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"The Arms Control Association’s work is an important resource to legislators and policymakers when contemplating a new policy direction or decision."

– General John Shalikashvili
former Chairman of the Joint Chiefs of Staff
Cluster Munitions

Information about cluster munitions.

Cluster Munitions: Ban Them

Stephen D. Goose

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.”[1]

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.[2]

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.[3]

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.[4] 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.[5]

Most worrisome, at least 76 countries stockpile cluster munitions, and the number of submunitions in existing arsenals is staggering, likely in the billions.[6] 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[7] 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.[8] 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.”[9] 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.[10] 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.”[11] 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.[12] 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.[13] 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.[14] The comprehensive and integrated humanitarian approach, mirroring the Mine Ban Treaty,[15] 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.[16] 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.” [17] 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.[18]

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.[19] 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.[20] 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.[21]

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.[22]

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.[23] 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.[24] 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.

Conclusion

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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A Shift in U.S. Policy on Cluster Munitions?

Stephen D. Goose

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.[1]

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.[2] 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.”[3]

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:”

1. The impacts of cluster munitions are episodic and limited in scope, scale and duration—as compared to other ERW [explosive remnants of war].

2. There is no country in the world—except one—where cluster munitions constitute the principle ERW threat.

3. We are unaware of any unmet request for assistance in clearing cluster munitions—existing resource mobilization, coordination and clearance mechanisms have proven sufficient to meet cluster munitions hazards as they develop…. Cluster munitions do present a post-conflict threat to civilians, but…this threat is episodic, manageable within current response mechanisms and, on a global scale, less harmful than threat caused by other types of unexploded munitions.[4]

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.”[5]

At the November 2007 CCW meeting, the United States stated that it has:

taken no position yet as to the outcome of negotiations…. What has not changed, however, is the view of the United States that cluster munitions continue to be legitimate weapons when employed properly and in accordance with existing international humanitarian law…. If the use of cluster munitions were to banned or unreasonably restricted, certain missions would require our forces to fire many times more non-cluster projectiles to achieve the objectives, potentially causing greater civilian casualties and damage to infrastructure.”[6]

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.

ENDNOTES

1. See Human Rights Watch, “Time to Take Stock: The U.S. Cluster Munition Inventory and the FY 2006 Department of Defense Budget,” July 2005.

2. “U.S. Reverses Position and Is Now Willing to Negotiate a Cluster Bomb Treaty,” Associated Press, June 19, 2007; “U.S. Open to Negotiations on Cluster Bombs but No Ban,” Reuters, June 18, 2007.

3. Ronald Bettauer, “Statement on the Outcome of the CCW Group of Governmental Experts Meeting,” June 22, 2007.

4. Richard Kidd, “U.S. Intervention on Humanitarian Impacts of Cluster Munitions,” June 20, 2007.

5. Colonel Gary S. Kinne, “The Ongoing Military Utility and Role of Cluster Munitions,” Presentation to the CCW, Geneva, June 19, 2007.

6. “Opening Statement by Ronald J. Bettauer,” November 7, 2007.

 


Stephen D. Goose is executive director of the Arms Division of Human Rights Watch and co-chair of the nongovernmental Cluster Munition Coalition.


Israel Defends Past Cluster Arms Use

Wade Boese

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.”

 

ENDNOTES

1. Nobel Women’s Initiative, “Statement of the Nobel Women’s Initiative to the Lima Conference on Cluster Munitions,” May 23, 2007.

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.

5. Human Rights Watch, “Cluster Munition Information Chart,” October 2007.

6. Human Rights Watch, “A Dirty Dozen Cluster Munitions” chart. hrw.org/campaigns/clusters/chart/index.htm

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.

8. UN Department of Public Information, “Press Conference by Emergency Relief Coordinator,” August 30, 2006.

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].

10. Kofi Annan, “Message of UN Secretary-General to the Third Review Conference of Convention on Certain Conventional Weapons,” Geneva, November 7, 2006.

11. “Proposal for a Mandate to Negotiate a Legally-Binding Instrument that Addresses the Humanitarian Concerns Posed by Cluster Munitions,” CCW/CONF.III/WP.1, October 6, 2006.

12. “Declaration on Cluster Munitions,” CCW/CONF.III/WP.18, Nov. 17, 2007.

13. Oslo Conference on Cluster Munitions, “Declaration,” February 22-23, 2007.

14. Ibid.

15. The full title is the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction.

16. States in favor of such exemptions included Australia, Denmark, Finland, France, Germany, Japan, Poland, and the United Kingdom.

17. “Thinking Outside the Bomb: The Road From Oslo,” Disarmament Insight, September 19, 2007, www.disarmamentinsight.blogspot.com.

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.

19. Peter Herby and Eve La Haye, “How Does It Stack Up? The Anti-Personnel Mine Ban Convention at 10,” Arms Control Today, December 2007, pp. 6-10.

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.

21. Others include Australia, Canada, Denmark, Finland, Italy, Japan, the Netherlands, Slovakia, Sweden, and Switzerland.

22. See King, Dullum, and Østern “M85: An Analysis of Reliability.”

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.

Cluster Munitions Negotiations Launched

Wade Boese

Despite a process already underway to restrict cluster munitions, a group of states recently agreed to another set of negotiations on those weapons systems. The new talks will commence in January and involve countries, such as Russia and the United States, that defend the military utility of cluster munitions and abstain from the pre-existing process.

Concluding a seven-day meeting in Geneva, states-parties to the 1980 Convention on Certain Conventional Weapons (CCW) announced Nov. 13 that they had reached the necessary consensus to initiate negotiations on cluster munitions, which are bombs, rockets, and artillery shells that disperse smaller submunitions over broad areas. Those grenades or bomblets, sometimes numbering as many as 600 for a single munition, can fail to detonate immediately yet maim or kill if disturbed later.

The states-parties to the CCW, which regulates weapons judged to be indiscriminate or inhumane, declared their new negotiating goal to be a “proposal to address urgently the humanitarian impact of cluster munitions, while striking a balance between military and humanitarian considerations.” They scheduled four rounds of negotiations next year, the first of which runs Jan. 14-18, and called for a progress report next November. All 103 CCW states-parties can send experts to the negotiations.

In a Nov. 13 statement to the Geneva meeting, the head of the U.S. delegation, Ronald Bettauer, said the negotiations would be “challenging,” citing “significant differences” among states-parties. Indeed, CCW members agreed to negotiate a “proposal” instead of an instrument or treaty because the former term was considered more neutral and acceptable to countries, such as China and Russia, that still question the value of holding talks.

China, for example, reiterated its position that adherence to a 2003 CCW protocol on explosive remnants of war would “play an important role in effectively resolving problems concerning cluster munitions.” That existing protocol obligates governments to cordon off and clear areas of unexploded ordnance after conflicts end. (See ACT, January/February 2004. )

Until last June, the United States also had staunchly opposed CCW negotiations on cluster munitions. At that time, Bettauer attributed Washington’s reversal to “the importance of this issue, concerns raised by other countries, and our own concerns about the humanitarian implications of these weapons.” Still, he cautioned that the United States had no preferred outcome for any negotiation except that it help protect civilians from cluster munitions while permitting militaries to use the weapons. (See ACT, July/August 2007. )

The U.S. turnabout, however, followed the February startup of a Norwegian-led effort outside the CCW to negotiate a treaty to ban cluster munitions “that cause unacceptable harm to civilians.” (See ACT, April 2007. ) Known as the Oslo Process, the effort initially attracted some 40 countries, including France and the United Kingdom. Since then, the number of participants has almost doubled. Some CCW members are participants in both processes.

Norway, itself a CCW state-party, launched the Oslo Process after convention members in November 2006 failed again after several years of attempts to approve cluster munitions negotiations. Frustrated by what they deride as the slothful approach of the CCW, Norway and many other Oslo participants aim to conclude a treaty in 2008. Their next meeting is Dec. 4-7 in Vienna.

The United States last year criticized Norway for its initiative and stayed on the attack this year. In his Nov. 13 statement, Bettauer argued that “the CCW is the only framework that brings together the users and producers” and therefore is able to achieve “meaningful” results.

But nongovernmental supporters of the Oslo Process see the combination of a vague CCW mandate and participation of countries averse to negotiating legally-binding constraints as a recipe for failure. Thomas Nash, coordinator of the Cluster Munition Coalition, stated Nov. 13 that the CCW decision “is a road to nowhere.” The coalition consists of roughly 200 organizations that support action to prevent civilian cluster munitions casualties.

Although some independent experts charge that the major powers’ change of heart on CCW negotiations appears suspiciously timed to steal momentum away from the Oslo Process, UN Secretary-General Ban Ki-moon has sought to downplay competition between the two, encouraging both. Still, Ban has prodded CCW states-parties, calling on them in a Nov. 7 statement to “address the horrendous humanitarian, human rights and developmental effects of cluster munitions by concluding a legally binding instrument.”

Ban also urged countries to adopt national restraints on cluster munitions. At the Geneva meeting, Bulgaria and Croatia proclaimed their intent to join a growing number of states that have enacted domestic limits.

Meanwhile, the United States urged CCW members to pledge themselves to another voluntary commitment. For several years, the United States had teamed with 30 other governments to promote adoption of a new CCW protocol to restrict deployments of anti-vehicle mines that are undetectable or lack self-destruct or self-deactivation measures. After Belarus, China, Cuba, Pakistan, and Russia refused to drop their opposition to such rules, the United States last year made them part of a nonbinding declaration to which other governments could subscribe. (See ACT, December 2006. )

Speaking Nov. 7, Bettauer said the United States remained ready to negotiate an anti-vehicle mine protocol but that Washington was not interested in a “fruitless repetition of many prior discussions.” Stating that he was under the impression that positions had not changed, Bettauer encouraged other governments to sign up to the U.S.-sponsored declaration, which has been endorsed by two dozen other states.

Bettauer volunteered that the Bush administration, for its part, would work in the coming year to ratify four CCW measures that the United States has yet to bring into force. Those include the explosive remnants of war protocol, two separate protocols restricting the use of incendiary weapons and blinding lasers, and an amendment to apply the convention beyond interstate conflicts to intrastate fighting. Bettauer said the administration is supporting “expeditious Senate action on these treaties.”

Cluster Munitions Control Efforts Make Gains

Wade Boese

The clock appears to be ticking on the unconstrained use of cluster munitions. The ranks of a Norwegian-led initiative to prohibit these types of weapons have swelled to approximately 70 countries. Meanwhile, the United States recently switched its position in another forum to support negotiating some restrictions on cluster munitions.

Cluster munitions are weapons fired from artillery and rockets or dropped by planes that fragment and spread as many as 600 submunitions (small bomblets or grenades) over broad areas. When the submunitions fail to detonate properly, which can happen frequently, they can injure or kill people who later come into contact with them. Independent studies estimate that tens of thousands of noncombatants over the past several decades might have fallen victim to cluster munitions.

The first use of cluster munitions dates back to World War II, but Israel’s large-scale use of cluster munitions against Hezbollah fighters in Lebanon last August increased attention to the weapon system. (See ACT, October 2006. ) In a June 5 report, the UN Mine Action Coordination Centre in South Lebanon stated that 904 cluster munitions strike areas had been identified in Lebanon and that leftover cluster munitions and other unexploded ordnance had claimed 236 postconflict casualties, including 31 deaths.

At a June 19-22 meeting in Geneva, the United States, a supplier of some of the cluster munitions used by Israel last summer, announced it would back negotiations on cluster munitions under the 1980 Convention on Certain Conventional Weapons (CCW), which numbers 102 states-parties. The convention regulates indiscriminate and inhumane arms, such as incendiary weapons, through five separate protocols.

