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)

Building discourse on explosive weapons

We have a new website you should check out (and bookmark) at: www.ExplosiveWeapons.info.

But hold on, I hear you say, what about Disarmament Insight? Don’t worry, it’s not disappearing. But over the course of 2010 our efforts will be on this new website, with which we’ll be able to do things we can’t with dear old Blogger.

Originally set up in 2007 to accompany our work that year as part of the 'Disarmament as Humanitarian Action' project at UNIDIR, the Disarmament Insight blog you’re reading now continued a lot longer - and achieved a much wider readership - than we ever hoped. In particular, the blog's commentary became one reference for those seeking independent analysis on what was going on during the Oslo process on cluster munitions. However, the DI blog covered all sorts of other issues relevant to humanitarian disarmament work from anti-personnel mines to primate behaviour, evolutionary psychology to explosive violence.

Blog readers will have noticed that over the last few months our blogging has tapered off, with some conspicuous exceptions like Tim Caughley's thought-provoking analysis of the Conference on Disarmament’s Shannon Mandate. That's because toward the end of last year Maya and I completed our project at UNIDIR on a history of international efforts on cluster munitions, which resulted in a book I wrote entitled Unacceptable Harm: A History of How the Treaty to Ban Cluster Munitions Was Won. After that marathon we both took a break from the blinking cursor for a while.

Among the things it covers, ‘Unacceptable Harm’ looks at what lessons banning cluster munitions might hold for future efforts to protect civilians from the effects of explosive weapons. This was also a topic explored over the course of the blog (just type ‘explosive weapons’ into the search box at right to get a list of posts). In that regard, I’m pleased to report that in January of this year we commenced a new project at UNIDIR on Discourse on Explosive Weapons (DEW), with the kind financial support of the Government of Norway.

The effects of explosive weapons on civilians represent a distinct humanitarian problem—one recognized by the UN Secretary-General in his 2009 report on the protection of civilians in armed conflict (S/2009/277).

Explosive weapons range from unitary bombs, cluster munitions, rockets and missiles to grenades, shells, improvised explosive devices and mines. The blast wave created by the detonation, projection of fragments, and sometimes the collapse of structures in the surrounding area is a major cause of civilian harm. Explosive weapons also cause damage to infrastructure vital to the civilian population and leave behind unexploded explosive ordnance, which poses a post-conflict health risk and negatively affects reconstruction and long-term development.

Representatives of States seem to find it difficult to engage in substantive dialogue on how to address the concerns raised by the use of explosive weapons in populated areas. Policy practitioners lack a common vocabulary and conceptual tools to enable them to productively frame these issues.

Meanwhile, the process leading to the 2008 Convention on Cluster Munitions provides an example of how the international debate on a weapon category was re-framed to put the protection of civilians at its centre. In addition, a 2009 report by Landmine Action (now re-branded Action on Armed Violence) on Explosive Violence showed that States already tacitly recognize explosive weapons as a single category from a technological and ethical standpoint.

Greater focus on the humanitarian effects of explosive weapons could enhance civilian protection, support the effectiveness of legal norms applicable in armed conflict, contribute to reducing the global burden of armed violence and represent a further step toward creating the conditions for general and complete disarmament. Practical ways to achieve that is what the DEW project is exploring.

As part of the project’s work, alongside symposia and the generation of resource materials, we’ve set up the explosive weapons website. This is where news and resources related to our explosive weapons work will appear during the course of 2010 including background papers, podcasts and summary reports from our symposia. There’s even a Twitter feed… (We also have a project page at UNIDIR here.) We invite you to follow our work and avail yourself of the stuff we’re producing.

As always, thanks to all of our readers and please keep following our work!

John Borrie

Picture: 'Explosion, Abkhazia' (Simon Conway, Landmine Action).

Unacceptable Harm: Geneva launch

On Friday UNIDIR launched a new book I wrote entitled Unacceptable Harm: A History of How the Treaty to Ban Cluster Munitions Was Won at the Palais des Nations, the home of the United Nations in Geneva.

Chaired by the Norwegian Permanent Mission in Geneva, the lunchtime event featured four speakers: Dr. Gro Nystuen (Chair of the Council on Ethics for the Norwegian Government Pension Fund – Global), Richard Moyes (policy and research director at Landmine Action and co-chair of the Cluster Munition Coalition (CMC)), the CMC’s Coordinator Thomas Nash, and myself. Turn-out was very good, with a full room and some interesting discussion following the presentations.

