open questions, the 2009 Act introduces a more restrictive export policy, notably due to the reformulation of the 1% failure rate criterion. Whereas in 2008, cluster munitions had to have a ‘99 percent or higher tested rate’ to be exportable, now, they have to have a ‘99 percent or higher functioning rate’. The term ‘functioning rate’ was already used in the Cluster Munitions Civilian Protection Act (a bill aimed at limiting the use, sale, and transfer of cluster munitions) that was introduced by Senators Feinstein and Leahy in February 2007 (and which was stalled in the various Committees of the Senate and House of Representatives). The 99 % functionning rate criterion limits exportable cluster munitions to those that in actual combat situations produce no more than 1% duds, as opposed to the failure rates measured under the ideal conditions of a test. But how the ‘functioning rate’ of a cluster munition will exactly be determined and by whom remains to be seen.

Interestingly, the cluster munitions policy presented by Secretary of Defence’s Gates in June 2008 contains yet another formulation of the 1% failure rate criterion. It refers to:

cluster munitions containing submunitions that, after arming, do not result in more than 1% unexploded ordnance (UXO) across the range of intended operational environments

The U.S. delegation introduced similar wording into the text that the Convention on Certain Conventional Weapons’ (CCW) Group of Governmental Experts (GGE) is discussing in Geneva. And the 2009 bill for a Cluster Munitions Civilian Protection Act introduced in the U.S. Senate on February 11 this year also uses the phrase ‘range of intended operational environments’. This formulation of the reliability criterion suggests that the failure rate is calculated on the basis of instances of cluster munitions use in different terrains and weather conditions. It does beg the question, however, what ‘unintended operational environments’ are.

Another part of the phrase also gives rise to concern. In fact, it seems to address only those submunitions (or depending on the reading, cluster munitions) that, after arming, do not result in more than 1% dud rate. This would mean that submunitions that for various reasons fail to arm during descent (respectively, those cluster munitions that fail to disperse their load) do not enter the 1% calculus. However, unarmed submunitions (whether dispersed or not) also represent a danger to civilians. Years after their deployment, movement can cause them to arm - and detonate.

Participants in the Oslo Process on Cluster Munitions that led to the successful adoption of the Convention on Cluster Munitions (CCM) in May last year, have recognized that the reliability of cluster munitions depends on a multitude of factors and is difficult to determine in a universally acceptable, objective way. Therefore, the CCM’s approach has been to address all the criteria that have in practice caused the unreliability and indiscriminate effects of cluster munitions. The CCW GGE, in contrast, continues to grapple with failure rates. But in practice, the U.S. 1% failure rate policy, whatever its formulation, is tantamount to a de facto export ban on ‘cluster munitions causing unacceptable harm to civilians’ because ‘only a very tiny fraction of the cluster munitions in the U.S. arsenal meet the 1-percent standard’.

The other major step towards an export ban on cluster munitions lies in the fact that the export limitation in the 2009 Appropriations Act may well be a permanent one. In difference to the export restriction of the 2008 Consolidated Appropriations Act, which was only valid for the duration of fiscal year 2008, the 2009 Act contains no such time limit. How U.S. policy on the use of cluster munitions, as opposed to their export, will shape up is still unclear. Supporters of a complete ban on cluster munitions are working toward motivating Senators to co-sponsor the recently introduced Cluster Munitions Civilian Protection Act of 2009. They hope that growing co-sponsorship of this legislation might in time encourage President Obama to join the CCM.

Maya Brehm, with thanks to Laura Chirot and Virgil Wiebe for their helpful comments.

Photo Credit: 'Go toward the light' by J.Star on Flickr.

Guns at the ballot box

Since many of our regular readers belong to what’s referred here as the ‘Geneva disarmament community’, it might be of interest to have a brief look at what their Swiss hosts have recently been up to on the weapons regulation front.

As many who live in Switzerland are aware, Swiss citizens enjoy the right to ‘popular initiative’; that is, they can propose a change to the federal constitution and submit it to a nation-wide vote, provided they manage to collect 100’000 voter signatures within 18 months in support of the initiative.

One such popular initiative recently managed to gather the required number of signatures and even made it into the foreign press.The initiative for the ‘protection against gun violence’ proposes stricter regulation in Swiss law of the private use, acquisition and carrying of weapons and munitions. It would require legislators to specify the licensing requirements for hunters, collectors, sportsmen and other professionals who wish to possess weapons, and calls for the establishment of a federal firearms registry. In addition, the law would oblige the federal authorities to advocate the reduction of small arms availability at the international level.