Last fall, Washington helped block work on a new CCW protocol on cluster munitions. (See ACT, December 2006. ) Ronald Bettauer, head of the U.S. CCW delegation, said June 18 that the about-face reflected “the importance of this issue, concerns raised by other countries, and our own concerns about the humanitarian implications of these weapons.”

Bettauer indicated four days later that the United States does not have a specific proposal. “The United States has taken no position as to the outcome of the negotiations,” he told other delegations. Bettauer, however, noted that any result should “protect civilians while taking into account security requirements.”

On behalf of the European Union, Germany has proposed a negotiating mandate to conclude a CCW protocol on cluster munitions by the end of 2008. Acting on its own accord, Germany also has submitted a draft protocol that would phase-out cluster munitions, but initially permit the use of cluster munitions that met certain technical requirements, such as submunitions failure rates of less than one percent. It would also allow cluster munitions use against targets not near populated areas.    

Despite the U.S. reversal and the EU proposal, there is no guarantee that negotiations will be initiated. The CCW operates by consensus and other countries, including China and Russia, have previously balked at cluster munitions measures. CCW members will decide this November on whether to start any cluster munitions negotiations.

Frustrated with the cumbersome and slow-moving CCW process, Norway last year—much to Washington’s chagrin—opted to launch an independent process to negotiate a cluster munitions treaty. The inaugural February meeting of the so-called Oslo Process brought together 46 countries that committed to concluding in 2008 an agreement banning cluster munitions “that cause unacceptable harm to civilians.” (See ACT, April 2007. )

A growing group, including several African states, gathered May 23-25 in Lima, Peru, for a second meeting to propel the process forward and give the proposed treaty more shape. Norway provided the countries with a draft discussion text.

Key aspects of that document included an initial six-year period for destroying stockpiled systems and an initial 10-year period for clearing cluster munitions contaminating a country’s territory. There were also provisions for governments to assist cluster munitions victims and make regular implementation reports. The Norwegian draft also called for entry into force of a future treaty once 20 countries ratify it.

Differences of opinions emerged on all of those issues, but two other issues provoked more substantial debate and revealed some divisions.

Participants disagreed over whether there should be a transition time permitting states to use cluster munitions until alternative weapons become available.

They also diverged over what cluster munitions should be prohibited. For example, some contended cluster munitions equipped with self-destruct mechanisms or those with low failure rates should be allowed, but other states argued for a blanket ban.

This latter group is strongly backed by nongovernmental groups involved in the Oslo Process. Jody Williams, who won the Nobel Peace Prize in 1997 for her work against anti-personnel landmines, told the Lima conference May 25, “Honest assessments of the use of cluster munitions in real combat situations, we believe, can only lead to the elimination of cluster munitions.”

In general, states coming down on the more stringent sides of the transition and exemption issues are those that hold out little hope for or are not party to the CCW. Led by Norway, this group also includes Ireland, Lebanon, Mexico, New Zealand, and Peru.

Oslo participants supporting transition times and exemptions tend also to back negotiating a CCW instrument. Australia, Germany, Japan, the Netherlands, Poland, and Switzerland rank among those states putting greater stock in a possible CCW instrument, while Canada, France, and the United Kingdom occupy more middle ground, voicing support for both paths. The contention by some of these states is that a CCW protocol, if negotiated, would potentially capture more major powers and cluster munitions producers and users.

Nongovernmental organizations are urging states to ignore the siren song of the CCW. Steve Goose, director of the arms division at Human Rights Watch and a co-chair of the Cluster Munition Coalition, argued in separate May 25 press statements that the CCW was a “dead-end process” and “a distraction that should be avoided.”

Meanwhile, Oslo Process participants are pushing ahead on several fronts. At the May meeting, Peru declared that it would work toward turning Latin America into a zone free of cluster munitions. In addition, Hungary and Switzerland announced national moratoriums. Belgium and Costa Rica are arranging regional meetings of Oslo participants, while the next full meeting is scheduled for Dec. 5-7 in Vienna.

Cluster Munitions Treaty Effort Moving Ahead

Wade Boese

Recalling the international campaign against anti-personnel landmines (APLs) a decade ago, nearly 50 governments have joined with nongovernmental organizations to negotiate a treaty to prevent civilians from being victimized by another type of weapon. This time, the focus is on cluster munitions, and the goal is to complete an agreement by 2008.

Meeting Feb. 22-23 in Oslo , Norway , 46 governments committed to pursue a legally binding instrument on cluster munitions, which are weapons that can spread up to some 600 small bomblets or grenades over areas as large as 200,000 square meters. These weapons can be dropped by aircraft, fired by artillery, or launched by rockets.

Failure rates for various submunitions can range from less than one percent to reportedly extreme cases of 100 percent under certain circumstances. Submunitions that fail to detonate properly can remain dormant, sometimes for decades, and then explode, possibly injuring or killing whoever might disturb them or happen to be close by.

Delivering the opening Oslo conference address, Norwegian Foreign Minister Jonas Gahr Støre noted that children are “particularly vulnerable and constitute a disproportionately large group of [cluster munitions] victims.” He argued that the “humanitarian and political consequences” of cluster munitions “far outweigh their usefulness.”

Some governments at the conference, however, contended that cluster munitions have some utility. Sweden , for example, said that a successful agreement would balance “legitimate humanitarian and military interests,” while the United Kingdom drew a distinction between acceptable cluster munitions and “dumb” ones. The British government defined dumb munitions as those without self-destruct or self-deactivation capabilities or the ability to discriminate between targets and noncombatants.

Other governments, such as Ireland and Mexico , contended that all cluster munitions should be outlawed. Støre seemed to lean toward the more absolute perspective, arguing that “technical improvements in weapons technology will not be enough to address the complex humanitarian problems caused by cluster munitions.” He added that “it is impossible to create a 100 percent-reliable weapon.”

In the conference declaration, the participants set a goal of banning cluster munitions that inflict “unacceptable harm to civilians.” What cluster munitions fall inside or outside that definition will be determined through future negotiations.

The declaration also stated that the proposed accord will create “a framework for cooperation and assistance” to help aid victims, clear contaminated areas, conduct risk education, and destroy stockpiled weapons. Similar to the 1997 Ottawa Convention banning APLs, such assistance and cooperation will most likely be voluntary, not mandatory. Many countries already have donated millions of dollars to help clean up and dispose of dangerous cluster munitions remnants worldwide, including most recently those Israel employed in Lebanon last summer. (See ACT, October 2006. )

Egypt , Finland , France , Italy , Germany , and the United Kingdom reportedly surprised many in Oslo when they endorsed the declaration after earlier expressing some reservations about the process or objective. China, India, Israel, Pakistan, Russia, and the United States were some of the notable but expected no-shows.

Japan , Poland , and Romania were the only conference attendees that declined to sign the final declaration. In a March 20 statement to Arms Control Today, the Polish Foreign Ministry stated that Poland is very interested in reducing the “negative effects” of cluster munitions but that its policy is to seek a solution through the framework of the 1981 Convention on Certain Conventional Weapons (CCW). Japan and Romania offered similar explanations.

The CCW currently has five protocols regulating arms, such as incendiary weapons and booby traps, judged to be indiscriminate or inhumane. Many countries, including Austria , Ireland , Mexico , New Zealand , and Norway , have been pushing for a cluster munitions protocol for several years without success.

The CCW operates by consensus, and some countries, such as the United States and Russia , repeatedly have blocked such negotiations. This continued opposition is what compelled Norway to convene the Oslo gathering outside the CCW. (See ACT, December 2006. )

Still, several countries that signed the Oslo declaration are not giving up on the CCW. Germany, for instance, is drafting a draft cluster munitions instrument for CCW consideration.

Seeking to avoid making countries feel they must choose the Oslo process or the CCW, the Norwegian government added a line to the declaration that states should continue to try and address cluster munitions dangers “within the framework of international humanitarian law and in all relevant fora.” In its final conference statement, the United Kingdom thanked Norway for the amendment.

Through his press spokesperson, UN Secretary-General Ban Ki-moon also commended Norway 's handling of the matter. The CCW and Oslo processes “should not be seen as in competition with one another but as complementary and mutually reinforcing,” the Feb. 23 statement read.

Some of the more than 100 nongovernmental participants in Oslo were less diplomatic toward the CCW. Steve Goose, co-chair of the 177-member Cluster Munition Coalition and director of the arms division at Human Rights Watch, told government representatives Feb. 22 that the CCW was a potential “pitfall” and warned them that “there should not be any pretense that the CCW will be able to deal with this issue urgently or effectively.”

Nongovernmental participants and some states also were disappointed that the declaration did not call for countries to enact moratoriums on cluster munitions use. Instead, the declaration simply stated governments should “consider taking steps at the national level.” Austria and Bosnia and Herzegovina both announced moratoria at the conference.

Norway , in consultation with other governments, is drafting a “discussion paper” for circulation before the next meeting of participating countries. That meeting will occur May 23-25 in Lima , Peru . Subsequent meetings are tentatively scheduled for Vienna in late 2007 and Dublin, Ireland, in early 2008.

Although the declaration says negotiations should be finished by 2008, not all governments consider it a firm deadline. Sweden described 2008 as an “ambition,” and Canada , Denmark , Germany , and the Netherlands were among several countries that made similar statements.

Norway is encouraging other countries to join the process. Cambodia has been the only new volunteer as of mid-March.

Sen. Dianne Feinstein (D-Calif.), who has introduced legislation to stiffen U.S. cluster munitions use and export policies (see ACT , March 2007 ), criticized the Bush administration Feb. 23 for shunning the Oslo meeting. “I call on the United States to join in this effort and protect civilians from these lethal relics of war,” she declared.

A U.S. government official told Arms Control Today March 21 that the United States, which has not joined the Ottawa Convention, did not plan on enlisting in the Oslo process but would “fully participate in [CCW] discussions.” The official also stated it was “premature” to predict what position the United States might take on any agreement produced outside the CCW.

Israeli Cluster Munitions Use Examined

Wade Boese

The Department of State recently informed Congress that Israeli use of U.S.-origin cluster munitions in Lebanon last summer might have broken U.S. export rules. Washington has yet to announce if it will take any action against its close ally, but some lawmakers are proposing new U.S. cluster munitions export and use policies.

Responding to an attack by Lebanon-based Hezbollah guerrillas last July, Israel launched a military offensive into its northern neighbor. During the ensuing month-long campaign, Israel employed cluster munitions, which are weapons dropped by aircraft, shot from artillery, or launched by rockets that can scatter up to several hundred small bomblets or grenades over broad areas. The dispersed submunitions sometimes fail to explode as intended, sowing wherever they land with potentially lethal or harmful explosives.

The UN Mine Action Service recently reported that, by mid-February, some 840 cluster munitions strike areas had been identified and that an estimated one million unexploded cluster submunitions litter southern Lebanon. It also noted that 30 deaths and 186 injuries have resulted from the detonation of leftover cluster munitions and other ordnance.

The United States launched an investigation last fall into whether Israel may have used U.S.-supplied cluster munitions in Lebanon contrary to a bilateral export agreement restricting their use. The regulations are secret, but they are generally understood to bar the use of cluster munitions against targets that are in populated areas or that are not strictly military. Washington initially imposed the regulations after previously suspending cluster munitions exports to Israel from 1982 to 1988 following allegations that Israeli forces improperly used such arms in attacks against Lebanese civilians.