The chair of the meeting, Norwegian diplomat Hilde Skorpen, recalled the origins of the project. It grew out of a proposal I made in 2007 to the Norwegian Ministry of Foreign Affairs. For several years, we at UNIDIR had carried out research analysing a range of negotiating processes as part of a project on Disarmament as Humanitarian Action : Making Multilateral Negotiations Work, and in the course of that work we found a lacuna in the policy and academic literature on the landmine negotiations : while some good stuff had been written about the Ottawa process, no narrative historical framework existed to tell the story of the achievement of the Mine Ban Treaty as a coherent whole – from its origins to its agreement – for a wide audience.

Memories fade quickly, and hindsight can obscure what we can learn from success and failure in multilateral negotiations. Myths can arise and take hold. This isn’t necessarily helpful when it comes to try to distill lessons learned with a view to improving the performance of multilateral negotiators. So my proposal on UNIDIR’s behalf was a simple one : shouldn’t someone try to capture what would happen on cluster munitions ; that is, if we really are to learn and so improve our performance as negotiators?

This idea must have seemed a little risky. At that stage nobody knew how the emerging Oslo process or in the CCW would turn out! To their credit the Norwegians decided to fund the project. (And then, like a good funder of such research should, they stood back to let us get on with it.)

The rest, as they say, is history. A history though that would be a larger and more complicated task than we originally envisaged in researching and writing ‘Unacceptable Harm’…

But now the book is 'out there'. Thanks to all of the speakers and those who came out for the launch on a cold, bright Geneva day. With Unacceptable Harm no longer under embargo, those readers who are on UNIDIR’s publication circulation list or those (like a considerable number of CMC campaigners) who have placed orders for the book should receive their copies through the mail before too long. In due course the book should also become available in the UN's bookshops in Geneva and New York, and eventually on Amazon.

There will be further events associated with the launch of the book in the New Year. We’re anticipating something in Oslo on 12 January and perhaps elsewhere. Read this blog for further updates.

John Borrie

Photo courtesy of Tamar Gabelnick, International Campaign to Ban Landmines.

Disarmament Insight: Just popped out ...

In March 2007, along with Patrick Mc Carthy from the Geneva Forum, I started the Disarmament Insight blog to help communicate the findings of UNIDIR's project on Disarmament as Humanitarian Action: Making Multilateral Negotiations work (DHA). At that time, I think none of us involved envisaged that more than two-and-a-half years later the blog would still be running, or that it would have covered the myriad of subjects it has - from the Conference on Disarmament to the cognitive constraints on negotiators, from export controls to explosive violence, nuclear disarmament to negotiation theory - in hundreds of posts from dozens of contributors. During that time we've witnessed an almost-complete turn-over of core contributors, with Patrick having shifted to UNDP and Maya Brehm on board at UNIDIR.

Along the way, the blog became one respected source of news and analysis on international efforts to address the humanitarian impacts of cluster munitions, in particular. This emphasis on cluster munitions was only fitting: the UN's Convention on Certain Conventional Weapons talks and the eventual Oslo process that emerged in parallel underlined many of the points we were trying to make in the DHA project's work. The achievement of the Convention on Cluster Munitions in May 2008 was hugely gratifying, and obviously we believe lends weight to some DHA findings.

Another reason was that as a follow-on from the DHA project's work we undertook a new project to tell the story of these efforts on cluster munitions. This project officially commenced in March 2008. A detailed analytical history, entitled Unacceptable Harm: A History of How the Treaty to Ban Cluster Munitions Was Won, which I wrote, was intended to be the main product. This book is now completed, and earlier this week it went to the UN print shop for production. We hope that the book will be available for launch and distribution in December. (During the pretty intense editing and production period in September and October, regular readers may have noticed we weren't posting on the blog, for which I offer our apologies.)

Apart from launch events associated with Unacceptable Harm in December and January, the cluster munition project is now finished. Both Maya and I are taking a break while we wait for word on future funding for an exciting new project. It means that this will be the last Disarmament Insight post for a while.

But keep checking the blog come December, and retain it on your list of RSS feeds as we anticipate news to come of various kinds including more information about Unacceptable Harm when it's out in print.

John Borrie

The tip of the iceberg

As regular readers of the blog may have gathered, I've been working this year on a history of international efforts to address the humanitarian impacts of cluster munitions.

This history, to be published before the end of the year, focuses in particular on the Oslo process, which culminated in a Convention on Cluster Munitions in negotiations in Dublin in May 2008. But it also casts an eye much further back to the origins of international cluster munition work, which date from the Swiss Diplomatic Conferences in the 1970s and proposals there by Sweden and others to prohibit "cluster warheads".

