States must insist on urgent, effective action against cluster munitions
Next week in Geneva (14-25 November), States party to the Convention on Certain Conventional Weapons will consider adopting a new treaty on cluster munitions. Peter Herby, the head of the ICRC's Arms Unit, explains the ICRC's concerns about the humanitarian implications of the proposed treaty.
How could the ICRC not be in favour of rules that ban some cluster munitions?
It is important to stress that, for five years, the ICRC has called for a ban on all inaccurate and unreliable cluster munitions because they cause unacceptable harm to civilian populations. Since 2008, the Convention on Cluster Munitions has already prohibited the use, production, acquisition, stockpiling, retention and transfer of all such cluster munitions. A total of 111 States have now signed the 2008 Convention on Cluster Munitions, and 66 have become States Parties through ratification or accession.
In contrast, the draft protocol being proposed for adoption within the Convention on Certain Conventional Weapons, or CCW, would allow the use of all cluster munitions produced after 1980 for at least 12 years following the protocol’s entry into force. After that, it would permanently allow the use of any cluster munitions with one safety mechanism – although such devices don't necessarily make the weapon safe – and these would continue to threaten civilians.
How can the ICRC not welcome a treaty that would lead to the elimination of millions of cluster munitions by major stockpilers like the US, Russia, China and others?
The ICRC appreciates that several major stockpilers of cluster munitions have recognized the severe humanitarian impact of these weapons and are prepared to take some steps forward in this field. The ICRC has consistently supported work in the CCW in the belief that rules could be agreed for States not ready to accede to the Convention on Cluster Munitions and that these rules would constitute an urgent response that complements, rather than contradicts, the Convention on Cluster Munitions.
The ICRC fully recognizes that the use of some cluster munitions, namely those produced before 1980, would be prohibited under the draft protocol and that this should lead to the destruction of these types at some future time. Having called for years for the elimination of inaccurate and unreliable cluster munitions, we can only welcome such steps. We also appreciate that significant commitments in the fields of clearance and victim assistance have been included. However, these positive measures must be weighed against the human costs of the far greater quantities of cluster munitions the use of which would be permitted for 12 years or indefinitely.
You don't think the draft CCW protocol is an urgent response to the humanitarian problems posed by these weapons?
If you look at the draft protocol to be considered for adoption, you will notice that it would immediately prohibit only the use of cluster munitions produced before 1980. And, for up to 12 years following the protocol’s entry into force, it would permit the use of cluster munitions manufactured since 1980 with no safety mechanisms. From our point of view, this is not an urgent response to the humanitarian problem the ICRC called attention to already a decade ago.
The protocol would also permit the indefinite use, production, stockpiling and transfer of cluster munitions employing a single safety feature, even though clearance and other technical experts have warned that such features often do not function, and though cluster munitions of this kind have already been known to pose serious humanitarian problems.
The protocol's rules would also not apply to cluster munitions that have a claimed failure rate of one per cent or less, even though, in actual fact, these weapons have failed at a rate of nearly 10 per cent in past conflicts.
What would adoption of the protocol mean in terms of international humanitarian law?
It would mean, unfortunately, that international humanitarian law is in retreat. For the first time, States would have adopted a treaty of humanitarian law that provides less protection for civilians than that provided by a treaty already in force. This should be a matter of deep concern for anyone who supports the coherence, effectiveness and integrity of this field of law.
What has the ICRC communicated to States about the protocol?
Throughout this year, we have informed the States party to the CCW that, from our point of view, the adoption of the draft protocol on cluster munitions in its current form would perpetuate the humanitarian problem of cluster munitions, contradict the Convention on Cluster Munitions and set an unfortunate precedent of retreat for international humanitarian law.
Very recently, our president also sent a letter to the governments of States to encourage them to seriously consider our concerns when preparing their position for the Review Conference of the Convention on Certain Conventional Weapons that will begin in Geneva on 14 November. We are committed to ensuring a comprehensive and effective response to the cluster munition problem. If States are unable to take the comprehensive approach proposed by the Convention on Cluster Munitions, they should move in this direction step by step, rather than enshrining as a "solution" in a treaty of international humanitarian law a range of cluster munitions that will continue to inflict unacceptable harm on civilians.
Cluster munitions have contaminated vast areas for decades. Those used in the 1970s continue to cause unacceptable harm to civilians on a daily basis. Recognizing these facts means this has to end.