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Abstract
By the end of 2008, ninety-five states had signed the Convention on Cluster Munitions, which bans the development, production, acquisition, stockpiling, and transfer of cluster munitions; imposes significant obligations for the clearance of unexploded cluster munition remnants; and elaborates novel requirements for so-called victim assistance. This article examines this agreement and the process that lead up to it in terms of the precedents it sets for future arguments about weapon technologies and the regulation of armed conflict. Particularly noteworthy was the process for determining what counts as a “cluster munition” under the convention. The definition structure transformed the argument from considerations of what types should be prohibited to demanding justifications for what should be allowed. In other words, rather than the burden of proof resting with those seeking a ban, the presumption became that exclusions from prohibition had to be argued in by proponents of specific submunition-based weapons. This approach contrasts with the manner in which the burden of proof regarding cluster munitions has been handled in international humanitarian law.
Acknowledgements
The authors wish to thank to Bonnie Docherty, Margarita Petrova, Virgil Wiebe, Ken Rutherford, Eitan Barak, Maya Brehm, and two reviewers for their helpful comments.
Notes
1. Declaration of Oslo Conference on Cluster Munitions, Oslo, Norway, February 23, 2007.
2. For a wider history of this time period, see John Borrie, “The Road from Oslo,” Disarmament Diplomacy 85 (2007).
3. See, for example, Brian Rappert, Controlling the Weapons of War (London: Routledge, 2007).
4. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grams Weight, St. Petersburg, Russia, November 29/December 11, 1868.
5. See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005).
6. Protocol Additional to the Geneva Conventions of 12 August 1949, entry into force December 7, 1979, Article 35(1).
7. See ICRC, “Existing Principles and Rules of International Humanitarian Law Applicable to Munitions that May Become Explosive Remnants of War,” CCW/GGE/XI/WG.1/WP.7, July 28, 2005.
8. Human Rights Watch (HRW), Off Target (Washington, DC: HRW, 2003); Thomas Nash, Foreseeable Harm (London: Landmine Action, 2006).
9. For discussions of humanitarian consequences, see, for instance, Pax Christi, Cluster Weapons (Utrecht: Pax Christi, 2005); Colin King, Explosive Remnants of War (Geneva: ICRC, 2000); ICRC, Explosive Remnants of War (Geneva: ICRC, 2003); Handicap International, Cluster Munitions Systems: Situation and Inventory (Paris: Handicap International, 2003); and HRW, Cluster Munitions: A Foreseeable Hazard in Iraq (New York: HRW, 2003).
10. Timothy McCormack, Paramdeep Mtharu, and Sarah Finnin, “Report on States Parties’ Responses to the Questionnaire,” Asia Pacific Centre for Military Law, March 2006.
11. Protocol Additional to the Geneva Conventions of 1949, Article 51(5)(b).
12. Virgil Wiebe, “Footprints of Death,” Michigan Journal of International Law 22 (2000), pp. 85–167.
13. Geoff Hoon, “Iraq,” House of Commons Hansard, London, Her Majesty's Stationery Office, column 107, April 3, 2003. For more historical examples of such claims, see Michael Krepon, “Weapons Potentially Inhumane,” Foreign Affairs 52 (1974), pp. 595–611.
14. Christopher Greenwood, “Legal Issues Regarding Explosive Remnants of War,” CCW/GGE/I/WP.10, May 23, 2002, p. 8.
15. Brian Rappert, Out of Balance (London: Landmine Action, 2005).
16. Defense Science Board, Munitions System Reliability (Washington, DC: Office of Under Secretary of Defense for Acquisition, Technology and Logistics, 2005), p. 2.
17. This discussion of legality derives from Brian Rappert and Richard Moyes, Failure to Protect (London: Landmine Action, 2006).