Chronologically speaking, the Oslo process, which ran for approximately 15 months from February 2007 until the end of May 2008, was just the tip of the iceberg. There was a lot more under the surface. Concerns had been raised about the hazards cluster munitions pose to civilians both at time of use and post-conflict for many, many years by governments and NGOs. My impression is that this isn't necessarily widely understood when multilateral practitioners think about lessons to be learned (or not) from recent international efforts on cluster munitions. Nor is the question it poses but which is often not raised: why did the Oslo process get traction when previous efforts failed?

The easy thing to do would be to point to the 2006 summer war in Southern Lebanon between Israel and Hezbollah and the massive use of cluster munitions there as the catalyst. Others disagree: Virgil Wiebe, for instance, whose posts have graced this blog in the past, feels strongly that the Lebanon conflict was "necessary but not sufficient". Certainly, determination among Norwegian policy makers to get an international process going on a treaty to ban cluster munitions that cause unacceptable harm to civilians pre-dated Lebanon. And NGOs in the Cluster Munition Coalition had been preparing for a break with the UN Convention on Conventional Weapons' talks in late 2006 unless its five-yearly review conference agreed on more meaningful work to restrict the weapon. So clearly the picture is more complex than it first appears.

The deeper I got into research for the history, the more convinced I became that it's difficult to draw useful lessons about the Oslo process for future 'humanitarian disarmament' endeavours without having this historical context. Fortunately, Eric Prokosch's classic book 'The Technology of Killing: A Military and Political History of Anti-Personnel Weapons' (Zed Books, 1995) is an excellent resource. (This book is unfortunately out of print, but second-hand copies can be scrounged via the internet and second-hand bookshops, and should be required reading for all Geneva multilateral diplomats, in my view.) Eric also has been very kind in sharing his insights in the course of my research about how cluster munition-related concerns evolved from their early days.

Such perspectives are important. Many of the other people I've interviewed and conversed with in the course of writing my book have quite reasonably drawn their own conclusions about what we can learn from international efforts on cluster munitions, but most do so based on their impressions of events this decade. However, if one only looks at the last few years the achievement of the cluster munition ban treaty might have looked simply spontaneous, and even easy - even though it was neither.

The impact of the Ottawa process on anti-personnel mines in the 1990s and the resulting 1997 Anti-Personnel Mine Ban Convention also needs to be considered. There are many similarities between the Ottawa and Oslo processes, and the former's example was at the very least a major inspiration to most of those centrally involved in the Oslo process. But again, context is important. A two-day seminar we convened in November last year with various multilateral practitioners on lessons learned from the Ottawa and Oslo processes underlined that there are divergent viewpoints on what kind of 'model' that the most obvious similarities between the two processes offer, or whether they constitute a model at all. (These similarities include free-standing activity outside traditional UN forums propelled by like-mindedness rather than universal participation, government-civil society partnership, and emphasis on humanitarian perspectives.)

The British historian Hew Strachan recently wrote in the journal Survival with regard to the Iraq war that "As history is turned into political science, it makes a casualty of contingency". It's a phrase I have written on my office whiteboard as a continual reminder. The most elegant international relations theories don't convincingly account (in my mind at least) for the role of individuals in the Oslo process. If anything is really clear to me, however, it's that individuals were key to that success.

I'm pondering all of this as I prepare to write my concluding chapter of the draft manuscript after a week off. Earlier this year, I related the Japanese novelist Haruki Murakami's comment that writing books is a bit like marathon running. I'm looking for my second wind!

John Borrie

Image credit: photo-montage of an iceberge from Wikipedia.org.

Not so apocalyptic

'Where's Obama when you need him?'

It's hard not to feel a little bit like Cinderella at the moment as I plug away on completing a manuscript of a history of the Oslo process on cluster munitions, which is due to be published later this year by the United Nations. As I stare bleary-eyed and punch drunk at my computer screen, interesting developments for disarmament are happening on a couple of different fronts, one being the Nuclear Non-Proliferation Treaty (NPT).

Since he assumed office, there has been great optimism among many pundits (and a certain amount of dismay among some of the conservative Gaffney-types) that U.S. President Barack Obama would assume a much greater leadership role than the previous Bush administration on efforts at the multilateral level toward nuclear disarmament.

Obama seems to have become president in the middle of something of a 'perfect storm' - with a global financial crisis (including the near bankruptcy of huge American carmakers GM and Chrysler), a deteriorating security picture in Afghanistan and Pakistan, the ongoing Iranian and North Korean nuclear sagas and even a swine flu pandemic outbreak. Obama versus the four horseman of the apocalypse it would seem. So one might be forgiven for thinking that the Obama administration might put good intentions about nuclear leadership on the back burner.

