Protecting civilians from explosive violence: time for states to raise their voices

Last week the United Nations Secretary-General submitted his annual report to the Security Council on the protection of civilians in armed conflict. The language of the report represents something of a break-though of a sort that's pleasing to see from the editorial perspective of this blog. Hopefully now states will also begin to make their voices heard in supporting the Protection of Civilians report's content both in the Security Council chamber and in elsewhere.

The Secretary-General's report observed that the "choice of weapons is critical in minimizing and reducing the impacts of hostilities on civilians". While this might sound obvious, it's worth noting that heavy weapons such as artillery and rockets were nevertheless used in populated areas in conflicts in recent months such as Gaza and in Sri Lanka, something the report also commented on in its paragraph 36:

"As demonstrated by this year’s hostilities in Sri Lanka and Israel’s campaign in Gaza, the use in densely populated environments of explosive weapons that have so-called “area effect” inevitably has an indiscriminate and severe humanitarian impact. First, in terms of the risk to civilians caught in the blast radius or killed or injured by damaged and collapsed buildings. Secondly, in terms of damage to infrastructure vital to the wellbeing of the civilian population, such as water and sanitation systems."

These are certainly issues that individually some Security Council members are taking very seriously. Only today, for instance, the New York Times reported that the new American military commander in Afghanistan, General Stanley McChrystal, would sharply restrict the use of airstrikes there in an effort to reduce the civilian deaths he had concluded were undermining the American-led mission. In today's warfare, in which the lines between military objectives and civilian concentrations are usually blurred, those on the cutting edge of military thought are increasingly aware that the use of explosive violence in such areas can be counter-productive, as well as morally and legally unacceptable.

The Secretary-General further noted in last week's report that the Security Council "has a critical role in promoting systematic compliance with the law" including condemning violations "without exceptions", threatening and if necessary applying targeted measures against the leadership of parties violating their obligations to "respect" civilians and keeping track of violations and mandating commissions of inquiry "where concerns exist regarding serious violations of international humanitarian law and human rights law".

The British NGO Landmine Action issued a media release responding to the Secretary General's report, which

"welcomes the clear expression of concern from the UN Secretary-General regarding the humanitarian problems caused by explosive weapons. Landmine Action urges States, international organisations and civil society to further document the civilian harm caused by explosive weapons, work to prevent the use of explosive weapons in populated areas and support all efforts to minimise the post-conflict harm that explosive weapons cause."

One of the key points underlined by multilateral processes representing 'disarmament as humanitarian action' such as the Ottawa process to prohibit anti-personnel mines and the Oslo process resulting in the Convention on Cluster Munitions is that the collection and analysis of empirical evidence is crucial in changing policy makers' minds and re-framing issues in ways that make them more tractable. Nevertheless, weapons-specific processes like these require a huge amount of effort that is difficult to sustain throughout treaty implementation, let alone repeat for other weapons.

And, a risk of weapon-specific multilateral processes in general is that governments opposed to stigmatising the use of explosive violence in populated areas will succeed in breaking up and subdividing issues around use of explosive weapons (as Richard Moyes at Landmine Action has pointed out) that muddy the waters, or denude relevant multilateral processes of real value.

There is a need for the international community to begin looking beyond just the weapon specific to highlight explosive weapons as a broad category of concern at time of use and post-conflict. This is something a few of us have already begun trying to do (Landmine Action's media release mentioned, for instance, Disarmament Insight's work at facilitating such discussion).

In light of the Protection of Civilians report, the Security Council could be one place for states and international organisations to take the new discourse forward. But it also needs to be a broader debate. The international community should do more to ensure civilians are protected, and that will necessarily entail some fresh thinking.

John Borrie

Image downloaded from Wikipedia: "A Massive Ordnance Air Blast (MOAB) weapon is prepared for testing at the Eglin Air Force Armament Center on March 11, 2003. The MOAB is a precision-guided munition weighing 21,500 pounds and will be dropped from a C-130 Hercules aircraft for the test. It will be the largest non-nuclear conventional weapon in existence."

CCW: Out of step and almost out of time?

