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Ban on cluster munitions

Report | Doc. 11909 | 07 May 2009

Committee
Committee on Political Affairs and Democracy
Rapporteur :
Mr Johannes PFLUG, Germany
Origin
Reference to committee: Reference No. 3364 of 25 June 2007. 2009 - May Standing Committee

Summary

In 2006, a survey by Handicap International of countries and regions affected by cluster munitions found that 98% of recorded cluster munitions casualties were civilians. The recent adoption of the Cluster Munition Convention on 30 May 2008 in Dublin by more than 100 countries gives hope that the cluster munition problem can be halted before it gets even worse.

This convention provides a comprehensive response to the cluster munitions problem by prohibiting their use, production, stockpiling and transfer; requiring the destruction of existing stocks and establishing a framework for co-operation and assistance to address their humanitarian consequences in areas already affected.

The Parliamentary Assembly urges all states, which have not done it so far, to sign and ratify it in order to ensure its rapid entry into force and subsequent implementation.

Those states that are not ready to embrace a complete prohibition must not delay in taking other intermediary steps to minimise the humanitarian consequences of cluster munitions.

A Draft resolution

1. Cluster munitions, due to their conception, cannot distinguish between civilians and military objectives. In 2006, a survey by Handicap International of countries and regions affected by cluster munitions found that 98% of recorded cluster munitions casualties were civilians. In fact cluster munitions pose both an immediate and long-term danger to civilians due to three main characteristics: their area-wide impact, their inaccuracy and their unreliability.
2. Cluster munitions consist of a large container that opens in the air and disperses smaller explosive submunitions over a wide area. Although the majority of submunitions are designed to explode on, or shortly after, impact, a high proportion of submunitions fail to explode as intended. As each cluster munition can contain hundreds of submunitions, vast numbers can be dispersed in a very short period of time. The result is that massive amounts of unexploded ordnance remain on the ground and leave behind a devastating legacy that will persist for years after the conflict has ended.
3. Furthermore, the ground contamination from unexploded cluster submunitions has serious socio-economic consequences for individuals and communities. When unexploded munitions litter agricultural lands, or vital infrastructure and buildings, they may hamper the supply of basic necessities, including food, water and fuel, and hinder access to public services such as schools and hospitals.
4. Millions of cluster munitions containing billions of submunitions are still stockpiled in the arsenals of many countries on the planet today. If they are proliferated to an ever-increasing number of countries and actors with varying capacities and will to respect international humanitarian law, the consequences for civilians in future conflicts may be devastating. The Parliamentary Assembly considers that the cluster munition problem must therefore be tackled urgently, before these weapons are further deployed and the problem becomes even worse than it is today.
5. Despite consistent efforts by humanitarian organisations and some states to put this issue on the international agenda, it has only recently received serious attention from the international community.
6. The use of cluster munitions during the armed conflict in Lebanon, in the summer of 2006, brought renewed public and political attention to the humanitarian consequences of cluster munition use. Following extensive media coverage of the impact of cluster munitions on the civilian population in southern Lebanon, as well as renewed calls for action by the United Nations, the International Committee of the Red Cross (ICRC) and many non-governmental organisations, a growing number of countries have engaged in both national and international initiatives to tackle the problem.
7. In February 2007, the Norwegian Government launched an international diplomatic process to negotiate a treaty prohibiting cluster munitions "that cause unacceptable harm to civilians". The so-called Oslo Process resulted in the adoption of a Convention on Cluster Munitions by 107 states in Dublin, on 30 May 2008.
8. The Assembly warmly welcomes the adoption of this historic treaty, which provides a comprehensive response to the cluster munitions problem by prohibiting their use, production, stockpiling and transfer; requiring the destruction of existing stocks; and establishing a framework for co-operation and assistance to address their humanitarian consequences in areas already affected.
9. With this convention, the participating states have confirmed that cluster munitions, which have caused so much loss in past decades, are not only morally reprehensible, but are now considered illegal. This achievement demonstrates that the world has been moved by the suffering of the victims of cluster munitions and that the international community is capable of taking effective action to prevent further such suffering.
