Banning Evil: Cluster Munitions and the Successful Formation of a Global Prohibition Regime

By Denise Garcia
Cornell International Affairs Review
2012, Vol. 5 No. 2 | pg. 2/2 |

Third stage: activists campaign for change through campaign for international treaty making.

Moral reasons and a humanitarian legacy led Belgium to ban cluster munitions, since it was also the first country to pass legislation banning landmines, despite opposition from and resentment on the part of its NATO allies. The action was led by NGOs in Belgium, especially Handicap International (HI), despite strong resistance from arms manufacturers. Surprisingly, Belgium played no leadership role in the CCW or in the Oslo Process; it only joined the latter later on. What resulted from the Belgian ban, nonetheless, was an impetus for the Norwegians to enact legislation and eventually become the champions of the international process banning cluster bombs (Borrie 2009: 64–70).

Norway spearheaded the Oslo Process to achieve an international treaty in the wake of failed arms talks in Geneva at the end of the CCW meeting in 2006 after the conflict in Lebanon. The Norwegian government took an active stance by including its commitment to work for an international ban on cluster munitions in its election platform (Norwegian Ministry of Foreign Affairs 2007b). After failed attempts during CCW negotiations in 2006 in Geneva, the proactive Norwegian government declared its commitment to establishing an international ban on cluster munitions (Norwegian Ministry of Foreign Affairs 2007a).

After Norway, Austria, and Bosnia and Herzegovina announced moratoria banning the use of cluster munitions, additional countries joined their efforts. In the following months, some three dozen countries formally declared their support for a new treaty on cluster munitions. Parliamentary initiatives to regulate or prohibit cluster munitions in about a dozen countries, including the US and UK, two of the biggest users of cluster munitions, followed. The UK quickly imposed a partial ban. In Oslo in February 2007, the UK was one of 46 countries that committed to be part of a process aimed at concluding in 2008 an international treaty to prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians. Norway and Austria had already on humanitarian grounds declared a moratorium on the use of artillery cluster munitions with M85 submunitions in their arsenals. Belgium was the first country to ban cluster bombs, doing so at the beginning of 2006.

The partnership among the ICRC, states, the UN Development Program (UNDP) and civil society was invaluable, and the combination of the committed core group of states in coalition with these actors was essential in providing the leadership needed. In April 2007, the ICRC convened a meeting that helped catalyze perceptions vis-à-vis all aspects of the negotiations in both processes (Oslo and the CCW). With substantial legal and humanitarian discussion, the meeting exposed the inadequacy of technical fixes and solutions (i.e. reducing failure rates and therefore having less unexploded ordnance) proposed by some states who wanted to cling to their weapons and the CCW process (Borrie 2009: 170). The ICRC's endorsement the Oslo Process was instrumental in some states justifying their pro-ban position (Borrie 2009: 233).

The ICRC has engaged in extensive humanitarian diplomacy over the years, e.g. it has been instrumental in the development of prohibitions on various conventional weapons. Of particular notice were the important moves that paved the way for what became the global prohibition on landmines through the Ottawa treaty. Already in the 1950s, the ICRC had singled landmines as one of the conventional weapons of concern.

It reissued analyses throughout that decade reminding and informing states of the injurious effects of the use of landmines on civilians. With the recurrent use of mines in Indochina in the 1960s, the ICRC attempted to further the understanding of IHL applicable to landmines. In 1973, it published a report entitled Weapons that May Cause Unnecessary Suffering or Have Indiscriminate Effects. This report focused mostly on napalm, but also highlighted landmines. The ICRC hosted conferences on the same theme of the report in 1974 and 1976. Some of the questions discussed in these meetings became part of the CCW later on (Maslen 1998).

Reframing the issue in terms of a twofold avenue was vital. The first was reframing it from a disarmament to a humanitarian question. The second was framing the problem from the victims' standpoint; in other words, the use of such weapons came to be seen as indiscriminate. They were seen as area weapons that in relation to the changed nature of current conflicts can have very indiscriminate effects, both during and after attacks. Throughout the negotiations, the humanitarian aspect of the issue was discussed first without reference to the technical aspects (which were referred to in the CCW).

There was an insistence that negotiations were based on an effectsbased definition and approach throughout the negotiations. This meant leaving the technical aspects until the end of the process. For instance, deciding on weight came right at the end; e.g. paragraph 2(c) was negotiated as a compromise at the last minute in Dublin (Abelsen 2008). By focusing on very strong provisions on cooperation and assistance, as stressed by the Holy See in particular, a clash between the global South and North was avoided. This was done by avoiding talking about technology, otherwise the South would have been reluctant to join in the discussions.