And talk is cheap. The truth is, that until the NPT Preparatory Meeting that began at the beginning of last week in New York, no-one outside the U.S. government really knew what kind of tone the new administration would try to set, especially as its ambassadorship to the Conference on Disarmament has been empty, and it has generally kept pretty quiet in Geneva so far this year.

I attended parts of last year's second Preparatory Meeting in Geneva, and to be honest it was a bit of a depressing spectacle. Nevertheless, but for infernal book writing I would love to have gone to New York this May to see if the atmosphere has changed. By various accounts, the U.S. delegation, led by Rose Gottemoeller, seems to have set a very positive tone, reading a message from President Obama to the meeting, and delivering an assessment of the U.S.'s basic positions on the disarmament, non-proliferation and nuclear energy pillars ot the NPT.

From time to time, I've been reading Ray Acheson of Reaching Critical Will's very useful blog following the course of the NPT meeting, which said this about Gottemoeller's statement:

"She reaffirmed that the U.S would seek ratification of the Comprehensive Test Ban Treaty and negotiations on a Fissile Materials Cut-off Treaty. Most importantly, she reaffirmed the decision to extend the NPT in 1995 and decision made at the 1995 and 2000 Review Conferences, including the 1995 Middle East resolution."

Good one. Nevertheless, theNPT Preparatory Meeting hasn't finished yet, and Acheson noted that it remains unclear whether it will be able to agree draft recommendations by the end of the week:

"The amount of time remaining could possibly allow for a second revised document to be offered Thursday afternoon, giving the PrepCom a last chance to adopt it Friday afternoon. However, if the Committee cannot agree to adopt the revised document on Thursday, it is likely that the Chair will have to forward it to the RevCon as a working paper, despite his aversion to such a solution."

Reaching Critical Will (which is a project of the Women's International League for Peace and Freedom) also did great work in reporting on the Oslo process, which delivered the Convention on Cluster Munitions (CCM) last May in Dublin, and which we also covered extensively on this blog. There are positive developments on the CCM front too.

The CCM needs 30 ratifications to enter into force. 94 states signed the treaty in Oslo last December, and now the count stands at 96 with seven (Austria, The Holy See, Ireland, The Lao People’s Democratic Republic, Mexico, Norway and Sierra Leone) having ratified. This is actually pretty good going, given the challenges involved in national legislation processes. It now looks like two pretty big countries - Germany and Japan - are likely to ratify by the end of May. This is great news, as is Germany's commitment to hosting a conference on cluster munition stockpile destruction issues in Berlin in June. And ratification is in the pipeline for a bunch of others, with results starting to emerge before the summer recess.

It means we could be looking at international entry into force of the CCM sometime in early 2010, all going well. Lao PDR (the most cluster munition affected country - bombed to smithereens in a secret U.S. bombing campaign in the 1960s and early 1970s) has offered to host the CCM's first meeting of states parties, which underlines the commitment of affected countries to the treaty. I believe planning for the meeting has (wisely) already started.

Under the Bush administration, the U.S. shunned the Oslo process, although American legislators like Leahy and Feinstein have been very supportive of it. It'd be great to see some of Obama's magic bridge-building in the context of the the CCM too.

John Borrie

Picture credit: Albrecht Dürer's The Revelation of St John: The Four Riders of the Apocalypse, 1497-98, Woodcut, 39 x 28 cm, Staatliche Kunsthalle, Karlsruhe. Image downloaded from Wikipedia.

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

CCW: Still searching in the undergrowth

The UN Convention on Certain Conventional Weapons (CCW)’s Group of Governmental Experts began a four-day meeting today, the latest – and perhaps the last – in its efforts to negotiate a protocol on cluster munitions.

When the last CCW Meeting of States Parties wrapped up late last year it had not been able to produce an agreement. Two-third of the CCW’s membership were about to sign the new Convention on Cluster Munitions (CCM) in Oslo, and concerns were widespread and deeply felt that the CCW product being touted by Denmark, the GGE’s Chair at the time, would deliver too little humanitarian benefit, and would conflict with the CCM’s obligations to ban the weapon and help victims. They dug in, much to the chagrin of CCW members shunning the CCM and unhappy at being depicted as international bad guys in the media and by civil society.