10. The convention was opened for signature at a ceremony in Oslo on 3 December 2008 and will enter into force six months after 30 states have ratified it. For the time being, 96 states have signed it and only 6 have ratified it, namely Austria, Ireland, the Holy See, Laos, Norway and Sierra Leone. The Assembly considers that the most urgent priority is therefore to encourage all states to sign and ratify the treaty in order to ensure its rapid entry into force and subsequent implementation. Only by doing so can states prevent the cluster munitions problem from continuing to grow and reduce the number of new victims claimed by these weapons each year.
11. Once states have become party to the Cluster Munitions Convention, national parliaments will have a key role to play, in particular in establishing implementing legislation, including penal sanctions for activities prohibited by the treaty.
12. Parliamentary actions will be crucial to ensure allocation of the resources needed for implementation, including the destruction of stockpiles in those states possessing cluster munitions and for the clearance and destruction of abandoned or unexploded cluster munitions in areas under the state’s jurisdiction or control. The necessary resources and structures must also be put in place to provide, in accordance with international humanitarian law, adequate medical care, rehabilitation and psychological support to cluster munitions victims and to ensure their social and economic inclusion. States parties in a position to do so are furthermore required to provide technical, material and financial support to assist states parties that are affected by cluster munitions in implementing the treaty.
13. The Assembly regrets that, while the new treaty provides the only viable solution to eliminate a weapon that has caused tremendous civilian harm over several decades, a number of states, including major military powers, did not participate in its adoption and are unlikely to join the treaty in the short-term. In the interim, the Assembly considers that it will nevertheless be important to ensure their adherence to, and implementation of, other relevant legal norms pertaining to cluster munitions such as the Protocol V of 28 November 2003 on Explosive Remnants of War to the United Nations Convention on Certain Conventional Weapons. These states are also in the process of examining alternative options for regulating the use of cluster munitions, which - even if they fall short of the prohibition contained in the new treaty - could contribute to reducing their humanitarian consequences.
14. Consequently, the Assembly urges the member states, states holding observer status with the Organisation and states whose parliament holds observer status with the Assembly to:
14.1 make every necessary effort to bring about a total ban on the manufacture, use, transfer and stockpiling of cluster munitions worldwide;
14.2 2 immediately destroy the existing stocks of cluster munitions in territories under their jurisdiction or control;
14.3 without further delay, if they have not already done so, sign and ratify the Convention on Cluster Munitions;
14.4 apply criminal sanctions against the use of cluster munitions in violation of the rules of international humanitarian law;
14.5 accept responsibility, for those which have used cluster munitions, for the clearance of these munitions, and in particular, keep accurate records of where such munitions have been used, in order to help clearance efforts following conflicts;
14.6 contribute to rehabilitation and assistance programmes for cluster munitions victims in Europe and the rest of the world with a view to their social rehabilitation and re-entry into working life;
14.7 encourage the media to circulate relevant information among populations exposed to the danger of cluster munitions in order to avoid new victims;
14.8 raise their population's awareness of the dangers of cluster munitions and promote action in order to mobilise international public opinion in respect of the harmful effects of cluster munitions.
15. The Assembly also urges the national parliaments of the aforementioned states to:
15.1 encourage their governments, if they have not already done so, to sign the Convention on the Cluster Munitions without further delay;
15.2 ratify the said convention;
15.3 introduce national legislation for a total ban on cluster munitions in their territory or, as a first step towards a total ban, introduce national measures to ban, suspend or take other restrictive measures against cluster munitions, in particular concerning their use, production and transfer, and impose criminal sanctions in relation to these measures.
16. Until such time that states become party to the Cluster Munition Convention, the Assembly urges them to sign and ratify the Protocol V of 28 November 2003 on Explosive Remnants of War to the United Nations Convention on Certain Conventional Weapons, as it provides at least a partial response to the cluster munition problem by alleviating the dangers to civilians when these weapons have been used.

