Humanitarian Initiative unplugged

This posting is a summary of comments I made during an event on 6 May during the NPT Review Conference.  The meeting was organised by Austria, Mexico and Norway as hosts of three recent conferences on the humanitarian impact of nuclear weapons. My topic was “the key substantive findings that have emerged as a result of the humanitarian initiative”. The impacts and trends of the humanitarian initiative (HI) to date, from a UN perspective, largely fall under three headings, process, forensic and legal:

1          Process: In process terms the Oslo, Nayarit and Vienna meetings individually, and in retrospect collectively, provided a fresh standpoint and perspective for addressing concerns about nuclear weapons to all states in a forum that was underpinned by the strongly expressed humanitarian considerations of the 2010 NPT Review Conference. The NPT’s tasking in 2000 and 2010 of the Conference on Disarmament (CD) to ‘immediately establish a subsidiary body to deal with nuclear disarmament’ had come to nothing.  The CD remains paralysed. Some nuclear weapon states declined to participate in the OEWG. To an extent the orthodox process vacuum was filled by the HI, although the initiative was pitched to the entire UN community and civil society, not just to the states parties of the NPT. All states have a stake in this initiative along with civil society and intergovernmental organisations—partners with states throughout the series of conferences.

As US NPT expert Lewis Dunn recently wrote, the goals of the participants in these conferences have varied. ‘Some want to highlight nuclear risks and encourage action to reduce them, others want to energize the NPT nuclear disarmament process, and still others want to delegitimize nuclear weapons and create support for a new international treaty to ban the possession of nuclear weapons and to abolish them.’ At this stage, however, the humanitarian initiative itself has been about accumulating evidence of the consequences of nuclear weapons. This brings us to the forensic angle of the initiative.

2          Forensic: i.e., the gathering and examining of information, evidence and research about the physical effects of nuclear weapons. And it should be noted in passing that the humanitarian impact conferences have spurred new facts-based research including the Chatham House reports on nuclear near misses ‘Too Close for Comfort’ and ‘The “Big Tent” in Disarmament, UNIDIR’s publication ‘An Illusion of Safety’ and the UNIDIR/ILPI series of 11 papers for the Vienna and NPT Review Conferences.

 - Highlights of evidence emerging from the three humanitarian impact conferences are these:

a) National borders: The impact of a nuclear weapon detonation, irrespective of the cause, would not be constrained by national borders and could have regional and even global consequences. Certainly, considerable evidence was produced at all three meetings on the physical properties of nuclear detonations, their indiscriminate effects and the potential for the fallout from an exchange of weapons in a conflict to have widespread, long-term impacts.

b) Testing: Historical experience from the use and testing of nuclear weapons was also demonstrated to have had in some areas devastating immediate and long-term effects—effects not hitherto given the recognition they deserve.

c) Health, development and environment: Beyond the immediate death and destruction caused by a detonation, evidence suggests that socio-economic development will be hampered, with the poor and vulnerable being the most severely affected, adverse effects for food security and considerable environmental damage inflicted. Reconstruction of infrastructure and regeneration of economic activities, trade, communications, health facilities, and schools would take several decades, causing profound social and political harm—the Chernobyl effect but magnified. The human health impacts would be widespread and affect women more acutely than men.

d) Risk: The risk of nuclear weapons use is seen as growing globally as a consequence of proliferation, the vulnerability of nuclear command and control networks to cyber-attacks and to human error, and potential access to nuclear weapons by non-state actors, in particular terrorist groups. Low probability yet high consequence events add up to tangible risk. Indeed, evidence of accidental use and near misses tabled at the conferences has given the element of risk a new dimension.

e) Preparedness and response: It is unlikely that any state or international body could address the immediate humanitarian emergency caused by a nuclear weapon detonation in an adequate manner.  This finding was tested within the UN humanitarian relief system, and largely substantiated, through a project conducted by UNIDIR in cooperation with UNOCHA and UNDP. An expectation for UN relief assistance would quickly manifest itself if the civil nuclear disasters of Chernobyl and Fukushima are anything to go by, bearing in mind that a nuclear detonation would be even more devastating.

