Separate Treaty on Cluster Munitions Urged
November 11, 2006
We have reached a tipping point on cluster munitions. It’s no longer a small group of isolated states calling for a new treaty. Many countries – realizing that negotiations not only should happen, but will happen – want to be on board from the start.
Steve Goose, director of Human Rights Watch's Arms Division

(Geneva, November 10, 2006) – A law that will enter into force on November 12 mandating that states clear their territory of explosive remnants of war will help reduce civilian casualties following conflict, but states should go further and agree to a treaty on cluster munitions, Human Rights Watch said today.

States parties to the 1980 Convention on Conventional Weapons (CCW) agreed to Protocol V on explosive remnants of war on November 28, 2003, but the protocol needed to be ratified by 20 countries – which it achieved earlier this year – before it could became binding international law.

In addition to making a state responsible for clearing all explosive remnants of war in territory under its control, the protocol calls on states to provide warnings, risk education and other measures to protect the civilian population. Moreover, a state that uses weapons that leave behind explosive remnants must provide assistance for clearance even if the territory is not under its control, the protocol says.

“The protocol should reinforce the urgent need to clean up the deadly leftovers of war,” said Steve Goose, director of Human Rights Watch’s Arms Division. “But, because the text is so weak, the success of the protocol will depend on aggressive and thorough implementation by governments.”

At the time the protocol was adopted in November 2003, Human Rights Watch criticized both the weak language and the negotiators for failing to directly address the dangers of cluster munitions.

Cluster Munitions

States parties now gathered in Geneva for the Third Review Conference of the CCW (from November 7-17) are debating the possibility of regulating cluster munitions. At a CCW meeting in September 2006, six of them (Austria, Holy See, Ireland, Mexico, New Zealand and Sweden) asked that states give consideration to a “legally binding instrument that addresses the humanitarian concerns posed by cluster munitions.”

In the first three days of the review conference, 12 additional states endorsed the proposal (Argentina, Costa Rica, Czech Republic, Denmark, Germany, Hungary, Liechtenstein, Portugal, Slovakia, Slovenia, Spain and Switzerland), and many others are signaling their intention to do so.

“We have reached a tipping point on cluster munitions,” said Goose. “It’s no longer a small group of isolated states calling for a new treaty. Many countries – realizing that negotiations not only should happen, but will happen – want to be on board from the start.”

On the first day of the review conference, UN Secretary-General Kofi Annan issued a statement calling for a “freeze” on the use of cluster munitions in populated areas and the destruction of “inaccurate and unreliable” cluster munitions. The International Committee of the Red Cross (ICRC) called on states not only “to immediately end the use of inaccurate and unreliable cluster munitions,” but also to destroy their stocks of such weapons. The ICRC also indicated its intention to hold an expert meeting in early 2007 aimed at identifying the elements a treaty on cluster munitions would need.

Belgium became the first country to ban cluster munitions in February 2006. Norway announced a moratorium on the use of cluster munitions in June 2006, and in recent weeks has stated its willingness to take the lead in international negotiations to prohibit cluster munitions. Parliamentary initiatives to prohibit or restrict cluster munitions are under way in numerous countries.

Human Rights Watch has for many years identified what steps should be taken to minimize the harm cluster munitions cause to civilians. They include: prohibiting the use of cluster munitions in or near populated areas; prohibiting the use of cluster munitions with high dud rates; prohibiting transfers of unreliable and inaccurate submunitions; and, destroying stockpiles of unreliable and inaccurate submunitions. Even cluster munitions with low dud rates in tests have been shown to perform unreliably and inaccurately from a humanitarian perspective when used in actual conflict situations. It is up to states to demonstrate conclusively that any specific cluster munition is accurate and reliable enough to avoid excessive harm to civilians.

Protocol V and Explosive Remnants of War

Explosive remnants of war include all types of explosive ordnance (such as bombs, rockets, mortars, grenades and ammunition) that have been used in an armed conflict but failed to explode as intended, thereby posing ongoing dangers. Explosive remnants of war also include abandoned explosive ordnance that have been left behind or dumped by a party to an armed conflict.

Explosive remnants of war are currently found in more than 90 countries, resulting in thousands of civilian casualties every year. Explosive remnants not only pose lasting dangers to lives and limbs, they also constitute long-term impediments to economic development.

Protocol V is replete with qualifiers and ambiguities, to the extent that its key provisions could be considered voluntary. Instead of clear-cut obligations, states are to undertake actions “where feasible,” “as soon as feasible,” “where appropriate,” “to the maximum extent possible, “as far as practicable,” when “in a position to do so,” and so forth. Moreover, most provisions apply only to future wars and thus do not address the problem of existing explosive remnants of war.

To date, 26 states have ratified CCW Protocol V. They include: Albania, Bulgaria, Croatia, Czech Republic, Denmark, El Salvador, Finland, France, Germany, Holy See, India, Ireland, Liberia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Nicaragua, Norway, Sierra Leone, Slovakia, Sweden, Switzerland, Tajikistan, and Ukraine.

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