B Draft recommendation

1. The Parliamentary Assembly refers to its Resolution … (2009) on the “Ban of Cluster Munitions” and recommends that the Committee of Ministers:
1.1 forward this resolution to the governments of member states and request them to take it into account when raising the issue of the ban of cluster munitions in their countries;
1.2 invite all member and observer states, if they have not already done so, to immediately sign and ratify the Convention on the Cluster Munitions without further delay;
1.3 until such time that states become party to the Cluster Munition Convention, invite them to sign and ratify the Protocol V of 28 November 2003 on Explosive Remnants of War to the United Nations Convention on Certain Conventional Weapons as it provides at least a partial response to the cluster munition problem by alleviating the dangers to civilians when these weapons have been used.

C Explanatory memorandum by Mr Pflug, rapporteur

1 Introduction

1. On Friday, 27 March 2009, a child of 10 years was the victim of a cluster munition dating from the war in Lebanon in 2006. The child, Mohammed Jama Abdel Aal, went to play in a field situated close to his house, at Halta, when he became a victim of this accident. Transported urgently to hospital, he had to have his left leg and his right hand amputated. This tragedy reminds us of the permanent threat that puts at risk the local population who live in the areas affected by these cluster munitions.
2. Cluster munitions were first deployed in the battlefield over 50 years ago. During this period, in all cases where there has been significant use of these weapons, they have caused severe harm to the civilian population and left behind a devastating legacy of unexploded ordnance that has persisted for years or decades after the conflict has ended.
3. Initial concerns about the humanitarian consequences of cluster munitions were raised already in the 1960s and 70s following their extensive use during the armed conflicts in South-East Asia. Their use in subsequent conflicts, including in Afghanistan, Iraq and Kosovo, has been accompanied by further calls to address the risk these weapons pose to the civilian population. Despite consistent efforts by humanitarian organisations and some states to put the issue on the international agenda, the cluster munition problem has only recently received serious attention by the international community. The use of cluster munitions during the armed conflict in Lebanon in the summer of 2006 brought renewed public and political attention to the humanitarian consequences of cluster munition use. Following extensive media coverage of the impact of cluster munitions on the civilian population in southern Lebanon as well as renewed calls for action by the United Nations, the International Committee of the Red Cross (ICRC) and many non-governmental organisations, a growing number of countries have engaged in both national and international initiatives to tackle the problem.
4. In November 2006, the ICRC called on states to immediately end the use of “inaccurate and unreliable” cluster munitions and to adopt a new international humanitarian law treaty to address the issue.Note In September 2007, the United Nations (UN) called on member states to address the humanitarian, human rights and development effects of cluster munitions by adopting a new treaty prohibiting these weapons.Note Furthermore, thanks to an increasingly active role played by the Cluster Munition Coalition (CMC) in advocating a ban on cluster munitions, civil society pressure continued to mount throughout the end of 2006 and 2007. The CMC is a network of non-governmental organisations working to protect civilians from the effects of cluster munitions and currently consists of more than 300 organisations from over 80 countries.Note
5. In February 2007, the Norwegian Government launched an international diplomatic process to negotiate a treaty prohibiting cluster munitions “that cause unacceptable harm to civilians”. The Oslo Declaration, which called for the conclusion of such a treaty by 2008, was endorsed by 46 governments.Note Further meetings to discuss the treaty in Peru (May 2007), Austria (December 2007) and New Zealand (February 2008) brought together a growing number of states in support of this effort. The so-called Oslo Process resulted in the adoption of a Convention on Cluster Munitions by 107 states in Dublin, Ireland, in May 2008.
6. In the light of current efforts to prohibit cluster munitions and address their humanitarian consequences, the purpose of this memorandum is to:
6.1 present the humanitarian concerns associated with the use of cluster munitions;
6.2 examine current responses to the cluster munition problem, including the recent adoption of the Cluster Munition Convention prohibiting these weapons, on-going developments within military technology, and initiatives by national parliaments and inter-parliamentary bodies;
6.3 propose actions that can be taken by the Council of Europe's member states and observer states to prohibit cluster munitions and prevent their unacceptable humanitarian consequences.
7. The Political Affairs Committee held a hearing on the matter of the report on 17 March 2009, in Paris, with the participation of Mr Maresca, Legal Adviser, ICRC and Mrs Holopainen, Director, Unit for Arms Control, Non-Proliferation and Disarmament, Ministry for Foreign Affairs of Finland. This hearing was extremely useful for the drafting of this report. Therefore, I would like to thank them for their very valuable contributions.

2 Cluster munitions: what are they and how are they used?

8. Cluster munitions consist of a large container that opens in the air and disperses smaller explosive submunitions (also referred to as “bomblets”) over a wide area. This enables them to destroy multiple targets within their impact area. The majority are so-called dual-purpose, combining armor-piercing and anti-personnel fragmentation effects. Cluster munitions can be released by aircraft or launched from the ground by artillery, rocket and missile systems.
9. The number of submunitions deployed from a single container may vary from a few to more than 600 depending on the type of munition. Most submunitions are designed to explode on or shortly after impact. Many are equipped with parachutes, ribbons or other devices in order to slow down their descent. A new generation of “sensor-fused” or “precision-guided” cluster munitions is now being developed by some producers. These contain individually guided submunitions, which can detect and attack specific targets. However, these weapons only constitute a minor proportion of present stocks.
10. Cluster munitions were first used during the Second World War by Soviet and German forces.Note Since then, at least 34 countries have produced more than 210 different types of cluster munitions.Note A large part of current cluster munition stocks was created in the context of the Cold War. They were intended to be used primarily against multiple military targets spread over a large area, such as large tank or infantry formations. The first extensive use of cluster munitions was undertaken by the United States during the armed conflicts in South-East Asia in the 1960s and 70s. To date, cluster munition use has been documented in 22 countries and 4 contested regions in Asia, Africa and Europe.NoteAt least 75 countries currently hold stocks of cluster munitionsNote, while about 15 states have deployed cluster munitions during an armed conflict.NoteNote Non-state armed groups are also known to have used cluster munitions in a few cases.Note Some countries that previously produced or stockpiled cluster munitions have already ceased their manufacture or are destroying their stocks as part of current efforts to address the humanitarian consequences of these weapons.

