Nuclear disarmament: Risk: New Project

The facts-based discourse on the humanitarian consequences of detonation of nuclear weapons has since 2010 drawn increasing attention to the need to better understand the causes and level of risk surrounding those armaments. Developments in this discourse include three international conferences on humanitarian impacts of nuclear weapons, various published studies on particular aspects of risk such as close calls, nuclear-weapons arsenals on high-alert, challenges for humanitarian response, and systems accidents, as well as public revelations about safety lapses.

To date policy attention has predominantly focused on understanding the consequences of nuclear weapon detonation events. Yet there is growing recognition that the causes and level of nuclear weapons risk warrant closer scrutiny. In December 2015 the ICRC President said that that greater policy exploration of nuclear weapons risk would allow issues around these weapons to be considered in a different way, and so be especially helpful for constructive engagement with nuclear-weapon-possessor states.

Related to this, in 2015 the UN General Assembly established an open-ended working group (OEWG) to discuss (among other things) transparency measures related to the risks associated with nuclear weapons and measures to reduce and eliminate the risk of accidental, mistaken, unauthorized or intentional nuclear weapon detonations. In addition, the OEWG was tasked to consider the need for measures to increase awareness and understanding of the complexity of and interrelationship between the wide range of humanitarian consequences of a nuclear detonation.

The tenor of the OEWG discussions during 2016 suggests that to extend policy understanding of nuclear risk, further research and engagement will be required, both to detail the risk ‘picture’ and to communicate these findings to the disarmament community. Greater policy exploration of nuclear weapons risk will allow issues relating to these arms to be better understood, facilitating constructive engagement with nuclear-weapon-possessor states.

UNIDIR’s ‘Causes of Nuclear Risk’ project aims to address issues of risk surrounding nuclear weapons through specially commissioned papers and meetings devoted to this theme organised in collaboration with relevant institutions. The Institute’s website www.unidir.org will draw further attention to those papers and meetings over the next six months.

Tim Caughley
Resident Senior Fellow


[photograph: Reflections - United Nations Headquarters Building, New York]

Science, humanity and humanitarian action

This blog analyses what the word “humanity” means and proposes that a new definition and a modern way of speaking of humanity could improve “humanitarian dialogue” with respect to weapons, their use and public health. It suggests that those who use the term “humanity”, especially the International Red Cross Movement, should replace relatively vague references with a dialogue based on scientific insights and current knowledge of what this notion means.

“Humanity” is used in different ways. It can mean human beings collectively (“humanity as all humans”), but at the same time it carries notions of philanthropy and altruism (“humanity as moral sentiment.”). Within the latter meaning the “laws of humanity” and “crimes against humanity” are referred to in international treaties and humanity is cited as a source of international law. Humanity implies a moral force. But how this constrains inhumanity - that invariably involves use of force or acts of armed violence - is unclear.

People who use the words “humanity” and “humanitarian” are often perceived as - or really are – trying to place themselves on a moral high ground. It is unclear whether “humanity as moral sentiment” has been replaced by or integrated into contemporary concepts such as human rights, development, humanitarian intervention and human security. If we look for what is meant by “humanity” which is presented as the first, overarching principle of the International Red Cross and Red Crescent Movement, we find an explanation of what is done in the spirit of humanity but not what it is. This impoverishes our interventions and often makes our pleadings appear sentimental, ill-informed and “unrealistic”. We therefore need to take a new look at humanity, what we mean by it, how we talk about it and how it can be used more effectively in dialogue about restraining or prohibiting certain weapons and acts of armed violence and in promoting human well being.

A knowledge-based approach to humanity

The last few hundred years have seen a massive increase in the population of the planet and the organization of “humanity-as-all-humans” into a system of nation-States. In parallel, we have seen remarkable advances in things that shape our existence such as manufacturing technology, commerce, communications, politics, health-care and weapons, to name but a few. In broad terms, the populations of States where there is access to these advances enjoy longer and better lives; the major reason for this is that they enjoy collective security. This security relies on having a legitimate capacity for armed violence either to defend the State (armed forces) or maintain law and order within the State (police) whilst, at the same time, placing great restraints on this capacity. Furthermore situations in which the capacity for armed violence is unrestrained (whether this be use of explosive weapons, displacement of whole populations or torture) is universally considered to be abhorrent (“humanity as moral sentiment”).

In brief it is increasingly recognized, and can be demonstrated by an important body of research, that people’s security is a prerequisite for their health and this applies to all of humanity “humanity as all humans”. This is not an original observation. In 1651, Thomas Hobbes wrote, in effect, that without security, “… there is no place for industry... no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish and short.”