Almost two months after the culmination of the Oslo Process in a ground-breaking new international Convention on Cluster Munitions (CCM) in Dublin, what does the traditional forum for regulating conventional weapon systems, the UN Convention on Certain Conventional Weapons (CCW), have to show? Is it indeed making progress toward an agreement by the end of 2008 that will also have a positive impact in reducing the risk of harm to civilians from cluster munitions? Or was the CCW's third (and longest) session of its Group of Experts this year instead a case, as someone in the Conference room put it, of "the treadmill is turning, but the hamster is dead"?

Those readers who've followed this blog's commentary on work in both the CCW and the Oslo Process on cluster munitions may recall that the CCW achieved a mandate in November 2007 to "negotiate a proposal to address urgently the humanitarian impact of cluster munitions, while striking a balance between military and humanitarian considerations." It could be observed that the CCW was galvanized into action by the emergence of the Oslo Process and the way it snowballed.

Some major users and producers of cluster munitions shunned the Oslo Process. China, India, Israel, Pakistan, Russia and the United States (all CCW members) said the CCW was the appropriate place to negotiate on cluster munitions. Nobody would disagree, but it's indisputable that the Oslo Process emerged because of the CCW's failure to act. Yet in November 2007, as it by coincidence, the CCW achieved a mandate to work, although clearly less ambitious than the February 2007 Oslo Declaration, which called on states to "prohibit cluster munitions that cause unacceptable harm to civilians."

Most countries in the Oslo Process echoed the UN Secretary-General's statement that the two processes on cluster munitions were "complementary" and "mutually-reinforcing". Many delegations worked in both, and some (especially the Europeans) argued that the CCW could deliver added value to any treaty agreed in Dublin by achieving CCW standards that would capture the big users and producers not in the Oslo Process, even if these benchmarks were lower. And, while the political stewardship of the CCW has been (in part because of its consensus practice) markedly imperfect, the CCW is an important international legal norm, and its protocols do have value and deserve universal support and adherence.

But now that the Dublin celebrations have subsided, there is a CCW a hang-over to deal with. Unlike most hang-overs, it's possible that with time this one will become worse and not better.

The basic problem for the CCW is that its members don't all agree on meaningful new international legal measures on cluster munitions. Russia has been the most vocal about its reluctance (it's more interested in 'best practice' of existing international humanitarian law (IHL) rules) but Russia isn't alone. No-one working in the CCW environment is under any illusion that anything can be achieved that's as ambitious as the CCM, but it's hoped that something is possible despite foot-dragging to date. Moreover, now 60 per cent or so of the CCW's membership have a new challenge: to ensure that whatever is developed in the CCW doesn't undermine what was agreed in Dublin.

And such a scenario is distinctly possible. In June, the Chair of the CCW this year, Ambassador Bent Wigotski of Denmark, circulated a working paper for "the sole purpose of providing a basis for further negotiations", adding that "It is based on proposals by the Friends of the Chair, as well as contributions put forward by delegations". Although containing gaps, Wigotski's paper was structured as a draft protocol.

The paper followed difficult discussions earlier this year in which concerns were raised, for instance, about selective use of IHL rules (and therefore scope for creative reinterpretation) in drafting proposals by one of Wigotski's Friends of the Chair. Although talks have continued this July, these concerns haven't subsided.

In addition, unease among some turned to consternation part-way through the three-week July CCW expert meeting when the Chair issued a "draft common approach paper" of possible elements to be included in a text as the basis for negotiations on several articles (2,3,4,5 and 6) of his earlier paper. This paper seemed to many to pander to a US Department of Defence policy on cluster munitions and unintended harm to civilians dated 19 June, widely regarded as very minimal, and which was castigated by the Cluster Munition Coalition.

Whatever the case, it was not great for trust in my view. The emergence of the paper appeared to polarise those in the conference chamber. And there are signs that CCM-supporting states (including not only the Oslo core group countries but Australia, Canada, France, Germany, the UK and other Europeans) are preparing to dig in, if necessary, against aspects of the Chair's papers despite the slightly strained and artificial outward bonhomie of this CCW meeting. It will be interesting in coming months to see what they make of his new edition of a text circulated at the very end of the expert meeting on its final day last Friday.

Historically in the CCW, the progressives have rolled-over in the face of disappointing agreements - perhaps figuring that some agreement is better than none at all, as in the case of Amended Protocol II in 1995-96. The situation is different now. There is already a robust standard, one agreed in Dublin and with high-level political support from CCW heavyweights among the NATO Europeans, among others. All bets are off that CCM supporters will allow themselves to be rolled for a lower standard in a CCW agreement that conflicts with or undermines the CCM.