In a classified report delivered to the Senate Foreign Relations and House Foreign Affairs Committees, the State Department made a preliminary finding that there “could have been some violations” of U.S. export rules during last year’s war, State Department spokesperson Sean McCormack said Jan. 29. He told reporters that he would not speculate on actions Congress or the administration might take in response because the investigation was still ongoing.

A State Department official told Arms Control Today Feb. 20 that “we are continuing to gather information.” The official added, “As we learn more, we will take action as appropriate.”

Some lawmakers are not waiting on a final investigation outcome to address the cluster munitions issue. Senators Dianne Feinstein (D-Calif.), Patrick Leahy (D-Vt.), Barbara Mikulski (D-Md.), and Bernard Sanders (I-Vt.) introduced legislation Feb. 14 to prohibit U.S. use, sale, or transfer of cluster munitions that have submunitions with failure rates greater than one percent. The bill also requires that cluster munitions only be used against “clearly defined military targets” and not in areas where civilians are present or normally inhabit. The president for national security reasons could waive the first restriction on failure rates, but not the second limitation.

Feinstein and Leahy proposed similar legislation last year as an amendment to the annual defense spending bill, but the Senate rejected it 70-30. Opponents argued the measure might impair U.S. military operations.

U.S. policy since the fall of 2004 has prohibited the Pentagon from procuring new cluster munitions with submunitions that have failure rates greater than one percent. The policy, however, does not forbid U.S. armed forces from using some 5.5 million older, stockpiled cluster munitions that might not meet the higher performance standard.

“The impact of unexploded cluster bombs on civilian populations has been devastating,” Feinstein said Feb. 14, citing estimates that past U.S. use of such weapons in Afghanistan, Iraq, Kuwait, and Laos has caused thousands of civilian casualties. She also noted that she had been motivated in part by “recent developments in Lebanon.”

Israeli officials contend they took every precaution to avoid civilian casualties, including warnings to noncombatants through leaflets, talks with local leaders, and phone calls to evacuate areas where Hezbollah fighters were present. Still, the Israel Defense Forces (IDF) initiated a review last November of its cluster munitions use in Lebanon.

David Siegel, a spokesperson for the Israeli Embassy in Washington, told Arms Control Today Feb. 21 that the IDF inquiry was “still underway” but nearing completion. He also said Israel had provided “detailed responses” to U.S. investigators.

In the conflict’s aftermath, Siegel also said Israel had provided assistance “as extensive as possible,” including maps, coordinates, and training, to help locate and clear the cluster munitions remnants. Some UN officials and nongovernmental humanitarian and demining groups have contended that Israel has not given enough specific details to help with the cleanup.

Governments, including the United States, have donated at least $21.5 million for cleaning up and disposing of the cluster submunitions contaminating southern Lebanon. The UN Mine Action Service predicts the work might be completed by the end of this year.

Meanwhile, 46 governments agreed Feb. 23 in Oslo, Norway, to negotiate by 2008 a legally-binding treaty to ban cluster munitions that cause “unacceptable harm to civilians.” Participating countries, which currently do not include Israel or the United States, will meet again in May in Lima, Peru.

Regulating Global Arms Sales and Cluster Munitions

Body: 

Friday, February 9, 2007
9:30 A.M.–11:00 A.M.
National Press Building,
Washington, D.C.

 

SPEAKERS:

AMBASSADOR JOHN S. DUNCAN,
AMBASSADOR FOR MULTILATERAL ARMS CONTROL
AND DISARMAMENT

AMBASSADOR ROALD NAESS,
REPRESENTATIVE OF NORWAY
TO THE NUCLEAR SUPPLIERS GROUP (NSG)

STEPHEN GOOSE,
EXECUTIVE DIRECTOR
ARMS DIVISION OF HUMAN RIGHTS WATCH (HRW)

DARYL G. KIMBALL,
EXECUTIVE DIRECTOR,
ARMS CONTROL ASSOCIATION 

Transcript by
Federal News Service,
Washington , D.C.

DARYL G. KIMBALL: Good morning everyone.

Welcome to this morning’s Arms Control Association briefing on regulating global arms sales and cluster munitions. My name is Daryl Kimball, and I’m the Executive Director of the Arms Control Association. For those of you who don’t know us, ACA is a U.S.-based public education policy and research organization. We publish a monthly journal, Arms Control Today, and for 35 years, ACA has been promoting what we think of as practical and effective strategies to control, reduce, and eliminate the world’s most dangerous weapons.

Now, what are the world’s most dangerous weapons? The answer really depends on who you are and where you live. In many people’s minds, “the most dangerous weapons” mean unconventional weapons: biological, chemical and, of course, nuclear weapons. Indeed, future use of such types of weapons would produce catastrophic and far-reaching consequences.

But for countless others across the world in conflict-ridden regions, the greatest threats emanate from so-called conventional weapons. On a daily basis around the world, thousands of people face the very real threat of being the victims of rifles, mortars, tanks, grenades, bazookas, attack helicopters, and other weapons of war. All told, these types of weapons produce more suffering on a day-to-day basis than so-called weapons of mass destruction.

Yet, unlike chemical, biological, and nuclear weapons, there are no international norms against the possession or trade of conventional arms. Countries have the right to protect themselves, and it’s widely accepted that conventional arms are legitimate to use for that purpose. Arms sales also are, of course, often seen as a way to win allies or simply to make profits.

The result, unfortunately, is a global arms bazaar that exceeded about $44 billion in 2005, according to the Congressional Research Service. Top suppliers have typically included the United States—which has been usually far ahead—Russia, France, and the United Kingdom. In 2005, about 68 percent, or $30 billion, of those arms sales went to developing nations, many with subpar human rights records and democracy records.

At times, the international community has imposed arms embargos to deal with the most egregious abusers of the global arms trade. The international community also has sought to shed some light on global weapons exports through the voluntary Wassenaar Arrangement and the U.N. Register on Conventional Arms. 

Nonetheless, exporting countries and arms manufacturers are still largely free of constraints. Currently there are no international standards to determine what constitutes an acceptable, appropriate arms sale or who is a legitimate or responsible recipient. In the view of the Arms Control Association and many of our NGO colleagues and our panelists here today, tough new controls on international arms sales are overdue.

Governments and nongovernmental organizations also have tried to deal with another arms problem: the use of certain armaments that produce the most inhumane and indiscriminate types of effects, especially on civilians. This traditionally has been pursued through the Convention on Certain Conventional Weapons, the CCW, and the Ottawa Treaty banning anti-personnel landmines. There has been some progress, but it’s been slow progress.

In the United States, the three most recent CCW protocols on regulating the use of blinding lasers, incendiary weapons, and the remediation and clean up of explosive remnants of war are before the Senate awaiting hearings and ratification. In Geneva, CCW states recently sought but failed to begin negotiations on a protocol to deal with cluster munitions.

Today, the Arms Control Association is working with our colleague NGOs and some of the leading governments on this subject to highlight these critical humanitarian and arms control challenges and, hopefully, to raise the profile of two key and very important initiatives that seek to impose some practical, common sense guidelines limiting the global trade in conventional arms and the use of cluster munitions. 

First, we’re going to examine the so-called arms trade treaty concept, which Ambassador Duncan from the United Kingdom will focus on. I would just note, as many of you know, the U.N. General Assembly agreed in December by a vote of 153-1 to begin exploring the parameters of such a treaty. While some states including Russia and China abstained, only the United States actually voted ‘no’ on that resolution. This year governments are to begin the process of providing views about what that treaty might entail, and the U.N. will convene a group of experts in 2008 to examine the parameters of such an agreement. 

We have with us today one of the key leaders of this initiative, Ambassador Duncan, who is the British Ambassador for Multilateral Arms Control and Disarmament. Ambassador Duncan will explain his government’s views and what it hopes to accomplish in this process. I would also note that the United Kingdom has been one of the foremost supporters of this concept, going back to 2004. It was one of the seven original co-sponsors of the U.N. resolution. We’re glad to have Ambassador Duncan here, all the way from snowy London, to discuss this issue.

We are also pleased to have from Oslo Ambassador Roald Naess, who also had to go through snowy London, to talk about his government’s recent initiative to ban the use of cluster munitions that have “unacceptable humanitarian consequences.” Norway launched this initiative last November after states-parties to the CCW, as I said, failed to achieve consensus on a mandate to move ahead with negotiations on this type of weapon.

The international community, of course, has had a recent glimpse of the terrible effects of cluster munitions in the recent conflict in Lebanon. Israel claims to have employed these weapons in a way to avoid causing civilian casualties. And, it says these arms were employed properly. But recent U.S. news reports stated that the U.S. government made a preliminary finding that Israel used American-origin cluster munitions in violation of U.S. export control guidelines.

Our third panelist, Steve Goose, may speak further on this, but I’d add here that it’s my personal view that the U.S. government has an obligation to respond to this violation by reconsidering further cluster munitions sales to Israel. This is the second time that such a violation has occurred; the other back in 1982.

Of course, Israel’s not alone in using cluster munitions in ways that may be harmful to civilians. According to the United Nations Development Programme, these weapons have been used in 23 countries. Over 50 countries have substantial stockpiles of cluster munitions. This is a problem that will continue for many years to come.

In response to growing NGO pressure, many governments, including Belgium, Germany, the Netherlands and, of course, Norway, are reconsidering their use of cluster munitions. I would just take a moment here to note that Senators Dianne Feinstein and Patrick Leahy are announcing today in a statement, which is out on the press table, that they’re reintroducing legislation that would restrict the acquisition, use, transfer, or sale of cluster munitions unless it was clear that the munitions would not be used in or near any concentrated population of civilians, whether permanent or temporary. 

Steve Goose will talk further about this. He is our third panelist today. The Arms Control Association will be working with our colleague NGOs to move this and other similar initiatives forward. Steve Goose is the Executive Director of the Human Rights Watch Arms Division. Human Rights Watch is one of the founders of the nongovernmental Cluster Munition Coalition. He’s also the co-chair of that group’s steering committee. Steve, who is one of the world’s leading experts on this topic, is going to outline the ideas that his organization and others have for what Norway, the United States, and other countries can do individually and collectively to deal with the cluster munitions problem.

Finally, I would note that each speaker is speaking on his own behalf, in his own capacity. They’re not speaking for the panel as a whole. We’ve brought together different views here. I think, in general, we’re all focused on similar problems, but you may find that there are some slightly different approaches to how we should deal with these issues. With that, I’m going to turn the podium over to Ambassador Duncan. Thank you for being with us.

AMBASSADOR JOHN S. DUNCAN: Thank you, Daryl. Good morning, everybody. I’m very grateful to ACA for allowing me to speak for a few minutes today about the arms trade treaty, which would establish a set of legally binding global principles to ensure that countries operate their export control systems in line with an agreed set of high standards.

As Daryl has commented, the United Kingdom, together with a group of six other countries, which were Argentina, Australia, Costa Rica, Finland, Japan, and Kenya, have led calls for work on a legally binding treaty to be taken forward in the United Nations. However, the idea of a globally binding treaty is not new. We can trace its beginnings back to 1925 to the League of Nations, which had a discussion at an international conference on the international trade in arms, munitions, and implements of war, of which the only surviving part is the 1925 Geneva Protocol on chemical weapons. So we’ve been here before.

More recently, in 1991, the five permanent members of the UN Security Council—the United States, the United Kingdom, China, France, and Russia—signed a joint declaration reaffirming their commitment to seek effective measures to promote arms control on a global and regional basis in a fair, reasonable, comprehensive, and balanced manner, as well as their determination to adopt a serious, responsible, and prudent attitude of restraint regarding arms transfers.