So, the compromise achieved was for two more short GGE sessions in early 2009 to see what could be salvaged. Argentina took over from Denmark as GGE Chair, and we reported in February that the new Chairman had made some progress – although the differences between the ambitions of major possessors and producers shunning the CCM (like Brazil, China, India, Israel, Pakistan, Republic of Korea, Russia and the United States) for a cluster munition protocol still seemed very different from the higher humanitarian standard others expected. The European Union, for instance, has repeatedly stated that any new protocol should deliver measurable humanitarian benefit, be compatible with the obligations of the CCM, and must contain some sort of substantive prohibition, whether on use, transfer or some other aspect of cluster munitions.

In this morning’s general debate to start off the four days of GGE meetings this week, there seemed little new of note. Argentina’s “consolidated Chair’s text” distributed at the end of the February meeting was generally accepted as a basis for work, although most countries also raised problems about key Articles such as its definitions, how the protocol’s obligations would sit with existing international humanitarian law obligations, the nature of its prohibitions, and derivative questions related to stockpile destruction such as transition periods.

None of these issues are new, although many delegations speaking today seemed keen to sound as constructive as possible. Even so, it is difficult to see how a protocol agreeable by consensus could be agreed in the space of four days: the International Committee of the Red Cross has pointed out in detail a number of serious problems remaining in the text, which many Europeans and others agree with, for instance, and which others will resist.

That said, while the GGE mandate for meetings (which cost money, and therefore need the CCW Meetings of States Parties to okay them) effectively runs out at the week, it doesn’t necessarily mean negotiations will end. There is nothing to stop Argentina continuing bilateral and small group consultations with a view to having a final draft to offer to the next CCW Meeting of States Parties later this year. That is what I suspect it will do.

John Borrie.

Photo by author of battle area clearer searching for unexploded submunitions. From a photograph in an exhibition in the Esplanade des Nations (outside the CCW's meetings in the Palais), taken in November 2007.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CCM: Positive developments

Earlier this week, the Lao People's Democratic Republic ratified the 2008 Convention on Cluster Munitions (CCM) at a special event in New York at United Nations Headquarters.

Lao PDR’s accession to the CCM is significant not least because this South East Asian nation is the most heavily affected country in the world from unexploded submunitions due to a secret American bombing campaign in the 1960s and 1970s that pulverised entire areas of the country such as the Plain of Jars. A generation on, and Lao PDR’s people – the majority of them not even born during the bombing period – are saddled with a deadly legacy of unexploded ‘bombies’ (submunitions) in their fields, rivers and woods that threaten livelihoods and their very lives.

The figures are staggering. Lao PDR’s National Unexploded Ordnance Programme believes that, even under ideal firing conditions, at least 30 percent of the more than 260 million submunitions dropped on the country during the Indochina War would have failed to function as intended, leaving an estimated 78 million bombies to pose hazard to people going about their daily lives. Fifteen of Lao’s seventeen provinces were left affected by cluster munitions and other unexploded ordnance, and today ten provinces are still severely infested – with an estimated 300 people injured or killed per year.

As such, Lao PDR is always going to be a special case for the new treaty. It is generally (if tacitly) recognised by others involved in the Oslo process that – even with the international assistance promised by other members of the CCM – Lao PDR is unlikely to achieve the treaty’s ten-year deadline for clearance and will eventually require an extension (as has just occurred in the Mine Ban Treaty context, for example, for certain countries that have not completed anti-personnel mine clearance activities for various reasons). But, hopefully, membership of the CCM will be a means to continually draw attention to and resources for post-conflict activities to reduce the hazards of unexploded submunitions and other ordnance on Laotian civilians.

At the same ceremony, the Democratic Republic of the Congo – another cluster munition-affected country – signed the CCM, which makes it the 96th to do so. And Iraq made a statement indicating its intent to join the CCM once domestic steps have been completed. Also, a week earlier, on 11 March, the Mexican Senate approved that country’s ratification of the CCM.

Although a country can provisionally apply the CCM at any time, to enter into force internationally the CCM needs to be ratified by 30 states. Less than five months after the CCM’s signing ceremony in Oslo last December, the treaty can already count on 6, and more will surely follow as 35 other states have publicly committed to ratify as soon as possible. As Iraq’s statement indicated, the number of signatories, which presently stands at 96, is also certain to increase soon.

So far many of the world’s largest producers and users of cluster munitions remain outside of the treaty. But there were encouraging developments last week in the US. On 11 March, President Obama signed the Omnibus Appropriations Act for fiscal year 2009, already passed by Congress. It enacts a ban on American exports of most cluster munitions, and has been described as a “qualified ban”.

