Cluster Bomb Protocol's Status Uncertain

Farrah Zughni

States-parties to the Convention on Certain Conventional Weapons (CCW) failed to reconcile disputes over key elements of a draft protocol on cluster munitions during an Aug. 22-26 preparatory session in Geneva, diminishing the likelihood of a final agreement emerging from the CCW’s fourth review conference, scheduled to be held in Geneva Nov. 14-25.

The 1981 convention seeks to balance military needs with humanitarian concerns by restricting the use of conventional weapons “deemed to be excessively injurious or have indiscriminate effects.” Although all parties must agree to any additions to the treaty, a new protocol is binding only on countries that ratify it.

The draft protocol, submitted by the chair of the preparatory sessions, Jesus S. Domingo of the Philippines, forbids “a High Contracting Party to use, acquire, stockpile or retain cluster munitions” made before Jan. 1, 1980, and restricts the use, development, production, acquisition, and retention of cluster bombs produced on or after that date. The protocol also sets an eight-year deadline for destruction of other prohibited munitions; the deadline can be extended on request for another four years.

For the United States and other CCW countries, including China, Russia, and South Korea, that produce, use, store, and transfer cluster munitions, the protocol would provide an opportunity to consent to an international standard without completely abstaining from the weapons. The only other accord regulating cluster munitions—the 2008 Convention on Cluster Munitions (CCM), which prohibits stockpiling, storage, transfer, and use of cluster munitions—has so far proven unpalatable to many countries that still employ them.

The United States, a strong supporter of the CCW protocol, has emphasized on various occasions the importance of these weapons in its own military policy. On July 9, 2008, days after the CCM was adopted, the Department of Defense issued a press release stating, “Cluster munitions are legitimate weapons with clear military utility in combat.… Blanket elimination of cluster munitions is therefore unacceptable.”

Humanitarian Benefits Debated

The U.S. opening statement at the Geneva meeting argued for the humanitarian benefits of Domingo’s proposal. “A CCW Protocol along the lines of the Chair’s text…would be an important and undeniable step forward from a humanitarian viewpoint—with the effect of immediately prohibiting more than 2 million U.S. cluster munitions alone,” the statement said.

However, a number of CCW parties that are also signatories or parties to the CCM have voiced dissatisfaction with the current text of the proposed CCW protocol.

Austria, along with Mexico and Norway, has been among the most vocal critics of the draft. In an opening statement to the Geneva meeting, Alexander Kmentt, director of disarmament, arms control, and nonproliferation at the Austrian Federal Ministry for European and International Affairs, argued that Domingo’s text “(re)legitimizes the use of cluster munitions” and represents a lowering of international humanitarian norms, therefore undermining the obligations of CCM parties under the convention.

“It is our conviction that these weapons need to be stigmatized so as to make their use morally unacceptable, irrespective of whether or not a state is a party to the CCM,” Kmentt said. The three countries and their supporters oppose specific provisions of the draft protocol, including those that prohibit only munitions produced prior to 1980—what the critics call an “arbitrary” deadline—and allow parties to defer destruction of certain types of cluster munitions for up to 12 years. Advocates of a stronger protocol also argue that restrictions on cluster bombs manufactured after 1980 do not go far enough.

“Many, if not most submunitions found unexploded in Kosovo…would appear to be exempt under the [chair’s] text,” said Neil Buhne, director of the UN Development Program’s Bureau for Crisis Prevention and Recovery, at the preparatory meeting.

Austria, Mexico, and Norway submitted an alternative draft protocol on July 20 and stated that any final text would need to be “complementary to and compatible with the commitments that have been taken by CCM signatory and ratifying states,” which constitute two-thirds of CCW parties.

The alternative proposal uses language that is more general than Domingo’s and does not contain a definition of cluster munitions. Advocates of the alternate draft say such ambiguity is necessary to accommodate otherwise irreconcilable views.

“Let us make it very clear that the alternative text that we have put forward does not represent our national positions,” Austria, Mexico, and Norway said in an Aug. 24 joint statement to the preparatory session. “The alternative text is intended to be a compromise text, a text that we believe could be acceptable to all High Contracting Parties including both those who do not intend to ratify the CCM in the near future and all those who have already signed or ratified the CCM.”

Although no state has explicitly said it will reject the protocol if it is presented to the review conference in its current form, several countries have hinted at such a possibility, noting “it would not be possible to support a protocol that would have lower standards” than the CCM, Norway said on Feb. 21 during an earlier preparatory meeting. Austria and Mexico have issued similar statements.

Not all CCM countries, however, have taken this stance. In a Sept. 13 statement at the second meeting of CCM parties in Beirut, the Lithuanian delegation recognized that “some states, including the largest producers and users of Cluster Munitions, are not yet ready to join the Convention” and said reaching a final agreement at the CCW was “important as a further step.”

Afghanistan Joins CCM

During the Sept. 12-16 Beirut meeting, the Afghan delegation announced it had submitted its instrument of ratification to the United Nations, making it the 62nd of 66 countries to ratify the convention.

According to recently released WikiLeaks cables, Afghanistan’s Dec. 3, 2008, signature of the CCM came as a surprise to the United States, which had received “assurances to the contrary” from Afghan President Hamid Karzai in February 2008. The cables state that Karzai signed the CCM “at the last moment” and “without prior consultation” with the U.S. government.

The cables also document U.S. efforts to “take full advantage of flexibility afforded by Article 21,” because the United States still has “a very small stockpile” of cluster bombs in Afghanistan. That article allows parties to take part in joint military operations in which nonparties “might engage in activities prohibited” under the convention.

An article published earlier this year in Melbourne’s The Age newspaper cited WikiLeaks cables documenting how U.S. officials secretly worked with Australia and other CCM countries to weaken Article 21 so that the United States could continue to conduct military operations with CCM parties. (See ACT, June 2011.)