Cluster Munitions Protocol Fails

Farrah Zughni

Unable to bridge their differences over a cluster munitions protocol, states-parties to the Convention on Certain Conventional Weapons (CCW) did not adopt the controversial provision and ended their Nov. 14-25 review conference badly divided over it.

At the Geneva conference, states that produce cluster bombs were willing to agree to some new restrictions on use of the weapons but argued that the bombs still serve important military purposes, while nonproducers cited humanitarian concerns in pushing for broader restrictions.

The opportunity to pass the proposal, which would affect the world’s largest producers of the weapons, is unlikely to re-emerge for years to come, according to sources involved in the debate. More than 50 of the CCW’s 114 parties voiced opposition to the proposal on the last day of the conference. The 1980 treaty, which limits the use of conventional weapons “deemed to be excessively injurious or have indiscriminate effects,” requires consensus on any additions to the treaty; a new protocol is binding only on countries that ratify it.

Cluster munitions are bombs, rockets, or artillery shells that disperse smaller submunitions over broad areas. Some of these submunitions fail to explode on impact and pose a risk to civilians decades after they are deployed.

A draft protocol, submitted by the chair of the review conference’s preparatory sessions, Jesus S. Domingo of the Philippines, served as the basis for negotiations. (See ACT, October 2011.) Several revised versions of the text were issued by Eric Danon of France, who led one of the conference’s main committees. The final text would have prohibited the use, development, production, acquisition, and retention of cluster bombs produced prior to Jan. 1, 1980, and set restrictions on cluster munitions manufactured on or after that date.

The draft received at least tacit support from most major cluster munitions producers, including China, India, Israel, Russia, and South Korea. The United States, a leading producer, strongly backed the measure and said it was “deeply disappointed” by the review conference’s outcome.

The cluster munitions protocol offered “the only chance of bringing the world’s major cluster munitions users and producers…into a legally binding set of prohibitions and regulations,” said Phillip Spector, the head of the U.S. delegation to the CCW, in a Nov 14. opening statement.

Spector said the protocol’s ban on cluster munitions made prior to 1980 alone would prohibit the use of more than 2 million such weapons in the U.S. stockpile. Russia and Ukraine also announced that the 1980 rule would prohibit the use of large amounts of their stocks.

According to a July 2008 Department of Defense press release following the most recent update of U.S. policy on the issue, the United States views cluster munitions as “legitimate weapons with clear military utility in combat…[that] provide distinct advantages against a range of targets…[and] reduce unintended harm to civilians during combat, by producing less collateral damage to civilians and civilian infrastructure” than weapons that do not contain submunitions.

Consensus over the protocol, even among producers, remained uncertain throughout the negotiation process. In a Nov. 15 statement, Pakistan, a producer of cluster bombs, objected to the 1980 cutoff, calling it an “arbitrary” deadline that was “discriminatory in nature.” India also expressed some reservations with the text.

The most significant opposition to the chair’s text came from a number of nonproducing countries that are signatories to the most comprehensive international treaty on cluster bombs―the 2008 Convention on Cluster Munitions (CCM). The International Committee of the Red Cross, the UN High Commission for Human Rights, and many international nongovernmental organizations (NGOs) also criticized the chair’s text at the review conference. The CCM prohibits a much wider array of cluster munitions than the CCW. Major producers of cluster munitions have not signed the CCM, but are party to the CCW.

Fundamental Differences

Negotiations over the protocol “failed ultimately because two fundamentally different concepts on how the [cluster munitions] issue should be addressed could not be reconciled,” Alexander Kmentt, director of arms control, disarmament, and nonproliferation at the Austrian Federal Ministry for European and International Affairs, said in a Nov. 25 e-mail to Arms Control Today. “One is the CCM focus on victims and the effects of [cluster munitions], and the other is a security policy and arms control focus that was the foundation of the draft by the chair.”

Although parties opposed to the chair’s text welcomed the provision requiring destruction of producers’ older stockpiles, they objected to language permitting newer models of cluster bombs, currently in use, which are prohibited by the CCM.

“This is a matter of lives, limbs, and principles,” Steffen Kongstad, the head of the Norwegian delegation, said Nov. 14. “We cannot support a new protocol on cluster munitions in the CCW that in fact perpetuate[s], rather than prevent[s], the civilian suffering caused by cluster munitions.”

“Humanitarian values basically overcame a process that was designed to achieve just the opposite,” Juan José Gómez Camacho, Mexico’s ambassador to the UN office in Geneva, said of the outcome during a phone interview shortly after the conference ended.