Meanwhile, many members of both chambers of Congress have apparently cosponsored legislation to enact a ban on most cluster bombs – galvanised by Senators Patrick Leahy and Dianne Feinstein. And President Obama’s transition team are apparently studying the issue of whether the US should go the whole hog and join the CCM.

We’ll seek to provide more analysis in coming weeks.

John Borrie

Photo credit: Mary Wareham. Ambassador Kanika Phommachanh, Permanent Representative of the Lao PDR to the UN in New York, depositing her government's ratification of the Convention on Cluster Munitions with the UN's Office of Legal Affairs represented by Treaty Section Chief Annebeth Rosenboom. Laos became the fifth state to ratify - a total of 30 are required for the treaty to enter into force.

Lao reference: Lao PDR National Regulatory Authority, Lao National Unexploded Ordnance Programme and UNDP, Hazardous Ground: Cluster Munitions and UXO in the Lao PDR (2008).

CCW: The Sounds of Science...

"Now here we go dropping science, dropping it all over
Like bumping around the town, like when you're driving a Range Rover
Expanding the horizons and expanding the parameters
Expanding the rhymes of sucker MC amateurs

"Naugels, Isaac Newton, Scientific EZ
Ben Franklin with the kite, getting over with the key
Now rock shocking the mic, of the many times times the times tables
Rock well to tell dispel all of the old fables"

- Beastie Boys, Sounds of Science"

Last week I postulated Borrie's third law of CCW diplomacy (I'll tell you about the others some time - but it will cost brave readers at least a drink, and perhaps some sanity). The hypothetical law states that the CCW process will expand to fill all available time, and is based on my empirical observations of the UN Convention on Certain Conventional Weapons process over a long period - especially when the CCW is held over a steady flame and shaken, for example by proximate precipitation of a weapons ban treaty like a Convention on Cluster Munitions (CCM).

I invited falsification of my theory by observation or physical experiment. Yet, the theory still stands for now. On Friday, the Argentinean Chair of the 2009 CCW Group of Governmental Experts, Gustavo Ainchil, adjourned the meeting after he quickly gavelled through a procedural report that included agreement for a further four days of meetings in April in Geneva, based on an agreement in late 2008 that:

"The GGE will meet for up to two weeks in 2009, from 16 to 20 February 2009 and subsequently, if required, from 14 to 17 April 2009".

As explained in the preceding blog post, although the atmosphere at last week's GGE was significantly improved over a testy November Meeting of CCW States Parties, there are no firm signs anything will come of the extra sessions. The positions of states still seem to be too far apart. An annex to Friday's procedural report containing the Chair's take on a "consolidated text" of a draft protocol appeared to display the same characteristics that caused substantial disagreement over November's text. Implicitly, this is recognised in the new Chair's text, with various footnotes noting delegations' "expressions of concern" and that "discussions continue".

This should not detract from Mr. Ainchil's efforts, which appear to have been exemplary so far. Argentina is really giving the negotiation its best shot and most of last week's allotted time to the GGE was mostly taken up with various Chair-faciliated bilaterals and other informal meetings, and it was a clearly tired Mr. Ainchil who adjourned Friday's session. But few in the room envy him his rather thankless task - of achieving a protocol that looks as far from agreement as in November, or of winding down the process in as face-saving a manner as possible, thus sparing the CCW regime any damage.

April will tell whether the CCW's work will be a Solid Gold Hit, or or the end of the road for the GGE work. And, of course, another test for the hypothetical third CCW law....

John Borrie

Papers from the CCW GGE meeting should eventually turn up on the UN Office for Disarmament Affairs' website here.

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.

CCW: From pause to play?

Next week, the big bag of diplomatic hurt the UN Convention on Certain Conventional Weapons (CCW) process on cluster munitions seems to have become will resume again in Geneva, for the first of what might be two sessions to see if something can be salvaged from last year's fraught efforts to "negotiate a proposal" on restrictions or prohibitions on the weapon.

At the end of 2008, Argentina bravely stepped up to the plate to chair the CCW's Group of Governmental Expert (GGE) sessions in February and (optionally) April 2009, and to try to fashion a consensus in that timeframe. This week, the incoming Argentinian Chair, Mr. Gustavo Ainchil, shared his views in consultations with states and others here in Geneva about how he intends to proceed.

In sum:

• - Next week's agenda remains the same as the previous Group of Governmental Experts' meeting in November 2008;
• - The Friends of the Chair (FoC) on various issues have been re-confirmed in their roles for next week's session, although the Japanese FoC (who was dealing with thorny international humanitarian law questions) has departed;
• - The Argentinian Chair will not present any new papers before next week's meeting starts.

