Taking International Humanitarian Law Seriously

(* published in full or shortened version in
Austrian, Danish, Japanese newspapers, among others)

Later this month, member states of the 2008 Cluster Munitions Convention have the chance to demonstrate how seriously they take the hard won international ban on cluster munitions.  During the upcoming Review Conference on the Convention on Certain Conventional Weapons (CCW), states might decide on a new legal instrument that could undermine existing international humanitarian law.

Cluster munitions are particularly insidious in their effects: They contain numerous, often hundreds, of submunitions which explode over a wide area making them highly problematic weapons as far as the obligation to distinguish between military targets and civilians is concerned. Moreover, many cluster munitions fail to explode as intended. As a consequence, unexploded devices contaminate large areas not only posing grave dangers for life and limb but also impeding all further productive use of the land. Several decades after the war in South East Asia, Laos still suffers from the use of cluster munitions. The unacceptable humanitarian consequences in South Lebanon following the large scale use of cluster munitions there in 2006 constitutes another grim example.

The adoption of the Convention on Cluster Munitions (CCM) in 2008 was a significant landmark in the development of international humanitarian law. More than 100 states agreed to a total ban on the use, production, transfer and stockpiling of cluster munitions. Just as the Mine Ban Treaty of 1997 with its prohibition of antipersonnel mines, the CCM process succeeded in putting humanitarian considerations above perceived military utility. With one important difference: Whereas by the 1990s deployment of landmines had reached epidemic proportions, the use of cluster munitions in comparison has been with a few, albeit very notable exceptions, limited. As such the CCM provided something rare in international humanitarian law, a prohibition of an indiscriminate weapon having a primarily preventive effect.

What is more, through its compelling humanitarian argument, the CCM created not only a legal norm but also an effective political stigma against cluster munitions. It thus seriously increased the political price that any users of cluster munitions would have to pay, irrespective of whether they were legally bound by the convention. These accomplishments are now challenged.

For the past four years, largely unnoticed, a negotiation process has been underway in Geneva and is expected to be concluded at the end of this month. Countries that still possess cluster munitions have in the context of the CCW, since the adoption of the CCM in 2008, worked on an alternative instrument on cluster munitions. As was to be expected, the level of ambition in this instrument is far lower than in the CCM. The proposal comprises a ban of very old cluster munitions and some limited restrictions on newer ones, coupled with long deferral periods. It is presented - by those states not yet in a position to support an outright ban - as an important step in the right direction, addressing the humanitarian concerns caused by cluster munitions. And, it is argued that the seventy CCM states that are also party to the CCW should naturally support such intermediate steps.

This is a flawed approach. The proposed restrictions would mean a legitimization of cluster munitions which are known to cause terrible humanitarian problems. Moreover, creating a second and weaker international norm on cluster munitions could have the effect of undermining both the stronger legal norm and the political stigma against cluster munitions. This would not only be a most unfortunate and unprecedented regression of international humanitarian law but would also constitute misuse of the CCW as an instrument aimed at enhancing the protection of civilians. From a humanitarian point of view it would also be unprecedented to adopt a protocol that the International Committee of the Red Cross, guardian of international humanitarian law, has stated may perpetuate, rather than prevent, the civilian suffering caused by cluster munitions.

The actual use of cluster munitions has dropped drastically in recent years. This is due to the general recognition of their unacceptable humanitarian and developmental impact, and limited military utility. On this basis it should be possible to continue dialogue and cooperation on addressing the specific consequences of cluster munitions and the improvement and progress of international humanitarian law among all parties concerned without establishing alternative standards.

Sincere intermediate steps by major military powers that bring added humanitarian value are to be welcomed. Any such steps could and should now be taken by these states nationally. Since 2008, the global benchmark is the Convention on Cluster Munitions. A new legal standard whose intended or unintended consequence would be to undermine this existing norm against cluster munitions is surely unprecedented in the history of international humanitarian law. Member states of the CCM are facing an important question: How may the commitment towards a total ban on cluster munitions be reconciled with allowing the continued use of these weapons? In our view, it can’t. It would be a serious step back for international humanitarian law.