This latest initiative for an arms trade treaty grew out of suggestions by a group of Nobel Peace Prize laureates in the 1990s, led by Costa Rican President Oscar Arias, and later advanced by civil society, NGOs, and a range of different countries. Support has also come from the world’s spiritual leaders, including the Dalai Lama and Pope Benedict. 
           
British support for this initiative was confirmed in March 2005, almost exactly two years ago, when then-British Foreign Secretary Jack Straw set out our intention to support this initiative in a speech in the United Kingdom. As Daryl commented, the United Nations process was agreed in the UN General Assembly in December last year. The resolution which launches this process under UN auspices was supported by 153 countries, including many traditional arms manufacturers, such as France, Spain and, of course, the United Kingdom, but also, emerging suppliers, such as Ukraine, Bulgaria, Brazil, and South Africa.

This year, all countries will have the opportunity to feed in their views on the initiative to the UN Secretary General. This will lead, hopefully, next year in 2008 to a group of government experts, which is a form of committee, which will consider the initiative further. If that group produces a positive report, the next step will be to start negotiation of a treaty.

The treaty is still some way off, but work is now beginning in a serious manner. We hope that export control practitioners, civil society, and the public will get involved and start a debate on what they would like to see in the treaty and urge their governments to feed into the process. The official deadline for views to the Secretary General of the United Nations is this April 30. That’s a very short deadline.

So, you may ask, why is a treaty needed? In our view, in an increasingly global economy, the idea that export controls can be based on the notion of national manufacturing is simply unsustainable. The phenomena of outsourcing and the rapid growth in technical expertise amongst emerging suppliers are trends that we have to recognize and address. 

Despite our collective efforts over many years to develop export control regimes—both for weapons of mass destruction and for conventional weapons—many countries still have weak export controls; either because the standards are too low or because they do not properly implement the standards that they do have. This means that arms continue to flow into conflict zones and into the hands of human rights abusers, even when the negative impact of the human cost, which I think from NGO sources is about a third of a million people per year, is all too evident. This will continue unless all countries adopt and implement proper controls. 

Traditionally, export controls, such as those established during the Cold War, have, at their heart, been concerned with preventing our adversaries obtaining equipment and technology that would give them an advantage or erode our own. Hence, we have tended to focus our attention on lists of equipment. Our vision of the arms trade treaty is not a replacement but a complement to these existing regimes; an effective mechanism dealing with 21st century challenges, where business is not the target for control but the partner.

Very briefly, what do we see a treaty doing?

First, we see the treaty controlling the availability of arms to conflict regions in order to help countries build stable economies. It’s worth noting that, on average, it takes a country 20 years to recover from armed conflict, attract foreign investment and tourism, lessen armed violence, and achieve sustainable development. Just to give a figure of the costs: treating victims and supporting disabled families caused by firearms totals roughly 14 percent of the GDP in Latin America.

The second item would be covering the international trade in all conventional arms, meaning both small arms and light weapons and larger weapons and weapon systems. If one sees on one’s television screen what is going on in Africa today, it’s not simply the AK-47 which is a matter of concern. 

Third, a treaty should make clear when a transaction would not be allowed because of existing prohibitions, such as those set out in UN arms embargos. 

Fourth, a treaty should set out clearly the issues countries must take into consideration before deciding whether to allow an export to go ahead. For example, what is the risk that the item in question could be used to exacerbate an existing conflict or carry out human rights abuse.

Fifth and finally, we need to make sure that a treaty makes a difference. A treaty should include an effective mechanism for enforcement and monitoring, including an appropriate transparency mechanism.

What we do not see the arms trade treaty doing is ending the arms trade. The United Kingdom is a major arms exporter and plans to continue to be so. In the United Kingdom, some 65,000 jobs are based in the defense industry, and the average export earnings are about 4.5 billion pounds per year.

We do not see the treaty ending the arms trade, but a treaty should be about making sure the arms trade is conducted responsibly and to make sure it is carried out with due regard to the impact that it has. As a result, we have found that the U.K. arms industry very much supports the idea of the arms trade treaty. They see it as an initiative that would make it easier for them to trade, as they will know from the outset the overreaching standards that countries they are working with are bound to follow. This will make international trade flow more smoothly for the responsible exporter.

Similarly, if potential partner companies are working within the framework of good export control systems, arms manufacturers are better placed to enter into collaborative projects with them, confident that the end products will be properly controlled. This is increasingly important in the global marketplace, as I explained in the beginning.

It is our hope that the arms trade treaty will not only help to create more uniform standards, but might act as a form of corporate social responsibility (CSR) for the arms trade; much in the same way as the lumber and coffee industry have turned an obligation into a marketing device, such as sustainable forestry and fair trade in coffee. You might say that perhaps the arms industry is not so concerned by consumer demand, but it is concerned and subject to the same shareholder pressure as other parts of the economy. Competition for capital to support new projects, mergers, and acquisitions, is becoming increasingly tough. There is a driver there that industry is interested in and that we can harness.

Nor, in this audience, should I have to point out, do we see the arms trade treaty controlling civilian possession. That is a matter for national governments to decide. As I said, this latest initiative has garnered the support of over 153 governments, both traditional arms manufacturers and emerging suppliers. The moral, economic, and commercial arguments for making a serious and sustained effort to developing better global measures to ensure that the arms trade in the 21st century is a responsible one are, in our view, compelling. This is why the United Kingdom has taken such a high profile role in advocating the needs for an arms trade treaty.

I will be pleased to answer any questions and, of course, look forward to taking part in the panel discussion. But I hope I can end with a request: that this initiative not be seen as a threat. It is not. It is an opportunity to put the arms trade on a more secure and responsible footing, where we can be more confident that legitimate needs are met and that arms do not fall into the wrong hands. Thank you very much. 

KIMBALL: Thank you. Ambassador Naess.

AMBASSADOR ROALD NAESS: Good morning. Thank you for inviting me to this meeting to present the Norwegian view on the issue of cluster munitions. 

The first recorded use of cluster munitions was in connection with a German air raid on Grimsby in England in 1943. The bombs were not particularly effective against military targets but they killed and maimed civilians for a long time after their attack. The first large-scale use of cluster munitions was in Southeast Asia. According to United Nations Development Programme, cluster munitions have been used in 23 countries around the world, including Afghanistan, Bosnia, Cambodia, Eritrea, Ethiopia, Iraq, Laos, Lebanon, Serbia, Sudan, and Vietnam. More than 50 countries have large stockpiles of cluster munitions. 

Many countries and organizations have expressed deep concern about the suffering caused by the use of cluster munitions. The conflicts in the Balkans, Afghanistan, and the Middle East during recent years have made the world aware of the humanitarian consequences resulting from the use of cluster munitions, both initially and long after a conflict has ended. Countries in Southeast Asia are still deeply affected by cluster munitions from the late 1960s and early 1970s. There have been calls from many quarters for the introduction of an international agreement to put a stop to the use of these weapons. 

The Norwegian government’s initiative to promote an international ban on certain types of cluster munitions is based on the knowledge of the humanitarian and socio-economic consequences of the use of such munitions. Norway has a very long tradition for humanitarian engagement, and the human suffering caused by the use of cluster munitions has influenced our public debate. This debate has resulted in a political commitment to take some actions. 

Since 2001, Norway has been working actively at the international level to promote effective measures against cluster munitions. In November 2006, this was conducted within the framework of the Convention on Certain Conventional Weapons, the CCW, which has been ratified by some 100 countries. At the third review conference of the CCW in November 2006, it became clear that it would not be possible to agree to move on from general discussions to a more targeted process aimed at introducing a ban on cluster munitions that have unacceptable humanitarian consequences.

Let me say that Norway will continue to work within the CCW. I would also like to add that our initiative is not to compete with or replace the discussions within the CCW. To the contrary, we are looking forward to a more focused and action-oriented discussions also within the CCW.

But we noted during the CCW process that many countries, institutions, and organizations shared our humanitarian approach to the problem of cluster munitions, and we are grateful and encouraged by the support and partnership by all of them. Norway, therefore, decided to invite the countries that had shown interest in the issue, as well as relevant UN institutions, the Red Cross, and other humanitarian organizations, to a conference in Oslo, which will take place next week on February 22 and 23.

The purpose of the Oslo Conference is to lay a foundation for a diplomatic process aimed at reaching a binding international agreement prohibiting the use of cluster munitions that have unacceptable humanitarian consequences, preventing the proliferation of such weapons, and supporting victims and affected countries. We also think that the agreement should be developed within a reasonable time. Countries that have not been invited are welcome to participate at the conference if they wish to do so. 

Perhaps I should say a few words about what cluster munitions are. It’s a general term for a variety of weapons that disperse a large number submunitions or bomblets over a large area. The submunitions are placed in a container that can be dropped from aircraft or delivered by means of artillery shells or missiles. The container breaks open in mid-air and the submunitions are dispersed and armed to explode on impact. The size of the area they cover ranges from a few hundred square meters to about 20 hectares, depending on the type of munition. 

Most types of cluster munitions currently in use have serious negative consequences for particularly two reasons. Number one, they are area weapons that do not discriminate sufficiently between combatants and civilians. Secondly, submunitions that fail to explode on impact are left as duds. Duds are often highly unstable, armed explosive devices that, in practice, function virtually as anti-personnel mines. Because the proportion of duds is generally high, 25 to 40 percent is not unusual, and because these weapons are often employed in large numbers, the number of duds can be extremely high.

The resulting casualties and injuries suffered by civilians can continue for years after a war has ended. So the purpose of the Norwegian government’s initiative is to eliminate humanitarian suffering caused by these weapons. Cluster munitions that are capable of discriminating between combatants and civilians and that do not have a large number of duds are not covered by the initiative. 

In case you have questions about the Norwegian stockpiles on cluster munitions, I should say that, yes, we have them. Norway has cluster munitions in the form of 155 millimeter artillery shells. In spite of the fact that recent tests have shown that these munitions have a low dud rate, the government has decided to introduce a moratorium on their use, pending an international agreement that clarifies well that this type of munition is acceptable from a humanitarian point of view.

To the conference in Oslo, more than 40 countries, several UN agencies, the International Committee of the Red Cross, and other humanitarian and human rights organizations have so far been invited. All said they will participate. Of the invited countries, the original group consists of the 25 countries that signed the joint declaration at the conclusion of the CCW Review Conference in Geneva in November. They’re all invited. We also have invited some other countries outside the CCW signatories, countries that are affected by cluster munitions, and countries that have asked to receive an invitation to the conference, thereby including themselves in the group of countries that are prepared to develop a new instrument. As I said, the conference is also open for other countries that wish to be associated with this initiative, and even countries that would be opposed to it. They are most welcome. If they would like to have an invitation, we will send them an invitation because we think it’s important to meet and to discuss this important issue.

If journalists have an interest to get in touch with our foreign minister before the conference or during the conference, please let our colleague from the Norwegian embassy here in Washington know and we can make arrangements. I was told before I left for Washington that he will set aside time to be available for interviews. Thank you very much.

KIMBALL: Thank you very much. We now will turn to our third panelist, Steve Goose. 

STEPHEN GOOSE: Thank you, Daryl. I’ll stay here, if only just to be different. Plus, it gives me a chance to rub elbow with ambassadors, which, of course, I like to do. Thanks very much to the Arms Control Association for highlighting these two very important issues. We appreciate you bringing us together.