“Humanity as moral sentiment” really does exist! It has been made objective in the work of multiple academic disciplines. An innate resistance to killing other humans is well documented (as are different means to overcome this resistance.) Studies of "primitive warfare" reveal that cruelty is not the norm, that fatalities may be few and that the violence is accompanied by much ritual and, importantly, restraint. It has been shown that altruism is a biological phenomenon observable throughout the animal world. Children who are educated to think about the plight of others who suffer some misfortune or cruelty are, in later life, less likely to resolve disputes by resorting to violence. On the negative side, studies have shown how ordinary people can be brought to inflict great pain and suffering on inoffensive strangers. The emotional distance brought by the use of explosive weapons that separate their user and victim in time and space has been explained. In the same vein, there is ample evidence that "dehumanization" of an enemy is an important element in the committing of war crimes, genocide or crimes against humanity; some even argue it's a prerequisite. In brief, “humanity as moral sentiment” and acts of inhumanity by humans are largely explicable in scientific terms and even in terms of our modern insights into evolved biology. An innate morality equips us for living in large groups. (It is shown that chimpanzees express moral sentiments too! Chimpanity!).

A new approach to “humanity” also has implications at the operational level. For example, in the world of global health, a new wind is blowing. This takes the form of rapidly advancing knowledge of the social determinants of health. Understanding the impact on health of education, housing, poverty, lifestyles and, above all, security moves the concern (and responsibility for) people’s health out of a traditional public health domain. This opens the door to tangible evidence-based interventions to improve people’s health without the need for formal health programmes. For example, in many parts of the world, the single most important factor determining whether a child dies in its first few months of life is the level of education of the mother. In a country torn by conflict, the education of girls may be severely repressed. A new approach to “humanity” –with weighty implications for people’s security and health - would bring authority to a claim that a programme targeting female illiteracy is both urgent and pertinent. Such a programme would find its correct place among the competing priorities for “humanitarian action.” Incorporating the social determinants of health into the activities of all components of the Movement is now an imperative.  Without doing so, it is difficult to claim we are well informed or driven by a serious notion of humanity.

 Implications

The dual notions of humanity constantly interact.  The fulcrum of this interaction is the capacity of human beings and human society for armed violence and their capacity to restrain it. “Humanity as moral sentiment” limits, to the greatest extent possible, the effects of armed violence or threat of it on people’s security and health. It restrains the capacity for armed violence so that “humanity as all humans” can live in peaceful, constructive societies in which, for instance, family life, education, commerce and, most importantly, people’s health can flourish.

A definition of humanity combining both notions could read as follows: “With the goal of ensuring peaceful, collective and constructive human existence, humanity requires  the restraint of any capacity for armed violence and limits the effects of armed violence on people’s security and health.”

In light of the above, a new approach to speaking of “humanity” is needed that is in keeping with multiple insights drawn from contemporary knowledge. It should be objective, comprehensible, universal and communicable. It should reveal the common denominator of concern of all “humanitarian actors.” It should reinforce the six other fundamental principles of the Red Cross / Red Crescent Movement. Such an approach would help demonstrate that the Movement (and any other actor invoking a notion of “humanity”) is open and listening to the world (including the world of science and inquiry) and not lofty, sentimental or simply “do-gooders”. This in turn could help engage those from other sectors and help motivate these circles and our own volunteer base, particularly among youth.

How does this new approach to talking about “humanity” help us in real terms? Promoting a well informed dialogue about weapons, violence, health and human well-being based on an objective understanding of humanity could force greater consideration of the vulnerabilities to armed violence of and its impact on people, groups, and communities. It would serve to raise the moral stakes in the humanitarian dialogue and increase the burden of responsibility on the users or potential users of weapons. This would occur because their actions would be discussed and analyzed in terms of what these actions mean for people’s lives and not only whether or not they are illegal. It would underscore the true universality of humanitarian law and human rights law and maintain a focus on the object and purpose of these bodies of law. Most importantly it would help generate a “facts-based” agenda for humanitarian action and assist the Movement in setting priorities.

Time taken for a new look at how we understand and communicate about “humanity” would be time well spent. It could change the international dialogue on the means to constrain armed violence and build healthy, sustainable societies. It permits an action-orientated view of the security and health of people who lack both and for whom life is still … “poor, nasty, brutish and short.”

This is a guest blog contributed by Robin Coupland and Peter Herby.

Previous published thoughts on humanity, health and security by Dr Coupland are:

- “Humanity: what is it and how does it influence international law” International Review of the Red Cross 2001, Vol. 83, No. 844, p.969

- “The Humanity of Humans: Philosophy, Science, Health, or Rights?”

Health and Human Rights 2003, Vol. 7, p.159.

- “Exploring the humanity of humans” The Red Cross / Red Crescent Magazine 2004, Vol. 1, p.26.

- “Security, insecurity and health” Bulletin of the World Health Organisation 2007, Vol. 85, p.181.