18. Charles Garraway, “How Does Existing International Law Address the Issue of Explosive Remnants of War?” CCW, Twelfth Session of the Group of Governmental Experts of the States Parties, November 17, 2005; Thomas Michael McDonnell, “Cluster Bombs over Kosovo,” Arizona Law Review 44 (2002), p. 34; Major Thomas Herthel, “On the Chopping Block: Cluster Munitions and the Law of War,” Air Force Law Review 51 (2001), pp. 256–59.
19. Karen Hulme, “Of Questionable Legality,” Canadian Yearbook of International Law (December 2005); Wiebe, “Footprints of Death”; Timothy L.H. McCormack and Paramdeep B. Mtharu, “Expected Civilian Damage And The Proportionality Equation,” Third Review Conference of the States Parties to the CCW, CCW/CONF.III/WP.9, November 15, 2006.
20. For a discussion of the long-term effects, see Greenwood, “Legal Issues Regarding Explosive Remnants of War”; and William H. Boothby, “Cluster Bombs: Is There a Case for New Law?” Humanitarian Policy Conflict and Research, Occasional Paper Series No. 5, Fall 2005.
21. Perhaps the most, though still relatively modest, substantiation is in Herthel, “On the Chopping Block.”
22. Y.K.J. Yeung Sik Yuen, “Human Rights and Weapons of Mass Destruction, or with Indiscriminate Effect, or of a Nature to Cause Superfluous Injury or Unnecessary Suffering,” UN Sub-Commission on the Promotion and Protection of Human Rights, E/CN.4/Sub.2/2002/38, June 27, 2000, p. 29.
23. On legacy munitions, see Hulme, “Of Questionable Legality”; on the wide-ranging ban and technical performance considerations, see McDonnell, “Cluster Bombs over Kosovo,” p. 88.
24. ICRC, “Existing Principles and Rules of International Humanitarian Law Applicable to Munitions that May Become Explosive Remnants of War,” p. 39.
25. UN agency activities were outlined in “United Nations Involvement in Issues Related to Cluster Munitions,” a background paper for the meeting of the Geneva Forum, March 5, 2006.
26. See Thomas Nash, “Stopping Cluster Munitions,” Disarmament Forum 4 (2006), pp. 35–44.
27. CMC, “Statement to CCW,” November 5, 2004.
28. For a statement of this position, see Rappert, Out of Balance; Human Rights Watch, “Cluster Munition and International Humanitarian Law,” prepared for the CCW Group of Governmental Experts (GGE) on Explosive Remnants of War, July 5–16, 2004; Mines Action Canada, “Reducing the Impact of Cluster Bombs,” Geneva Forum Seminar, July 8, 2004. Coauthor Richard Moyes is policy and research director for Landmine Action.
29. For a supporting legal argument to this position, see Wiebe, “Footprints of Death.”
30. Handicap International, Cluster Munitions Systems, p. 33.
31. Russia, “Real or Mythical Threat,” presentation to the GGE of States Parties to the CCW, August 2005; 2005, “Responses to Document CCW/GGE/X/WG.1/WP.2, Entitled IHL and ERW, dated 8 March 2005,” GGE of States Parties to the CCW, CCW/GGE/XI/WG.1/WP.3, July 4, 2005.
32. In relation to the problematic understanding of states of IHL, see McCormack et al., “Report on States Parties’ Responses to the Questionnaire.”
33. Austria, “Responses to Document CCW/GGE/XI/WG.1/WP.2, Entitled IHL and ERW, dated 8 March 2005,” GGE of States Parties to the CCW, CCW/GGE/XI/WG.1/WP.14, August 4, 2005, p. 3; Norway, “Responses to Document CCW/GGE/XI/WG.1/WP.2, Entitled IHL and ERW, dated 8 March 2005,” GGE of States Parties to the CCW, CCW/GGE/XI/WG.1/WP.5, July 29, 2005, p. 5; Sweden, “Responses to Document CCW/GGE/XI/WG.1/WP.2, Entitled IHL and ERW, dated 8 March 2005,” GGE of States Parties to the CCW, CCW/GGE/XI/WG.1/WP.8, July 29, 2005, p. 2.