3          Legal: The 2010 NPT Review Conference not only expressed its deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons but also reaffirmed the need for all States at all times to comply with applicable international law (IL), including international humanitarian law (IHL). From a UN perspective, there are four key legal points.

a) The first derives from the principles of the UN Charter and the purposes of the UN – the imperative of prevention as the only guarantee against the humanitarian consequences of nuclear weapons use. This element was highlighted at all three conferences, as was respect for the rule of law with particular reference to the Geneva Conventions.

b) Although not an agenda item as such in Oslo and Nayarit, doubt as to whether a nuclear weapon with its devastating and indiscriminate effects could be used in compliance with IHL was stimulated by evidence presented at those events (including references to the ICJ Advisory Opinion), and was specifically addressed in Vienna along with other norms relevant to the humanitarian impact of nuclear weapons.

c) There is the ‘gap’. Unlike the case of biological and chemical weapons, there is no comprehensive legal norm universally prohibiting possession, transfer, production and use of nuclear arms. (There is also a gap in the fulfilment of article VI of the NPT—the requirement for multilateral negotiation of effective measures for nuclear disarmament.)

d) International health regulations (IHR) of the WHO, which provide a framework for the coordination and management of events that may constitute a public health emergency of international concern, would cover events of a radiological origin.

As well as relevant legal considerations, the Vienna conference also drew attention to ethical and moral concerns. As is the case with torture, which defies humanity and is now unacceptable to all, the suffering caused by nuclear weapons use is not only a legal matter, it necessitates moral appraisal.

Conclusion

In one short sentence at the end of the UN Secretary-General’s message to the opening plenary of the NPT Review Conference, the Secretary-General encapsulated the significance of what has emerged from the humanitarian initiative. ‘The humanitarian movement’, he said, ‘has injected the moral imperative into a frozen debate’. This new, evidence-based initiative has revitalised a debate that has been paralysed in its repetitiveness and lack of focus or tangible results (an issue that was covered by the next panellist (Gaukhar Mukhazthanova)).

Tim Caughley

NPT Review Conference: Nuclear Disarmament

UNIDIR and ILPI have produced five new briefing papers that analyse aspects of the 2015 NPT Review Conference, and the initiative on the humanitarian impact of nuclear weapons. These papers can be accessed by clicking on the images below. 

They will also be available in hard copy in New York. These papers are intended to assist readers in understanding the NPT's work over the next few weeks, and to help delegations in their efforts.

In addition to producing these papers, UNIDIR and ILPI will provide comments and analysis on our joint blog www.effectivemeasures.org throughout the Review Conference.

NPT paper 5: NPT success and the humanitarian initiative

A range of initiatives is required to achieve a nuclear-weapon-free world

By John Borrie, Tim Caughley and Nick Ritchie

Underlying the challenges for the next five-yearly review conference of the Nuclear Non-Proliferation Treaty (NPT) in April and May 2015, which include lack of progress both on nuclear disarmament and the convening of a Middle East regional conference on a weapons of mass destruction (WMD)-free zone, NPT members have quite diverse priorities. 

NPT paper 4: On builders and blockers

States have different roles to play to complete the nuclear disarmament puzzle

By Torbjørn Graff Hugo

A focus on building blocks invites an analysis of roles and responsibilities for the achievement and maintenance of a world without nuclear weapons. 

NPT paper 3: Analysing effective measures

Options for multilateral nuclear disarmament and implementation of NPT article VI

By Tim Caughley

Recent public concern about the humanitarian consequences of nuclear weapons has helped to sharpen the focus on measures by which the international community could progressively achieve the eventual elimination of these arms. 

NPT paper 2: On the ethics of nuclear weapons

Framing a political consensus on the unacceptability of nuclear weapons

By Nobuo Hayashi

The absence of a specific ban on nuclear weapons under today’s international law mirrors our moral ambivalence about them. 

Paper 2 will be a focus of our joint side event at UNHQ in New York on 8 May.    

NPT paper 1: The humanitarian initiative in 2015

Expectations are building for the need for nuclear disarmament progress

By Nick Ritchie

Decisive multilateral progress toward a nuclear-weapon-free world led by the nuclear-armed states has not been forthcoming since the end of the Cold War, as many once expected.

Tim Caughley

Resident Senior Fellow UNIDIR 

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

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

Monster...

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

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

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

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

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

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

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

…mouse…

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

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

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

… or hedgehog?!

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

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

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

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

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

CCW: decisions, decisions, decisions...and how to take them

The current review cycle of the framework treaty known as the Conventional Weapons Convention (CCW) (a.k.a the Inhumane Weapons Convention) will culminate in the 4th Review Conference of the Convention in Geneva during the period of 14 to 25 November 2011. The most controversial item throughout this review cycle has been the need to build onto the CCW framework a supplementary treaty (or “Protocol”) dealing with cluster munitions. Many of the states party to the CCW have already chosen to be bound by (or have signed and are in the throes of joining) the Cluster Munitions Convention (CCM) that was adopted in 2008 in a process formally unconnected to the CCW.