Archimedes, one of the leading scientists and inventors in classical antiquity, is said to have remarked of the lever: “Give me a place to stand on, and I will move the Earth”. (The image above is an engraving from Mechanics Magazine published in London in 1824.)

Warfare: the victims’ perspective

Solferino, 24 June, 1859 : A tiny village in undulating countryside, just south of Lake Garda. Close by, a swirling, intense territorial battle involving troops from Piedmont, Sardinia and France confronting Austria’s army. Ten hours of volleys of cannon fire, cavalry charges and hand-to-hand fighting among almost 250,000 soldiers. The aftermath – more than one-tenth of them dead or wounded.

This bloody event one hundred and fifty years ago has had many consequences. In territorial terms, the Franco-Sardinian victory paved the way for Italian unity and for defining Italy’s northern frontiers from east to west.

In humanitarian terms, the conflict has similarly had a profound and enduring impact. A witness to the distress of the wounded arriving in great numbers in the neighboring village of Castiglione delle Stiviere, was Henry Dunant. Appalled by the lack of medical facilities and relief for the wounded, this Swiss entrepreneur (who was in the area on business) rallied support for them irrespective of their military allegiances. Soon, he was to be instrumental in founding the Red Cross.

Dunant, in effect, drew attention away from a popular perspective of the ‘glory’ of war to a down-to earth viewpoint of the victim. In the words of ICRC historian François Bugnion: ‘But what was important was not his [Dunant’s] personal role in Castiglione, but rather the two ideas he drew from this experience: the creation of voluntary relief societies – the birth of the Red Cross – and a treaty protecting medical staff on the battlefield – the start of the Geneva Conventions’. These treaties also embody Dunant’s spirit of neutrality and impartiality in tending to victims of war.

Red Cross/Red Crescent volunteers from all round the globe gathered in Solferino last week to mark the 150th anniversary of the battle. An estimated thirteen thousand of them, red candles in their hands, symbolically traced steps that the victims had followed in desperate search for medical attention – medical attention that had been both inadequate and unprotected on the battleground on that horrific day in June 1859.

It may be an exaggeration to say that the surge of 13,000 volunteers thronging through the archways of Solferino’s Piazza Castello last Saturday night evoked scenes in that same square a century and a half ago. But it was impossible not to be moved by the commemoration. The terrors and consequences of face-to-face, soldier-to-soldier warfare exhibited in Solferino’s small museum and ossuary – the bayonets, the swords, the chilling array of skulls and bones – speak silently and grimly to us still about mortal combat as they have done in other parts of the world.

And the other victims of conflict: the civilians? The Battle of Solferino, by some accounts, produced a single civilian death. Modern conflicts, however, fought so often in densely populated urban rather than rural areas, take a high toll on civilians. In a survey of people affected by current conflicts published by the ICRC to commemorate the 150th anniversary of the Battle of Solferino, 44% of the respondents said they had personally experienced armed conflict. Almost 30% of those directly affected by fighting said a close family member had been killed during fighting. 56% of the people directly affected by conflicts had been displaced, over half had lost contact with a family member and one in five had lost their livelihood. These figures are dramatically higher in some countries!

There are many victims of warfare, whether they are civilians or military or the dependents of those killed, maimed or traumatized in battle. Solferino – through Dunant – has been salutary in engendering an approach that views armed conflict through the prism of humanity.

But the humanitarian approach is not only about the promotion of the principles of the Red Cross or international humanitarian law. It is also about the promotion of international norms in support of humanitarian objectives more broadly. This includes prohibitions on the use and production of weapons that cause superfluous injury or unnecessary suffering or, like landmines and cluster munitions, affect civilians and combatants without distinction, and that have wrought so much misery and deprivation on civilians. It means seeing disarmament as humanitarian action and bringing human security perspectives to bear in moving the disarmament agenda forward.

The enthusiasm for the cause of the Red Cross/Red Crescent Movement that marked the celebrations in Solferino, and its undertone of empathy with the victims of warfare, shows that the lessons of the past are not always forgotten. This is truly an example of Kipling’s ‘Lest we forget’ , in a practical, not a glorifying sense.

This is a guest post by Tim Caughley. Tim is a Resident Senior Fellow at UNIDIR.

Photo Credit: ‘Perspectives at Piazza Castello, Solferino, 150 years apart’ by Jill Caughley.

References:
- Henry Dunant, ‘A Memory of Solferino’, ICRC, 1986.
- ICRC, ‘Our World: Views from the Field’, Summary Report, Opinion Survey, 2009.

CCW cluster munitions: work without end ...

As suggested in my preceding post, although this was the last formal week of time allocated in 2009 for negotiating a proposal for a protocol on cluster munitions in the UN’s Convention on Certain Conventional Weapons (CCW)’s expert group (which had already missed its end of 2008 deadline and awarded itself two more sessions, of which this week’s was the second), its Chair came up with an effective fudge today to allow efforts to continue.

