Before the end of this year, it is likely that representatives of a large number of governments will come together in Oslo, Norway to sign a new treaty prohibiting the use, production, trade, and stockpiling of cluster munitions that “cause unacceptable harm to civilians.” Mirroring the 1997 Mine Ban Treaty, it will likely be a powerful fusion of disarmament and humanitarian law, with requirements for clearance of contaminated areas and assistance to affected individuals and communities. If successful, it will result in the destruction of existing arsenals of cluster munitions containing hundreds of millions of submunitions. By ensuring these weapons are never used, it will save an untold number of lives and avoid serious, long-lasting socioeconomic disruption in numerous countries.
Based on their documented impact over the past five decades, cluster munitions are now the conventional weapons that pose the gravest danger to civilian populations. At the time that they are launched, they threaten civilians by falling indiscriminately over wide areas with hundreds and sometimes thousands of submunitions typically raining down randomly over a football field-sized area. After an attack, they pose a long-term danger to civilians because a large number of submunitions fail to explode on impact, remaining armed and ready to detonate if disturbed, in essence functioning as anti-personnel landmines. No amount of care by military forces can make up for the fact that it is the nature of the weapons themselves that is so dangerous.
In 1996, in the wake of the failure of the Geneva-based Convention on Certain Conventional Weapons (CCW) to deal adequately with anti-personnel mines, Canada challenged the world to conclude a ban treaty in one year’s time, and the world responded to the challenge. Now, in the wake of the failure of the CCW to address cluster munitions in 2006, Norway is spearheading a process aimed at a treaty banning those weapons by the end of 2008. Once again, nontraditional diplomacy seems to be bearing fruit.
What Is Wrong With Cluster Munitions?
As was the case with anti-personnel mines, cluster munitions have been singled out for prohibition because they are clearly not just another weapon. Cluster munitions have a long and consistent history of causing excessive and persistent harm to civilian populations. A group of Nobel Peace Prize laureates has dubbed them a “pernicious weapon of ill-repute” that has “become synonymous with civilian casualties.”
Most people think of cluster “bombs” dropped from aircraft, but other common cluster munitions include artillery shells and ground rocket systems. The bombs, shells, and rockets typically contain dozens or hundreds of submunitions, or bomblets, that are released in the air. The submunitions usually are designed to explode on contact, although many fail to do so. There are many different types of cluster munitions, but most if not all are highly inaccurate weapons that indiscriminately blanket a broad area; and most if not all are very unreliable weapons that fail to function properly, resulting in landmine-like contamination.
There is a common misperception that cluster munitions are sophisticated weapons. In fact, almost none of the vast, existing stockpiles of cluster munitions are advanced from a humanitarian point of view. Very few of the containers (the bombs, shells, or rockets) are guided in any way, even fewer of the submunitions have any guidance mechanisms, and none of the containers and submunitions are precision guided. Only a tiny percentage of submunitions employ technology in an attempt to make them more reliable, such as self-destructing devices, and experience has shown that even those with such devices fail all too often.
Thus, cluster munitions pose a double danger to civilians, both during attacks because they do not target military objectives precisely and long after because of the delayed effect of a multitude of duds. Moreover like landmines, the impact of cluster munitions goes beyond needless civilian casualties, as cluster contamination can have far-reaching socioeconomic ramifications, hindering postconflict reconstruction and development.
Although it is possible to use cluster munitions without violating international humanitarian law, also known as the laws of war, in every conflict where there is significant documentation and the evidence is clear, the weapon has violated international legal rules. Experience has shown that, in conflicts where cluster munitions are used, they usually are used in or near populated areas and in very large numbers. Often, older and highly unreliable models are employed, sometimes alongside newer models. Indiscriminate and/or disproportionate use, where the negative effect on civilians exceeds the military benefit, is the standard, not the exception.