Most of the signatory states and states party to the CCM are either opposed or indifferent to efforts in the CCW to develop a parallel instrument on cluster munitions, their assumption being that any such Protocol will fall short of the humanitarian standard set by the CCM. Indeed, one current draft Protocol, submitted by the chairperson of the CCW’s Group of Government Experts (CCW/GGE/2011-III/1), described here as the “GGE chair’s text”, would, if adopted in its present form, largely be confined to prohibiting cluster munitions “produced on or after 1 January 1980”, i.e., those that are already more than 30 years old and of questionable military value. For this group of states, a “draft Alternative Protocol” (CCW/GGE/2011-III/WP.1) tabled by Austria, Mexico and Norway has the advantage of being complementary to and compatible with the Cluster Munitions Convention.

For other CCW members, the GGE chair’s text is broadly acceptable and is seen by many as having the virtue of drawing in key producers and users of cluster munitions for whom the CCM is a step too far. With competing drafts on the table, the upcoming Review Conference promises to be lively, and bets are on as to whether CCW states parties will be able to agree on a cluster munitions Protocol (in some shape or form), or fall back on carrying over negotiations into 2012, or shelving the topic altogether as occurred in 2007 with Mines Other Than Anti-personnel Mines (MOTAPM).

Either way, a decision will have to be made, and such decisions – CCW delegates do not tire to point out – are to be taken by “consensus”. But to what extent is “consensus” a formal requirement in the framework of the CCW? And what does “consensus” actually mean in practice? Would all decisions be required to be taken by consensus of just the adoption of a Protocol?

The CCW, which itself was adopted by consensus, provides in effect that consensus is required for the adoption of any new Protocol. That much is clear, although the relevant provision, as we shall see, curiously avoids the word “consensus”, stipulating instead that Protocols shall be adopted “in the same manner as this Convention”, i.e., by consensus! Strangely enough, nor do the rules of procedure actually use the term “consensus”. Nonetheless, it is safe to say that at the point at which any new Protocol is presented to the Review Conference for adoption the President of the Conference will establish that consensus exists, that is, that there is no state party that objects to the adoption of that instrument.

But, before the Review Conference will decide that issue, the question arises whether lesser decisions also need to be taken by consensus. How will the Conference determine which of the two competing texts should be the focus of its work? Or will it proceed to negotiate on both of them simultaneously? In the face of deadlock, what guidance can be obtained from the CCW, the rules of procedure and the past practice of the parties?

As already noted, the relevant provision of the CCW - Article 8, does not contain the term “consensus”. This article as a whole contemplates more than one way to bring about an outcome. For instance, Article 8. 1 (a) and (b) refer to the majority required for convening a conference of states parties in certain circumstances. Article 8.2(b), instead of explicitly using the word “consensus”, elliptically stipulates that Protocols shall be adopted “in the same manner as this Convention”.

The Rules of Procedure for the November Conference have already been agreed (CCW/CONF.IV/2; see paragraph 19 of CCW/MSP/2010/5) and are the same as those used at the third Review Conference held in 2006. The Rules envisage a number of situations in which a vote would be required. These include rules 19 - 21, 25 – 27, 30 and 32 - 34. Rule 20, for instance, requires that a President’s “ruling shall stand unless overruled by the Conference”, Rule 25 requires that certain motions “ shall be put to the Conference for decision immediately”, and in accordance with Rule 33, a proposal may not be reconsidered unless the Conference “takes a decision to that effect.”

And what do the Rules of Procedure say about such “decision making”? In a somewhat circular fashion, Rule 34 requires the Review Conference to “take decisions in accordance with Article 8 of the Convention”. Rule 30 provides that as a general rule, no proposal shall be discussed or put to a decision unless copies of it have been circulated to all delegations in their respective working languages not later than the day preceding the meeting. The President of the Conference may, however, permit the discussion and consideration of amendments, or motions as to procedure, even though these amendments and motions have not been circulated or have only been circulated the same day. No mention is made, however, as to whether a decision requires consensus or a simple or qualified majority.