Basically, the group’s Chair, Mr. Ainchil of Argentina, told delegates that he would need more time: he would write to government shortly, he said. The upshot is that the Chair intends to hold ‘informal consultations’ later in the year – tentatively scheduled for the week of 17 to 21 August in Geneva.

The Chair then opened the floor and the Czech Republic (as European Union President), Brazil, Croatia, Japan, Canada, France, Austria, India, China, Ukraine, Switzerland, the United States, Norway, Germany, Russia, Israel, Turkey, Ecuador, Republic of Korea, Pakistan, Mexico and Cuba spoke. Some huffed and puffed about the need for flexibility (from others, mostly, of course), some tut-tutted about the weakness/rigorousness/absence/presence of specific provisions, but all assented to the further consultations.

What does this mean? It means – on the face of it – that the chances of some sort of Protocol VI on cluster munitions is increasingly likely to be presented this November at the CCW’s next meeting of State Parties.

To this end, the Chair was able to get his procedural report agreed, annexed to which is an updated ‘consolidated text’ based on his consultations bilaterally and in small groups over the course of the week. That this text has evolved further toward a final product since his last text issued in February is undisputed. But it has not grown noticeably any more robust in its provisions, and some argued that on key issues such as definitions, general prohibitions and restrictions, and articles on stockpile storage and destruction clearance, as well as rules on cluster munition transfers, the new text was a backward step.

States that have shunned the Oslo process and the Convention on Cluster Munitions (CCM) such as Brazil, China, India, Israel, Pakistan, Russia and the United States are the keenest to forge ahead. They insist that the CCM should not be the benchmark for the CCW’s efforts (certainly the strength of that Convention’s provisions make the ‘consolidated drafts’ proposals look wan indeed), and that any product of the CCW will automatically have substantial humanitarian benefit by virtue of the fact that (if they joined and applied its rather loose provisions) the protocol would apply to their large current stocks of cluster munitions. As it has argued before, the US argued that the text, if agreed, would have implications for 95 per cent of its cluster munition arsenal.

In the other corner are many countries, including many in the European Union, as well as the International Committee of the Red Cross and the Cluster Munition Coalition who argue the CCW exercise has some way to go before it delivers real humanitarian benefit, will not conflict with the CCM’s more robust provisions or contain much in the way of meaningful prohibitions.

And, they argue their proposals to improve the text have not been reflected in the new version of the consolidated text to any great degree. Several pointed out that the emphasis on submunition reliability as a basis for acceptability in the consolidated text is based on assumptions about testing that were discredited during the course of the Oslo process, and that the Chair’s draft has little to say to address the inaccuracy of cluster munitions and the hazards that poses to civilians.

These are sound arguments, in my view. The problem for the maximalists at present is that however firmly they make their points, the psychological advantage lies with the more minimalist in the negotiation. It is easier for the Chair to believe that the latter may play procedural games to prevent an outcome too strong for their liking, rather than others blocking an agreement on the grounds that they perceive it to be weak.

John Borrie

Look into my eyes: CCW and the kinetic theory of gases

In my preceding post, I posed the question: has anything really changed since last year's difficulties in the UN Convention on Certain Conventional Weapons (CCW)'s efforts to negotiate a protocol on cluster munitions in the wake of agreement by 107 states in Dublin in May on a Convention on Cluster Munitions (CCM) that comprehensively prohibits the weapon?

As the CCW Group of Governmental Experts meeting this week approaches its end, the answer looks like 'No'. As foreshadowed, the incoming GGE Chair, Argentina, has focused his efforts on informal consultations at the bilateral and small group level, and there have been few meetings in Plenary, except for an hour on Monday morning and a few minutes yesterday. In each case Argentina distributed "elements for discussion papers". Monday's paper contained textual options on general "prohibitions and restrictions" for a putative agreement, "storage / and destruction" and "transfers". On Wednesday morning the Chair's second discussion paper was circulated, this time on "Protection of civilians, the civilian population and civilian objects" - previously the purview of the Japanese Friend of the Chair on these issues, who has now left.

Where does this leave us? Pretty much where we were in November, in my view. The Chair's "elements for discussion" do not differ significantly from what was put on the table by the previous Chair, Ambassador Wigotski of Denmark, in November, and which was unacceptable then to a significant proportion of the CCW's membership . Nor are there really any signs of significant shifts in position since: if anything, the more issues of ratification and practical implementation loom for CCM signing countries, the less keen they will be on weaker restrictions being agreed in the CCW. Russia has made noises that it is now willing to go along with agreeing a protocol in principle, but really this confirms the hunch most operated on previously. The US has reiterated its position, and unlike the other major users and possessors of cluster munitions outside the CCM, has explained in clear terms what the implications of its proposals (as taken up in the Wigotski draft and new elements papers) would have for its national arsenal. But it is unclear whether there actually is anyone at a senior policy level to give them further instructions right now in Washington D.C. with the change in administration.

