Regulating Global Arms Sales and Cluster Munitions

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.)