But what has really caused a stir among the Swiss is that, outside of military service, army weapons would have to be deposited in secure military facilities. Switzerland has a militia army, and military service is (in principle) compulsory for men. It means that about 200’000 Swiss men undertake military service in annual courses of a few weeks in duration every year. Outside of this period, such men are required to keep their military weapon at home and cannot leave it in the military arsenal.

Proponents of the initiative argue that to store military guns in cupboards or under the bed is not required for effective national defence. They say the practice can be connected to gun homicides and relatively high suicide rates in Switzerland. Nevertheless, the initiative strikes at the heart of the Swiss ‘keep-your-gun-at-home’ tradition. Opponents, including, naturally, the right wing Swiss People’s Party (SVP/UDC) see this as undermining the very foundations of the militia army (which plays an important role in Swiss national identity), and is thus a threat to the security, independence and sovereignty of the country. When exactly this initiative will be put to the vote – and whether Switzerland’s Parliament will present a counter-proposal – is yet to be decided.

Another popular initiative, ‘against new fighter jets’, is currently at the stage of signature collection. If this initiative reaches the voting stage, the Swiss will have to decide on whether to impose a moratorium on the purchase of new fighter jets from 2010 until December 2019. The initiative was launched mainly with a view to decreasing Swiss military expenditure, but also because there is no possibility to call for a referendum once a decision on an armaments purchase has been made. Whether the committee initiating this effort will succeed in collecting the necessary signatures is unclear. It is worth recalling that an initiative ‘against the noise of fighter jets in tourism regions’ failed at the ballot in February last year, and several previous initiatives to limit the size of the Swiss army were also voted down.

One initiative deposited successfully in 2007 called for a ‘prohibition on the export of war materials’. It obliges the federal authorities to support and further international disarmament and arms control efforts and it would prohibit the export of war materials (regulated by the ‘Swiss Federal Act on War Materials’), including small arms, light weapons and ammunition, and special military goods (subject to the Swiss ‘Goods Control Act’), as well as technologies that are of particular importance for the development and use of these goods. The brokering of the transfer of these goods to recipients abroad would also be prohibited. Exceptions are provided for mine clearance, sport and hunting devices, as well as weapons that Swiss authorities use abroad and re-import subsequently. The proponents of the initiative consider that Switzerland’s ‘business with death’ is at odds with the country's world-wide humanitarian engagement and peace promotion policies, and is also inconsistent with its claim to neutrality. Moreover, they express concern about the impact of this trade on international peace, security and sustainable development in recipient countries.

The Federal Council has advised the Swiss Parliament to reject the initiative, though. Parliament has to take a decision by March 2010. Whereas the government acknowledges that an export ban on war materials would not have severe consequences for the Swiss economy, it warns that the Swiss army would depend on foreign armaments production to ensure the country’s defence as, without exports, Switzerland's arms industry would largely perish. As independence from other states is – for many Swiss – still part of their self-understanding (Switzerland is not in the EU and has joined the UN only in 2002) this argument could cause many to reject the initiative.

On the other hand, revelations about the use and misuse of war materials and related goods ‘made in Switzerland’ in conflicts abroad have repeatedly shocked the Swiss public. The latest such incident involved a Swiss Pilatus aircraft exported to Chad for military pilot training, which was later equipped for and used in an attack in Darfur in January 2008. This prompted the federal council to call for a strengthening of the licensing criteria of such goods. Additional grounds for denying an export license in cases where the recipient state is involved in an internal or international armed conflict or where there is a risk that the good would be used against the civilian population were initially envisaged. However, the draft amendment of the Goods Control Act presented last month turned out to be rather vague. On the basis of the new paragraph the Federal Council may deny a license if the ‘protection of substantial interests of the country so demands’.

Whether this change in legislation will indeed be enough to avoid further war materials export scandals is doubtful. Many might find this kind of response inadequate and support more radical measures, such as a total ban on war materials exports.

Maya Brehm

Photo credit: Image used by the women's magazine 'Annabelle' in their campaign against army guns at home. Taken from IANSA's website.