3 Why are cluster munitions a humanitarian concern?

11. A recent survey by Handicap International of countries and regions affected by cluster munitions found that 98 percent of recorded cluster munition casualties were civilians.Note Cluster munitions pose both an immediate and long-term danger to civilians due to three main characteristics: their area-wide impact, and the inaccuracy and unreliability of cluster submunitions.
12. Cluster munitions can pose an immediate danger to civilians when used in, or near, populated areas. Because of their wide area impact – i.e. their capacity to disperse large numbers of submunitions over areas of up to tens of thousands of square meters, they can be difficult to use in a way that distinguishes between military targets and civilian areas as required by international humanitarian law (IHL).
13. As most submunitions are free-falling – i.e. they cannot be individually guided towards a specific military target – their trajectory can be influenced by environmental conditions such as wind. This can affect their accuracy and they may hit areas other than their intended military objectives.
14. Although the majority of submunitions are designed to explode, on or shortly after, impact, a high proportion of submunitions fail to explode as intended. As each cluster munition can contain up to hundreds of submunitions, vast numbers can be dispersed in a very short period of time. The result is that massive amounts of unexploded ordnance remain on the ground, each bomblet constituting a lethal hazard for those who come near it. Furthermore, unexploded submunitions are often highly unstable and can therefore be even more difficult and dangerous to remove and destroy than anti-personnel mines.
15. Statistically, incidents involving cluster munitions are also more likely to result in deaths than those involving anti-personnel minesNote and tend to cause multiple casualties.Note Those who survive cluster munition incidents often suffer from severe blast or fragment injuries. Damage to eyes as well as amputation of limbs is common, often leading to permanent disability and a life-long need for assistance. The majority of those injured or killed are men and boys, often due to their involvement in activities such as agriculture and the collection of firewood or scrap metal in contaminated areas. Children are also at particular risk, as they may be attracted to the interesting shape and size of submunitions during play without realising the danger.Note
16. In addition to the direct physical threat they pose, the ground contamination from unexploded cluster submunitions also has serious socio-economic consequences for individuals and communities. When unexploded munitions litter agricultural lands, or vital infrastructure and buildings, they may hamper the supply of basic necessities, including food, water and fuel, and hinder access to public services such as schools and hospitals.
17. While fewer than 15 countries have so far used cluster munitions during armed conflict, the humanitarian consequences of this use have already been significant. Millions of cluster munitions containing billions of submunitions still remain in stock. The majority of these are older models, which have proven to be both inaccurate and unreliable when used in previous conflicts. As they age, their failure rate is likely to increase further. If even a small proportion of these weapons are used, this will create a severe and long-term humanitarian problem that will require tremendous resources to address, and if cluster munitions are proliferated to an ever-increasing number of countries and actors with varying capacities and will to respect international humanitarian law, the consequences for civilians in future conflicts may be devastating. The cluster munition problem must therefore be tackled urgently, before these weapons are further deployed and the problem becomes even worse than it is today.