If the Chair's approach, which focuses primarily on rules on use of cluster munitions, won't ultimately fly, is there any realistic alternative?

One option would be to go for a transfer ban, either in a legally-binding protocol or as a political declaration of CCW members. While not achieving any prohibitions or specific restrictions on cluster munition use, such an approach would at least acknowledge the reality that demand for cluster munitions internationally is going to diminish as the CCM takes hold. It could be a brief agreement - drafted in a paragraph - not an inconsiderable factor when the CCW experts have only a week in September of work time left and a few days in November to wrap things up. It wouldn't require any changes to military doctrine - always a complicating factor in negotiations for internal decision-making among the military powers. Most importantly, it would have a discernible humanitarian impact, ensuring that, as we've seen with other weapon systems, the oldest and least reliable stocks of cluster munitions disposed of from major military states don't end up proliferating (or being dumped on as 'military aid') to others and then being used.

Crucially, however, any such alternative path would have to be on the understanding that would only the first stage in further CCW work to ensure that, in coming years, other meaningful measures on cluster munitions are negotiated.

So the hamster's not dead, but that's no reason for complacency. Both the CCM and the CCW are too important.

John Borrie


Picture by author of the Philippe Schiller's landmine chair sculpture and Handicap International Suisse banner outside the Palais des Nations courtesy of Handicap International Suisse.

Spurring on the Conference on Disarmament

"A spur of conscience to the flank of plodding procedure" was how the Ambassador of Sri Lanka characterised the message delivered to the Conference on Disarmament yesterday by UN Secretary-General Ban Ki-moon.

The 65-member Conference has been plodding along for more than 10 years now, unable to deliver a single disarmament agreement since completing its work on the Comprehensive Test Ban Treaty in 1996 (for some background, see our posting from August 2007 entitled, "Last chance for the Conference on Disarmament?").

The Conference has managed periodically over the last two years to break into a canter thanks to some innovative coordination by the rotating Conference Presidents and sheer determination on the part of most Member States to break the deadlock in which they find themselves. Despite these efforts, the goal of galloping headlong towards a much-needed treaty to cap (and possibly then reduce) global stocks of fissile material for nuclear weapons has remained elusive.

In expressing his disappointment, the UN Secretary-General did not mince words. As if chiding an overweight jockey, he told the Conference, "when you were at the verge of reaching a decision [...] last June, I called on you to move forward in a spirit of compromise and seize that historic opportunity. You did not.” The achievements of the Conference on Disarmament, he said, were but "distant memories." He added that he was "deeply troubled" by the current impasse over priorities and concluded that, although not irrelevant, the Conference was "in danger of losing its way."

The Russian Ambassador, responding on behalf of the Eastern Group, tried to take the sting out of Mr. Ban's remarks by pointing to increased trust among States in the Conference and to the "more active discussions" on all agenda items that had taken place in recent years. And indeed he is right. The Conference on Disarmament is closer than it has ever been to cutting the Gordian knot that has bound it in place for the last decade.

Russia, but also the United States and the United Kingdom to name just two others, have declared their willingness to move forward based on a compromise that would see negotiations begin on a Fissile Material Treaty; accompanied by substantive discussions on the other priority issues on the Conference's agenda - preventing an arms race in outer space, negative security assurances (i.e. assurances from nuclear weapons States that they will not attack non-nuclear weapons States with nuclear weapons) and nuclear disarmament. China has also indicated that, given a few tweaks, it might be able to go along with this.

A handful of countries remain to be convinced, however, including Pakistan, Iran and Israel, each of which has its own concerns about how their national security could be affected by the prioritisation of issues currently favoured by the rest of the Conference.

Leading the charge to break the deadlock this year will be Conference's 6 Presidents for 2008 - Tunisia, followed by Turkey, Ukraine, the United Kingdom, the United States and Venezuela. This grouping, thrown together by the alphabet, contains two nuclear weapons States that support the commencement of negotiations on a Fissile Material Treaty; a good omen if ever there was one.

The Conference on Disarmament has been well exercised over the last two years. It is ready to race again. Here's hoping that the Secretary-General's spurs will be enough to encourage it once more to take the bit between its teeth.

Patrick Mc Carthy



Photo credit: "Old Horse" by artur.borzecki on Flickr.