The International Committee of the Red Cross (ICRC) perhaps put it best. The ICRC has noted its surprise to the Chair that what is in effect the Wigotski package is still on the table since it is hard to imagine it being either effective or agreed upon. At best, the package is a menu of things countries might do, and would have the effect of legitimising for decades a weapon type that the majority of the international community have now specifically prohibited. The ICRC (again) urged a very different approach: a comprehensive transfer ban on cluster munitions and a prohibition on use of the weapon in populated areas - as has been argued previously on this blog, these would have real humanitarian impact.

It is a very peculiar situation. As several colleagues (who shall remain nameless) put it to me; if the CCW were working on, say, torture issues rather than cluster munitions, it would never be acceptable to negotiate a package of weak restrictions allowing the continued use of torture by the biggest culprits after the establishment of a standard prohibiting it. It would be seen as an egregious double standard and there would be outcry. Yet it seems to be acceptable to many in the CCW on the assumption that weak restrictions capturing non-CCM likely candidates is better than nothing. I'm not convinced of that: those countries would be better (as the Cluster Munition Coalition has argued) to take national level actions until such time as they're in a position to join the CCM.

Meanwhile, in side meetings and lunchtime events, the members of the CCM along with international organisations and NGOs such as the CMC have been getting on with the task of figuring out how to bring the treaty into force as soon as possible and position the new regime for implementation.

I would be very surprised if the CCW Chair - despite his patient, best efforts, which are to be commended - is in a position to present a protocol package tomorrow that can command agreement among the CCW's membership, which operates on a consensus practice. The question remains whether, then, use will be made of the CCW GGE's optional four days of further talks after Easter from 14 to 17 April.

Borrie's third law of CCW diplomacy (itself derived from the kinetic theory of gases, naturally) states that the CCW process will expand to fill the available time. In this way, it will be compelled to award itself its short week in April, just as this session was awarded by the CCW despite its undertaking to "negotiate a proposal" by the end of 2008.

Like any Popperian I invite falsification of my theory. Come on CCW, this is your chance to prove me wrong ... ;-)

John Borrie

Image of the 19th century Austrian physicist Ludwig Boltzmann (who developed a kinetic theory of gases), aged 31 with his wife, Henrietta, courtesy of Wikipedia Commons.

Dublin: the bunfight begins

As Patrick Mc Carthy observed in the preceding post on this blog, the Dublin Conference on cluster munitions commenced yesterday. I'm here in Dublin at the Conference throughout its duration, and a lot is going on - hence this post at midnight, and it's only the second day.

Conference proceedings got off to a smooth start on Monday morning. Consistent with Ireland's emphasis on getting down to work as soon as possible on negotiating a treaty to ban cluster munitions that cause unacceptable harm to civilians, the opening high-level segment was mercifully short. The Irish Foreign Minister, Micheál Martin, spoke. There was a video message from the United Nations Secretary-General, Ban Ki-moon. Also addressing the Conference was Ad Melkert, Associate Administrator of the UN Development Programme (UNDP), who emphasized the devastating impact of cluster munitions on development and humanitarian action. And President Jakob Kellenberger gave a hard-hitting statement on behalf of the International Committee of the Red Cross, as did cluster munition survivor and Cluster Munition Coalition representative Branislav Kapetanovic.

Irish Disarmament Ambassador Dáithí O'Ceallaigh was elected as president, as expected, and the agenda was adopted. So far so good. There had been uncertainty in the lead up to the Conference about whether its rules of procedure would be agreed without challenge - it's understood that a few (mainly European) countries had been apprehensive about the level of civil society participation in Conference talks, and they had of course probed hard in Wellington in the hope that their national proposals would be put on a par with the draft Convention text. Nevertheless, these rules were agreed without comment.

President O'Ceallaigh lost no time in setting out how he intended to proceed in leading the throng of 700 or so delegates - including from 109 or so participating states and around 19 observer states, as well as many civil society representatives - to culmination of a treaty text by 28 May. (In principle, at least, there will then be a couple of days for the treaty text to be prepared before final agreement on 30 May.)

General statements, which the President discouraged, could take place in the plenary, which would run until the speakers' list exhausted, O'Ceallaigh said. Few would be there to listen however, because from lunchtime on the first day the Committee of the Whole would begin meeting one floor below at the cavernous Croke Park facility.

O'Ceallaigh duly began taking those present in the CoW through the draft treaty text from Article 1 from 3 o'clock on Monday, spinning off trickier issues to Friends of the President as he did so. Meanwhile, most unusually (and most welcome) for a diplomatic conference of this size, the plenary wound up its speakers' list by the middle of Monday afternoon.