I have told ACA that I will focus my remarks on the cluster munitions issue, which I will do. But I’ll also note that there are other NGOs in the room who are expert on the arms trade treaty and on arms trade issues. Rachel Stohl from the Center for Defense Information is sitting over there and there are others as well, so for the journalists who may want an NGO perspective in more detail on the arms trade treaty, I wanted to let you know that there are others available here who can do that in addition to the Arms Control Association.

There may be nothing that the international community can do that will offer greater protection for civilians during armed conflict and after armed conflict than to enact a prohibition on inaccurate and unreliable cluster munitions. Cluster munitions caused more civilian casualties in Iraq in 2003, during the invasion, than any other weapons system besides small arms fire. The same was true in Kosovo in 1999. There were more civilian casualties due to cluster munitions than any other weapon. Hundreds of civilians have been killed and maimed by cluster munitions since the end of fighting in Lebanon in August, more on almost a daily basis. 

This is clearly the weapons system that is most in need of new international law and national regulation in countries throughout the world. It’s certainly theoretically possible to use cluster munitions in a responsible way. However, what we have seen in conflict after conflict where they have been used is that they’ve been used in a way that runs afoul of international humanitarian law, regardless of whether they’re being used by responsible forces, such as the United States, the United Kingdom, the Netherlands, Israeli forces, or others who consider themselves the upholders of international humanitarian law. When it comes to cluster munitions, the weapons have been used in ways that certainly, at the very least, raise questions about illegality of their employment. They certainly have caused unnecessary and avoidable civilian casualties in virtually every instance in which they have been used.

You had a nice rundown from the ambassador about how clusters function. Indeed, they are a double whammy for civilians. If they don’t get you at the time of attack, they’ll get you long afterwards. At the time of attack, they are prone to indiscriminate effect because they spread out over such a wide area. The ambassador referred to hectares, which may have been lost on many in this audience. Several football fields are covered by most types of cluster munitions that are used; whether they’re dropped out of aircraft or shot out of artillery or ground rocket systems. They have this wide area effect that has military utility but also creates humanitarian problems, almost inevitably, if they are used in populated areas. So we have said they should never be used in populated areas. Any use in a populated area should be presumed to be a violation of international humanitarian law, unless proven otherwise.

But if they don’t kill or injure civilians at the time of attack, they are almost guaranteed to do so afterwards because each use of a cluster munition leaves behind large numbers of what are usually called duds. It’s a misnomer because the duds are hazardous. The duds function as anti-personnel landmines. The submunitions that fall out of cluster munitions are supposed to explode on impact. But they have a failure rate, like all weapons. Sometimes, they have a very high failure rate. We have seen, in Lebanon, failure rates of 25 to 40 percent, as well as some catastrophic failures of 100 percent. But even if it has a small failure rate, these things are used in such numbers that you essentially have lots of landmines left behind after employment. One of the things used most often in Lebanon, and in Iraq before that, were multiple launch rocket systems; ground rockets that typically shoot out a volley of six rockets. Each rocket contains 644 submunitions in a single volley. You have thousands of submunitions being used and you are going to end up with thousands of duds over the course of employment.

Hence, it is not so much the failure rate that matters, although that does count; it is how many duds are inevitably left behind by this weapons system. These duds last a long time. They’re still taking victims in Laos and Cambodia and Vietnam from U.S. use in the 1960s and the 1970s. In fact, the problem in those countries today is more due to leftover cluster munitions than it is to landmines. 

Clearly, this is the weapon we need to get a handle on. One of the appealing things about the effort to deal with this weapon, though, is that it is not just cleaning up an existing mess. They have been used in about two dozen countries or so; we are still trying to get the best list. There have been allegations of use in a handful more than the two dozen that have been identified. But the real danger is the potential future catastrophe. We count more than 70 governments that stockpile cluster munitions. Those governments collectively have cluster munitions that contain billions—not just millions or hundreds of millions—billions of submunitions. If these arsenals of old, unreliable, inaccurate cluster munitions get used, we are going to have a disaster on our hands that far surpasses that of anti-personnel landmines.

Yes, where they have been used, it has been a disaster. But the future is what we really are concerned about and why we have to take action urgently now to deal with it. We hear the arms trade treaty is going to take time to develop. We understand that. We can’t afford to do that with cluster munitions. We can’t let the effort to try to handle this weapon percolate along for year after year after year, as it has been doing in the CCW for the past several years. This is the beauty of the Norwegian announcement. It emphasizes the urgency of dealing with these now. NGOs have said that through this Norwegian initiative, we should develop, negotiate, and conclude a treaty within two years time, by the end of 2008, at the latest. We did it in half that time with landmines.

There is no current treaty that deals with clusters. Sometimes, people get confused and think that the landmine treaty—the Ottawa Convention or Mine Ban Treaty of 1997— deals with cluster munitions. It helps with the cleanup of clusters, but it does not deal with the use, production, stockpiling, or trade of the weapon at all. Clusters are only subject to existing customary international humanitarian law (IHL), like any other weapon. But they have rarely been used in compliance with IHL. While inaccurate and unreliable, cluster munitions are not yet banned under international law. They should be. That is what the Norwegian initiative is aimed at.

People may be saying, what do you mean by an inaccurate and unreliable cluster munition? What do you mean by a cluster munition that does not cause unacceptable humanitarian harm, that doesn’t have unacceptable humanitarian consequences? Well, we don’t really know the answer to that yet. As the ambassador pointed out, there are lots of different kinds of cluster munitions. We believe it’s up to governments to prove conclusively that there is such a thing as a cluster munition that doesn’t cause unacceptable humanitarian harm, that is not unreliable, that is not inaccurate, and that does not pose unacceptable risks to civilian populations. There are things like non-explosive cluster munitions. On the other hand, there are nuclear cluster munitions. We are probably not talking about either of those with this treaty.

There are also some very high technology weapons that have emerged in recent years that technically would be cluster munitions but that may not have the same wide-area effect and may not leave behind so many duds. There are cluster munitions being developed that only have two, or five, or ten submunitions, each of which is individually targetable and hones in on armored vehicles. There are ones that have self-destruct and self-deactivating devices. These are probably not dangerous weapons. It’s up to governments to prove that, but these are probably not dangerous weapons. It will be part of the negotiation process that will determine what the definition of a cluster munition is and what should and shouldn’t be prohibited.

What is clear is that after years of working against these weapons—Human Rights Watch was the first NGO to call for a moratorium on all use of clusters in 1999—there is now tremendous momentum and political will to deal urgently with this issue. Indeed, some three dozen governments are now on record, most of them during the CCW meeting that the ambassador talked about, in favor of a new international instrument on cluster munitions.

We viewed the Norwegian announcement back in November as a true watershed in the effort to deal with this. It showed tremendous leadership, bold international leadership, in moving this away from the doldrums of the CCW and into a process that has some prospect for rapid success. The CCW has already talked about this issue for five years, and the best they came up with was a weak and vague mandate to continue talking. Not to begin negotiations, but to continue talking about cluster munitions within the context of the broader issue of explosive remnants of war. We see that as an inadequate response to the cluster munitions problem and think that this new process that will begin in Oslo later this month will be the only way to move forward in a fashion that meets the urgency of the situation. Those countries who want to deal urgently will be part of that process. Those who want to go slow, with little hopes of progress, will count on the CCW. That’s what history has shown.

We have had many United Nations agencies, as well as now-former UN Secretary General Kofi Annan, call for an international instrument. Annan also called for a freeze on the use of cluster munitions and the destruction of stockpiles of unreliable and inaccurate cluster munitions. Belgium has become the first country to ban cluster munitions outright. Norway has a moratorium in place. Germany has stopped production. There are parliamentary initiatives in more than a dozen countries around the world to prohibit or restrict the weapon. We have seen many countries already remove older cluster munitions from their stockpiles and begin destroying them. We’ve seen a number of countries take the policy of no use in populated areas. We’ve seen many countries trying to set limits on their failure rates. These are all positive steps forward that we think can give momentum to what we hope will be a treaty that prohibits those cluster munitions that do cause unacceptable harm to civilian populations.

The United States has been opposed to this outside process. On the last day of the CCW, it spoke quite harshly about Norway’s announcement. To my knowledge, the United States has not yet said whether or not they’re going to Oslo. If there is an update on that, I would be happy to hear it. I would like to see the United States be part of this process. It made a big mistake by staying outside of the Mine Ban Treaty process in 1996 and 1997 and it needs to be part of this process that will deal with cluster munitions most effectively.

Very encouragingly, as Daryl pointed out, the Senate has begun to take things into their hands. Senators Feinstein and Leahy will introduce next week very far reaching legislation that would prohibit the use of cluster munitions in or near populated areas, and would also prohibit the use and transfer of cluster munitions whose submunitions have a failure rate of one percent or greater. In practice, this would eliminate almost every existing cluster munition in the U.S. arsenal. The United States has, depending on what you count, somewhere between 700 million and one billion submunitions in its arsenal. There may be some 30,000 of those submunitions that would have a failure rate of less than one percent, so-called sensor-fused weapons, and others that have a self-destruct device on them that may get the failure rate down that low. So this legislation would have a huge impact on the U.S. stockpile, and would only allow the United States to go forward with production, acquisition, and use of cluster munitions that are highly advanced. In fact, such weapons probably would not really meet the concept of what we consider to be a cluster munition. They would not have a wide-area affect and they would not leave behind lots of duds.

This legislation is not intended to be anti-Israel. An earlier version of it was presented in September, shortly after the end of the fighting in Lebanon. It was characterized by many as a reaction to Israel’s quite appalling use of clusters during fighting in Lebanon. In fact, this is aimed at the United States. It is not an anti-Pentagon bill; it is a pro-humanitarian bill that is designed to remove the most dangerous weapons from the U.S. arsenal that are most likely to pose the greatest dangers to civilians in the future. It would have the effect of not allowing the United States to transfer its existing stockpile of cluster munitions to Israel. The same would be true for every other country. So, it is not an anti-Israel bill or an anti-Defense Department bill. It does have a waiver that would allow, in extraordinary circumstances, the president to authorize the use of some cluster munitions with a failure rate of more than one percent. It does not allow waiver of the no use in populated areas provision. I think the waiver is going to be very hard to invoke because it is going to be really difficult to make the case that it is going to be vital to U.S. national security to use cluster munitions with high dud rates. We think it is a very strong bill that deserves full support from the Senate and the administration.
           
There are going to be many challenges to success on this issue, both here in the United States and elsewhere. But in the NGO community we are very, very pleased with the direction that things are going in and the degree to which countries are coming on board at a very rapid pace. We think that the meeting in Oslo later this month will be a crucial one. In Oslo, we expect an action plan to be developed that will lead the way to a new treaty in a very short time frame and that will be come the new international standard—for those who not only have signed it, but for those who have not signed it as well. Such a treaty will have an impact on countries like the United States, even if they are not part of it, because the new standard for behavior will have been set by the rest of the world.

KIMBALL: Thank you very much, Steve, and also Ambassador Duncan and Ambassador Naess, for very thorough and excellent presentations. As Steve said, the Arms Control Association commends Norway and the United Kingdom on their efforts and their leadership on these issues. Now it is your turn to ask the panelists your questions and for us to discuss these issues further. 

QUESTION: Hi, good morning. Thank you all very much. My name is Laura Lumpe. I am an independent researcher and writer. My question is for whoever can answer it and it has to do with cluster munitions. When cluster munitions are used is there a map of artillery fire that in any way helps you figure out how to clean up the cluster munitions/landmine mess left behind or is that a completely implausible proposition?

