17 August 2009
CMC Memo to Experts of the Convention on Certain Conventional Weapons (CCW) meeting this week in Geneva
The Group of Governmental Experts of the Convention on Certain Conventional Weapons (CCW) is meeting informally this week in Geneva to discuss a possible new Protocol regulating the use of cluster munitions. Any instrument to emerge on cluster munitions within the CCW appears likely to contain less far reaching provisions than the Convention on Cluster Munitions, which is the new international treaty banning cluster munitions adopted in Dublin in May 2008 and signed in Oslo in December of that year. The draft new Protocol under negotiation falls far short on the issues of prohibitions on use, production, stockpiling and transfer as well as on the obligations on clearance, stockpile destruction and victim assistance.The Cluster Munition Coalition (CMC) has sent a note to these experts urging them not to agree on any text that could provide a mask of legitimacy for future use of cluster bombs. The note specifically calls on signatories of the cluster bomb ban treaty not to accept any text that would weaken the international norm that the treaty is swiftly establishing.Memorandum for CCW Delegates Memorandum for delegates considering the issue of cluster munitions at the Convention on Certain Conventional Weapons (CCW)Prepared by the Cluster Munition CoalitionAugust 2009From its establishment in November 2003 until the end of the CCW's Third Review Conference in November 2006, the Cluster Munition Coalition (CMC) called consistently for negotiations to begin in the CCW towards a legally binding instrument on cluster munitions. Following States Parties' failure to agree to launch such negotiations in 2006 CMC supported the negotiation of a legally binding instrument on cluster munitions through the ‘Oslo Process', resulting in the adoption of Convention on Cluster Munitions (CCM) on 30 May 2008.CMC has remained engaged with the CCW in 2007-2009, consistently urging states to strive for the highest possible standards of protection to civilians in their work on cluster munitions, whether in the CCW or in the ‘Oslo Process'. Any legally binding instrument to emerge on cluster munitions within the CCW appears likely to contain less far reaching provisions than the CCM on a range of issues from the prohibitions on use, production, stockpiling and transfer to the obligations on clearance, stockpile destruction and victim assistance.CMC also urges all States Parties to consider the wider implications of negotiating a new international legal instrument on cluster munitions within the CCW. Sixty-eight out of the 110 States Parties to the CCW have signed the CCM and, as such, must consider the implications on that instrument. In addition, CMC urges all delegates attending the informal consultations on cluster munitions called by the Chairperson of the Group of Governmental Experts on cluster munitions to provide an update on their governments' consideration of the 2008 CCM.Even if a new CCW protocol is concluded, the stigma attached to these weapons will continue to grow. By stepping back from the CCM's comprehensive prohibition of this weapon, such a protocol could, however, provide a mask of legitimacy for a limited group of countries that wish to continue using cluster munitions. In addition, subjecting victim assistance to States' discretion, as the draft Protocol does, is incompatible with the requirement - reaffirmed by the CCM and the Mine Ban Treaty's Nairobi Action Plan - that provisions to assist those victimized by cluster munitions are obligatory.The CCW's credibility may be damaged should States Parties adopt a Protocol that sets out inadequate rules, with confusing provisions, and that is incompatible with international humanitarian law accepted by around 100 countries, including most CCW States Parties.CMC will actively support states and organisations working to prevent the adoption of a CCW Protocol that contemplates future use of cluster munitions and considers victim assistance an optional endeavour. CMC believes that:• CCM supporters should not support or silently allow a lower standard in CCW. Doing so is inconsistent with their decision to ban cluster munitions. Signatories to the CCM have banned the weapon and pledged to eradicate it; they must not support an agreement allowing others to use it otherwise, they are acting against the spirit of the CCM.• CCM supporters should not support or silently allow a lower standard of victim assistance for the sake of consensus. There should be no consensus on the issue of victim assistance unless the standard set in the CCM is fully upheld.• Any political capital gained through signature of the CCM will be diminished by a decision to help states outside the CCM get agreement to continue using the weapon.• More work would be required to reach an approach in CCW that is compatible with the CCM. After the issue has been discussed at CCW in one form or another for eight years, there should be no rush to agree an instrument with confusing and poorly drafted provisions. Rather than force agreement on a text that does not bring added value, states should decide whether to continue work in 2010 or stop work on this question altogether.With regard to the specific provisions of the Chairman's text, CMC largely endorses the concerns raised by the ICRC in its comments prepared in advance of the April session of the GGE. Further details on CMC's analysis of the CCW at this time are included below.CMC recognises the importance of promoting action on cluster munitions amongst major stockpilers and past and potential future users of cluster munitions. However we believe a new CCW protocol that allows future use, production and transfer is not the most effective way to engage these states.