Intervention by Norway on Article 1, general scope and obligations

We have heard statements today and on earlier occasions expressing that the general obligations as currently drafted in articles 1 c and 9 of the discussion text may create interoperability concerns. We want to achieve a ban on cluster munitions that cause unacceptable humanitarian harm. We see already today that the actual use of such weapons is decreasing as a result of political, humanitarian as well as military considerations. We therefore believe that traditional cluster munitions as we know them today  are not very likely to be used in future international operations. The actual interoperability issues are therefore both temporary and limited in scope.

Interoperability is a term used to describe issues that arise when troops from various states cooperate in for example peace support operations. Restraints on interoperability are seen as potentially complicating military cooperation. It points to the challenges that arise when states participating in the same military operation have different legal obligations. One could foresee that such difficulties would arise when some participating states are parties to a convention banning the use of cluster munitions, while others are not. Interoperability issues are not limited to different treaty obligations; some states have national legislation banning cluster munitions or national moratorium.

Not all states are party to all treaties. International law is a complex set of relationships between states on a number of different levels. This may represent a challenge in military operations where states have different treaty obligations. However, this is not an exceptional situation, and experience shows that the practical problems that arise are usually solved.

Take for instance the complex issue of accountability of international peace operations and recent developments in international law. International operations may be conducted under unified command and control of an international organisation, with the participation of both member and non-member states. Attribution of conduct under such operations potentially creates interoperability issues in the planning and setup of the operation. As a NATO member, we have experience in dealing with such considerations.

Today, we face the challenge that not all states are parties to Additional Protocols I and II to the Geneva Conventions. This affects interoperability in many ways, for instance with regard to status of combatants and the treatment of detainees. The Statutes of the International Criminal Court establishes jurisdiction over war crimes as defined in the additional Protocols. Not all contributing States are parties to the ICC statutes.

Although most states are parties to the Chemical Weapons Convention, different interpretations of terms such as Riot Control Agents and Method of warfare potentially creates interoperability issues in international operations.

The Mine Ban Convention is yet another example of a treaty which is not universally ratified. Interoperability issues with regard to the use of anti-personnel landmines in military operations were raised as a major problem during the negotiations of that treaty ten years ago. In practice, we have seen that this interoperability issue has been solved.

Different interpretations of international human rights obligations have also proved to represent practical problems with regard to, for example, the transfer and treatment of detainees.

All of these various sets of issues can create practical challenges in the planning and conduct of international operations. National constraints result in various caveats to for example Rules of Engagement for each operation. While this might be a problem in itself, it will not in any way be unique for cluster munitions.

It has been alleged that draft article 1 (c) regarding complicity in violations of the ban, together with article 9 on individual criminal liability, entails that service personnel in international operations may be subject to unwarranted criminal prosecution. Again, this is not different from any of the other examples of interoperability issues just mentioned. It is also important to underline that draft article 9 deals with sanctions under national law, and we are not here creating a new category of international crimes or universal jurisdiction, as suggested in the paper submitted by Australia and others.  In our own national legislation, these issues have been solved. We have penal provisions regulating issues such as command responsibility, effective control and individual culpability, in relation to international operations.

In conclusion, Mr. Co-Chair, we want to underline that although there are a number of issues relating to interoperability, most of these are in fact being solved in practice in ongoing military operations. The challenges resulting from the ban on cluster munitions, require in our view, a practical approach. We are committed to continuing discussions with colleagues and to find solutions to these challenges. Such discussions should be rather specific as to the problems we envisage.

And finally Mr Co-Chair, on transition periods: we see a challenge in explaining a situation where a weapon is considered to be so bad it has to be banned but at the same time be allowed to be used in a transition period.

Thank You, Mr Co-Chair