During a Nov. 16 press briefing, U.S. Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy William Lietzau argued that the CCM does not, in fact, ban all cluster munitions, citing as examples the German SMArt 155 and the French/Swedish BONUS. In a Nov. 21 interview, Stephen Greene, vice president of communications at Textron Systems, made a similar point. U.S.-based Textron produces the CBU-97 cluster bomb.

A few CCM states, including Australia and Germany, expressed willingness to work with the chair’s text even though its requirements fell short of the CCM.

Opponents of the chair’s text said they never consented to the draft as a basis for negotiation, let alone a final protocol, and maintained that their objections were ignored for years during the negotiating process.

The chair’s text appears to be “a non-negotiated and static text that through several meetings…has not been changed according to the many concerns and suggestions that have been presented,” said Kongstad. “This is not an acceptable way of negotiating.’”

After repeated attempts in preliminary sessions to have their concerns incorporated in the text, Austria, Mexico, and Norway submitted an alternative draft protocol on July 20. The alternative proposal lacks many of the legally binding aspects of the chair’s text and does not contain a definition of cluster munitions. Its proponents claim such ambiguity is necessary to accommodate otherwise irreconcilable views.

Some countries referred to this draft during the review conference, but the alternative protocol itself was not actively debated in the forum. Still, despite several revisions submitted by Danon and a last-minute amendment proposed by the U.S. delegation, opponents maintained that their objections continued to be ignored.

“Only a limited number of High Contracting Parties and observer States have had their views and concerns reflected in this text,” said the Costa Rican delegation in a Nov. 23 statement. “It can thus come as no surprise that the text does not enjoy agreement of all High Contracting Parties and does not command the consensus of this room.”

Pre-1980 Munitions

Many CCM parties found the text’s 1980 deadline objectionable on the grounds that it reflected no improvement in terms of the weapons’ indiscriminate effects.

During his speech to the forum, Kongstad said that findings from UN field organizations and international NGOs showed that 90 percent of cluster munitions victims were civilians, “regardless of the production year of the weapon.”

Responding to Spector’s assertion that the 1980 deadline would remove millions of munitions and that this action alone would have a humanitarian impact, a diplomatic source from a CCM state said in a Nov. 16 interview that “[t]he humanitarian argument only works if you have an actual intention of using these weapons,” which the source said was a doubtful prospect given their age.

In exchange for the offer, the draft protocol asked CCM states-parties for a “seal of approval for continued use” of cluster munitions, Kmentt said in the Nov. 25 e-mail.

Several meeting participants and observers noted that U.S. policy already is in compliance with or, in some cases, exceeds requirements in the chair’s text. The 2008 Defense Department policy prohibits the use of cluster munitions with a failure rate higher than 1 percent after 2018. Prior to the deadline, use of cluster bombs with a higher failure rate must be approved by a combat commander; a similar stipulation is made in the chair’s text.

Under an appropriations act signed by President Barack Obama on Dec. 15, 2009, the United States no longer provides military assistance, sales, or technology transfers involving cluster munitions unless the weapons have a failure rate of less than 1 percent and the recipient agrees not to deploy the weapons “where civilians are known to be present.”

In a Nov. 1 letter, Sens. Jon Kyl (R-Ariz.) and Richard Lugar (R-Ind.) urged Secretary of State Hillary Rodham Clinton to resist pressure to accept the alternative protocol. The senators said the CCM employed “arbitrary” and “unscientific” metrics in distinguishing permitted weapons from prohibited ones. Kyl and Lugar also defended the 1 percent-failure-rate standard, calling it “the most accurate measurement of humanitarian impact.”

Opponents of the chair’s text also took issue with its deferral clause, which allows countries to extend their use of post-1980 cluster munitions that do not meet safety requirements for an additional 12 years after ratification.

Cluster munitions producers, however, say that destruction of large quantities of munitions requires a great deal of money and time. The cost to producers of complying with the chair’s text would be “billions, not millions, of U.S. dollars,” Vladimir Yermakov, deputy head of the Russian delegation, said Nov. 14.

At the Nov. 16 press briefing, Lietzau defended the deferral clause as necessary to comply with the “very high standards” of the protocol. “[G]etting our munitions…and our operations to comply is something that you can’t just do with a switch,” he said.

In a Nov. 25 statement, the U.S. delegation said the country would “continue to implement its own voluntary policy” and encouraged other countries to take similar steps.