GOOSE: When modern armies use clusters, they have very precise records of where they have been used. This is a particular issue in regard to Israel and Lebanon right now. The United Nations and others who are trying to clean up the mess in South Lebanon have said that the greatest obstacle to rapid progress for them is the fact that Israel has not turned over the details of their use of cluster munitions. They need to know the locations and the types and the numbers that were used. Israel has not made that information available yet. 

When either the ground rocket systems or the artillery systems, or, to a slightly lesser extent, the air-dropped bombs are used, there are precise coordinates for where they are used and those are all recorded. We have been told by the artillery and rocket units that used cluster munitions in South Lebanon that they have both computer and hand-written records of the coordinates. They are there. They just have not yet been turned over. 

KIMBALL: If I might ask a question that occurred to me. This is for Ambassador Duncan. One of the key issues with the arms trade treaty that the United Kingdom has raised is the importance of monitoring and enforcement. I am wondering if you could elaborate a little bit more on what your government’s thoughts are about how that might, on the conceptual level, be pursued? And, while we are still in the process of collecting ideas from governments and NGOs, how might the treaty compliment the existing national and UN efforts to monitor and enforce export controls?

DUNCAN: Thanks, Daryl. It is actually a question that I can not answer because at this stage the way the United Kingdom is taking this forward is to set up the process and then debate it. It is not our intention to draw out a list of how these things would be done. What we are looking at is the parameters, the scope, what is going to be in the treaty, etc. We would like to see monitoring and enforcement as part of the treaty. The exact form of how that will work is something that we need to discuss. There are many models out there in the existing voluntary export control regimes. There is the U.N. arms register. There are all sorts of different models. It would be an adaptation, I imagine, of one of those.

I should, perhaps, point out, since we are covering both cluster munitions and arms trade treaty, that the arms trade treaty is, as it says, about trade. I would probably defer a little from Steve in saying that there is no international treaty on cluster munitions. In our view, there is. It is the one that is rather bizarrely known as the Convention on Certain Conventional Weapons, the CCW. That is about use. It is aimed at controlling the use of certain weapons, whereas the arms trade treaty is dealing with the trade in certain weapons. There are two distinct parts of how we deal with the issue of weapons in modern society.

KIMBALL: Yes?

QUESTION: I am Miles Pomper from Arms Control Today. I have one question for Steve Goose and one for Ambassador Duncan. I’m just playing devil’s advocate, here, for a minute. Could you explain, why do militaries use cluster munitions? What is the military utility of these weapons? I assume that one of the issues when you look at Lebanon was that the problem was that the enemy intermingled with the civilian population. Is that the fault of the weapons, or the fault of the enemy, in that sense? For Ambassador Duncan, one of the issues you talked about is implementing existing commitments on arms. How much of this is a problem of governments simply not having the capacity to implement any of these regulations, especially, in developing countries? What would the arms trade treaty do about that?

GOOSE: Militaries talk about clusters as being forced multipliers. Unfortunately, one of the things that makes cluster munitions most appealing to the military, the wide-area effect, is what creates the humanitarian problem, particularly if you are using them in or near populated areas. The military talks about clusters being particular useful against widely dispersed targets or against an enemy who might be on the move. You have a better chance of hitting the enemy and his equipment, if you have this wide-area effect. 

In truth, cluster munitions were designed primarily as a Cold War weapon. The most typical versions now were designed to attack Soviet tanks on the move across the plains of Europe. That’s not a target now. In most of the conflicts where we are seeing clusters being used, they are indeed inappropriate to that kind of use, in large part, because of the populated areas that are involved. You still have a responsibility, under international humanitarian law, to minimize the dangers to civilians, even if your enemy is violating law by co-mingling amongst the civilian population. There couldn’t possibly be a worse weapon choice for attacking an area where your enemy is co-mingling with civilians than cluster munitions. You still have your obligations to take all feasible precautions to avoid civilian casualties and to make the right weapons choices to minimize civilian casualties within your effort to achieve your military objective.

DUNCAN: I might actually answer both questions from a different perspective.

The answer on implementation and capacity building: yes, this is a problem. It is being dealt with currently with a focus on small arms and light weapons under what is known as the UN Program of Action. But capacity building is an issue. What is striking in the arms trade treaty is the desire of the emerging suppliers to engage. There is a willingness to learn and be part of a responsible exercise. I don’t see this as a problem. I see it as an opportunity and a way of building on what exists already, and providing more focus.

On the force protection side of it; the military use of cluster munitions question. As you may have seen, I was for a time NATO Supreme Allied Commander General Wesley Clark’s political advisor during the Kosovo war. So I have had to see this at first hand. The real issue, building on what Steve has said, is that it’s force protection. Cluster munitions are not an offensive weapon in many cases, they are a defensive weapon. 

Many of us may have friends and family in the current areas of conflict, such as Afghanistan and Iraq. If you are a soldier facing an enemy hoard coming over the hill, you’re going to want something that stops that in its tracks and cluster munitions are one of the most effective ways of doing it. But, as Steve says, there are problems with the less effective cluster munitions—those which do not, in the U.K. government’s view, have guidance or self-destruct mechanisms—causing havoc, because they end up being a problem for post-conflict resolution. That problem lies equally with the military, who have to clear the things up, and NGOs. There is a very clear military need for these things. What would you use as an alternative? Is that alternative going to be any better than the existing one? I think that where we join forces is that there is a view, pretty widespread, in the international community, and I think it includes both the users and producers of cluster munitions, that the old-style cluster munition is very problematic. Its failure rate is far too high and something needs to be done about it.

KIMBALL: As Steve said, I think that last problem that you mentioned, Ambassador, is one of the reasons why this Feinstein and Leahy legislation is important because it would help address, at least, the U.S. stockpile of munitions that have this higher failure rate. Also as Steve said, this is not just a current problem with current use, but there is enormous potential for harm in future years, as those huge stockpiles are possibly traded, sold, and may be resold, to various areas around the world, to governments, and nonstate actors that are not as responsible and careful as they need to be. 
           
QUESTION: Hi. I was previously a sustainability consultant in South Africa, but now a student at American University. My question is for Ambassador Duncan. I think that I heard you say that the arms trade treaty would be seen as sort of CSR initiative, am I correct? How do you see this being done? Can you clarify, please?

DUNCAN: Sure, very briefly. What is CSR? We can see it as an attempt by society to impose a more responsible trade on, for example, the lumber industry, and the coffee industry, and those are ones that we will see very much in our shops as we go out on the weekend. Why have companies bought into that? Well, it’s not simply because they want to be responsible and moral. It’s actually because one of the biggest sources of investment finance are unit trusts, which have decided that they are not going to invest or provide financing for companies that do not act responsibly in those areas. There’s a whole side of CSR which is driven by economics. The arms trade, traditionally, has not been affected by that problem of raising finance, but it is becoming affected by that. Therefore, we can actually capture that economic commercial dynamic, in terms of the arms trade treaty, if a company is seen as being an arms trade treaty supporter and a responsible exporter. That’s not just applying to our own economies. I’m really talking about the emerging countries. For example, you’re in South Africa, and I think the companies in South Africa want to be seen as responsible companies. The arms trade treaty will try to get industry as a partner. The arms trade is not going to go away. Indeed, it’s a legitimate thing to have arms to defend your country. It’s the first task of any government to defend your country. We want that trade to be responsible, and there is an aspect of that process, which is about getting the buy-in from the trade itself. That has been very striking in the emerging supply countries. There’s a real willingness to be seen as responsible so that’s what I meant by the CSR process. It’s capturing that economic commercial dynamic.

KIMBALL: Yes, please.
           
QUESTION: Thank you. I am from the embassy of Pakistan. I am basically interested in learning about the scope and process of negotiations on the Norwegian initiative on cluster munitions. It appears that there is, so far, no international consensus to bring this process into the United Nations. How are you, Norway, that is, going to integrate countries that are outside this process? Is there any stage when you are envisioning bringing it back to the United Nations so that the process has more international support? Thank you.

NAESS: Thank you very much. Well, we have tried for the last five years to discuss this issue within the CCW. The problem is that every time we raise the issue or there is a proposal to adopt a negotiating mandate, there are some countries objecting to it. Consequently, there are no real discussions in the CCW, as I see it. Actually, this is a general problem with the UN disarmament machinery. There is not much that happens. I don’t want to expand on that. But that is a reason why we are now taking this initiative to at least have a process that could discuss the issue, to start discussing definitions, to start discussing the scope of a treaty, and so on. We will be more than happy to have as many countries as possible join us on this. We have no problem if a future agreement has more states-parties than the CCW, which has only 102.

By taking this initiative, we are also trying to engage states that are not parties to the CCW. There are many affected countries that are not party to the CCW. I also stated that this is not a competition or an effort to replace the CCW discussions. But we are a little impatient that something has to happen. There is an urgent need to do something. That’s the reason why we have taken this initiative.

GOOSE: The ambassador had a very good answer to that, but I would just point out that this is really being taken outside of the CCW more than it’s being taken outside of the United Nations. Like the landmine process, I think this process is going to have strong support from the UN agencies. It had strong support from the previous Secretary General. Hopefully, it will have strong support from the current Secretary General, and certainly from the various agencies that are involved. I would suspect that, like the land mine treaty, it will end up being back in the United Nations. The Secretary General is the depository of the Mine Ban Treaty, and it would be surprising if that were not to be the case with this as well. You do have the big advantage of being able to draw in the non-CCW states into this kind of process, which, given the low level of participation in the CCW in the developing world, is an appealing aspect of a free-standing process. But it’s not meant in any way to be anti-UN; we just won’t necessarily have the benefit of some of the UN support that can be helpful in trying to move the negotiating process forward.

KIMBALL: Yes, sir. Go ahead.
           
QUESTION: Hello. I’m an intern at the Center for International Trade and Security. This question is for anyone who can answer it. The NGO where I’m interning promotes proper export controls in countries. I note that the Wassenaar arrangement is an export control regime that regulates dual-use items and conventional weapons. Are there any dual-use items that could be used in the production of cluster weapons, and does the Wassenaar Arrangement, or any other international regime, control the trade of these items? Is my question clear?

GOOSE: I’m not sure. If by dual-use, you mean both military and civilian applications, yes, there are dual-use components to cluster munitions; the same way there are for landmines and other types of weapons. But since there are no specific regulations to cluster munitions, I would say no, they’re not covered by any existing law. It would be one of the things that would need to be captured in a new treaty. You would want to make sure that your prohibition on the production and transfer is broad enough that it would capture production or trade of dual-use items that are specifically intended for use in cluster munitions. I think that would be for the future, not for existing arrangements.

NAESS: Very briefly, I don’t think that the Wassenaar Arrangement is sufficient to regulate this problem with the cluster munitions. Of course, it has a [control] list. I am not fully aware of the content of that list, but it does not solve the problem. 

DUNCAN: Just so we have a balanced view for our audience, I don’t think Steve would dispute the fact that there is a difference of view on the necessity for a new cluster munitions treaty. There are a number of states that consider that existing international law is sufficient to cover the use of cluster munitions. It’s not the fact that there isn’t sufficient law; it’s how it’s being implemented that’s causing the problem, in the view of many states, particularly the users and producers of cluster munitions. That does raise a question as to whether it is useful to have a treaty which does not include all the users and producers of cluster munitions since the purpose of international law, for those who are students around the room, is quite fundamentally different to domestic law. International law is a reflection of an international consensus. A consensus that does not include the users and producers has arguably less utility.

NAESS: Just another point on the Wassenaar Arrangement. I just want to mention that this is a limited group of countries (40) in the arrangement so it is not a universal arrangement.