Patterns of explosive violence

The shelling of a hospital in North East Sri Lanka has brought the battle that the government armed forces wage there against the LTTE (Tamil Tigers) back into international headlines. The humanitarian situation has deteriorated to the point of being called ‘nightmarish’ as hundreds of thousands of civilians are trapped between the front lines, in an area now quite inadequately named ‘the safe zone’.

Like the recent events in Gaza, the situation in Sri Lanka is another sad illustration of the severe humanitarian harm that the use of explosive force in populated areas consistently causes. A recent Policy Brief by Landmine Action emphasizes the direct link between the use of explosive weapons in populated areas and the civilian harm that predictably results from it.

The policy brief notes that media coverage and policy analysis on the Gaza conflict tended to focus on the use of white phosphorous (including on this blog) and other ‘unusual’ weapons, a focus which risks to ‘normalise’ the use of explosive force generally. It should, however, be recognized that explosive weapons caused ‘by far the greatest number of deaths and injuries’ in the Gaza conflict, that explosive force in general is ‘particularly associated with psychological harm’, especially among children, and that in an armed conflict it is usually explosive weapons that cause most damage to infrastructure, such as houses, hospitals, schools, and the electrical power, water and sewage systems. Moreover, unexploded explosive ordnance presents ongoing health risks to the civilian population for years after a conflict has ended.

Landmine Action calls in its policy brief for more explicit recognition of the humanitarian impact of the use of explosive force in populated areas and encourages humanitarian organizations to challenge the prevailing attitude towards this ‘technological pattern of force’ as ‘normal’ or ‘conventional’. In order to further stigmatize the use of explosive force in populated areas ‘a collective and explicit recognition that explosive weapons used in populated areas tend to result in a predictable pattern of indiscriminate and severe humanitarian harm’ can help to ‘shape the public and political discourse about what is right and wrong’.


Maya Brehm

Photo Credit: 'p012877' by Conseil Régional de Basse-Normandie / National Archives USA, available at: PhotosNormandie on Flickr.

References:
Explosive violence: Israel and Gaza, Landmine Action Policy Brief, 30 January 2009.
Explosive Violence blog by Richard Moyes.

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).

The UK’s Last Word ?

States parties to the 1997 Anti-Personnel Mine Ban Treaty (APMBT) are holding their ninth Meeting of States Parties (MSP) in Geneva this week. The first part of the week was primarily devoted to the so-called ‘Article 5 extension requests’. It is the first time that states parties have had to consider such requests and many acknowledged that this would be one of the first true tests of the Convention.

Under Article 5(1) of the APMBT ever state party is under an obligation to:

…destroy or ensure the destruction of all anti-personnel mines in mined areas under its jurisdiction or control, as soon as possible but not later than ten years after the entry into force of this Convention for that State Party.

For 16 of 42 states parties that still have anti-personnel landmines (APM) on their territory (or under their jurisdiction) the destruction deadline elapses in 2009. One of them, Uganda, plans to finish work in time. The other 15 submitted requests for an extension of this deadline in accordance with article 5(3) of the Convention.

By Wednesday afternoon all requesting states had had the opportunity to present their case, receive comments and provide clarifications. Most states' requests met with general support, many receiving praise for their detailed and comprehensive submissions and good cooperation.

States identified adverse climate, lack of financial and technical resources, and limited access to mined areas as the main reasons for failing to meet the destruction deadline – and birds: Denmark noted with some pride that mine-induced lack of human activity on the island of Skallingen resulted in an exceptionally large bird breeding place there and the UK expressed great concern that penguin rookeries on the Falklands should not be adversely affected by mine-clearance activies.

Not all requests were well received, though. Venezuela has not undertaken any demining activities since the APMBT entered into force for it in 1999. Neither did the UK in the Falklands. Some states parties therefore took issue with these requests. In their view, not to undertake any clearance during the initial 10 year period was contrary to the spirit of the Convention and may amount to a violation of states' obligation to destroy APMs as soon as possible. Venezuela responded to such criticism by advising 'people without proper knowledge of the work of deminers' not to make such ‘unhealthy value judgements’.

States were even less pleased with the UK for requesting the maximum allowable period of extension - 10 years. Pushing the deadline so far into the future seemed to many to be at odds with every state party's undertaking to do its utmost ‘to face the challenge of removing anti-personnel mines placed throughout the world, and to assure their destruction’. They recommended that the UK revise its request, start demining operations, set a firm deadline for completion and submit a more detailed plan. To this the UK responded that it could do no more and that the statement tabled was its 'last word'. Overall, talks on article 5 were held in a constructive atmosphere but the UK accusing the ICRC of 'unwisely overstepping the neutrality of the institution' sucked some air out of the room.