Various countries protest that their forces use or intend to use cluster munitions responsibly, but this does not stand up to historical analysis. A wide range of countries, including Israel, Russia, the United Kingdom, and the United States, have used these weapons irresponsibly at some point. Cluster munitions caused more civilian casualties than any other weapon system during the NATO bombing campaign in Kosovo in 1999 and the invasion of Iraq in 2003.
Fortunately, the number of conflicts in which cluster munitions have been used to date is still relatively limited, but there is great danger that the problem could grow exponentially. According to Human Rights Watch, at least 14 states and a small number of nonstate armed groups have used cluster munitions in at least 25 countries and five other areas. Thirty-four countries have produced more than 210 different types of cluster munitions, and at least 13 countries have transferred more than 50 different types of cluster munitions to at least 60 other countries as well as nonstate armed groups.
Most worrisome, at least 76 countries stockpile cluster munitions, and the number of submunitions in existing arsenals is staggering, likely in the billions. The United States alone has an estimated one billion submunitions. If even a small percentage of existing stocks are used in the future, the global humanitarian crisis will far exceed that posed by anti-personnel mines 10 years ago. Much of the attraction and the importance of the campaign to ban cluster munitions lies in the fact that it is preventive action, not just a reactive cleaning up of the mess.
Pressure Builds Slowly, Then Boils Over
Opposition to cluster munitions among governments and the public has been evident for nearly as long as the weapon has been used, but only in the past few years has the issue gained enough traction and become ripe for serious international action. Pressure to regulate or prohibit the weapon built up with growing outrage over civilian casualties caused by cluster munitions in Kosovo in 1999, Afghanistan in 2001, Iraq in 2003, and Lebanon in 2006.
In 1999, Human Rights Watch was the first nongovernmental organization (NGO) to call for a halt on use of cluster munitions, and the Cluster Munition Coalition was launched in November 2003 to ensure sustained and coordinated NGO work on the issue.
The CCW began discussions, if only obliquely, on cluster munitions in 2001; Protocol V on explosive remnants of war, agreed to in November 2003, largely grew out of increasing international concern on cluster munitions. At that time, however, a proposal to begin negotiations in the CCW on cluster munitions was rejected.
Throughout 2004 and 2005, NGOs continued to press for meaningful work on cluster munitions in the CCW. Pressures and activities intensified greatly during 2006, as governments prepared to hold the third CCW review conference in November of that year. Surprising almost everyone, in February 2006 Belgium became the first country to ban cluster munitions comprehensively. Norway declared a moratorium on their use in June 2006.
Israel’s massive and horrifying use of cluster munitions in Lebanon in July and August 2006 provided a major impetus to the already growing movement, perhaps even a decisive push. According to the United Nations, Israel fired some four million submunitions into Lebanon, leaving behind as many as one million submunitions that failed to explode initially. Unexploded submunitions blanketed many urban areas, and civilian casualties mounted rapidly as people who had fled returned to their homes and fields.
At a CCW preparatory meeting held in September 2006, Austria and Sweden took the lead in introducing for consideration at the review conference a draft mandate to begin negotiations on cluster munitions. Norway’s foreign minister announced in October 2006 that his country would “take the lead—together with other like-minded countries and international humanitarian actors—to put in place an international prohibition against cluster munitions.” This was the first public indication that any government was considering going outside the CCW.
On the opening day of the third CCW review conference held in Geneva during November 7-17, 2006, UN Secretary-General Kofi Annan issued a statement calling for a “freeze” on the use of cluster munitions in populated areas and for the destruction of “inaccurate and unreliable” cluster munitions. By the end of the review conference, nearly 30 states had expressed support for a proposal to begin negotiations in the CCW on a “legally-binding instrument that addresses the humanitarian concerns posed by cluster munitions.” The proposal was rejected by a number of other states, including China, Russia, the United Kingdom, and the United States, in favor of a weak mandate to continue discussions on explosive remnants of war, with a focus on cluster munitions.
