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Global Efforts to Address Cluster Munitions

International awareness of the need to deal with cluster munitions is growing rapidly, following years of advocacy by Human Rights Watch, the Cluster Munition Coalition (which Human Rights Watch co-chairs), other NGOs, the ICRC, and states. Most notable has been the launching in Oslo, Norway, in February 2007 of a process aimed at a new international treaty prohibiting cluster munitions that cause unacceptable harm to civilians. In Oslo, 46 countries agreed to conclude such a treaty by 2008 and laid out a roadmap of meetings to develop and negotiate the treaty. Now 94 countries have endorsed the process.

Israel’s use of cluster munitions in Lebanon has helped push the already growing movement forward. Norway’s foreign minister said in October 2006: “The case of Lebanon clearly demonstrates that there is a real need to strengthen humanitarian law in this area. In the Government’s view, the human suffering caused by the use of cluster munitions is unacceptable. This is why Norway will take the lead—together with other like-minded countries and international humanitarian actors—to put in place an international prohibition against cluster munitions.”³⁷⁰

The momentum against cluster munitions increased greatly during the Third Review Conference of the Convention on Conventional Weapons held in Geneva from November 7 to 17, 2006. 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.³⁷¹ The 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; the meeting was subsequently held in Montreux in April.³⁷²

By the end of the Review Conference, nearly 30 states had expressed support for a proposal to begin negotiations in the CCW on a “legally-binding instrument that addresses the humanitarian concerns posed by cluster munitions.”³⁷³ However, the proposal was rejected by a number of other states, including China, Russia, the United Kingdom, and the United States, in favor of a weak mandate to continue discussions on explosive remnants of war, with a focus on cluster munitions. The anti-cluster munition states issued a declaration on the final day of the Review Conference calling for an agreement that would prohibit the use of cluster munitions “within concentrations of civilians,” prohibit the use of cluster munitions that “pose serious humanitarian hazards because they are for example unreliable and/or inaccurate,” and require destruction of stockpiles of such cluster munitions.³⁷⁴ Norway then announced it would start an independent process outside the CCW to negotiate a treaty banning cluster munitions that cause unacceptable humanitarian harm.

On February 23, 2007, in Oslo, 46 countries agreed to conclude a treaty banning cluster munitions that cause unacceptable harm to civilians by 2008.³⁷⁵ It will “prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilian” and include provisions on clearance, victim assistance, risk education, and stockpile destruction.³⁷⁶ At follow-on meetings in Lima, Peru, from May 23 to 25, 2007, and Vienna, Austria, from December 5 to 7, an additional 48 states joined the process. States discussed a draft treaty text and reached broad agreement on the framework for and essential elements of the treaty. They are still debating about what the definition of cluster munition should encompass.³⁷⁷ Human Rights Watch and the Cluster Munition Coalition have stressed that the starting point should be that all cluster munitions cause unacceptable harm to civilians, and that the burden of proof must be on governments to demonstrate that any particular weapon should be exempted from the prohibition. Israel has not participated in this process, but Lebanon has been extremely active and supportive.

Meetings to develop further and negotiate the treaty have been set for Wellington, New Zealand (February 18-22, 2008), and Dublin, Ireland (May 19-30, 2008), with a signing ceremony planned for Oslo later in the year. “We have given ourselves a strict timeline to conclude our work by 2008. This is ambitious but necessary to respond to the urgency of this humanitarian problem,” said Norway’s Foreign Minister Jonas Ghar Støre.³⁷⁸

In the meantime, in November 2007, states parties to CCW rejected a European Union proposal to negotiate a new protocol banning cluster munitions that cause unacceptable harm to civilians, and instead only agreed to a weak, vague mandate to “negotiate a proposal to address urgently the humanitarian impact of cluster munitions, while striking a balance between military and humanitarian considerations.” The mandate does not specify that negotiations should lead to a new legally binding instrument or include any kind of prohibition. It also does not have a timeline. Given the CCW’s refusal to deal with this issue over the past five years, its consensus approach in which the lowest common denominator prevails, and the stated opposition to any prohibition by countries such as China, Russia, and the United States, there is little to no chance that a meaningful result on cluster munitions will emerge from this body.³⁷⁹

Many states have been taking steps at the national level as well. Belgium became the first country to ban cluster munitions in February 2006,³⁸⁰ and Austria did so during the Oslo Process meeting in December 2007. Norway announced a moratorium on the weapon in June 2006 and Hungary in May 2007. In August 2006, Germany announced that it would not procure any new cluster munitions, would cease using the two types of cluster munitions in its arsenal with dud rates higher than 1 percent, and would examine whether its existing cluster munitions could be replaced entirely by an alternative weapon. The German Parliament passed a resolution effecting these changes on September 28, 2006.

Parliamentary initiatives to prohibit or restrict cluster munitions are also underway elsewhere. In October 2004, the European Parliament adopted a resolution calling for an immediate moratorium on the use, production, and transfer of cluster munitions until an international agreement has been negotiated on their regulation or prohibition. Several weeks later, on October 12, the Parliament of Luxembourg adopted a motion calling on the government to join international initiatives to ban cluster munitions and to elaborate a law banning cluster munitions. Other parliamentary initiatives to restrict or prohibit cluster munitions are underway in France, Italy, Netherlands, Sweden, Switzerland, the United Kingdom,and the United States.

Numerous countries have in recent years decided to remove from service and/or destroy cluster munitions with high failure rates, and some have called for a prohibition on use in populated areas. Argentina, Denmark, Germany, Norway, Switzerland, and the United States, among others, have announced they will not procure cluster munitions in the future with a failure rate greater than 1 percent; Poland and South Africa have said they will establish minimum reliability rates. Countries have also decided to remove from service and/or destroy cluster munitions with high failure rates, including Australia (Rockeye), Belgium (BL-755), Canada (Rockeye), Denmark (Rockeye), France (BLG-66), Germany (BL-755, DM-602, DM-612), Netherlands (BL-755, M26 MLRS, M483A1), Norway (Rockeye), Portugal (BL-755), Switzerland (BL-755), and United Kingdom (M483 DPICM). As described in this report, however, the failure rates of even the most sophisticated cluster munitions in south Lebanon leads Human Rights Watch to the conclusion that achieving a standard of less than 1 percent failure is not currently feasible.