The decisions on the extension requests will be taken on Friday. In spite of the APMBT foreseeing a decision by a majority vote, many states expressed a wish to proceed by consensus, as has been the practice so far. Others, like Canada, cautioned that 'consensus by all means but not at any cost' should be the objective. We will have to wait until Friday to see who has the last word. Clearly, though, many states are deeply concerned about the negative precedent that accepting the UK’s request in its present form could set for the Convention’s future.

The second major issue the MSP has to deal with concerns Belarus, Greece and Turkey who are currently in violation of their obligation to destroy their stockpiles of APM. Several other states risk finding themselves in a similar situation soon. Greece and Turkey have at least set new deadlines for completing destruction, but Greece has yet to destroy a single APM and Belarus wasn’t able to given an indication about how to resolve the issue.

On a positive note, Indonesia surprised many by announcing that it had destroyed all its stockpiles, 3 years before its deadline. This is an achievement that will hopefully inspire others to follow suit and served as a reminder that most states do in fact honour their commitment.

Megan Kinsella and Maya Brehm.

Megan is a graduate student at Norman Patterson School of International Affairs in Ottawa and presently an intern at UNIDIR.

Photo Credit: 'Expressive Rockhopper' by man_with_noname 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

Run with the Hare and Hunt with the Hounds?

This blog has repeatedly reported on the two “complementary and mutually reinforcing” processes currently underway to address the humanitarian impact of cluster munitions. The Oslo Process, which culminated in the adoption of the Convention on Cluster Munitions (CCM) in May this year, and the Convention on Certain Conventional Weapons (CCW) which has mandated a Group of Governmental Experts (GGE) to “negotiate a proposal to address urgently the humanitarian impact of cluster munitions”.

In November, the GGE will meet for the last time this year, perhaps producing a Protocol VI on cluster munitions. The CCM will be opened for signature in Oslo a month later. For States that intend to sign the CCM in December, some interesting legal questions arise as to the CCM’s relationship with a future CCW protocol on cluster munitions.

Defeating the Object and Purpose of a Cluster Munitions Ban?
States that sign the CCM become bound by its provisions as soon as the treaty enters into force for them through ratification. Until such time, all signatories are under a legal obligation not to defeat the CCM’s object and purpose (art. 18 Vienna Convention on the Law of Treaties (VCLT)). As such, they may not engage in actions that undermine the CCM’s aim “to put an end for all time to the suffering and casualties caused by cluster munitions”, to ensure the rapid destruction of cluster munitions stockpiles, effectively and efficiently clear cluster munitions remnants and to ensure the full realization of victims’ rights – in short to completely ban cluster munitions.

In all likelihood, a protocol on cluster munitions emerging from the CCW will be much more permissive than the CCM. The transfer and even the use of many existing types of cluster munitions would be allowed in certain situations, in particular during an initial “transition period” (see our last blog). Are CCM signatories that continue to partake in negotiations on a CCW protocol (in case no text is agreed in November) and that sign or ratify such a protocol defeating the CCM’s object and purpose? - Especially since the CCM prohibits to “assist, encourage or induce anyone to engage in any activity prohibited to a State Party” under the CCM? “It depends”, would probably be the lawyer’s answer, on whether the prohibition to encourage others forms part of the CCM's object and purpose, and on whether negotiating, signing or ratifying an instrument that regulates rather than prohibits cluster munitions is in itself an act of encouragement – encouragement being quite an open concept.

A Succession of Treaties on Cluster Munitions.
Under the assumption that the CCM enters into force before a future CCW protocol, how will that impact on the CCM?

In accordance with the Vienna Convention on the Law of Treaties, the CCM’s provisions will prevail over those of the CCW protocol only if the CCW protocol provides that “it is subject to or that it is not to be considered as incompatible with” the CCM (art. 30 VCLT). If however - as is presently the case - both treaties are silent on their mutual relationship, the provisions of the earlier treaty - most probably the CCM - will only apply “to the extent that they are compatible with the provisions of the later treaty”, i.e. the CCW protocol. Depending on how this “compatibility” requirement is interpreted, the CCM’s impact could be significantly reduced. For instance, if the CCW protocol allows the use of cluster munitions with a self-destruct mechanism (such as the M85, which wreaked havoc in Lebanon), the CCM’s obligation never under any circumstances to use cluster munitions would be incompatible and would simply not apply.