The anti-cluster munitions states issued a declaration on the final day of the review conference calling for an agreement that would prohibit the use of cluster munitions “within concentrations of civilians,” prohibit the use of cluster munitions that “pose serious humanitarian hazards because they are for example unreliable and/or inaccurate,” and require destruction of stockpiles of such cluster munitions. Norway then announced it would start an independent process outside the CCW to negotiate a treaty banning cluster munitions that cause unacceptable humanitarian harm and invited other governments to join. The large NGO contingent in the room broke into sustained applause.
The Oslo Process
Norway’s announcement meant an immediate shift into high gear, as like-minded governments began extensive consultations to develop the treaty rapidly. The initial group included Norway, Austria, Ireland, Mexico, New Zealand, and Sweden. Later, Sweden dropped out largely due to a backsliding in domestic policy, and Peru joined.
In keeping with the urgency demanded by the issue, Norway scheduled the meeting to take place as soon as possible, on February 22-23, 2007. Every country that had publicly stated its support for a future treaty on cluster munitions was invited, with a carefully worded invitation indicating that participants should be prepared to work toward a treaty rapidly. The meeting was open to all states; those not explicitly invited could ask to attend as long as they shared the objectives of the other participants.
A total of 46 of the 49 participating states endorsed the final conference statement pledging to conclude a treaty banning cluster munitions by 2008. The Oslo Declaration committed states to create a legally binding international instrument to “prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians” and to include provisions on clearance, victim assistance, risk education, and stockpile destruction. The comprehensive and integrated humanitarian approach, mirroring the Mine Ban Treaty, was seen as a vital corollary to the disarmament prohibitions. A road map to develop and negotiate the treaty was outlined, with an ambitious series of meetings in core group countries (Peru, Austria, New Zealand, and Ireland).
At the first follow-on meeting held in Lima on May 23-25, 2007, an additional 28 states joined the process, including many from Africa, as well as Laos, the country most affected by unexploded submunitions.
Specific treaty language was not discussed in Lima, but the 68 states present reached broad agreement on the framework of a future treaty and its essential elements. In addition to a prohibition on use, production, and trade, the treaty will include requirements and deadlines for stockpile destruction and clearance of contaminated areas, as well as an obligation to provide victim assistance. On the negative side, some states proposed exempting large categories of submunitions from the ban, such as those that have self-destruct mechanisms or a specific reliability rate. Many of the same states insisted that discussions on cluster munitions in the CCW should take precedence over the Oslo process.
An astounding 138 countries participated in a December 2007 conference in Vienna to spur the process forward, clearly demonstrating that their is strong political will internationally to conclude a treaty this year. Participants debated a draft treaty text that would require subscribing countries to destroy prohibited cluster munitions within a six-year period and clear areas contaminated with submunitions in five years.
The next major international meetings in the Oslo process will take place in Wellington, New Zealand, during February 18-22, where it is hoped that agreement can be reached on a treaty text that will serve as a basis for formal negotiations, which will be held in Dublin during May 19-30. A signing ceremony in Oslo is planned for later this year, following intense efforts to get the maximum number of countries possible on board.
Although some countries have said they are reluctant to embrace the Oslo process because it is “outside the UN,” the United Nations and especially the UN Development Programme have in fact played an important role in the Oslo process, providing logistical, financial, and substantive support. The Oslo process is outside the CCW, but not the United Nations. When the treaty comes into existence, it is envisioned that the UN secretary-general will be the depositary.
In September 2007, the United Nations called on member states to address immediately the horrendous humanitarian, human rights, and development effects of cluster munitions by concluding a legally binding instrument of international humanitarian law that prohibits cluster munitions that cause unacceptable harm to civilians, requires the destruction of stockpiled munitions, and provides for clearance, risk education and other risk mitigation activities, victim assistance, assistance and cooperation, and compliance and transparency measures. Until such a treaty is adopted, the United Nations has called on member states to “take domestic measures to immediately freeze the use and transfer of all cluster munitions.”  This position is clearly fully consistent with and supportive of the Oslo process, even incorporating key language from the Oslo Declaration.