In effect, next week's GGE presses the play button after a three-month pause. Will the message on the tape now sound sweeter, or will it self-destruct? Mr. Ainchil's task of consultation to identify where some forward progress might be achieved on the contentious issues in the paper put forward by the 2008 GGE Chair, Ambassador Wigotski of Denmark (which was one basis for last November's talks and which looks set to continue for now) will not be easy.

The Argentinian Chair also stressed that he doesn't want to re-open issues for which he already considers there is consensus, preferring to focus only on contentious ones. But such delineations may not be easy to maintain in view of the nature of these negotiations in which "nothing is agreed until everything is agreed". He looks willing to take a shot at trying his hand at some compromise text, in any case.

So, we'll see what happens. Personally, I'm not hopeful anything will be achieved, especially as the Convention on Cluster Munitions (CCM) has now been signed by 95 countries and the tactical importance of negotiating work in the CCW may have passed, both for those strongly supportive of the new CCM, as well as those unfriendly toward it.

But, of course I've been proven wrong before. Nevertheless, it's a pretty safe bet that if clear evidence of a consensus doesn't emerge in the course of next week's CCW GGE, the likelihood of a new, sixth CCW protocol on cluster munitions will be considerably diminished.

John Borrie

Image of 'Tape' by Ronald K, sourced from Flickr.

Reading the Tea Leaves: Obama and Cluster Bombs

What will US President Obama do about cluster bombs? The new administration announced immediate changes in some defense and national security related matters, most notably on interrogation methods and the closing of Guantanamo Bay detention center within the next year. No such quick action on cluster munitions took place, however. For clues about future action, we can look at President Obama’s voting record as a Senator, positions taken after the campaign, and the orientation of his senior and midlevel appointments in national security positions.

Obama’s Record in the Senate

In September 2006, Senator Obama voted for Senator Feinstein’s proposed amendment to the Defense Appropriations bill:

No funds appropriated or otherwise made available by this Act may be obligated or expended to acquire, utilize, sell, or transfer any cluster munition unless the rules of engagement applicable to the cluster munition ensure that the cluster munition will not be used in or near any concentrated population of civilians, whether permanent or temporary, including inhabited parts of cities or villages, camps or columns of refugees or evacuees, or camps or groups of nomads.

The amendment failed by a vote of 70-30. The proposal was certainly a modest one and came before the ban movement got traction, but that the future President was willing to take a positive stand is certainly an encouraging sign. While the focus of this blog is on the Obama administration, it should be noted that the US Congress is likely to consider similar legislation again this year.

After the Election

Following the election and on the eve of the signing of the Convention on Cluster Munitions (CCM) in Oslo, a spokesperson for the incoming President gave the following statement:

President-elect Obama is deeply concerned about the well-being of civilians in situations of conflict, as reflected by his support of the legislation in 2006 that would have prohibited the use of cluster munitions near concentrations of civilians. As president, he will carefully review the new treaty and work closely [with] other countries to ensure that the United States is doing everything feasible to promote protection of civilians in conflict.

Not a resounding endorsement of the Oslo treaty, but it holds some promise.

Do Obama’s cabinet and staff picks give us any clues?

Secretary of State Hillary Clinton voted against the September 2006 Feinstein amendment. As did Joe Biden (now the Vice President) and another cabinet member, Ken Salazar (now Secretary of the Interior). More recently, written questions about the broad principles that are likely to guide the Obama Administration’s policy review on cluster munitions were put to her as a part of Secretary of State confirmation procession in the US Senate. The written response was as follows:

The incoming Administration has not taken a position on the new cluster bomb treaty. I look forward to working with the President-elect and the rest of the national security team on this issue in order to develop a policy that upholds our moral obligations while protecting our troops. The new Administration will carefully review the treaty in consultation with military commanders and work closely with our friends and allies to ensure that the United States is doing everything feasible to promote protection of civilians - especially children.

In the words of one observer close to the process: “they punted.”

Secretary of Defense Robert Gates’ position on cluster munitions, while he was serving at the pleasure of President Bush is well known. On June 19, 2008, after the CCM had been adopted but not signed, Gates issued a new Department of Defense Policy on cluster munitions. That policy, in part, states that:

DoD recognizes that blanket elimination of cluster munitions is unacceptable due not only to negative military consequences but also due to potential negative consequences for civilians. Large-scale use of unitary weapons, as the only alternative to achieve military objectives, could result, in some cases, in unacceptable collateral damage and explosive remnants of war (ERW) issues.