States wishing to prevent this could clarify in the CCW protocol’s text that its provisions are without prejudice to any more restrictive rules on cluster munitions by which the parties are bound. A phrase reserving the continued applicability of international humanitarian law (IHL) is already included in the Chairman’s draft text (art. 1(4)):

This Protocol is without prejudice to existing or future international humanitarian law [which provide for stricter obligations or which have wider applicability] [applicable to the High Contracting Parties establishing [stricter] obligations][which specifically addresses the subject matter of this Protocol].

To avoid ambiguity (Is the CCM an IHL treaty, a disarmament treaty, or both?) the brackets in this paragraph could be removed and a specific reference to a cluster munitions treaty binding on the parties could be introduced. Additionally, parties to the CCM could declare upon signature and/or ratification of a CCW protocol that the CCM continues to govern their mutual relations. The provisions of the CCW protocol would then only apply to the relations between States Parties to both treaties on the one hand and States Parties to the CCW protocol only on the other.

Complementary but Mutually Exclusive?
Under international law, States have to perform all treaties they are bound by in good faith. Assuming that some States will in the future be bound both by the CCM and a CCW protocol on cluster munitions, how will States implement two differing sets of rules on cluster munitions?

Clearly, the CCM is wider in scope than any future CCW protocol on cluster munitions. The CCM applies at all times, whereas a CCW protocol will probably only apply during international and non-international armed conflict. Furthermore, the CCM binds State parties in their relations to all other States and reservations are not permitted, whereas a CCW protocol will normally not govern the relations between a State Party to the protocol and a State not party to it. Reservations and objections to those reservations will further bi-lateralise treaty relations under the CCW protocol. Finally, the CCM bans all activities with weapons it defines as cluster munitions (with few exceptions), whereas the CCW protocol will probably only regulate or ban a portion of the weapons it defines as cluster munitions (although its definition of what weapons are cluster munitions is wider). Given the CCM’s broad scope, States bound by both treaties are unlikely to violate the CCW protocol by simply applying the provisions of the CCM in all aspects regulated by both treaties.

As mentioned above, however, once the CCM enters into force, States Parties to it are under a legal obligation never under any circumstances to “assist, encourage or induce anyone to engage in any activity prohibited” under the CCM (art. 1(c)). As but one example of a potential conflict, in the latest draft of the GGE Chairman’s room paper there is a provision (art. 1(4)) that encourages (Option A) or obliges (Option B) States “in a position to do so” to “facilitate the exchange of equipment, material, and scientific and technological information” to improve cluster munitions. Clearly, such assistance would contribute to the development, production, stockpiling, transfer or use of cluster munitions that are banned under the CCM. Providing assistance in this way must be considered a violation of the CCM.

One way out of these conflicting obligations for States Parties to both treaties is to argue that they are not “in a position to” facilitate technology exchange. Another, somewhat cynical argument is that in military cooperation and operations with States not parties to the CCM, technology exchange is allowed under infamous article 21 of the CCM (see our previous posts). That, however, would probably contravene the obligation on CCM States Parties to promote the norms of the CCM in situations of military cooperation with non-party States (art. 21(2)).

Legitimize or Stigmatize?
After 3 December 2008, CCM signatories have to give some serious thought to whether their continued participation in negotiations of a “weak” CCW protocol and eventually its signature and ratification are compatible with their obligations under the CCM. If States end up being bound by both instruments they have to clearly address their mutual relationship so as to avoid replacing the CCM with a subsequent “weaker” CCW protocol. As to the substantive obligations, the CCM’s provisions, which are likely to be wider in scope and more restrictive, will in practice overshadow those of the CCW protocol. All this raises serious doubts about the added benefit of negotiating and joining a “weak” CCW protocol on cluster munitions.

This should, however, not be a reason for States wishing to urgently and effectively address the humanitarian impact of cluster munitions to defer signature of the CCM until after a CCW protocol has entered into force - especially as such entry into force may be a long time in coming. Rather, States should sign the CCM and, if they remain engaged in the CCW process, do their utmost to ensure that any future CCW protocol on cluster munitions does not legitimize weapons that the CCM bans. A strong, though partial solution, such as a complete and immediate transfer ban on all cluster munitions, would be one solution.

