Too Little, Too Late: U.S. Pushing Weak Cluster Munitions Protocol in Geneva

De-miners working to eradicate an agricultural area in Lebanon of cluster munitions deployed by Israel in 2006.

By Daryl G. Kimball

This week, diplomats from 114 countries will gather in Geneva for the Fourth Review Conference of the Convention on Conventional Weapons (CCW). The focus of the November 14-25 meeting will be a controversial draft protocol that would regulate the use of cluster munitions, a weapon already banned by the 2008 Convention on Cluster Munitions (CCM).

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.

Since 2001, the parties to the CCW have failed to come to any meaningful agreement on cluster munitions manufacture, use, and transfers, due to foot dragging by key producers and users.

From 2001 to 2006 the United States remained opposed to any new international restrictions, to say nothing of prohibitions, on cluster munitions at the CCW. The United States argued that the military importance of cluster munitions was too great.

In reality, these weapons disproportionately risk the lives and limbs of civilians and are counterproductive in today's conflicts, where winning over the local population is essential to mission success.

In response, nearly 100 states pursued the Oslo process, which led to the negotiation of the 2008 Convention on Cluster Munitions. The CCM mandates the clearance and destruction of virtually all existing types of cluster munitions. It also includes novel measures on victims' human rights.

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.

At least 76 countries have stockpiled 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.

Since the CCM was concluded, 111 states—including key U.S. allies and partners including Afghanistan—have signed the treaty and have begun implementing its comprehensive provisions—leading to significant progress in eradicating this dangerous class of weapons.

Too Little, Too Late

Unfortunately, the United States and other producer nations have not joined the Convention on Cluster Munitions, even though the United States has not used cluster munitions in Afghanistan since 2002 or in Iraq since 2003. (See the Landmine and Cluster Munition Monitor for further details on U.S. cluster munitions policy and practice.)

Now, the Obama administration is pushing for a weak draft CCW protocol that would legitimize the use of the most dangerous types of cluster munitions for years to come, allow the indefinite use of cluster munitions that can produce significant harm to non-combatants, and undermine the existing standard against the use and transfer of cluster munitions established by the 2008 Cluster Munitions Convention.

The CCW protocol backed by the United States would allow the use of cluster munitions that are designed to leave up to 1% unexploded ordnance as well as the use of cluster munitions where the explosive munitions possess only one (not two as in the CCM) safeguard mechanism. Safeguards, however, do fail. In the field, even the most modern cluster munitions fail at a higher rate, leading to unintended and avoidable civilian casualties.

The current draft CCW protocol would arbitrarily prohibit only cluster munitions produced prior to 1980 and allow parties to continue to use and to defer destruction of the prohibited types of cluster munitions for up to 12 years after the treaty enters into force.

The central standards in the draft CCW protocol fall below those already adopted by the United States, which does not transfer of cluster munitions with a failure rate of more than 1 percent directs the military not to use any cluster munitions against targets where civilians are known to be present.

Consequently, the draft CCW protocol in its current form would have little any humanitarian benefit in relation to the United States practices and give cover to others to continue less responsible use of cluster munitions.

Worse still, the adoption of a CCW protocol that legitimizes the use of cluster munitions would undercut the more stringent standards established by the 2008 Convention on Cluster Munitions. Its adoption would be inconsistent with Article 21 of the Cluster Munitions Convention, which obligates each member state to "promote the norms it [the CCM] establishes and ... make its best efforts to discourage States not party ... from using cluster munitions"

States parties of the existing Cluster Munitions Convention, led by Austria, Mexico, and Norway, are trying to bridge the gap. They have proposed that any final text of any CCW protocol 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.

Lead From the Front; Not From Behind

In 2008, candidate Barack Obama promised: "As president, I will help lead the way on these issues. Our military has legitimate concerns on these issues, and I look forward to consulting closely with leadership at the Department of Defense as we shape policies on these key issues. At the same time, I recognize that our forces have been moving away from using cluster munitions and anti-personnel landmines ourselves ...."

In March 2009, President Obama signed into law a provision barring the transfer of cluster munitions unless the arms have a 99 percent or higher functioning rate and requiring that they will only be used against military targets where civilians are not known to be present. This effectively prohibits the transfer of nearly the entire U.S. arsenal. The law makes permanent what had been only one-year provisions, first included in omnibus legislation for fiscal year 2008.

As Sen. Dianne Feinstein (D-Calif.) said in a letter published in the November issue of Arms Control Today, "That policy moves us in the right direction, but it means the Pentagon still has authority to use cluster bombs with high failure rates for years to come."

Now, the Obama administration argues that prohibiting the worst types of cluster munitions through a new CCW protocol is an important step forward.

"The United States remains committed to concluding a legally binding protocol within the Convention on Conventional Weapons on cluster munitions and believes that significant humanitarian benefits can be achieved by such a protocol," a State Department official told Foreign Policy's The Cable on Nov. 11, explaining that the United States has been engaging other countries on the issue in advance of the Geneva conference.

The reality is that the current CCW draft protocol would legitimize the use of the most dangerous types of cluster munitions for years to come and allow the indefinite use of cluster munitions that can produce significant harm to non-combatants.

"When you look at this draft compared to the Oslo Convention, in a way it is going back on standards already set on the level of international humanitarian law," Jakob Kellenberger, president of the International Committee of the Red Cross, told Reuters, Nov. 9.

"The draft at its present stage means practically that you can use until 2026 all cluster munitions except the ones produced before 1980," Kellenberger noted.

Rather than undermine the existing standard against the use and transfer of cluster munitions established by the 2008 Cluster Munitions Convention, the United States should work with CCM states parties to compliment the Convention on Cluster Munitions.

If the Obama administration believes that it can ram the weak draft protocol on cluster munitions through the CCW, it is mistaken. If, however, the U.S. and others are willing to seriously find ways to address the concerns of the many CCM states, then consensus on a modified protocol at the CCW is possible.

If the CCW does not reach consensus at this month's review conference, states not party to the CCM—particularly the United States--could still make a contribution through national actions, such as immediate transfer prohibitions, the elimination of old cluster munitions stockpiles, and vigorous implementation of the CCW's Protocol on Explosive Remnants of War, which was adopted in 2003.