President Obama decided to retain Gates as Defense Secretary. Will it be President Obama’s pleasure to change Gates’ mind?

National Security Advisor James Jones, Jr. is a retired marine who began his career as a platoon leader in Vietnam. In the late 1990s, he served as a military assistant to President Clinton’s Defense Secretary William Cohen.

It’s not clear how much he was involved in the formulation of the now abandoned Cohen policy on cluster munitions, which required all cluster munitions produced after 2005 to have a failure rate of no more than 1%.

US Ambassador to the United Nations Susan Rice was on the National Security Council (NSC) staff as Director for International Organizations and Peacekeeping and then became Special Assistant to the President and Senior Director for African Affairs during the Clinton Administration. Eventually, she moved over to the State Department as Assistant Secretary of State for African Affairs.

When the Eritrea/Ethiopia War broke out in 1998 , she was tasked with trying to negotiate a settlement. She likely remembers the carnage caused when the Eritrean air force dropped cluster bombs on Mekele, Ethiopia in the opening days of that conflict. In 1999, Rice co-wrote an op-ed piece in the International Herald Tribune castigating the conduct of the Sudanese government against its own people.

Rice is certainly no John Bolton (the former US ambassador to the UN who openly disdained the organization – he was eventually replaced by Zalmay Khalilzad), and will take a much more multilateral approach to issues. Being in New York may limit her impact on conventional arms control issues, though.

Mid Level Appointments

Deputy Secretary of Defense William Lynn has been the Senior Vice President for Government Operations and Strategy at Raytheon. Prior to that he has served in a variety of DoD positions. Raytheon manufactures various versions of the Joint Stand Off Weapon (JSOW), a “precision attack glide bomb”. Among the payloads for the JSOW are both the BLU-97 CEM bomblets (tagged as one of the “dirty dozen” cluster munitions by Human Rights Watch) and Textron’s Sensor Fuzed Weapon.

Lynn’s confirmation ran into a snag because of the new president’s ethics rules that “ban lobbyists who join his administration for two years from working on issues they were previously involved with.” Not to worry – President Obama waived that rule for Lynn.

Under Secretary of Defense for Policy Michele Flournoy, president and co-founder of the Center for a New American Security, is counted among the “counterinsurgents”. She held several positions in the Clinton administration (including Deputy Assistant Secretary of Defense for Strategy). She does not appear to have directly addressed the issue of cluster munitions, but an approach that stresses connecting with local populations would likely place a premium on reducing harm to civilians. In a piece published in October of 2008, Flournoy and Shawn Brimley called on “the new civilian leadership in the Pentagon” to “adopt an ethic of responsible stewardship.”

Department of Defense General Counsel Jeh Charles Johnson has been a partner at the DC office of the Paul Weiss law firm. Beginning in 1998, he served for 27 months as General Counsel to the Department of the Air Force. In that position he very likely had to consider the legality of the use of cluster munitions, as the weapon was used extensively by the USAF in the Kosovo campaign. Johnson is certainly a change from William Haynes III, his predecessor, who has been seen as one of the most aggressive defenders of the Bush era interrogation policies.

Deputy Secretary of State for Policy Jim Steinberg served as Deputy National Security Advisor under Clinton from 1996 to 2000, covering the time of the Kosovo campaign. He held other positions in the State Department and served as Director of Foreign Policy Studies at the Brooking Institution. Along with Kurt Campbell, Steinberg recently launched a book entitled Difficult Transitions: Foreign Policy Troubles at the Outset of Presidential Power in which they caution against quick changes in policy, but also the need to consult with allies.

So, what does all this reading of the tea leaves tell us?

Unlike the immediate decisions to reverse Bush administration policies on torture and the Guantanamo Bay Detention Center, no such quick turnaround in policy will likely result on cluster munitions unless there is considerable pressure to do so. That said, there is a general sense of “out with the old and in with the new.” The new administration is committed to multilateralism and listening in a way not usually associated with the Bush administration, so there is room for strong NATO proponents of the CCM to make an impact. The decision makers discussed above at least on the surface appear to have a greater respect for the opinions of their military counterparts. If US allies who are supporters of the Oslo Treaty are to have a positive impact, they will need to be working at convincing not only civilians in the new administration, but also their US military colleagues.

This is a guest blog by Virgil Wiebe, Director of Clinical Education and Associate Professor at the University of St. Thomas School of Law, Minneapolis.

Photo: ‘Paragon Fortune Telling Teacup’ by Beads by Laura on Flickr.