Maya Brehm and Virgil Wiebe.

Photo Credit: "Dog 'shooting' rabbit" by Kaspar's Butlers on Flickr.

Remote Controlled Killing: Up Close and Personal

The United States’, along with other states’ armed forces have become increasingly reliant on Unmanned Aerial Vehicles (UAVs). UAVs have been used extensively in Iraq and Afghanistan and the trend toward employing improved robotics technology and unmanned systems is likely to continue in the near future.

Seated in front of video screens thousands of miles from the theatre of operations, sensor operators and pilots remotely control UAVs by way of a games console or keyboard. Increasingly powerful cameras provide them with good optical pictures of individuals on the ground. The image resolution is high enough to distinguish between a man and a woman. After launching a missile, at the end of their shift, military personnel involved in these operations go home to their families.

Not surprisingly, this way of war-fighting and the high-resolution images of the effects of a UAV attack are taking their toll on the “remote-control warriors,” many of whom suffer from considerable mental stress. One US Colonel explains why:

In a fighter jet, ‘when you come in at 500-600 miles per hour, drop a 500-pound bomb and then fly away, you don't see what happens,’ but when a Predator [a type of UAV] fires a missile, ‘you watch it all the way to impact, and I mean it's very vivid, it's right there and personal. So it does stay in people's minds for a long time.’

High tech, it seems, has brought the reality of war closer to home again. From the perspective of International Humanitarian Law, this is preferable to high altitude bombing insofar as this technology should allow an attacker to better verify whether a target is in fact a military objective and to assess expected incidental loss of civilian lives more accurately.

It also makes war more real and less impersonal for the attacker, a change in perception that may mitigate the dehumanization of the opponent so common in today’s conflicts. Yet, this has nothing to do with the chivalrous concept of face-to-face combat that underlies many of our modern-time rules of warfare – after all, the victim hardly shares the attacker’s sense of proximity.

As to the visualization of weapons effects, both the Ottawa Process leading to the Anti-Personnel Mine Ban Convention and the Oslo Process on Cluster Munitions testify to the powerful impact of images on people’s minds. These processes were successful not least because survivors and campaigners effectively and graphically communicated the impact that mines and cluster munitions have on people.

This has led some cynics to observe that only weapons that have recently caused a humanitarian catastrophe can now successfully be banned. The 1995 Protocol on Blinding Laser Weapons (Protocol IV to the Convention on Certain Conventional Weapons) is evidence to the contrary. Blinding lasers were banned before they were ever deployed.

Hopefully, we will not have to witness with our own eyes the effects of all emerging weapons technologies before we bring ourselves to outlaw at least those that cause superfluous injury, unnecessary suffering or affect civilians and combatants without discrimination.

Maya Brehm

Photo credit: "Help" by lette_applejuice on Flickr.

Arming War Criminals

After the end of the judicial recess on 18 August, the trial of Charles Ghankay Taylor, former President of the Republic of Liberia, will resume before the Special Court for Sierra Leone (SCSL). Taylor is charged with 11 counts of crimes against humanity, war crimes, and other serious violations of international humanitarian law in connection with his alleged role as backer of the rebel group Revolutionary United Front (RUF) during the armed conflict in Sierra Leone in the late 1990s.

Why is this of interest to a disarmament-related blog? Because the indictment bases Taylor’s individual criminal responsibility not only on his alleged participation in the crimes by planning, instigating and ordering them, but also on the grounds that he allegedly aided and abetted their perpetration by providing financial support, military training, personnel, and arms and ammunition to the RUF. This raises interesting questions about the individual legal responsibility of all persons involved in arms transfers.

In the field of disarmament, a distinction is often made between illegal arms trafficking (that is, violation of the national law of a state) and the legal arms trade (conformity with the national laws, licensing and end-user requirements of all states involved). Cases against arms traffickers in domestic courts are not infrequent, considering that most states feel quite strongly about enforcing their own laws on the import and export of military goods. The “Angolagate” trial starting 6 October in Paris should be interesting in this regard. (See a related DI-blog post here.)

A Dutch court recently heard an appeal in a case that is remarkable in that the accused was not only charged with violating the Dutch regulations banning arms exports to Liberia (2001 Liberian sanctions regulations), but also for violating the laws and practices of war by, among other things, deliberately aiding and abetting in the commission of war crimes through the sale or supply of weapons to Charles Taylor.