KIMBALL: Ambassador Duncan, one thing I noticed is that the United Kingdom will be represented in Oslo and will participate in this discussion. I wanted to throw in one more question, Ambassador Duncan, on one of the issues that was debated at the United Nations when the resolution on the arms trade treaty was there. I wanted to give you a chance just to reiterate your government’s response to the criticism that came from some countries, including the United States, that this effort might produce simply more meetings, less action, and lead to a lowest common denominator set of criteria and standards. It’s an argument that I find uncompelling, to put it mildly. I was wondering if you could describe a little further the United Kingdom’s views on why those arguments might not wash or what the response would be to those arguments.

DUNCAN: Sure. Clearly, I’m not here to defend the position of the U.S. administration. 

KIMBALL: No, I’m asking you to give your response to the arguments against the treaty articulated by the United States and others at the United Nations.
 
DUNCAN: Let me put it in a tactful manner. There are two ways of looking at the problem of export controls. They are not mutually exclusive, and who is to say which is the right way? One way is to have the best export controls in the world nationally and to insist that everybody else applies the same level. This is a perfectly legitimate way of looking at it. From the United Kingdom’s perspective, it is equally valid to say to everybody else—taking into consideration questions of capacity and other matters—what we want to do is raise up from a very low base that is currently existing, and bring it up to a standard, which is a high standard. It may not be the perfect standard, it may not be the gold-plated standard, but it would be worth doing because currently the situation is not as good as it should be. It’s a long way from being as good as it should be. Our view is that the gold-plated version is what we should all be aspiring too, but, nevertheless, it’s worth going down to the emerging suppliers. If you look at the Control Arms book, Arms Without Borders, that gives you some quite interesting information. Now, I wouldn’t agree with all that’s in there in terms of its recommendations, but its analysis of the global arms trade is certainly very valid, and worth looking at. Our view is industry wants this. The countries concerned want this. We should harness that interest and help everybody to raise those standards up to an acceptable level, perhaps not the gold-plated one, but certainly a lot better than we currently have.

KIMBALL: Thanks. I think we have got time for maybe one more question. Yes, sir?

QUESTION: Hi. I wanted to ask actually two questions. I’m with a local nonprofit company that works for the government. I had two questions. About the legislation that’s going to be released next week, I was wondering whether Human Rights Watch or Arms Control Association had any input into that legislation? The second question is on the treaty. Specifically, you mentioned embargoes, but are there any other aspects of the arms trade which anyone on the panel would envision as being prohibited or transfers that should not take place. I would like to hear a little more specific detail on that.

GOOSE: Sure. We have for many years been talking with congressional offices, including the offices of the two senators involved here, about the need for the U.S. Congress to get involved in this issue. We’ve consulted very extensively with those offices about this type of legislation and the need for it, and we’re very supportive of it.

If I also could just make a comment about the producers and users issues: yes, of course, you want the producers and users to be part of any international agreement. It’s equally not surprising that the big producers and users, like the United States and the United Kingdom, that have cluster munitions are going to be the ones who are going to be the slowest to come along. They may have the most at stake. But both of those countries have taken very positive steps on cluster munitions as well. There have been good developments in policy and in practice in both cases and we would hope that they would come along. The United Kingdom stayed outside of the landmine process until the very last minute, then came along, and has been a leader on helping to eradicate this weapon. Government policies and practices do evolve. At this very early stage, we already have a lot of producers and users on board. Of the 30 to 36 countries who have already said they would like to see a treaty, about two thirds of those are stockpilers of the weapons and about a dozen of them are producers. We’ve already got on board a lot of the important players who will have to make sacrifices in order to become part of a treaty that prohibits inaccurate and unreliable cluster munitions. We look forward to seeing other producers and users come on board as well.

KIMBALL: The Arms Control Association cannot, I’m sorry to say, take credit for providing input on this particular piece of legislation. It’s something that we have been tracking and supporting our NGO colleagues who have been working more on the Feinstein and Leahy legislation.

You asked a question about what are their criteria that might be employed in an arms trade treaty. There are various proposals that have been put forward. Ambassador Duncan outlined some of the criteria that the United Kingdom has annunciated in the last couple of years. There’s also a very important October 24, 2006 letter from a set of Nobel Peace Prize winners that outlined several key criteria, and a number of NGOs have come together to outline some basic criteria for how the arms trade should be better regulated. I would add that one of the criteria that is not among those, but that I think is worth consideration, is that the recipient country is complying with applicable arms treaties in all fields. We don’t want to be supplying certain kinds of weapons to countries if they are not complying with nuclear, biological, chemical, or other conventional arms norms and obligations. There are some other issues that need to come into play here, but at this stage there are several different ideas that are going to have to be worked through. There’s a lot of overlap between each of these lists of criteria.

DUNCAN: I would look at the resolution that just passed in October at the United Nations. If you look in the preamble paragraphs, it says that recognizing the absence of common international standards on the import and export of conventional weapons is a contributory factor to conflict, displacement of people, crime, terrorism, and, thereby, undermines peaceful reconciliation, safety, security, stability, and sustainable development. You have got there, if you work it the other way around, some of the criteria that we are looking at. Now, of course, all those criteria have to be discussed. Another paragraph just above it talks about human rights law and international humanitarian law. Those first three paragraphs on the top of the resolution give you the basic criteria which everybody agreed to in October as the ones which should be looked at.

The issue of sustainable development is one that, I know, in the United States causes some confusion. It’s not about the environment. It’s about the economy. If you have a look at this Arms Without Borders, you will see that there are some 36 states in the world who spend more on their military than on health and education. That’s the sort of the thing that we’re talking about in terms of sustainable development. If the balance in some country’s economy is purchasing very large amounts of weaponry, is that the right thing to support? Even people like the Chinese, who have often been accused of indiscriminate sales, are recognizing that it makes much better sense not to sell vast quantities of small arms and light weapons to third world countries because you need to stabilize your markets. That’s what the issue of sustainable development is about.

I would say the best way is to have a look at that resolution. You will see on the second page some of the factors, which will be discussed over the next two years, as to how we actually could articulate that in a treaty. What would it mean? That’s the discussion of our parameters and scope. I hope that helps.

KIMBALL: Thank you. With that, we are going to conclude. I want to ask you to join me in thanking Ambassador John Duncan, Ambassador Roald Naess, and Stephen Goose from Human Rights Watch, for their comments and thoughts. The Arms Control Association is going to be continuing to follow this set of issues. We wish Norway and the other countries in Oslo the best of success and we also wish the same to the United Kingdom and the other countries in the arms trade treaty initiative. Thanks, everyone. (Applause.)

Cluster Munition, Anti-Vehicle Mine Limits Sought

Wade Boese

Upset at the lack of progress at a November meeting on multilateral arms issues, some states took matters into their own hands. Norway announced plans to lead negotiations on banning cluster munitions, while Australia, Denmark, and the United States crafted a voluntary pledge under which governments would promise to limit their use of anti-vehicle mines.

These were announced near the end of the third review conference of the 1981 Convention on Certain Conventional Weapons (CCW) that took place in Geneva Nov. 7-17. The accord’s 100 states-parties must commit to at least two of its five protocols that seek to protect civilians and combatants against injury or death from indiscriminate or inhumane arms. The convention’s newest protocol entered into force Nov. 12 and commits adherents to clear their territories postconflict of unexploded ordnance, or explosive remnants of war (ERW). (See ACT, January/February 2004. )

Although fully committed to the new protocol, Norway wanted the review conference to pursue additional steps to prevent ERW altogether. Specifically, Oslo hoped states-parties would commit to outlawing cluster munitions, which are bombs, rockets, or shells that spread smaller submunitions or bomblets, sometimes up to several hundred, over a broad area.

Independent studies have found that these weapons have accounted for a significant portion of unexploded ordnance, as well as ERW casualties, in recent conflicts. The UN Mine Action Service reported Nov. 13 that cluster munitions have caused all 23 deaths and “most” of the 136 reported injuries from unexploded ordnance in Lebanon following fighting there last summer between Israel and the radical Shiite group Hezbollah. (See ACT, October 2006. )

Norway was not alone in singling out cluster munitions. In a Nov. 7 message to the conference, UN Secretary-General Kofi Annan urged countries to “freeze the use of cluster munitions against military assets located in or near populated areas.” Austria, the Holy See, Ireland, Mexico, New Zealand, and Sweden also advocated negotiations for a legally binding instrument that “addresses the humanitarian concerns posed by cluster munitions.”

But several larger powers indicated at the outset that such proposals were overly ambitious and undesirable. The Department of State issued a Nov. 3 statement declaring that countries should focus on fulfilling the new ERW protocol and “not on negotiating new rules on cluster munitions.” Similarly, Anatoly Antonov, head of the Russian CCW delegation, stated Nov. 7, “[W]e cannot accept the logic of restrictions or even bans on ammunition artificially and groundlessly declared as ‘most dangerous.’” Moscow and Washington have both employed cluster munitions in recent military conflicts.

The CCW operates by consensus, and opponents of cluster munitions negotiations were not swayed. But the conference agreed to a June 19-22, 2007, meeting of a group of governmental experts to discuss arms that cause ERW, including a “particular focus on cluster munitions.” The group would report on these talks to next year’s annual states-parties meeting in November.

This compromise did not satisfy Norway. Norwegian Foreign Minister Jonas Gahr Støre announced Nov. 17 that his government would organize a conference in hopes of moving toward an international cluster munitions ban. He argued the urgency of the problem demanded action and that the “time is ripe” because of “increasing calls” for a ban.

Some states already have cluster munitions restrictions. Belgium has outlawed them, Norway has instituted a use moratorium, and Germany has stopped procuring them.

The Norwegian initiative recalls Canada’s effort a decade ago to ban anti-personnel landmines (APLs) after the CCW and the Conference on Disarmament failed to do so. This initiative produced the 1997 Ottawa Convention that now numbers 151 states-parties and which has helped destroy some 38 million stockpiled APLs worldwide. (See ACT, November 2006. )

No date has been set for the Oslo meeting nor have any invitations been made. A Norwegian official told Arms Control Today Nov. 20 that this process should not be considered as competition to the CCW meeting but as a parallel process.

Ronald Bettauer, head of the U.S. delegation to the CCW conference, made clear Nov. 17 that Washington sees things differently. Describing the United States as “disappointed” with Oslo’s move, he said, “the effort to go outside this framework is not healthy for the CCW” and would “weaken the international humanitarian law effort.”

Bettauer contrasted Norway’s response on cluster munitions with how other states reacted to the failure of the conference to adopt a long-standing, 31-nation proposal to restrict the use of anti-vehicle mines. Rather than “go outside” the CCW and undermine it, Bettauer said frustrated governments would proceed on an anti-vehicle mines agreement when the states-parties were ready. But in the meantime, some governments would move forward and enact as national policies the restrictions that they had sought internationally.

Five years ago, the United States and Denmark proposed that the CCW adopt a protocol restricting anti-vehicle mines. The initiative gained 29 other co-sponsors, including Norway.

The latest version of the proposal calls for limiting the use of undetectable anti-vehicle mines or anti-vehicle mines lacking self-destruct or self-deactivation mechanisms to clearly marked perimeter areas. It would further restrict exports of undetectable anti-vehicle mines or those that cannot self-destruct or self-deactivate.

In the past few years, Belarus, China, Cuba, Pakistan, and Russia have blocked the proposed protocol. In November, they again opposed the measure.

Pakistan insisted that undetectable and long-lasting anti-vehicle mines are necessary for security, while China raised what it claims are the economic and technical challenges of making anti-vehicle mines detectable and outfitting them with self-destruct and self-deactivation mechanisms. Antonov further asserted a case had not been made that anti-vehicle mines pose a “serious humanitarian threat.”