Reframing the issue in terms of a twofold avenue was vital

CCM achieved a multilateral reframing that went beyond the "militaryutility centered discourse" (Borrie 2009: 337) that threatened to overlook and neglect the real humanitarian implications of the use of cluster bombs. The CCM could "mark a significant milestone in how we can identify ways to protect civilians in armed conflict more broadly" (Borrie 2009: 338).

The constitution of the pro-ban "core group" took place through coalition building among states at the highest level, involving Norway, Ireland, New Zealand, Peru, Mexico, Austria and the Holy See. An important element was that there was enormous political involvement: from the bottom up and from the top down, and in many forms. In Norway, a very high echelon of government officials was involved. In 2005, a new government had come to power that had adopted a policy of banning cluster munitions.

Even though Norway had stockpiles with less than 1% failure rate and cluster munitions made up 40% of its arsenal, there was decision to impose a moratorium through a consolidated, sustained national process within the country. Lebanon placed the issue higher on the international agenda, thus increasing the political momentum. Simultaneously, as said, in November 2006, the CCW negotiations were unable to agree and move forward. Sweden made a statement on behalf of the European Union (EU) in support of an agreement that was ultimately rejected. In this situation, Norway proposed an Oslo meeting in February 2007.

Under the CMC umbrella of approximately two hundred members are gathered significant national and worldwide organizations such as the Afghan Campaign to Ban Landmines, Amnesty International, HI, Human Rights Watch, the International Campaign to Ban Landmines, the Lebanon Landmine Resource Center, among others.

The CMC played a pivotal role in Dublin, where hundreds of campaigners lobbied the government delegates using several policy papers previously produced by the coalition (Little 2009). The success of the Oslo Process was greatly influenced by civil society actors' ability to organize with a coherent message and involved funders. Many activists believe that the signatories of the Convention will stigmatize cluster munitions so that powerful countries like the United States will not use them even though they have not signed the legally binding document (HRW 2008a). Attempts to move forward from the Oslo signing conference in December 2008 will continue to be heavily influenced by civil society campaigners and organizations like the CMC.

Fourth stage: International Treaty is created. Bastions of recalcitrance remain.

On 30 May 2008, 107 states adopted the ground-breaking Convention on Cluster Munitions at a diplomatic conference held in Dublin, Ireland. The formal signing ceremony took place in Oslo on 4 December of that year. The new international norm set by the CCM prohibits the use, development, production, acquisition, stockpiling, retention or transfer of cluster munitions. In addition, it contains provisions to clear contaminated land and help victims, and on strengthening international cooperation and assistance.

On 16 February 2010, Burkina Faso became the 30th state to deposit its instrument of ratification of the CCM. Thus, according to the convention's stipulations, it becomes legally binding on the 30 ratifying states on 1 August 2010 and subsequently for other ratifying states. The entry into force of the convention is considered a major landmark in the process of stigmatizing the weapon and establishing an international humanitarian law norm that will be observed even by non-high contracting parties, and its existence has already started modifying state behavior (Herby 2010).

In Oslo, significant progress was made when the convention was officially opened for signing. Ninety-four states signed the convention, while four states (Ireland, the Holy See, Sierra Leone and Norway) ratified it immediately. The main obligations for the signatories of the CCM are that they prohibit the production, stockpiling and transfer of all cluster munitions in all circumstances. Signatories also cannot assist those who engage in the activity prohibited by the Convention. Cluster munitions are defined in Article 2 as "a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions."

Notable signatories included the UK, which had made the pivotal decision to sign, despite its military's frequent use of cluster bombs (Baker 2008). However, the countries that stockpile or produce large amounts of cluster munitions, which include China, Russia, the US, Israel, Pakistan and Brazil, all remained in opposition; three of these are members of the UN Security Council (Burns 2008). The US believes that the proper process for addressing such weapons is through the CCW.

The US has consistently opposed the Oslo Process and the treaty to ban cluster munitions. Nonetheless, the country has made some progress in dealing with the issue. In February 2007, Senators Diane Feinstein and Patrick Leahy introduced the Cluster Munitions Civilian Protection Act in the US Senate, which "would ban the use, sale and transfer of cluster bombs with a dud rate of 1% or more," as well as ban the use of all cluster munitions in places "where civilians are known to be present or in areas normally inhabited by civilians." "The bill also provide[d] for a presidential waiver of the law's requirements if it the use of cluster munitions was considered vital to protect the security of the United States" (Peratis 2007). US opposition is likely due to pressure from US companies that design and manufacture cluster munitions.

The US has stated that, over the past years, it has allocated almost one billion dollars to clear explosive remnants of war in Asia, Europe and the Middle East (including over thirty million dollars to help clear Lebanon of unexploded ordinance after the Israeli attack in the summer of 2006). Ronald Bettauer, a US diplomat, stated that the decision to supply such aid was due to the importance of this issue, concerns raised by other countries, and the US's own concerns about the humanitarian implications of these weapons (The Economist 2007).