The Taylor trial is possibly the first international criminal trial where the supply of arms could constitute a separate legal basis for individual criminal responsibility. As to the question of criminal liability of persons, the distinction between legal and illegal arms trade, as described above, is not central, although any supply of arms to the RUF would have been in breach of the arms embargo imposed by the UN Security Council and national laws enacted pursuant to it.

Rather, what matters for the establishment of individual criminal responsibility under international law are what the supplied arms are used for, and the connection between the supplier and the user. In accordance with the Rome Statute of the International Criminal Court, an arms supplier could be held criminally liable for facilitating the commission of a war crime, by aiding or abetting, including providing the means for its commission. To incur liability, the supplier would have to provide arms intentionally, and in the awareness that in the ordinary course of events, this will facilitate the commission of a war crime. In the Dutch case cited above the accused was acquitted for lack of evidence. This serves to illustrate the difficulty of establishing the intent and knowledge requirements beyond doubt.

As the Canadian Ministry of Foreign Affairs and International Trade has recognized, the issues highlighted by developments like Taylor’s indictment are of interest to other “high government and military officials engaged in the authorization of arms transfers” and will have to be considered at some stage in the process leading to an Arms Trade Treaty. If it compels arms exporting authorities to be more cautious, this is probably a good thing.

Maya Brehm. Maya has joined UNIDIR as a researcher.

References

Special Court for Sierra Leone: http://www.sc-sl.org/
Rechtbank 's-Gravenhage, LJN: AY5160, 07 June 2006 and Gerechtshof 's-Gravenhage, LJN: BC6068, 10 March 2008, English translations available on http://www.rechtspraak.nl/

Photo credit: United States Agency for International Development, on wikimedia commons

CCM: humanitarian or disarmament treaty?

At a pre-briefing meeting in Geneva on 8 May for the Dublin conference on cluster munitions, the President-Designate of the Conference, Ambassador Dáithí O’Ceallaigh of Ireland, said that the Conference would not be a disarmament conference but a humanitarian one with a humanitarian purpose.

Throughout the Dublin negotiations, a number of states echoed this view in their statements. And many States and civil society representatives said that the Convention on Cluster Munitions (CCM) was a milestone of humanitarian law (IHL) after the treaty text’s adoption and during the closing ceremony. A few States, such as Indonesia, also mentioned that the Convention contained important disarmament provisions.

What difference does it make, whether an instrument of public international law is described as a humanitarian or disarmament treaty?

Scholarly opinions diverge over how to categorise treaties like the CCM, which contain elements typically associated with both IHL and arms control/disarmament law. These categories can be seen as mere manifestations of functional specialization among diplomats and academic experts. But the significance of this is that special rules of interpretation and practices may have more or less relevance depending on how the problem at issue is described, reflecting the object and purpose of the respective regime (for more details, see the ILC’s Fragmentation of International Law Report: details at the foot of this post). Repeated affirmation that the CCM is an instrument of IHL therefore affects the future interpretation of its provisions.

Under general rules of international law, a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. The CCM’s preamble clearly supports interpreting the treaty text in conformity with principles of IHL – and even human rights law. Future State practice in the application of the treaty will play an important role. But where practice leaves the meaning of a provision ambiguous or obscure – as may be the case of Article 21 on “interoperability” – recourse may be had to the preparatory work and the circumstances of the treaty’s conclusion (sometimes known as the 'diplomatic' or 'negotiating 'record). State’s emphasis on the CCM’s humanitarian objective will be a factor to take into consideration here.

The characterisation of the CCM as a humanitarian instrument also has a bearing on the consequences of a material breach of the treaty. Normally (and particularly for arms control agreements), such as situation would entitle all or some state parties to suspend or terminate the treaty. However, suspension or termination as a reaction to a violation of the CCM will not be allowed regarding “provisions relating to the protection of the human person contained in treaties of a humanitarian character” (cf. 60 (5) Vienna Convention on the Law of Treaties).

Finally, international law recognises certain situations in which the non-performance of a state’s obligations may be justified and so – in legal parlance – not engage its responsibility. However, in IHL states are typically not allowed to invoke such “circumstances precluding wrongfulness”. With regard to the CCM, this is evidenced in the formulation of its Article 1, which obliges state parties “never under any circumstances” to engage in prohibited activities. In keeping with the humanitarian object and purpose of the CCM, states parties may not use cluster munitions either in self-defence or as a means of belligerent reprisal.