The Convention on Certain Conventional Weapons
Many countries have latched on to the notion that efforts to deal with clusters in the CCW and in the Oslo process are “complementary,” with the Oslo track for states willing to move far and fast and the CCW for those less ambitious. In truth, this makes little sense. Instead of setting a standard against cluster munitions that all should feel compelled to obey, the dual negotiations would signal that states should merely do whatever is comfortable and least demanding for them. Fundamentally, the Oslo process is aimed at a prohibition on cluster munitions that cause unacceptable harm to civilians, while the CCW track is for those nations that want to continue to use cluster munitions that have already been proven to cause unacceptable harm, such as those used by Israel in Lebanon in 2006 and by the United States in Iraq in 2003. These are not complementary approaches, they are contrary approaches. The CCW track will only legitimize cluster munitions, not stigmatize them.
Some argue that the CCW must be provided with every possible chance to deal with the cluster munitions issue before “defaulting” to the Oslo process. The thinking hinges on the notion that the CCW has “all the stakeholders” involved and that “major powers” and the big users, producers, and stockpilers of cluster munitions are only willing to engage in the CCW context. Beside the fact that the CCW has already had years to take action on cluster munitions, the convention has only about one-half of the world’s nations as states-parties, is notably lacking in participation from developing countries, and does not have participation of many of the countries affected by cluster munitions. The Oslo process already has about one-half of the producers and stockpilers of cluster munitions, and more are likely to join in the coming months.
Essential Elements of and Challenges to a Global Prohibition on Cluster Munitions
There is considerable optimism and confidence among key Oslo process governments and NGOs that a new cluster munitions treaty will be achieved. Yet to be determined is how comprehensive it will be and how many countries will agree to it. It is evident that the path ahead will not be smooth or easy. Many challenges must be overcome.
Instead of focusing on the 80-plus states that are already part of the Oslo process, people often focus on who is not yet there and ask if a future treaty can be meaningful if China, Russia, and the United States are not on board. The Mine Ban Treaty experience shows that many states are likely to join in only very late and that some of those states then become the most active and ardent supporters. The landmine experience also has shown that a good, strong treaty will have a powerful effect even on those that do not sign on right away. It will set a new standard of behavior to which every government will adhere. By 2007, just two governments were using anti-personnel mines, even though 40 are not party to the 1997 Mine Ban Treaty. A similar effect is likely for cluster munitions as the weapons will be stigmatized to such an extent that governments will be increasingly reluctant to use them. Once a treaty is in place, very few will want to endure the international condemnation that will accompany any use of cluster munitions anywhere in the world. The political price will be too high.
The importance of this standard-setting phenomenon is also relevant to the content of the treaty itself. Some Oslo process participants have already been talking about the tradeoff between a strong treaty and the need to bring as many countries on board as possible (“universalization”) or talking about the need to balance these two elements. The lesson to take from the Ottawa process on anti-personnel mines 10 years ago is that the integrity of the treaty matters most. If the bar is set low to appeal to certain nations, they will only drag the bar down to a lower level. If the bar is set high, most nations will, over time, rise up to that level and embrace it, as the international community more broadly does so.
In using the Mine Ban Treaty as the model for the draft text of a cluster munitions treaty, most of the crucial elements of a successful treaty are already evident. Success requires a prohibition, not just restrictions easy to ignore in the heat of battle or unverifiable technical requirements. It is an integrated approach that not only has disarmament provisions prohibiting the weapons and requiring destruction of stockpiles with a deadline, but also humanitarian provisions, including requirements for clearance of contaminated areas with a deadline, risk education, and assistance to affected communities and individuals.
Other key provisions in the draft treaty text that are essential to maintain include a broad scope of application “in all circumstances”; a prohibition on assistance with any of the banned acts; an obligation to adopt national implementation measures, including penal sanctions; an obligation to submit annual transparency reports; a prohibition on reservations to any of the articles; and a prohibition on withdrawal from the treaty during armed conflict.