34. William Cohen, “Memorandum for the Secretaries of the Military Departments: Department of Defense Policy on Submunition Reliability,” Department of Defense, January 10, 2001; and Anthony J. Melita, “Munitions Insights/Initiatives,” undated presentation, <www.dtic.mil/ndia/2001munitions/melita.pdf>.
35. United Kingdom, “Responses to Document CCW/GGE/XI/WG.1/WP.2, Entitled IHL and ERW, dated 8 March 2005,” GGE of States Parties to the CCW, CCW/GGE/XI/WG.1/WP.1, June 24, 2005.
36. Brazil, “Response to Document CCW/GGE/X/WG.1/WP.2, Entitled IHL and ERW, dated 8 March 2005,” GGE of States Parties to the CCW, CCW/GGE/XII/WG.1/WP.1, September 12, 2005; Norway, “Response to Document CCW/GGE/X/WG.1/WP.2, Entitled IHL and ERW, dated 8 March 2005.”
37. European Parliament, “European Parliament Resolution on Cluster Bombs,” B5-0765, 0775, 0782 and 0789/2001, December 13, 2001.
38. Reporting in an email from Grethe Østern, Norwegian People's Aid, to Richard Moyes, Landmine Action, on August 28, 2008.
39. Rappert and Moyes, Failure to Protect. See also, “Publicatie overeenkomstig artikelen 472 tot 478 van de programmawet van 24 december 2002, gewijzigd door de artikelen 4 tot en met 8 van de wet houdendediverse bepalingen van 20 juli 2005” [Publications in Accordance with Articles 472 to 478 of the Program Act of December 24, 2002, as Amended by Articles 4 and 8 of the Various Provisions of Law on July 20, 2005], Belgisch Staatblad, June 9, 2006, <en.handicapinternational.be/downloads/files/17463/>.
40. Nash, Foreseeable Harm.
41. For an overview of legal debates, see Human Rights Watch, Flooding South Lebanon (New York: HRW, 2008), pp. 95–103.
42. UN Human Rights Council, “Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled ‘Human Rights Council’—Mission to Lebanon and Israel,” A/HRC/2/7 2, October 10, 2006.
43. UN Human Rights Council, “Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled ‘Human Rights Council’—Mission to Lebanon and Israel,” A/HRC/2/7 2, October 10, 2006., p. 25.
44. UN Human Rights Council, “Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled ‘Human Rights Council’—Mission to Lebanon and Israel,” A/HRC/2/7 2, October 10, 2006., p. 25.
45. UN Human Rights Council, “Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1,” A/HRC/3/2, November 23, 2006, p. 77.
46. See ICRC, “Report of Expert Meeting—‘Humanitarian, Military, Technical and Legal Challenges of Cluster Munitions,’” Montreux, Switzerland, April 18–20, 2007, p. 30; and Alexander Breitegger, “Preventing Human Suffering During and After Conflict?” Austrian Review of International and European Law 10 (2007), p. 21. On utility, see Geneva International Centre for Humanitarian Demining, A Guide to Cluster Munitions November (Geneva: GICHD, 2007), p. 27; and Borrie, “The Road from Oslo.” For past examples of articulations of utility, see Germany, “Reliability, Safety, and Performance of Conventional Munitions and Submunition,” GGE of States Parties to the CCW, CCW/GGE/XI/WG.1/WP.2, November 29, 2004; and Major D. Paulsen, “Military Aspects of Ground Launched Cluster Munitions,” GGE of States Parties to the CCW, August 2005.
47. Rappert and Moyes, Failure to Protect.
48. Rappert and Moyes, Failure to Protect.
49. Steve Goose, “Cluster Munitions, Explosive Remnants of War, and CCW Protocol V,” presentation to the Meeting of Military and Technical Experts at the 15th Session of the CCW GGE, Geneva, Switzerland, August 31, 2006, p. 4.