• The optional nature of the protocol appears to give a state such as the US the chance to export its own policy based on 99% reliability rates, while allowing other major stockpilers outside the CCM to take no new measures on their current stockpile. This will actually undermine the potential for pressure on these states to take meaningful national steps. International regulation based on percentage failure rates in tests is widely accepted as an inadequate basis for civilian protection in reality.• Some argue the CCM is an insufficient solution since its adherents possess "only 10% of the world's cluster munitions" (a figure for which there is no evidence). Of the 62 CCW States Parties that have stockpiled cluster munitions the majority (32) have signed the CCM. The CCM binds half the world's stockpilers never to use the weapon again, greatly reducing the possibility of their use. The draft CCW protocol on the other hand would allow the vast majority of cluster munitions stockpiled by states outside the CCM to remain in use indefinitely.• By establishing a clear norm banning cluster munitions the CCM offers a simple ultimate goal which other countries can work towards. Elements of positive policy and practice from states outside the CCM can be welcomed as interim steps towards the goal of the CCM prohibition: Singapore's export moratorium and the US export ban are examples.• Protocol V provides a framework for countries to undertake national steps on cluster munitions as part of Article 9 on generic preventive measures aimed at minimizing explosive remnants of war. This way of using the CCW to promote engagement on cluster munitions, is preferable in humanitarian terms than a protocol explicitly legitimising their use, production and transfer.CMC would welcome added value in the CCW, but a Protocol based on the current draft would not place robust new requirements on major stockpilers beyond the status quo nor would it provide meaningful humanitarian benefit beyond existing rules.• The current draft allows countries to choose which actions they wish to take on cluster munitions. Thus it is only as strong as the weakest option which permits use of cluster munitions as long as they have "any other device or mechanism" to address the risk of unexploded ordnance. This could mean any cluster munition is permitted as long as the stockpiling country considers that its design addresses the risk of unexploded ordnance.• The optional structure of the Protocol's article on prohibitions or restrictions makes it confusing, unworkable and difficult if not impossible to monitor and verify. It is unclear whether states would be required to declare which option is in force for them, at which time and in relation to which specific weapons. Only a clear standard, applicable to all states and all cluster munitions at all times can provide reliable protection to civilians.• It may be possible to have a complementary agreement in CCW, possibly including a prohibition on transfers on the basis of the CCM definition of a cluster munition, but more work is needed to achieve this and states should not rush to agree for agreement's sake.CMC believes a new Protocol based on the current draft would create conflicting global understanding over which weapons with submunitions are in fact cluster munitions.• States possessing weapons with submunitions that are not considered cluster munitions under the CCM would effectively be in the legal situation of having weapons that are cluster munitions and are not cluster munitions at the same time.• This is legally untenable and would have potentially very negative political consequences for states that possess or may acquire weapons with submunitions that, based on their effects, are not considered cluster munitions under the CCM. Negotiating a new deal meaning that they do have cluster munitions risks losing the political capital gained by prohibiting them.CMC believes that by not including a legal obligation to provide victim assistance, the new Protocol based on the current draft risks justifying states' failure to adhere to the emerging global standard on such assistance. • Although there are similarities between the victim assistance provisions in the CCM and the current draft, the current draft includes qualifiers, caveats and non-legally binding language that reduce to "second-class status" the obligation to provide victim assistance. What for CCM States Parties will be a legal and concrete obligation to provide victim assistance, for CCW States Parties would be a voluntary endeavour - contrary to the broader view within the international community, in particular states on board the CCM and the Mine Ban Treaty - that victim assistance is not optional, but must be a legal obligation carrying with it mandatory implementation measures.• A Protocol based on the current draft deviates significantly from the legal obligations in the CCM and would be a step back from a decade of work to develop an appropriate framework for victim assistance. The standard, articulated in the CCM and the Mine Ban Treaty's Nairobi Action Plan, has been embraced by over 150 states that championed their commitment to the victims. Deviation from that standard is unacceptable.