The US announced a new policy on cluster munitions during the CCW negotiations in Geneva in July 2008 (Department of Defense 2008). The new policy recognizes the necessity to minimize unintended harm to civilians. A year following the publication of the policy, the removal of all cluster munitions surplus stocks that exceed operational requirements will be initiated. Secondly, after 2018, the US will only transfer and deploy munitions containing less than 1% unexploded ordnance. Until then, the use of over 1% failure rate munitions must be approved by the combat commander.

This policy was unacceptable to Human Rights Watch and the CMC, who were present at the CCW meeting in Geneva. This is especially because the reliability test is simply not truly reliable. The military inadequacy of cluster munitions has been heavily documented since Lebanon, which was a real test of just how inaccurate these weapons are. Research carried out by the Norwegian Defence Research Institute documented that the failure rates were far higher than expected. It was also documented that self-destruction mechanisms do not work as intended (Kongstad 2007).

Fifth stage: at this stage, the activity perhaps only exists in some areas.

Moving towards signing a treaty such as the CCM will continue to be difficult for the powerful actors who have prominent roles in the use, stockpiling and production of cluster munitions. States such as Russia continue to refuse to sign the CCM, and this refusal continues to influence Russia's neighboring Eastern European states because of their fear of being the victims of future Russian attacks. This concern was enhanced by the Russia–Georgia mini war in August 2008, during which, according to Human Rights Watch, both Russia and Georgia used cluster munitions against each other in the conflict (HRW 2008b).

Finland originally supported the CCM, but then withdrew support due to their concern for self-defense from potential Russian aggression. This exemplifies the importance of powerful states that use, stockpile or produce cluster munitions helping to establish the norm by signing the treaty. Laos and Lebanon are examples of states that signed the convention who have been victims of cluster munitions (Abramson 2009). Such moves by victimized states could potentially influence other states to make a stand against anti-humanitarian violence.

According to commentators, "[t]he CCM marks a new chapter in disarmament and a milestone of international law" (Harrison 2008), and by its signing a new international legal standard has been achieved (Borrie 2009: 305). After the signing of the treaty, Germany, France and the UK decided unilaterally to renounce all kinds of cluster weapons. Japan acceded to the treaty as well, despite a great deal of reluctance, and was, together with Germany, one of the first 15 states to ratify the CCM.

The norm set by the CCM, i.e. the prohibition of the use, development, production, acquisition, stockpiling, retention, or transfer of cluster munitions; as well as provisions to clear contaminated land and help victims, and on strengthening international cooperation and assistance, is emerging robustly and cluster bombs have been stigmatized in a dramatically fast way. Quite clearly, the CCM created a global code of conduct that extends far beyond the increasing group of high contracting parties. It is highly unlikely that any country that aspires to occupy the moral high ground of politics will ever use these weapons again.

Further Explaining the Rise of the Prohibition Regime: IHL Applicable to Cluster Munitions.

The four Geneva Conventions that embody IHL are universally ratified and comprise the most adhered to multilateral regime in international law. It is the previous existence of this strong and consolidated regime, and established branch of international law, that has made possible and set in motion the enabling framework upon which the transnational moral entrepreneurs led by Norway could act to create the new regime embodied by the CCM. The role of the ICRC cannot be underestimated either. The powerful combination of the previously existing framework laid out by IHL and the awareness raising and educational campaigning by the ICRC were key constitutive ingredients for the CCM to rise as a prohibition regime.

IHL is constituted by three broad principles: the first is the requirement to distinguish between military personnel and civilians during hostilities. The second is the rule of proportionality, where a lawful attack may not have excessive consequences for civilians vis-à-vis the initial military objective (collateral damage). The third is the choice of weapon, with the idea being to choose weapons systems that will have the least impact on civilians. These general principles are part of customary international law generally accepted by all nations.

The deployment of cluster munitions may violate all these principles, as these weapons are prone to cause indiscriminate effects, of which Lebanon is the prime example. It is clear that the temporal and territorial limits of a conflict are uncertain in most conflicts waged today. However, "military necessity" is sometimes used to justify egregious acts and to conceal violations. IHL prohibits these transgressions and sets out conspicuous breaches.

The Additional Protocol to the Geneva Conventions of June 1977 articulates the core of the limits and prohibitions set by IHL vis-à-vis the choice of weapons in hostilities in Articles 35, 36, 51 and 57. The protocol's Article 35 asserts the basic rules covering the methods and means of warfare. It clearly declares that the choice of means of waging war is bound by considerations of humanity and the environment. Parties cannot freely choose the methods of carrying out conflict. As a result, there is a clear prohibition on the employment of weapons and methods of warfare that "cause superfluous injury or unnecessary suffering" (Article 35.2). Parties are also barred from utilizing means that will cause long-term and severe harm to the environment.

