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Bloomberg News
August 27, 2018
Cluster Negotiations Again Extended

Jeff Abramson

Although again unable to reach agreement on a new protocol addressing cluster munitions in 2010, states-parties to the Convention on Certain Conventional Weapons (CCW), meeting last November in Geneva, committed to continue the mandate to do so while preparing for the treaty’s review conference later this year.

Spurred by the controversial use of cluster munitions during the 2006 Israeli-Lebanese conflict, the international community concluded the Convention on Cluster Munitions (CCM) and saw it enter into force in 2010, banning the use of treaty-defined cluster bombs. A CCW group of governmental experts also has sought an accord to address the humanitarian impacts of the weapons. (See ACT, December 2009.)

The CCW, which entered into force in 1983, now has 114 parties and contains five protocols that encompass, in order, weapons with fragments undetectable by x-rays, landmines and booby traps, incendiary weapons, blinding lasers, and explosive remnants of war. Cluster munitions are bombs, rockets, and artillery shells that disperse smaller submunitions over broad areas that sometimes strike civilians or fail to explode initially, later injuring or killing military forces and noncombatants. Although cluster munitions fall under the definition of Protocol V on explosive remnants of war, the inadequacies of that protocol to address cluster munitions have contributed to the call for a cluster munitions-specific Protocol VI.

The United States, which rejects the CCM, remains a key supporter of a sixth CCW protocol. In her Nov. 25 statement to the 2010 CCW states-parties meeting, U.S. delegation head Melanie Khanna said, “We recognize, especially with the Convention on Cluster Munitions’ recent entry into force, that some delegations and NGOs [nongovernmental organizations] may view these negotiations as being unnecessary. We strongly disagree.” In a Dec. 23 e-mail to Arms Control Today, Khanna said that because many countries that maintain or produce cluster munitions are not parties to the CCM, “[w]e can work together to achieve a protocol [to the CCW]…or we can do nothing in the CCW, in which case it is likely that approximately 85 percent of the global stocks of these weapons will go unregulated for the foreseeable future.”

Forty-nine countries have ratified the CCM and 108 have signed, including more than two-thirds of NATO members, but China, India, Israel, Pakistan, Russia, and the United States are key countries still outside the accord. (See ACT, December 2010.)

Differing Definitions

The definition of cluster munitions remains one of the key differences between the CCW and the CCM. Under the CCM, cluster-like weapons are excluded and therefore not limited by the treaty if they have explosive submunitions meeting all of the following characteristics: fewer than 10 in number and each with a weight of more than four kilograms and less than 20 kilograms, designed to detect and engage a single target and equipped with an electronic self-destruct mechanism and an electronic self-deactivating feature. A draft CCW protocol presented by the group’s chair also would exclude those weapons. It also would exclude those that fail to explode as intended 1 percent or less of the time, which matches U.S. policy. (See ACT, September 2008.)

That draft CCW protocol, which will “inform” this year’s meetings, includes a ban on the use and transfer of some cluster munitions produced before 1980.

For many states supportive of the CCM, the draft CCW protocol is not acceptable. At the November 2010 meeting of CCW parties, German delegate Hellmut Hoffmann said that “the latest draft protocol…pays a lot of attention towards military considerations but unfortunately has very little humanitarian effect on the ground.” He added, “[T]he current-draft protocol before us is not the solution for the mandate we have given ourselves,” citing as one reason the differing definitions between the CCW draft and the CCM. Instead, Germany and other countries suggested the CCW should take up work on an immediate ban on the transfer of all cluster munitions.

At their yearly meetings, CCW members adopt a mandate for the group of governmental experts for the coming year. As in previous years, the countries did not include a comprehensive transfer ban in the official mandate for 2011. They did agree to identify their work as being on a “protocol,” in part due to Canadian insistence. In past years, Russia had rejected using that term, and previous mandates simply used the term “proposals” to describe what was being considered in the work of the group of governmental experts.

This may be the last year the CCW grapples with a cluster munitions-specific protocol. Australian delegation head Peter Woolcott said Nov. 25, “[T]his negotiation has occupied us for a number of years and cannot continue indefinitely.” The upcoming review conference, which is to meet Nov. 14-25, “will be a natural time to conclude these negotiations,” he said.

The CCW group of governmental experts, to be led again by 2010 chair Jesus Domingo of the Philippines, will meet Feb. 21-25, March 28-April 1, and Aug. 22-26. At those meetings, the group also will conduct preparatory work for the review conference.

Incendiary Weapons Amendment

During the November meeting, the international NGO Human Rights Watch and the Harvard Law School International Human Rights Clinic presented a memo calling for amendment of CCW Protocol III, which deals with incendiary weapons.

That protocol was the source of some controversy last year when 17 states objected to a U.S. policy clarification stating that Washington has “the right to use incendiary weapons against military objectives located in concentrations of civilians where it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons.” The protocol text does not include such a formulation in its limits on attacking military targets located within civilian concentrations. (See ACT, April 2010.)

Although delegates did not raise the U.S. example specifically, a number did speak in favor of giving careful consideration to the memo, which rejects the U.S. policy. It also calls for changes to the way the protocol defines incendiary weapons and how it distinguishes between air- and ground-launched weapons. In particular, it advocates including white phosphorus weapons under the protocol.

The use of those weapons has been controversial. Because they also serve a marking and illumination purpose, some states have argued that white phosphorus weapons are not covered by the protocol, which addresses weapons that are “primarily designed” to set fire to objects or cause burn injuries.

In the Dec. 23 e-mail, Khanna defended U.S. policy and said, “We do not support the Human Rights Watch proposal to re-open Protocol III. It is not yet clear whether others will pursue this in a serious way.”