The most challenging aspect of the development and negotiation of the treaty text is almost certain to be the definition. What cluster munitions will be captured by the definition, and will there be cluster munitions not covered? The agreed premise of the Oslo process is a prohibition on cluster munitions that cause unacceptable harm to civilians, but what constitutes “unacceptable harm”?
There will almost certainly be some uncontroversial exceptions to the prohibition on cluster munitions, such as those with non-explosive or inert submunitions; smoke, flare, and illuminating submunitions; and nuclear warheads.
The most contentious proposals will be those calling for a broad exception for cluster munitions with submunitions that have self-destruct mechanisms and for an exception for cluster munitions with submunitions that meet a certain reliability standard (the figure of 99 percent has been mentioned by some). More than a dozen countries have indicated they might support one or both of these measures, including France, Germany and the United Kingdom.
The draft treaty text circulated by the core group of governments prior to the Lima meeting does not contain exceptions for self-destruct mechanisms or reliability standards. A number of other states have spoken out against such “technical fix” approaches, especially the affected countries and those from developing countries. The NGO Cluster Munition Coalition (CMC) has said that these are “red line” issues for it and that it could not support a treaty with such broad exceptions.
The CMC and others have pointed out the strong evidence, including from Israeli use in Lebanon in 2006 of submunitions considered among the most advanced in the world, that self-destruct mechanisms simply do not work as advertised and that there is no real relationship between reliability rates achieved in test conditions and those encountered in the field.
The most notable exception included in the draft treaty text is one for sensor-fuzed weapons. Although there are several different types, these typically contain a small number of submunitions, each with a guidance system directing the submunition to a vehicle, and both self-destruct and self-deactivating mechanisms to avoid the landmine effect. It is argued that these will not present the same dangers to civilians as most existing cluster munitions because they are capable of more accurate targeting and are more reliable; in theory, they will not have an indiscriminate wide-area effect and will not leave behind large numbers of hazardous duds.
The CMC has said that the mindset from the start should be that all cluster munitions cause unacceptable harm to civilians and that all cluster munitions are inaccurate and unreliable. The burden of proof should then be on governments and militaries to demonstrate that there is such a thing as a cluster munition that will not cause unacceptable harm and that is sufficiently accurate and reliable. If governments want exceptions, they should make the humanitarian case and prove that such weapons do not have the same indiscriminate and long-lasting effects as other cluster munitions. It would not make sense to start with exceptions for weapons about which there is little hard information. Sensor-fuzed weapons, for example, have only been used once, during the invasion of Iraq in 2003, and there is no publicly available data about their performance; there is no truth from the ground.
Some states have suggested other possible provisions for the future treaty that would prove unacceptably damaging. These include a transition period before key prohibitions take effect and some way of addressing interoperability concerns. Both notions fly against the humanitarian case that underlies the effort to conclude a treaty on cluster munitions. How could states ban cluster munitions because of their unacceptable impact on civilians, then agree to allow ongoing use for a number of years—10 has been suggested—while militaries acquire new weapons to replace them? How could states agree that, although the humanitarian imperative demands your own military forces give up cluster munitions, it is not objectionable for your ally’s forces to continue using them in your joint military operations?
Other potentially fractious issues include:
• The length of the deadline for stockpile destruction and whether or not to permit an extension of that deadline. This should be treated largely as a technical issue, but it is important to be able to establish a timeline that is as short as possible, given technical and financial considerations. Even with a requirement to destroy “as soon as possible,” many if not most states will take nearly the full permissible period for destruction, even if their stocks are not large, so a very long timeline to accommodate those with the largest stocks is not wise. An extension clause should be avoided, as too many might utilize it unnecessarily and it removes a major incentive to finish on time. If such a provision is deemed absolutely necessary, it should be framed in such a way that it is only available to states in extraordinary circumstances (e.g., extremely large stockpiles) and for a minimum period that is not renewable.