The two biggest challenges for these negotiations are defining what cluster munitions (which will be banned) are for the purposes of the treaty, and satisfying concerns about interoperability for states involved in the future in joint military operations. There are a host of other issues, of course, but these are the biggies. O'Ceallaigh was very clear in his opening remarks on Monday that he would make every effort to bring the Conference to a consensus on a treaty, and avoid voting. At the same time, he was very firm: there would be a treaty come Friday 30 May, he said.

With the plenary having adjourned its meeting, today the Committee of the Whole ran in parallel with informal consultations on interoperability (facilitated by Switzerland) and then definitions (New Zealand) from early this morning.

There was (to me at least) what seemed to be a significant breakthrough in these informals on the interoperability issue, which a number of (mainly Western) states have maintained over at least the last six months is a potential deal-breaker for them. There is general agreement that Article 1(c) of the draft Convention text, which is based on the 1997 Anti-Personnel Mine Ban Treaty, is not enough. Even New Zealand and Norway - two Oslo core-group countries - said so today. Moreover, there was widespread support for a separate article, to clarify and reconcile potentially conflicting obligations in Article 1 (general obligations and scope of application) and 9 (national implementation measures) of the cluster munition treaty.

The Oslo Process, and the Swiss in particular, are certainly not out of the woods and onto the meadow yet. But the interoperability challenge has now been re-framed from a question of whether there needs to be specific provision to have a common understanding on interoperability in the treaty, to how it will be drafted. The Swiss are continuing their work on this text in private consultations for the time being.

If the Swiss are expecting a tough time in developing a textual formula on interoperability in the next couple of days, Ambassador Don Mackay of New Zealand made it clear that he intends to spread the pain around in his informal consultations on definitions. These talks began at 10h30, and the Friend of the President informed delegations that informals would continue all day and every evening if necessary - starting today - until something emerged he could take back to the President. He was true to his word: today's proceedings finished at 20h30.

Time is a big constraint here: there is still considerable work to do to consensus-build around a workable formula for what will be exempted from the definition of a cluster munition. There are more than a dozen textual proposals for amendment of Article 2 on the table, some dating from Wellington, and many of them are competing approaches. And discussions on definitions over the course of the Oslo Process have become sprawling, and have tended to go around in circles.

Today was no exception, as useful returns diminished from late afternoon. Ambassador Mackay may sense that some of the more self-assured delegations need to wear each other down attritionally, and he and his team seem resigned to facilitating this - armed also with some probing questions for those delegations becoming repetitive or implausible. He and his team are probably right. At, indeed, at the end of the day many delegations across the political spectrum left feeling tired and irritable after working through Mackay's elements paper. However, some hard yards have been gained.

It's an important point to bear in mind that although there are tough negotiations ahead, it is only the end of day 2 of the Dublin Conference. The President and his Friends have already made surprising progress. Just as importantly, the psychological heat is already being turned up.

John Borrie


References

The Secretary-General of the United Nations Ban Ki Moon gave a televised address to the opening plenary of the Dublin Diplomatic Conference on Cluster Munitions in which he called on governments to create a "visionary" global treaty prohibiting cluster munitions, which he called "inherently inaccurate, particularly indiscriminate and unreliable." (19 May 08). Photo courtesy of Mary Wareham (Aotearoa NZ Cluster Munition Coalition Flickr photostream).

The Cluster Munition Coalition launched a new, improved website yesterday. Embedded in it is the UNSG's video address as a YouTube clip.

To find out more about what cluster munition survivors think about the Dublin negotiations, visit the Ban Advocates blog.

Plenary statements, official and national working papers from the Dublin Conference are available on its website.

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.

Cluster munition resources online

2008 is shaping up to be the international year of the cluster munition. There are not one but two multilateral process underway to try to address the weapon's humanitarian effects. There is work to "negotiate a proposal" on cluster munitions in the UN Convention on Certain Conventional Weapons (CCW). And there is a free-standing "Oslo Process" that emerged early in 2007 following the Norwegian Foreign Minister's decision to host an international conference in Norway's capital to kick-start efforts to ban cluster munitions that cause unacceptable harm to civilians.

Over the past year, Disarmament Insight has provided commentary on both processes, and will continue to do so in 2008. Many people have inquired with us about online resources on cluster munitions, and so we offer some suggestions below.

To search our blog for commentary on cluster munitions, the easiest method is to use the search box at right, or click on a relevant word in the word cloud below it. Useful key words or phrases include "cluster munition", "CCW", "Oslo Process" and "humanitarian impacts". UNIDIR's website also has a lot of information on cluster munitions, both in French and English.