What light can the past shed on these questions? Unfortunately, uncertainties about decision-taking in the CCW remain as alive today as they were at the Convention’s adoption in 1980 when those opposing the incorporation of a strict consensus rule apparently went along with adoption of the CCW by consensus only because differences over the terms of the Convention itself - as opposed to the principle of decision-making in general - were negligible. But in doing so they did not regard that instance as settling the matter for all time. In effect, they reserved their position. This background explains the constructive ambiguity inherent in Article 8 that, over the years, has been interpreted mistakenly as mandating a single decision-taking approach, one of consensus. Conversely, it should encourage more tolerance for those who refute the notion that the CCW must take decisions only by consensus.

In any event, consensus should not be required for accepting or rejecting an amendment proposed to the GGE chair’s text. This would be unworkable if not unfair. The draft has no status other than as a working paper submitted by the chairperson of a Group of Government Experts as a personal reflection of the Group’s debate on the issues over which he had presided. The same goes, of course, for the draft proposed by Austria, Mexico and Norway. Short of agreeing to revisit and amend the Rules of Procedure, the only real option that would seem open to the states party to the CCW is to heed Rule 32 which creates the possibility for the tabling of a motion calling for a decision on the competence of the Conference to adopt a proposal submitted to it – in this case, settling the issue of priority to be accorded to competing texts - before the matter is discussed or a decision is taken on it. The Rules of Procedure would thus be applied for a constructive purpose, unlike the situation in the Conference on Disarmament (CD) where the rules of that body tend to be invoked to obstruct rather than facilitate its work.

Whether or not recourse is had to voting, forging consensus is and must remain a central ingredient of multilateral diplomacy. Properly applied, the consensus rule – the reaching of a commonly-accepted position to which no party feels obliged to object - should encourage compromise, leading to an outcome that attracts the widest possible “buy-in” of the international community. The option to vote, however, concentrates the minds of negotiators and improves the ultimate product by raising the level at which compromise is finally brokered. November’s CCW Review Conference may be poised to challenge the grip of the consensus rule, but can the meeting take it in its stride in the time available? We will see.

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

(The symbol is drawn from Google Images – diamonds being the symbol for decisions)

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.
  

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.

Verdun, via Oslo?

Recent columns (dated 22 July and 22 September, 2008) by the Lexington Institute’s Loren Thompson raise questions about the Convention on Cluster Munitions (CCM). In the coming days, I’ll address three of Thompson's central arguments - arguments which track US government positions in many respects:

1. (1) taking cluster munitions out of service will result in greater humanitarian suffering due to the use of more high explosive unitary weapons as the only alternative;
2. (2) that the Oslo Convention on Cluster Munitions (CCM) is a flawed process, while the more inclusive UN Convention on Conventional Weapons (CCW) offers a more hopeful and reasonable outcome; and
3. (3) Thompson's contention that high tech solutions like the U.S. BLU-108 Sensor Fuzed Weapon are an answer to humanitarian concerns.

So, on to the first question: will banning cluster munitions result in the unintended consequence of great humanitarian harm from unitary weapons?

Thompson argues that “a blanket ban on all cluster munitions will not end the desire of military forces to deny use of contested areas to enemies, and therefore might perversely encourage the use of more lethal ‘unitary’ munitions.” This echoes, almost verbatim, the final paragraph of the 19 June 2008 policy memorandum issued by U.S. Secretary of Defense Robert Gates.

Among the most extreme examples of lethal uses of unitary warheads are the artillery exchanges in the Battle of Verdun in 1916, during which the French and the Germans slaughtered one another’s’ soldiers and civilians en masse with high explosive artillery shells.

According to the US policy memo, cluster munitions supposedly offer a more humanitarian answer. Their presumed genius is to distribute a large amount of explosive power in small packages over a large area using relatively few pieces of equipment, as opposed to many pieces of equipment sending high explosive warheads on lots of single targets. Some militaries like the shot-gun blasts of cluster munitions to attack moving targets, troop concentrations, tank formations and artillery formations. Take these away, so goes the argument, and you create conditions for another Verdun, or at least saturation bombing on a localized level. If we can’t use lots of little bombs to attack contested areas, so goes the argument, we’ll be forced to use lots and lots of big bombs to do the same job. Even more civilians will be injured or killed in process.

In other words, the argument is as follows: if we cannot use one means of warfare (i.e., cluster munitions) that results in indiscriminate and disproportionate attacks, we will be forced to use means or methods that are even more indiscriminate and disproportionate (e.g., saturation bombing with unitary weapons). For states that respect the rule of humanitarian law as it has developed over the past fifty years, such an argument runs into considerable trouble.