• Whether or not to include an exception to allow retention of a small number of cluster munitions for purposes such as training in clearance and testing of clearance equipment. Although the Mine Ban Treaty has such an exception for training and development purposes, the Lima draft text does not. After 10 years, there are still strong disagreements in the landmine community about whether such an exception is truly needed for humanitarian purposes. Moreover, there is growing evidence that the provision in the Mine Ban Treaty is widely abused, with many states retaining far more mines than necessary and not using them for the permitted purposes. It should be up to those who want to retain cluster munitions to make the convincing case that such an exception is essential.
• The nature of the compliance provision. Some will consider the “cooperative compliance” approach in the draft treaty text, which is even less onerous than the Mine Ban Treaty, to be insufficient. Yet, the basic approach has worked well, starting from the concept that the treaty is an agreement among like-minded states committed to a humanitarian objective, not an arms control agreement among potentially hostile nations.
States should also make clear, either through treaty text or through the diplomatic negotiating record, that the transit of cluster munitions through the national territory of a state-party is prohibited, as is the foreign stockpiling of cluster munitions. These have been sometimes contentious issues of interpretation and implementation with the Mine Ban Treaty. Likewise, states should be clear about what issues are permitted under the prohibition on assistance, including a range of matters from actions during joint military operations to financial investments in companies that produce cluster munitions.
Another challenge is to improve on the articles in the Mine Ban Treaty that deal with victim assistance, clearance, risk education, and transparency. The many years of experience in implementing the Mine Ban Treaty have yielded lessons in these areas that should be transferred to a new cluster munition treaty.
There may be few steps that governments can take that will offer greater protection to civilians in future armed conflicts than to prohibit the use, production, trade, and stockpiling of cluster munitions. No conventional weapons are in greater need of stronger national and international laws. Urgent action is necessary to bring under control the immediate danger that cluster munitions pose to civilians during attacks, the long-term danger they pose after conflict, and the potential future dangers of widespread proliferation.
The Oslo process offers a rare opportunity to effect a major change that will have a tremendous humanitarian impact, literally saving thousands of lives for generations to come, while reinforcing the power that civil society and governments can have working together on a common goal.
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The United States stands out as the country that has used cluster munitions most extensively: in Cambodia, Laos, and Vietnam in the 1960s and 1970s; in Iraq, Kuwait, and Saudi Arabia in 1991; in the former Yugoslavia (including Kosovo, Serbia, and Montenegro) in 1999; in Afghanistan in 2001 and 2002; and in Iraq in 2003. Washington has an astonishingly large stockpile, approximately 5.5 million cluster munitions containing some 720 million to one billion submunitions.
The United States was also among the first nations to take steps to address the negative humanitarian effects of cluster munitions. Following criticism of civilian casualties during the Kosovo air campaign in 1999, the U.S. Air Force largely avoided using cluster bombs in or near populated areas in Afghanistan and even more so in Iraq. Secretary of Defense William Cohen issued a policy directive in January 2001 that required that submunitions procured after fiscal year 2005 must have a reliability rate of greater than 99 percent. For humanitarian and military reasons, the United States undertook various initiatives to improve the accuracy of its cluster munitions as well as their reliability.
Throughout Convention on Certain Conventional Weapons (CCW) discussions on cluster munitions from 2001 to 2006, however, the United States remained opposed to any new international restrictions, to say nothing of prohibitions, on the weapons. The United States argued that the military importance of cluster munitions was too great and that existing international humanitarian law was sufficient to deal with humanitarian dangers, if properly implemented. In November 2006, the United States opposed a 25-nation proposal to begin negotiations on cluster munitions in the CCW and was not even in favor of a continued mandate to continue discussions. It did not block a compromise British proposal, however, for ongoing discussions.