For basic information about the Oslo Process, there is clusterprocess.org. For information about the CCW, visit the webpages of the Geneva Branch of the UN Office for Disarmament Affairs and follow the links. This is a useful source for CCW-related official documents, and there are also resources for other disarmament-related issues such as the Anti-Personnel Mine Ban Convention. The next meeting of governmental experts in the CCW's calendar is from 7 to 11 April.

Before then, there will be a one-week meeting as part of the Oslo Process in Wellington, New Zealand. Official information, including on participation and logistics, is available here. Copies of the Wellington text, its draft declaration and explanatory notes are also available from the same source. For information about civil society activities connected with the Wellington Conference, check out the Aotearoa New Zealand Cluster Munition Coalition's website. The CMC's video press release for the Wellington Conference is worth watching.

There is no 'one-stop shop' on cluster munitions on the web, but there are a number of useful sites - most of them, not coincidentally, facilitated by civil society organizations keen to see cluster munitions restricted or banned.

A key site is that of the international Cluster Munition Coalition, which is the nerve centre of civil society campaigning on the issue. Several of the CMC's members also post resources, including Handicap International, Human Rights Watch, Landmine Action UK, Mines Action Canada and Norwegian People's Aid. (Norwegian People's Aid has a great concrete-mixer destruction video.) There is also a new blog by the Ban Advocates project here. The International Campaign to Ban Landmines has also thrown its weight behind the effort.

The International Committee of the Red Cross is active on cluster munition issues and has useful online resources from a humanitarian law perspective. And, to find out what the United Nations is doing and saying on cluster munitions issues, go here.

Statements and national resources on cluster munitions can be harder to find. The United States government has a CCW delegation homepage, and its Office of Weapons Removal and Abatement features some national statements on unexploded ordnance-related issues. But with many other countries it is a case of combing through their foreign ministry websites. A good source of info about what delegations have said at Oslo and CCW meetings, however, is thanks to the hard-working Katie Harrison at the Women's International League for Peace and Freedom: WILPF's notes and reports on various cluster munition international meetings are perhaps the most comprehensive out there - if unofficial.

Lastly, a video by the photographer John Rodsted we embedded into a post last May and shown earlier during the Oslo Conference - "cluster bombs that shouldn't exist" - is a must-see. These are just some of the resources out there to keep yourself informed on international efforts to address the humanitarian effects of cluster munitions. If you can think of some we've missed (and there must be many), please use the comment function below to bring them to our attention.

I'll be in New Zealand at the Wellington Conference from 18-22 February. Tune in to the Disarmament Insight blog for some impressions of that meeting.


John Borrie

Photo of a Landmine Action UK public billboard at Westminster Underground Station in London, taken by author. Very subtle guys.

Cluster munitions: Arguments for and against

Last week's meeting of states party to the Mine Ban Treaty (8MSP) in Jordan provided an opportunity for the International Campaign to Ban Landmines and the Cluster Munition Coalition (CMC) to offer a lunchtime briefing to states on the Oslo Process to address the humanitarian impacts of cluster munitions. Austrian Ambassador Wolfgang Petritsch shared information about next week's Vienna Conference, and CMC Coordinator Thomas Nash talked about campaigning against cluster munitions in general.

The briefing was timely: with 8MSP about to wrap up successfully, diplomats were beginning to turn their minds to the recently released "Vienna text" and reflect upon the tactical implications of the CCW's mandate to work on cluster munitions in 2008 agreed on 13 November in Geneva. 8MSP offered a good opportunity for Oslo process outreach with a number of countries party to the Mine Ban Treaty (which has 156 members) who either aren't members of the CCW (which has 103 members) or who are but don't often attend its meetings.

One question that came up in question-and-answer time was the following:

States hostile to banning or restricting cluster munitions are likely to be briefing their delegations around the world with bullet-point style arguments as to why their cluster munitions are necessary. What are likely to be the 3 main planks of their position, and what are responses to these?

To me, actually there seem to be 4 characteristic generic arguments heard about cluster munitions. (There may be more, or maybe they could classified differently, but these rolled off the top of my head.) By request, I’ve set them out below. Sorry for the long blog post…

1. Cluster munitions are legitimate under international humanitarian law (IHL): unlike anti-personnel mines, cluster munitions aren’t inherently indiscriminate and were, besides, designed for a specific purpose - to destroy massed formations of infantry, armour and soft-skinned vehicles. If used “responsibly”, these weapons are consistent with IHL, it’s argued.

Human Rights Watch and others, however, have documented evidence that cluster munitions have almost never been used in a manner consistent with existing IHL (i.e. in Cold War-era battles in zones devoid of civilians). Instead, their use has usually been in proximity to civilian populations.

Moreover, cluster munitions do appear highly prone to indiscriminate use. This underlines the point that the effects of a weapon are context-dependent, not solely contingent on technical characteristics: self-destruct mechanisms in many explosive submunitions, for example, were shown in Southern Lebanon to have been ineffective, despite previous manufacturer and user claims about them rendering unexploded submunitions safe.