50. HRW, Fatally Flawed (Washington, DC: HRW, 2002), p. 11.
51. ICRC, Cluster Munitions: Decades of Failure, Decades of Civilian Suffering (Geneva: ICRC, 2007), p. 11.
52. ICRC, Cluster Munitions: What Are They and What Is the Problem? (Geneva: ICRC, 2008), p. 2.
53. Hilde Frafjord Johnson, statement as opening address on behalf of the UN Mine Action Team, Wellington Conference on Cluster Munitions, February 2008.
54. Kofi Annan, statement to the Third Review Conference of the CCW, Geneva, November 7, 2006, p. vi.
55. Ban Ki-moon, video statement to the Diplomatic Conference on Cluster Munitions, May 19, 2008.
56. United Kingdom, spoken statement to Wellington Conference, February 19, 2007.
57. Convention on Cluster Munitions, “Chair's Discussion Text for Lima Conference,” May 2007, <www.clusterconvention.org/pages/pages_vi/vib_opdoc_chairslima.html>.
58. CMC, Lobbying Guide (London: CMC, 2008), p. 9.
59. Convention on Cluster Munitions, “Chair's Discussion Text for Vienna Conference,” December 2007, <www.clusterconvention.org/pages/pages_vi/vib_opdoc_chairsvienna.html>.
60. See Rappert, Controlling the Weapons of War.
61. Switzerland used the term “classic approach” at the Wellington conference, December 5, 2007.
62. These states either focused on only one characteristic of weapons—their number of submunitions or reliability—or offered less demanding cumulative criteria. See “Compendium of Proposals Submitted by Delegations During the Wellington Conference—Addendum 1,” <www.mfat.govt.nz/clustermunitionswellington/conference-documents/WCCM-Compendium-v2.pdf>.
63. Convention on Cluster Munitions, Articles 1 and 2.
64. Kenneth Rutherford, “The Evolving Arms Control Agenda,” World Politics 53 (October 2000), pp. 74–114.
65. As in U.S. State Department, “New United States Policy on Landmines: Reducing Humanitarian Risk and Saving Lives of United States Soldiers,” Bureau of Political-Military Affairs, February 27, 2004.
66. Indeed, the Oslo Process was characterized by the lack of attention to the military of necessity of cluster munitions, in no small part because user states rarely offered any sustained arguments on this matter during the last decade.
67. See, for example, Natalino Ronzitti, “Eliminazione Definitiva Delle Bombe a Grappolo o Solo un Passo Indietro?” [Final Elimination of Cluster Munitions or Just a Step Backward?], Affar Internazionali, June 3, 2008, <www.affarinternazionali.it/articolo.asp?ID=841>.
68. Even if it incorporates a device that will explode the mine if it is “intentionally” disturbed by a person.
69. See Landmine Action, Global Survey 2003–2004 (London: Landmine Action, 2005).
70. Nina Tannenwald, “The Nuclear Taboo,” International Organization 53 (1999), pp. 433–68; R. Peter Herby and Kathleen Lawand, “Establishing Norms,” in Jody Williams, Stephen Goose, and Mary Wareham, eds., Banning (London: Rowman and Littlefield, 2008); Richard Price, The Chemical Weapons Taboo (Ithaca, NY: Cornell University Press, 1997).
71. Brian Rappert, A Convention beyond the Convention (London: Landmine Action, 2008).
72. HRW, “Clarification Regarding Use of Cluster Munitions in Georgia,” press release, September 1, 2008.
73. See Andy Stirling, “Science, Precaution, and the Politics of Technological Risk,” Annals of the New York Academy of Sciences 1128 (2008), pp. 95–110.
74. See Rappert, Controlling the Weapons of War.
75. As in Amnesty International, Compilation of Global Principles for Arms Transfers (London: Amnesty International 2006), p. 5.
76. With its inclusion of effects-based language in Article 2(c), the CCM provides direction for what should count as major concerns.
77. Deborah Peterson, “Precaution: Principles and Practice in Australian Environmental and Natural Resource Management,” Australian Journal of Agricultural and Resource Economics 50 (2006), pp. 469–89.