Designating treaties as humanitarian or disarmament ones may seem to be an academic exercise, but establishing and reaffirming their object and purpose through State practice does have a real effect on a treaty’s interpretation, and eventually its impact on peoples’ lives. And, stepping back from matters of legal understanding for a moment, it’s clear that - in political terms - the CCM outcome is both humanitarian and disarmament.

Maya Brehm


Reference

Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, (UN document A/CN.4/L.682, 13 April 2006, available online at: http://www.un.org/law/ilc/).

Photo credit: Kees de Vos, from Flickr.

Cherry Picking at the CCW ?

While the main cherry blossom season is drawing to an end in Japan, the UN Convention on Certain Conventional Weapons (CCW) Group of Governmental Experts engaged in what was, from a legal point of view at least, something of a cherry picking exercise in Geneva last week. In its capacity as Friend of the Chair, Japan held several informal meetings to identify rules and principles of international humanitarian law (IHL) of particular relevance to the use of cluster munitions, and to elaborate new provisions and best practice guidelines to strengthen IHL implementation in this context. The results of this “fruitful debate” on IHL implementation (as Japan described it) were attached to the meeting’s procedural report as an annex (Annex III), in the form of “draft elements on international humanitarian law” and “draft elements of best practice guide” (this report should be up on the UN's CCW webpage soon).

Several states and the ICRC said these draft elements were cause for some concern. Whereas certain “draft elements on IHL” are taken verbatim from 1977 Additional Protocol I to the 1949 Geneva Conventions, others have been reproduced with wording that differs from the original text. For instance, articles 51(1) and (2) and 52 (1) of Additional Protocol I on the protection of civilians have been drawn together without reiterating the prohibition of reprisals against civilians and civilian objects and the prohibition against spreading terror among the civilian population.

Other rules that would appear to be highly relevant to the use of cluster munitions have not been included in the list at all. One notable omission is the explicit prohibition of indiscriminate attacks, as reflected in article 51(4) of Additional Protocol I. According to this provision, indiscriminate attacks are, inter alia, “those which employ a method or means of combat which cannot be directed at a specific military objective” or “the effects of which cannot be limited” as required by the protocol.

Selectiveness in the choice of norms and modification of their original wording risks creating the impression that certain rules and principles of IHL do not apply, or are of minor importance, to cluster munition use. This would create legal uncertainty for IHL implementation at the operational level. And the existing set of rules and principles on the conduct of hostilities that applies to all types of weapons could be undermined.

The “draft elements of best practice guide” add to this concern by listing under the heading of “voluntary” national mechanisms for IHL implementation several measures that a majority of states are already legally obliged to take. States parties to Additional Protocol I have, for example, a legal obligation to determine the lawfulness of new weapons (article 36). Other suggested measures are incumbent on all states as customary international law obligations, such as the obligation to provide instruction in IHL to their armed forces (see Rule 142 of the ICRC’s Customary Law Study).

Japan sought to reassure those involved in last week’s informal consultations that its work aimed at the mere restatement and application of existing IHL principles to cluster munitions – in contrast to the creation of new norms. This sounds like a simple task. Yet several draft elements on IHL are in brackets, which leads some to worry that states will not even agree on which principles are relevant.

But states’ difficulties are perhaps not so surprising. First, in a fragmentary international legal system, states are bound by different treaties. Second, their interpretations of indeterminate and general legal principles (such as the principle of proportionality) differ. Third, states often frame the factual issue to be regulated differently. This leads to divergent views as to which principles are relevant in a given context. In this case, there is disagreement over whether and to what extent the inherent characteristics of cluster munitions mean that they cause unacceptable harm to civilians.

Finally, the application of a general norm in a specific factual context always involves interpreting, specifying and adapting the norm itself, which results in its recreation in an ongoing dynamic process. A clear-cut distinction between “simple” restatement of existing norms and the creation of new ones is therefore something of an illusion.

Why should this work be of any interest to anyone but lawyers? Because it potentially has very real consequences for combatants and civilians both during and long after a conflict. This is why the CCW Group of Governmental Experts’ work last week is of broader concern, and should not be regarded as a routine and summary exercise.


This is a guest blog by Maya Brehm. Maya is a PhD fellow in public international law at the University of Copenhagen, and currently a visiting Disarmament as Humanitarian Action fellow at UNIDIR.

Photo by byte retrieved from Flickr.