It should also be noted that – unless it’s banned – a weapon could be considered legitimate while still subject to specific legal restriction.

2. If we didn’t use cluster munitions, we’d have to use something worse: But IHL rules apply to the use of weapons generally - including any weapons of attack used as alternatives to cluster munitions. Principally, those rules are of (1) distinction between civilians and combatants and between civilian objects and military objectives, (2) the rule against indiscriminate attacks, (3) the proportionality rule and (4) the obligation on belligerents to take feasible precautions to minimize incidental loss of civilian lives, injuries to them or damage to civilian objects.

An ICRC expert has observed that cluster munitions raise important and persistent legal concerns under all of these rules (this is ultimately why there are international efforts underway to deal with them explicitly!). Nevertheless, the non-use of cluster munitions isn’t a “free pass” for the use of other weapons without the application of these general IHL rules.

3. Cluster munitions are what we have in stock: while often dressed up in different forms, this point is implicit in many arguments for continued use of cluster munitions based on “military utility”. Many states possess large stocks of explosive submunitions: the US for instance, appears to have 700-800 million in inventory, predominantly of older, more problematic types. For fiscal and logistical reasons, many militaries also deploy munitions from their arsenals on a “first-in, first to deploy” basis - using older lots first, a problem that compounds the humanitarian consequences of the use of the weapon because older submunitions tend to be less reliable.

To my way of thinking, using cluster munitions is in fact a political and moral question, not a strictly military issue. It’s about how societies choose to allocate resources.

Anecdotal evidence is that soldiers are not wedded to cluster munitions, and would prefer to use alternatives with lesser humanitarian risk and which pose less hazard to their own troops advancing through areas in which unexploded submunitions are scattered, for example. But they continue to use what they’ve have been provided for in military budgets, sometimes as legacies of purchasing decisions made decades ago to suit the exigencies of Cold War fighting in Europe. Ultimately, along with commitment to addressing the humanitarian impacts of cluster munitions, there needs to be recognition from governments that they must match it with financial commitment to providing alternative means for militaries to carry out their missions in ways consistent with IHL.

4. We don’t like being told what to do: this fourth argument actually has little to do with cluster munitions per se, but is really to do with concerns about “another Ottawa” emerging.

It’s self-evident that, by exploiting procedural tactics, an obstructive few are able - and sometimes do - prevent the emergence of multilateral cooperation through formal channels that could yield security benefit to all. The treatment of “mines other than anti-personnel mines” in the CCW process in recent years, in which a handful of states have obstructed general agreement on a new agreement, is a case in point.

The problem is this: if there’s evident need to negotiate a new norm (like on cluster munitions on humanitarian grounds), it’s probably emerged from the consequences of self-interested behaviour of users of the weapon. Logically, these users, who perceive that they derive benefit from that behaviour (i.e. use of cluster munitions), will then object to agreement of a robust norm restricting or banning that weapon by blocking consensus.

This underlines the conundrum for the CCW in agreeing on a new norm in the future. Its mandate for 2008 is about commencing work – not agreeing on any outcome – and both roadblocks and dilution of ambition are tactics will be encountered…

…which also highlights the importance of the Oslo process, both in its own right in addressing cluster munitions and in adjusting the perceptions of those who might otherwise resist consensus in the CCW on a final agreement there. Already, concerns about the Oslo process seem to have led states such as the US, China and Russia to change their policies in order to allow 2008 work in the CCW to proceed on cluster munitions - a new development without prospect before the Oslo Conference in February 2007. They are sure to have recognized that (unlike in the CCW) the consensus practice isn’t explicit in the Oslo process, nor is it customary in other IHL processes.

In the big picture, disagreement about the merits of "which process" just isn’t as important as achieving the goal of protecting civilians from weapons. Unfortunately, traditional multilateral structures and practices can obscure this at times. So multilateral decision-makers need to be creative and goal focused. It should be noted in this respect that the Mine Ban Treaty a decade ago actually reinvigorated the CCW for a time, and the Oslo process appears to be doing the same. So the issue here isn’t about CCW (the establishment) versus Oslo (the upstart) as some might have us believe. Meanwhile, the UN Secretary-General has been on record since February 2007 as supporting both processes, because what’s important is addressing the impact of cluster munitions on civilians.

Hear, hear.


John Borrie

References

John Borrie & Rosy Cave, “The humanitarian effects of cluster munitions: Why should we worry?”, Disarmament Forum, (Issue 4) 2006, pp. 5-13.

Human Rights Watch, Myths and Realities about Cluster Munitions.

Louis Maresca, “Cluster munitions: Moving toward specific regulation”, Disarmament Forum, (Issue 4) 2006, pp. 27-34.