Comments of the International Committee of the Red Cross on the Wellington draft of a future cluster munitions convention
This paper presents the main comments of the International Committee of the Red Cross on a number of important issues in the preamble and Articles 1, 2 and 5 of the draft cluster munitions convention.
See the Draft Cluster Munitions Convention on the New Zealand Ministry of Foreign Affairs & Trade website
The ICRC is proposing several modifications which would help clarify key concepts and obligations, make the text consistent with other instruments of international humanitarian law (IHL) and help facilitate the future convention's conclusion, entry into force and implementation. The ICRC's textual proposals are contained in the boxes below. These modifications are also presented in revision mode in Annex 1 to make it easier to see their relation with the Wellington draft's original language.
A presentation of the basis for these changes and additional comments on other articles will be made during the course of the meeting in Wellington.
Main comments on the draft preamble and Articles 1, 2 and 5
Preamble – The preamble provides a good introduction to the convention as it reflects the concerns, bases and motivations for the conclusion of new rules on cluster munitions. It also recognizes many of the important developments that have occurred in recent years in international humanitarian law and human rights law. The ICRC's main comments on the preamble focus on paragraphs 2, 3 and 15.
The ICRC believes that preambular paragrap h 2 should more clearly reflect that there are concerns about the effects of cluster munitions at the time of their use and that the suffering and casualties that we seek to address are those inflicted on civilians . This is not evident in the current text.
In addition, both paragraphs 2 and 3 refer to long-term consequences of cluster munitions. It would be simpler and make this section easier to follow if the long-term consequences were incorporated into a single paragraph. Furthermore, the references to undermining " international efforts to build peace and security " and the " implementation of human rights and fundamental freedoms " in paragraph 3 are broad statements and, therefore, it would be useful to specify more clearly how cluster munitions impact on these concepts.
Taking these comments into account, the ICRC proposes to modify paragraph 2 and replace the existing formulation of paragraph 3 as follows:
[pp3] Concerned that cluster munition remnants kill or maim civilians, especially children, obstruct economic development and reconstruction, delay or prevent the return of refugees and internally displaced persons, can undermine international peace building and humanitarian assistance efforts and have other severe consequences that can persist for many years after use,
Paragraph 15 is an important opportunity for States Parties to identify the existing legal basis of the convention. The two rules currently included in the draft text are fundamental rules of IHL and relevant for cluster munitions. There are, however, additional IHL rules which the ICRC feels should be included in this paragraph, in particular those found in Article 51(1) and Article 57 (1) of 1977 Additional Protocol I to the Geneva Conventions. These rules, which derive from the rule of distinction, make it clear that in the conduct of military operations constant care must be taken to spare the civilians and civilian objects and that civilians enjoy a general protection against the dangers arising from military operations. In the view of the ICRC, these rules are particularly relevant to the goals of this convention. The ICRC therefore proposes to amend paragraph 15 to read as follows:
Article 2 – Definitions
Despite the amendments which have been made since the Vienna meeting, the ICRC believes that several key concepts in Article 2 remain unclear. For example, we feel that it is not obvious whether the definition of " unexploded cluster munitions " encompasses submunitions which have been dispersed and separated from a parent munition. It might be read as describing only a cluster munition which had been delivered but failed to disperse its submunitions. This can, potentially, have implications on how a State interprets the scope of its obligations in subsequent articles. This point is also relevant for the definition of “cluster munition remnants” as it is not evident if this concept envelops individual submunitions which have been scattered and are unexploded.
The ICRC believes that the convention would benefit from a clearer structure and less ambiguous concepts. We think that it would be useful to include a definition of " unexploded explosive submunitions " and add this to the concept of cluster munition remnants. We also feel that the concept of " parent munition " should be removed from the definition of explosive submunition and replaced with " cluster munition " as the concept of a parent munition is not defined in the convention and may not be widely understood. Finally, in light of the above suggestions, we feel that it would be more accurate to label " unexploded cluster munitions " as " failed cluster munitions " as they do not necessarily " explode " (as compared to their submunitions which are designed to do so). The ICRC proposes that Article 2 be restructured and modified as follows:
For the purposes of this Convention:
"Cluster munition" means a munition that is designed to disperse or release explosive sub-munitions. It does not mean the following:
(a) a munition or sub-munition designed to dispense flares, smoke, pyrotechnics or chaff;
(b) a munition or sub-munition designed to produce electrical or electronic effects;
"Explosive sub-munitions" means munitions that in order to perform their task are dispersed or released from a cluster munition and are designed to function by detonating an explosive charge prior to, on or after impact;
"Failed cluster munitions" means cluster munitions that have been fired, dropped, launched, projected or otherwise delivered and which should have dispersed or released their explosive submunitions but failed to do so;
"Unexploded explosive submunitions" means explosive submunitions which have been released dispersed or otherwise separated from a cluster munition and have failed to explode as intended;
"Cluster munition remnants" means failed cluster munitions, abandoned cluster munitions and unexploded explosive submunitions;
[The definitions of cluster munition victims, abandoned cluster munitions and transfer would remain unchanged.]
A possible subparagraph (c) in the definition of cluster munition will be one of the most important parts of the new convention as it may remove certain munitions from the scope of its rules. It has been suggested by some States that this subparagraph could exclude from the convention submunitions which have sensor-fusing to improve accuracy, features to increase reliability or cluster munitions which contain a low number of submunitions (e.g. less than 10).
It is the view of the ICRC that, if any such exceptions are permitted, none of these features taken alone is likely to be adequate to prevent the humanitarian problem caused by cluster munitions. If any exception on the basis of numbers, reliability, accuracy or other technical features is permitted, they should be applied as cumulative features (i.e. all possible safeguards should be required to qualify for a possible exception). In addition, in light of the differences between the failure rates seen in testing and those documented in combat situations, States proposing such exceptions should demonstrate that these approaches will function in the reality of armed conflict and not only in the ideal circumstances of testing scenarios. It is also their responsibility to precisely describe such systems in treaty terms.
Article 5 – Victim assistance
As stated in Vienna, the ICRC supports the inclusion of an operative article on victim assistance in the convention. Obligations in this area would be an important advance in international humanitarian law as such requirements a re not included in the Convention on the Prohibition of AP Mines, amended Protocol II or the Protocol on Explosive Remnants of War where victim assistance is primarily treated as a matter for international cooperation and assistance but is not an operational obligation.
Article 5 has not significantly changed since the Vienna meeting and as a result the ICRC feels the need to reiterate its concern that the implementation of Article 5 may lead to disparate treatment among different types of war victims. In our view, the article needs to clearly highlight that the obligations in the area of victim assistance must not be implemented so as to discriminate against other victims. While some language on this issue has been included in the preamble, the ICRC feels that more operative language is needed so that the convention is clear on this point. The language proposed in the second line of text in the box below is comes from Article 10 (2) of 1977 Additional Protocol I to the Geneva Conventions.
In addition, the references to guidelines and good practices are vague and provide little guidance as to what standards are to be considered. We feel that a reference should be made to professional standards and best practices and that the obligation should be, at a minimum, " endeavour to implement " as opposed to the current language.
The ICRC proposes to amend paragraph 2 of Article 5 to read