There are two applications of the precautionary principle in IHL. One is Article 36 of the Additional Protocol, which is the first application of the precautionary approach vis-à-vis the choice of the weapon. It pronounces that in developing new weapons, parties should ascertain whether their use would contravene IHL, or international law in general.

The other is Article 57, entitled Precautions in Attack, which articulates the need to distinguish civilian populations and objects from military personnel and objects. It mandates the choice of the target to privilege a purely military target instead of civilian object that may bring a military advantage in a battle. Beyond laying down the requirement of distinction, which is a fundamental tenet of IHL, the article also reiterates the constraint and limitation on the choice of means and methods of attack.

This has to be carried out in a precautionary fashion aimed at minimizing collateral damage to civilians and their property, and civilian objects in general. There is a clear mandate for suspending planned attacks that have the potential to result in harm to civilians. Article 57 institutes the idea of "proportionality", another core tenet of IHL. Force shall not exceed the concrete and discrete military goal. The article also reiterates the notion of precaution when it advises parties to provide sufficient warning prior to attacks in order to spare civilians.

The rule of distinction is further elaborated on in Article 51, in conjunction with further restraints on the choice of the weapon. This article deepens the legal tenets of distinction by defining "indiscriminate attacks" as well as by prohibiting violence and tactics that spread terror among civilians. This is where the core of the restraints on the choice of the weapon resides by tying them to the necessity of distinction: Article 51 urges parties not to use means and methods that cannot distinguish civilians and combatant populations, in addition by mandating that the choice of the weapon should distinguish between military and civilian objects.

IHL clearly establishes a powerful moral framework for the conduct of international relations during war. It is a potent set of prescriptions and proscriptions for how states must behave during hostilities. The CCM is primarily an IHL convention; in other words, the rise of the prohibition regime set by the CCM, as well, as its mandate, are grounded in IHL.

Conclusion: The Construction of a Moral Proscription Arising from the Prohibition Regime

I have argued that the rise and entrance into force of the CCM that prohibits the evils caused by cluster bombs constitutes a moral global prohibition regime. The norm set by the CCM, i.e. the prohibition of the use, development, production, acquisition, stockpiling, retention or transfer of cluster munitions developed due to a strong moral opprobrium, elicited by IHL, and ongoing stigmatization process associated with the use of these weapons.

What is extraordinary about the process of emergence of this new prohibition regime is its strong moral component enabled by the existence of a previously strong normative regime set by IHL as a moral code upon which states must operate vis-à-vis how they manage the choices of weapons to wage war, and the limits imposed by it on the evils they may cause to civilians.

This moral code of proscriptions spawned by International Humanitarian Law-based global prohibition regimes will extend far beyond the group of High Contracting Parties to these international treaties.


Endnotes

  1. The term cluster bombs will be used interchangeably with cluster munitions.
  2. Most importantly, Richard Price, “Reversing the Gun Sights: Transnational Civil Society Targets Landmines,” International Organization 52:3 (Summer 1998), pp.613-644, and Kenneth Rutherford The Evolving Arms Control Agenda: Implications of the Role of NGOs in Banning Antipersonnel Landmines, World Politics, (October 2000) pp. 74-114.
  3. As Price and Rutherford argue, the first form this new form of activism was tried out and succeeded was during the international campaign to ban landmines.
  4. Associated Press, Explosion in northeastern Lebanon kills Syrian worker, wounds 4, (International Herald Tribune: 18 Sept. 2007).
  5. The principle works that have detailed the history of these efforts are, most prominently: Eric Prokosch “The Technology of Killing: A Military and Political History of Antipersonnel Weapons” Zed Books Ltd, 1995 and John Borrie Unacceptable Harm: A History of How the Treaty to Ban Cluster Munitions Was Won United Nations Publications; 1st edition (October 30, 2009).
  6. Afghanistan, Albania, Bosnia and Herzegovina, Cambodia, Chad, Croatia, Eritrea, Ethiopia, Iraq, Israel, Kuwait, Laos, Lebanon, Montenegro, Pakistan, Chechnya, Saudi Arabia, Serbia and Kosovo, Sierra Leone, Sudan, Syria, Tajikistan and Vietnam.
  7. For a full account of individuals involved in the process, see Borrie (2009).
  8. For another analysis of the applications of IHL to cluster munitions, see Rappert (2008).
  9. Precaution includes three components: action to avoid harm regardless of improbability, shifting the burden of proof to supporters of a probably damaging activity thorough consideration of all alternatives, and transparent decision-making to include the affected. In a nutshell, the precautionary principle calls upon the advocates of actions that may lead to irrevocable damage to take preventative measures to avert harm. This is in spite of the lack of scientific certainty. Regretfully, this principle is still at a stage of what the law ought to be (lege ferenda) and not what the law and state practice are (lex lata); however, it is also in the process of becoming international customary law (despite persistent opposition) (CISDL 2002).

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