November 15, 2011

There was widespread outrage earlier this year when forces loyal to Muammar Gaddafi fired cluster munition rockets into residential parts of the Libyan city of Misrata.

Misrata was an increasingly rare example of the use of these weapons, which are comprehensively banned by the 2008 Convention on Cluster Munitions. The convention has been signed or ratified by 111 nations, including most of the United States' closest allies--but not the US itself.

Regrettably, the move to eliminate cluster munitions is under attack, with the United States leading the way. The US is touting a much weaker alternative through the Convention on Conventional Weapons (CCW) - an alternative with much lower standards than US policy already requires.

At a conference in Geneva beginning November 14, diplomats will try to conclude negotiations on a new CCW protocol on cluster munitions. Though cloaked in humanitarian rhetoric, the draft is clearly an effort to provide political and legal cover for potential future use of the weapon. That is bad news because cluster munitions are indiscriminate when they are used, causing harm well beyond the target, and leaving unexploded submunitions to threaten civilians long afterward.

The draft law is replete with broad exceptions and loopholes, and governments can choose not to obey key provisions for up to 12 years. It will fail to offer greater protections to civilians. In fact it could lead to an increase in the use of cluster munitions, by providing a specific legal framework for their use.

It would allow for continued use, production, trade, and stockpiling of many millions of cluster munitions, containing hundreds of millions of submunitions. It includes no obligation to destroy stockpiles.

The key "humanitarian" provision cited by the US and others is a ban on use of cluster munitions produced before 1980. Yet, these 30-plus-year-old weapons either have already reached or are nearing the end of their shelf-life and would have to be destroyed anyway. Most cluster munitions used in the past decade--by Libya, Thailand, the US, Russia, Georgia, Israel, and the United Kingdom--were produced after 1980. Most important, as has been abundantly demonstrated, post-1980 cluster munitions also cause unacceptable harm to civilians. That is why the comprehensive ban convention came into being.

The CCW proposal would also establish a terrible precedent in international humanitarian law, adopting for the first time an instrument with weaker standards after one with stronger standards has already been embraced by most nations. The trend has been for the law to grow progressively stronger, with ever greater protections for civilians.

The US has the support of other key countries that haven't signed the Convention on Cluster Munitions -- Brazil, China, India, and Russia. Some others -- such as Israel, Pakistan, and South Korea --view the draft protocol as too strong, but may go along.

But there is far from consensus on the draft law. Two-thirds of the states parties to the CCW have already joined the Convention on Cluster Munitions and thus are bound by a much higher standard. Some of them may end up supporting the protocol on the theory that it is better to have some kind of international law for those outside the ban convention, but most appear to recognize that the protocol will overall cause more humanitarian harm than good.

Given the lack of consensus, the US and other CCW states should instead consider a politically binding declaration, as they did in 2004 when the negotiations on antivehicle mines spearheaded by the US failed. Or countries not ready to ban cluster munitions could adopt binding national policies and laws that incorporate the positive elements of CCW discussions and provide interim measures toward joining the Convention on Cluster Munitions.

The United States already has one of the most transparent and comprehensive policies of countries that haven't signed the Convention on Cluster Munitions. Under Defense Department policy established during the George W. Bush administration, by the end of 2018 the US will ban the use of all but a tiny fraction of its cluster munitions--those with a failure rate of less than 1 percent. The US has banned the export of cluster munitions since 2007, except those with a failure rate of less than 1 percent.

But if the US can ban the weapon in 2018, it can do it now. In light of the political stigma, it is going to be very difficult for the US to use cluster munitions again. Unlike in previous air campaigns in joint military actions in Kosovo, Afghanistan, and Iraq, the US did not use cluster munitions during the NATO air operation in Libya. This was due in no small part to the fact that 20 of the 28 NATO countries are parties to the Convention on Cluster Munitions and are legally bound not to use cluster munitions or help other countries use them.

One useful aspect of the CCW negotiations has been an increased recognition by the US and others that the inherent dangers cluster munitions pose to civilians far outweigh the military usefulness of the weapon. It's time for the US to put an end to the CCW folly and get on board the Convention on Custer Munitions.

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