At the next CCW meeting in June 2007, the United States announced a shift in its stance on international action, indicating that it was now prepared not only to talk about clusters but even to consider future negotiations as long as they occurred within the CCW. Explaining the reversal, the Unites States said, “[D]ue to the importance of this issue, concerns raised by other countries, and our own concerns about the humanitarian implications of these weapons, the U.S. undertook a further internal review. It was determined that the United States should support the initiation of a negotiation on cluster munitions within the framework of the [CCW]. The United States has taken no position as to the outcome of the negotiations.”
Subsequently, the United States has expressed its strong support for the weak mandate agreed to by the CCW in November 2007, unlike some EU states, Canada, and others who lamented it was not stronger.
This sudden shift was seen by many as much more of an attempt to deal with the Oslo process than an attempt to address the cluster munitions problem. In fact, there is no indication that U.S. views on cluster munitions has changed at all. Bush administration officials still say the humanitarian problems are not especially dire and are already manageable. They emphasize their perception that cluster munitions are absolutely indispensable militarily. They do not indicate a willingness to accept any new international law that would restrict in any way its use, production, trade, or stockpiling of cluster munitions.
At the June 2007 CCW meeting, the United States made an intervention focusing on “three general observations about the humanitarian impacts of cluster munitions…applicable for all instances of cluster munitions use post 1975:”
At the same meeting, the United States gave a presentation entitled “The Ongoing Military Utility and Role of Cluster Munitions.” It concluded that “[c]luster munitions will continue to be the most efficient weapons to address numerous targets and target combinations when employed correctly” and that “[c]luster munitions are not employed indiscriminately and are targeted against military forces’ capabilities.” It cited as “common misconceptions” that cluster munitions are “outdated weapons” and are “indiscriminate and inaccurate.”
At the November 2007 CCW meeting, the United States stated that it has:
With the above assessments and approaches, it is difficult to understand why, outside of political considerations, the United States would want to engage in negotiations on cluster munitions and about what it would negotiate.
The United States has spoken out against the Oslo process and has insisted that the CCW is the only appropriate forum for addressing the issue, although it is not known to have actively worked against the Oslo process or actively discouraged other nations from participating. It has, however, raised a number of concerns with other states about the possible impact of a future convention that prohibits cluster munitions. In particular, it has prepared a paper with detailed concerns about “interoperability” issues, and U.S. officials have visited a number of capitals to discuss the matter. It is seeking to ensure that a new treaty does not inhibit the ability of the United States to employ cluster munitions in NATO or other allied military operations.
Action in Congress has been more encouraging. A prohibition on the export of cluster munitions with a failure rate of greater than 1 percent was passed as part of the omnibus spending bill in December 2007. Potential importers must also agree to use the weapons only “against clearly defined military targets” and where no civilians are present. More far-reaching legislation has been introduced both in the Senate and the House to prohibit the use of all cluster munitions.
ENDNOTES6. “Opening Statement by Ronald J. Bettauer,” November 7, 2007.
The Israeli government recently concluded that its use of cluster munitions during a summer 2006 conflict was justified and did not violate international law.
Attacking anti-Israeli Hezbollah fighters in southern Lebanon, Israeli forces employed cluster munitions, which are shells, rockets, or bombs that disperse up to hundreds of smaller submunitions over broad areas. Those smaller bomblets or grenades sometimes fail to detonate and remain hazardous to people coming into contact with them days, months, and even years later.
UN statistics through December 2007 allege that cluster submunitions had killed 19 civilians in Lebanon since August 2006, when the Israeli military campaign ended. Another 170 people suffered injuries over that period.
In the conflict’s immediate aftermath, UN Undersecretary-General for Humanitarian Affairs Jan Egeland condemned Israel’s use of cluster munitions as “shocking” and “completely immoral.” Shortly thereafter, the Israeli military launched an investigation into whether its commanders misused cluster munitions, such as by firing indiscriminately or at nonmilitary targets.