The State Department Nov. 3 issued a statement detailing incidents of civilian deaths inflicted by anti-vehicle mines. In addition, protocol proponents argue that threats of anti-vehicle mines can dissuade or slow the delivery of aid, food, or medicine to areas needing help.

Confronting a persistent stalemate, CCW members did not extend negotiations for another year. The conference did agree to devote up to two days to discuss anti-vehicle mines at the 2007 states-parties meeting.

Washington, which voiced readiness to resume negotiations if positions changed, did not hide its unhappiness. “The United States was deeply disappointed that after five years of discussion, the conference was unable to achieve consensus on the adoption of an anti-vehicle mine protocol and had to suspend work on this important subject,” the State Department declared Nov. 17.

Still, Australia, Denmark, and the United States unveiled the same day a voluntary “Declaration on Anti-Vehicle Mines” incorporating the key elements of the anti-vehicle mine proposal. By the close of the conference, 22 additional countries, including Canada, France, and the United Kingdom, had pledged to adhere.

CCW members reached consensus on two issues at the conference. They agreed to establish a pool of experts for states-parties seeking compliance assistance and create a voluntary contribution fund that poorer states-parties or nonmembers could use to help pay for CCW-related activities or events.

Cluster Munitions Under New Scrutiny

Israeli military forces and Hezbollah militants ceased fighting in southern Lebanon Aug. 14, but unexploded Israeli ordnance there is still wounding and killing people...

Wade Boese

Israeli military forces and Hezbollah militants ceased fighting in southern Lebanon Aug. 14, but unexploded Israeli ordnance there is still wounding and killing people. The casualties have raised questions about Israel’s use of cluster munitions and underscored some long-standing concerns about whether these arms constitute legitimate weapons.

Primarily intended to counter troop and armor concentrations, cluster munitions are bombs, shells, or rockets that can scatter up to hundreds of smaller submunitions over a relatively broad area. As with all bombs, these smaller bomblets can fail to detonate as intended, remaining unexploded and potentially lethal.

Israel used cluster munitions during its month-long invasion of Lebanon to destroy and evict Hezbollah militants based there. Israel launched the offensive in response to the July 12 cross-border raid and capture of two Israeli soldiers by Hezbollah, a radical Shiite organization backed by Syria and Iran. The United States identifies Hezbollah as a terrorist group.

The fierce fighting, which also involved nearly 4,000 Hezbollah rocket attacks against Israel, resulted in at least 1,187 deaths in Lebanon, 43 Israeli civilian deaths, and 117 Israeli military deaths, according to a Sept. 12 report by UN Secretary-General Kofi Annan. The Israel Defense Forces (IDF) estimated a day before the ceasefire took effect that it had killed at least 530 people it identified as “terrorists.” Two days later, the IDF reported that it had conducted some 7,000 aerial strikes and 2,500 naval bombardments against targets in Lebanon.

As of Sept. 13, the UN Mine Action Service (UNMAS) reported that 482 separate cluster bomb sites had been found in Lebanon, including in residential areas. UNMAS estimated that it would take up to 15 months to clear southern Lebanon of residual cluster bomblets, some of which have been identified as being of U.S. origin.

The unexploded ordnance, also referred to as explosive remnants of war (ERW), is exacting a human toll. A Sept. 18 UNMAS report attributed 79 injuries and 14 deaths to ERW. Leftover cluster munitions inflicted all the casualties, except for five of the injuries.

On Aug. 30, UN Undersecretary-General for Humanitarian Affairs Jan Egeland blasted Israel’s use of cluster munitions, which he said “have affected large areas, lots of homes, lots of farmland, lots of commercial businesses and shops.” He condemned as “shocking” and “completely immoral” the fact that an estimated 90 percent of the cluster munitions attacks occurred in the last 72 hours of fighting. “Either a terribly wrong decision was made or…one bombed first and started thinking afterwards,” he said.

Department of State spokesperson Patricia Peterson told Arms Control Today Sept. 14 that the department was “seeking more information on Israel’s alleged improper use” of U.S.-supplied cluster munitions against non-military targets. She said the department takes such allegations “very seriously.” Between 1982 and 1988, Washington suspended cluster bomb exports to Israel because of its possible inappropriate use of such weapons in Lebanon.

The Israeli Ministry of Foreign Affairs repeatedly characterized Israeli military attacks as restrained and seeking to minimize civilian casualties. In an Aug. 15 statement, the ministry further accused Hezbollah of deliberately deploying and stockpiling its weapons in residential areas. “Had [Hezbollah] chosen to set up its arsenal away from populated areas, no civilians would have been hurt when Israel did what it obviously had to do,” the ministry stated.

Israel also argued that there is no prohibition against the use of cluster munitions. U.S. forces, for instance, employed cluster munitions during the Afghanistan and Iraq invasions.

Some U.S. lawmakers are not happy with current U.S. cluster munitions policy and would like to see stricter rules. In September, Senators Dianne Feinstein (D-Calif.) and Patrick Leahy (D-Vt.) proposed an amendment to the fiscal year 2007 defense appropriations bill to bar the acquisition, use, or transfer of cluster munitions unless it was ensured that they “will not be used in or near any concentrated population of civilians.”

Feinstein and Leahy argued that cluster munitions too frequently kill indiscriminately and cause casualties long after conflicts end. “This is particularly and sadly true of children because bomblets are no bigger than a D battery and in some cases resemble a tennis ball,” Feinstein asserted Sept. 5. Leahy noted the following day that because of the “massive numbers of cluster munitions” used by the United States in Iraq, “civilians paid the price and continue to pay the price.”

Senators Ted Stevens (R-Alaska) and Joseph Biden (D-Del.) argued against the measure Sept. 6. Calling the amendment “not acceptable,” Stevens said it “could severely hinder aviation and artillery capabilities and reduce the commander’s capability to wage war successfully.” The amendment was defeated 70-30.

Meanwhile, some governments are seeking to outlaw cluster munitions. Austria, the Holy See, Ireland, Mexico, New Zealand, and Sweden are seeking negotiations to ban cluster munitions as part of the 1981 Convention on Certain Conventional Weapons (CCW). This framework agreement has five protocols that regulate or ban indiscriminate or “excessively injurious” arms.

Several CCW states-parties are already instituting their own measures to limit cluster munitions. Belgium has banned them, Norway has enacted a moratorium on use, and Germany has stopped procurement of new cluster munitions with plans to explore phasing existing systems out by 2015.

Still, prospects for adding a CCW cluster munitions protocol appear slim as decisions by the agreement’s 100 states-parties are made by consensus. A U.S. government official told Arms Control Today Sept. 14 that “none of the major countries are willing to proceed” toward a legally binding cluster munitions instrument. The official said current humanitarian law and an existing ERW protocol are sufficient in Washington’s view.

The CCW adopted its ERW protocol in 2003, and more than 20 countries have ratified the measure, which is set to enter into force Nov. 12. President George W. Bush submitted the protocol in June to the Senate for its advice and consent to ratification, but lawmakers have yet to act. U.S. negotiators of the protocol previously told Arms Control Today that its obligations match existing U.S. practices. (See ACT, January/February 2004. )

The protocol establishes that the country occupying the territory where unexploded ordnance exists after a conflict ends is responsible for its cleanup. However, it calls on countries that leave behind unexploded or abandoned munitions to provide, “where feasible,” technical, financial, and material assistance to mark and clear the ERW. Israel is a CCW state-party, but it has not ratified the ERW protocol.

In his Sept. 12 report, Annan noted that although “IDF has provided some maps to [UN peacekeeping forces] regarding cluster strikes, they are not specific enough to be of use to operators on the ground.” The secretary-general stated that he “expected” Israel to provide more detailed information in the future.

The U.S. government is transferring up to $3.65 million in emergency funding to help mark and clear unexploded ordnance in Lebanon, according to a Sept. 26 update from the State Department’s office of weapons removal and abatement. Pending congressional approval, up to another $7 million might be shifted to this mission. Since 1998, Washington has provided $17 million for ERW and landmine clearance activities in Lebanon.

 

 

Draft on Unexploded Munitions Could Prove Controversial

A June 16-27 meeting of states-parties to the Convention on Certain Conventional Weapons (CCW) will discuss the draft text of an “instrument” intended to reduce dangers posed by unexploded munitions...

Wade Boese

A June 16-27 meeting of states-parties to the Convention on Certain Conventional Weapons (CCW) will discuss the draft text of an “instrument” intended to reduce dangers posed by unexploded munitions left over after battles end. Although the goal is widely shared, the United States is expected to clash with most of the CCW’s other 89 states-parties over whether the instrument should be legally binding.

CCW states-parties agreed last December to negotiate the instrument, and the Netherlands was put in charge of its drafting. The Dutch recently completed the initial version, and the United Nations circulated it May 20 to other governments for their review. Negotiators are aiming to finish the talks before this year ends.

The CCW bans or restricts the use of weapons that are deemed indiscriminate or “excessively injurious.” Its four existing protocols apply to incendiary weapons; blinding lasers; nondetectable-fragment weapons; and mines, booby traps, and other devices. The Dutch draft could become the treaty’s fifth protocol.

Comprising 11 articles, the draft text is aimed at establishing who is responsible after combat ceases for cleaning up and destroying bombs, artillery shells, and other munitions that fail to detonate, known as explosive remnants of war (ERW). It calls for combatants to take “all feasible precautions” to protect civilians from the dangers posed by such battlefield debris. Suggested steps include public warnings, risk education, and fencing off dangerous areas.

Washington has declared that it opposes provisions that suggest the instrument is establishing legal obligations. Speaking at the first round of talks on the instrument in March, Edward Cummings, the head of the U.S. delegation, said, “Phrases like ‘high contracting parties’ and the verb ‘shall’ are objectionable to us as they connote a legally binding instrument.” He also indicated that the United States disapproved of creating “rights.”

The draft text is replete with all of these potentially offending terms and concepts. The draft states that countries “shall” provide assistance, such as victim rehabilitation, to those requesting help. It further declares that countries with existing ERW have a “right to seek and receive assistance” and that there should be a right to the “fullest possible exchange of equipment, material and scientific and technological information” among countries signing up to the instrument. Yet, the draft does contain qualifiers throughout, such as stating that a provision applies to those “in a position to do so” or in a situation “where appropriate.”

The draft is largely devoted to post-conflict measures, but one article does urge countries to take steps to reduce the possibility that their weapons will not detonate as they are supposed to when used. Storing munitions in controlled environments, transporting them in secure ways, and extensive testing to identify unreliable stockpiles are some of the actions recommended in the document.

The upcoming meeting is taking place following the recent U.S.-led military action against Iraq and as reports circulate by media and nongovernmental organizations, such as the International Committee of the Red Cross, of civilian casualties caused by unexploded ordnance.

During the Iraq conflict, U.S. and British forces used cluster munitions, which distribute submunitions over a broad area. Some governments have been highly critical of cluster munitions use because the weapons are viewed as indiscriminate and have a relatively high dud rate.

Chairman of the Joint Chiefs of Staff General Richard Myers told reporters April 25 that coalition forces had “dropped nearly 1,500 cluster bombs” during the Iraq conflict and that 26 of them were used on targets within 1,500 feet of civilian neighborhoods. He said that there was only one known case of collateral damage. Myers’ comments do not appear to account for cluster munitions fired from artillery or rockets.

Whether the use of cluster munitions by U.S.-led forces and the problem of unexploded ordnance in Iraq may affect the forthcoming CCW negotiations is unclear.

 

 

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