Senate Mulls CCW Edits; Cluster Munitions Debated

Jeff Abramson

As negotiators met in Geneva in April to discuss a proposed new protocol to the Convention on Certain Conventional Weapons (CCW) that would address the humanitarian impact of cluster munitions, the Senate Foreign Relations Committee finally began to consider several other additions to the convention that had long languished on Capitol Hill. Military and diplomatic officials expressed hope that Senate action on the long-stalled and apparently uncontroversial measures could provide additional leverage to the U.S. effort to shape the international debate on cluster munitions.

Senate Committee Looks at CCW

On April 15, the foreign relations panel heard testimony from officials of the Departments of Defense and State urging support for three additional CCW protocols and an amendment to the treaty. The 1980 CCW seeks to restrict or ban the use of "indiscriminate and excessively injurious weapons." The United States ratified the treaty in 1995 and its first two protocols, prohibiting the use of weapons that wound or kill using fragments that cannot be detected by x-rays and regulating the use of landmines and booby traps.

The three other protocols considered at the hearing, some of which were submitted by President Bill Clinton and others by President George W. Bush, regulate the use of incendiary weapons, ban the use of blinding laser weapons, and address the effects of explosive remnants of war (ERW). The amendment would expand the scope of the treaty to apply to intrastate conflict, not just interstate conflict.

Clinton submitted the CCW's third and fourth protocols to the Senate in 1997. Protocol III regulates incendiary weapons, those designed to set fire to or burn their target, and prohibits their use against civilians. Protocol IV bans the use and trade of lasers designed to cause permanent blindness. The Senate has not provided advice and consent to either protocol although it did so for a 1996 amendment to Protocol II, which was submitted by Clinton at the same time.

In June 2006, Bush submitted to the Senate two additional changes to the convention. The first, an amendment to CCW Article I, which was concluded in 2001, eliminates the distinction between international and noninternational armed conflicts for the purposes of the convention. The second, Protocol V concluded in 2003, deals with ERW, the unexploded and abandoned ordnance left behind after fighting ends. That protocol defines the responsibility of parties to mark and clear such ordnance as well as provide assistance to victims.

The CCW measures are already a part of U.S. military practice and are not expected to be controversial. Sen. Robert Casey Jr. (D-Pa.), the only senator in attendance, chaired the hearing and noted that the measures "carry broad support within the United States and bridge any partisan divide." Brigadier General Michelle Johnson, deputy director for the war on terrorism and global effects for the Joint Chiefs of Staff, testified that U.S. operations are already consistent with the treaty. State Deparment legal adviser John Bellinger added in his written testimony that "[t]hese treaties are widely supported and are not contentious in our view. This administration, including the State and Defense Departments, strongly supports these treaties."

It is unclear when the Senate panel or the full Senate will act on the measures. A Senate Foreign Relations Committee staffer told Arms Control Today in an April 23 e-mail that the committee "will submit questions for the record to the [e]xecutive branch and is working on the text of resolutions that would provide the Senate's advice and consent to U.S. ratification of the amendment and protocols. When that work is complete, the committee will schedule a markup." If the full Senate provides its consent, the president can complete the steps necessary for U.S. ratification.

All three protocols and the amendment to Article I have entered into force for those countries who have agreed to be bound by them. International acceptance is uneven, however, as 86 countries have accepted Protocol IV but only 38 are bound by Protocol V. A recent State Department white paper conservatively estimates that more than 5,000 casualties occurred worldwide in 2006 as a result of the landmines and ERW, weapons that would be covered in the existing and proposed CCW protocols.

International Efforts Continue in CCW, Oslo Processes

Administration officials contend that ratifying the treaty measures might give the United States greater leverage in the global debate on the use of cluster munitions, which are bombs, rockets, and artillery shells that disperse smaller submunitions over broad areas and sometimes fail to explode. Bellinger wrote that, "after ratification, the United States will be able to participate fully in meetings of states-parties aimed at implementation of these treaties and, thereby, more directly affect how the practice under these treaties develops." During the hearing, the panel explicitly pointed to the ongoing effort in the CCW to create a "Protocol VI" that would address the humanitarian impacts of cluster munitions. (See ACT, March 2008.)

During April 7-11, a group of experts convened in Geneva for the second time this year to discuss that topic. In an April 22 interview with Arms Control Today, Katherine Baker, a member of the U.S. delegation, said that "the tone has been very positive" and that there was "good movement forward." She particularly commended the efforts of delegations from Australia, Austria, and Japan in consolidating ideas on international cooperation and assistance, victim assistance, and international humanitarian law, respectively. In total, 97 states and 10 nongovernmental organizations took part in the meeting.

More detailed negotiations are expected to take place at the next CCW-related session July 7-25, the longest scheduled meeting of the year. Those and subsequent negotiations may result in a new protocol that could open for signature at the November 13-14 meeting of states-parties to the CCW.

At the same, a separate effort launched in Oslo last year continued with regional meetings on cluster munitions in Zambia March 31-April 1 and in Mexico April 16-17. As of May 2, 104 countries had endorsed the Oslo process's Wellington Declaration calling for a "prohibition on the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians." The declaration also affirms the objective of "concluding the negotiations of such an instrument" at a conference in Dublin scheduled for May 19-30.

The United States is not participating in the Oslo process in part because it worries that the final instrument may ban what it sees as legitimate uses for the weapons. At the Senate hearing, Charles Allen, Defense Department deputy general counsel, said that a U.S. review of future needs for cluster munitions should be completed within weeks.