The Israeli Ministry of Foreign Affairs announced December 24, 2007, that the military advocate general had concluded Israel’s cluster munitions use was “in accordance with international humanitarian law.” The investigation found that a “majority of the cluster munitions were fired at open and uninhabited areas…from which [Hezbollah] forces operated and in which no civilians were present.” Cluster munitions, according to the ministry statement, were only targeted at “built-up areas…in direct response” to Hezbollah rocket launches.In a separate investigation, the U.S. Department of State evaluated whether Israel broke secret guidelines regulating the use of U.S.-origin cluster munitions. Although one department spokesperson announced a preliminary finding early last year that there “could have been some violations” of U.S. export rules, another spokesperson stated in a January 4, 2008, e-mail to Arms Control Today that the State Department’s 2007 report “does not draw conclusions on Israel’s use of cluster munitions.” The official added that the U.S. government will “continue discussions” with Israel about “the findings of its internal investigation.”
2. Although all weapons have a failure rate, cluster munitions are more dangerous because of the large numbers of submunitions they release and because certain design characteristics, based on cost and size considerations, increase the likelihood of submunition failure. Manufacturers and militaries have indicated that failure rates for submunitions under test conditions often range between 5 and 20 percent. Actual failure rates in combat conditions have been higher. As a result, cluster munitions strikes predictably leave behind great quantities of unexploded submunition duds. This unexploded ordnance can be highly unstable and can explode at the slightest touch, becoming de facto landmines that kill or injure civilians returning to the area after an attack.
3. See Colin King, Ove Dullum, and Grethe Østern, “M85: An Analysis of Reliability,” November 2007. This looks at use of self-destructing Israeli M85 submunitions in south Lebanon, concluding that the failure rates were around 10 percent, and not the less than 1 percent often claimed by Israel and the many European countries with similar submunitions.
4. Anti-personnel mines are inherently indiscriminate because they are designed to be victim activated, without distinguishing whether their victim is civilian or military. The landmine campaign has argued that this makes any use of anti-personnel mines a violation of international humanitarian law that includes the laws of war (also known as the law of armed conflict), which requires such a distinction. Cluster munitions, on the other hand, are designed to explode on impact and are not inherently indiscriminate, but clearly are prone to indiscriminate use because of their wide-area effect. Moreover, the predictably numerous hazardous duds left by cluster strikes are indiscriminate in effect.
7. Protocol V of the CCW, dealing with so-called explosive remnants of war, entered into force November 12, 2006, covering munitions, such as artillery shells, grenades, and gravity bombs, that fail to explode as intended and any unused explosives left behind and uncontrolled by armed forces. For a discussion, see Chris C. Sanders, “Contending With Explosive Remnants of War,” Arms Control Today, September 2004, pp. 16-19.
9. Norwegian Ministry of Foreign Affairs, “Minister of Foreign Affairs Reply to Olav Akselsen’s (Labour Party) Question Regarding the War in Lebanon and the Use of Cluster Munitions,” No. 61 (2006-2007), October 24, 2006 [translation from Norwegian].
18. The effect of CCW Amended Protocol II on landmines is instructive. Although the Ottawa process led to a comprehensive ban on anti-personnel mines now embraced by 155 nations, the 1996 protocol has resulted in increased production of mines by countries such as China, India, Pakistan, and Russia, mines that meet the requirements of the protocol but which the rest of the world has prohibited.
20. Two key documents in assessing treaty elements are Cluster Munition Coalition “Observations by the Cluster Munition Coalition on the Discussion Text for the Vienna Conference on Cluster Munitions, 5-7 December 2007,” and “Treaty Principles,” www.stopclustermunitions.org.
23. See Steve Goose, “Intervention on Article 3 (Mines Retained for Training) of the Mine Ban Treaty” (statement to the Standing Committee on General Status of the Convention), Geneva, April 27, 2007).
24. The article calls on states-parties to consult and cooperate with each other in order to facilitate compliance and elaborates a “Request for Clarification” process through the UN secretary-general for unresolved questions. There is no provision for fact-finding missions or verification inspections.