The bedrock principles of distinction, proportionality and the legal obligation to take precautionary measures are enshrined in Additional Protocol I to the Geneva Conventions. These principles are considered by many to have reached customary status (see, for example, the Red Cross Customary Humanitarian Law Study) or at the very least worthy of inclusion in military law manuals (see, for instance, chapter 2 of the US Military’s Operational Law Handbook)) Taking indiscriminate cluster munitions out of a state’s arsenal does not relieve its armed forces from these obligations.

The fundamental principle of distinction requires that “Attacks shall be limited strictly to military objectives.” [Protocol I, Art. 52]

Furthermore, attacks have to be proportionate. Article 51(5)(b) of Protocol I spells out the proportionality rule: an “attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” is legally unacceptable.

In light of these humanitarian law principles, for a course of action to be acceptable, the military advantage of the attack must outweigh the anticipated collateral damage. Importantly, the balancing test of the proportionality principle is not between an attack that is less costly to civilians as opposed to another attack that is more costly to civilians. If neither alternative results in an anticipated military advantage that outweighs the anticipated collateral damage of either action, then neither course of action is acceptable. I have written about this elsewhere before the adoption of the CCM (see pp. 40-41, of this article).

In the 2007 Martić case before the International Criminal Tribunal for the Former Yugoslavia (ICTY) the defence advanced the “unitaries would be worse” argument (See also a recent Landmine Action report). In that case, Milan Martić ordered rocket attacks on Zagreb in 1995 in response to the Croatian army’s offensive to retake the breakaway region of Krajina. The attacks killed seven people and injured 214, both directly and because of hazardous unexploded duds.

The weapon chosen by Martić’s commanders? The Orkan rocket system, equipped with cluster submunitions – a weapon that is very similar to the U.S. Multiple Launch Rocket System (MLRS). Martić argued in his defence brief that his armed forces were aiming at military targets in the city and that their only other weapon option was a powerful unitary rocket that would have caused greater damage to civilians. If we cannot use clusters, we would be forced to use unitaries, argued Martić.

How did the court respond? The court found that the Orkan rocket was an indiscriminate weapon, even assuming Martić’s forces were aiming at legitimate military targets in Zagreb:

[T]he Trial Chamber notes the characteristics of the weapon, it being a non-guided high dispersion weapon. The Trial Chamber therefore concludes that the M-87 Orkan, by virtue of its characteristics and the firing range in this specific instance, was incapable of hitting specific targets. For these reasons, the Trial Chamber also finds that the M-87 Orkan is an indiscriminate weapon, the use of which in densely populated civilian areas, such as Zagreb, will result in the infliction of severe casualties. [para. 463].

The court did not respond to the “unitary rockets would be worse” argument directly, evidently finding it without merit. In its silence, the court could have been relying on Article 35(1) of Protocol I, that the right of belligerents to choose the means and methods of warfare is not unlimited. Regardless of what other weapons were at hand, cluster munitions were not appropriate to attack the specified military targets in Zagreb. It follows logically that if the only other alternative would be something causing even worse civilian injuries, that alternative would also be prohibited.

Martić is now serving a 35 year sentence. He has renewed the “unitaries would have been worse” argument on appeal. Interestingly, the prosecutor’s office has argued in response that a single unitary rocket aimed at each target actually would have been better, not worse. The prosecutor’s office therefore did not reject entirely the use of unitary weapons, but neither did it endorse their indiscriminate use in large numbers.

History also gets in the way of “unitaries would be worse” argument. One might expect that cluster munition use might reduce the use of unitary weapons. Practice has sometimes shown the opposite – extensive use of such area weapons may well encourage or reinforce the use of large numbers of unitary weapons. The example of Laos immediately comes to mind – the most heavily bombed country in the history of the world was blanketed not only with cluster munitions, but also with rockets, mortars, shells and large general purpose bombs. The availability of vast quantities of cluster munitions did not prevent the use of large numbers of other types of ordnance. And clearance officials consider the unexploded cluster bomblets to be a much greater risk to civilians than the unexploded general purpose bombs.

Visitors to Southern Lebanon following the 2006 war between Israel and Hezbollah can attest to a similar outcome – heavy shelling and bombardment included both cluster munitions and weapons with unitary warheads by the Israeli Defense Forces. Many credit the 2006 war with creating the tipping point for the CCM.

Virgil Wiebe


Photo Credit: “p011902.jpg” by PhotosNormandie 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.

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.