4 The humanitarian consequences of cluster munitions: a global problem

18. Cluster munitions have so far been used in at least 22 countries and 4 contested regions. While some countries are suffering the consequences of extensive and long-term cluster munition use, the effects of more limited employment in other conflicts have also been severe.
19. Laos is a stark example of the persistent nature of large-scale cluster submunition contamination. It remains one of the world’s worst affected countries by cluster munitions decades after it suffered massive aerial bombardment by the United States between 1964 and 1973. According to the Lao National Unexploded Ordnance Programme (UXO Lao), the ordnance dropped included more than 266 million cluster submunitions with a failure rate of up to 30 percent.Note While the total number of unexploded submunitions is highly uncertain, it is likely that tens of millions remained on the ground when hostilities ended. These weapons continue to claim lives and remain an important barrier to the country’s socio-economic development. Even today, there are about 200 new victims of explosive remnants of war recorded each year, many of these from submunitions.Note In addition, a significant number are probably never registered. While victim data is incomplete, a survey by Handicap International identified at least 4,837 people killed or injured by unexploded cluster submunitions between 1965 and 2007.Note The majority of victims were engaged in farming and other vital subsistence activities at the time of their accident. Even though the victims are often aware of the risks, the economic imperatives override concerns about safety. A particular risk factor in Laos is the collection of unexploded ordnance due to its value as scrap metal, an activity that many children are also engaged in. A significant increase in the number of casualties recorded by UXO Lao in 2004 coincided with an expansion of the scrap metal trade.Note Due to the vast extent of contamination in Laos, it is likely that the civilian populations will still have to live with the threat from unexploded cluster submunitions for decades to come.
20. Much shorter conflicts have also resulted in significant cluster submunition contamination. Following the conflict in Kosovo and the NATO bombing campaign by the Operation Allied Force between 24 March and 10 June 1999,the region was severely contaminated by unexploded ordnance. A significant part of the problem was due to cluster submunitions used by NATO forces. NATO has confirmed having dropped more than 234 000 cluster submunitions during the 78 days that its operation lasted, although the numbers provided vary, with some NATO sources stating that as many as 290,000 cluster submunitions were used.Note Considerably higher estimates are also found in several secondary sources, including reports by NATO countries participating in the operations.Note NATO itself estimated a 10 percent failure rate for its munitionsNote, which would result in a conservative estimate of between 23,000 and 29,000 unexploded submunitions. According to the UN Mine Action Coordination Centre (UNMACC) in Kosovo, cluster submunitions caused 142 deaths and injuries between 16 June 1999 and April 2001 and at least 10 further casualties since April 2001.Note According to data collected by the ICRC in Kosovo between June 1999 and 31 May 2000, cluster submunitions were responsible for as many casualties as anti-personnel mines and those killed or injured by cluster submunitions were 4.9 times more likely to be under the age of 14.Note According to the UNMACC’s casualty figures, 67 percent of cluster munition victims were 19 years or younger.Note
21. The case of Lebanon provides another example of how a severe cluster munition problem can be created in a very short period of time, requiring massive resources and considerable time to address. The war in southern Lebanon between Israel and Hezbollah in July and August 2006 lasted only 33 days. While the total number of submunitions used is still unknown, the UN Mine Action Coordination Centre in South Lebanon (UNMACC SL) initially estimated that the conflict had left up to one million unexploded submunitions on the ground.Note The UN has affirmed that about 90 percent of the cluster munitions used by Israel were dropped during the last 72 hours before the ceasefire came into effect on August 14.Note As of 11 July 2008, 20 civilians had died and 192 had been injured due to cluster submunitions.Note While the majority of incidents occurred in the immediate post-conflict period as people were returning to their homes, civilian casualties have continued to occur each month since the conflict ended. Agricultural areas were heavily affected by cluster munition contamination, with at least 26 percent of the cultivated land affected according to the UN Food and Agriculture Organization.Note By 30 June 2008, the UNMACC SL had confirmed 1,026 cluster munition strike locations covering 40,678,714 square meters of land.Note In June 2008, the UNMACC reported that 146,306 unexploded submunitions had been cleared so far.Note Human Rights Watch also confirmed the use of cluster munitions by Hezbollah against civilian areas in Israel during the conflict.Note Being among the few confirmed incidents of cluster munition use by a non-state armed group, this has given rise to increased concerns about future proliferation of this weapon to both states and non-state actors.
22. Closer to home, within the framework of the war which took place in August 2009 between Georgia and Russia, the European Parliament, in its Resolution of 3 September 2008 on the situation on Georgia, said that “international human rights researchers and military analysts have documented the use by Russian troops of cluster munitions in Georgia, which has left thousands of items of unexploded ordnance in the conflict areas”. Georgia has also admitted the use of cluster bombs in South Ossetia near the Roki tunnel. In its Resolution 1633 (2008) on the consequences of the war between Georgia and Russia, the Assembly affirmed that “the use of heavy weapons and cluster munitions, creating grave risks for civilians, constituted a disproportionate use of armed force by Georgia, albeit within its own territory, and as such a violation of international humanitarian law. At the same time, the Russian counter-attack, including large-scale military actions in central and western Georgia and in Abkhazia, equally failed to respect the principle of proportionality and international humanitarian law”.

5 Preventing the unacceptable humanitarian consequences of cluster munitions

5.1 Prohibiting and restricting cluster munitions through international humanitarian law (IHL)

23. The use of cluster munitions in southern Lebanon illustrated yet again the unacceptable danger these weapons pose to civilians and contributed to an increased sense of urgency in addressing this threat. Since 2006, governments have been debating how to respond to the humanitarian concerns associated with the use of cluster munitions both within the context of the Convention on Certain Conventional Weapons and the Oslo Process. This has culminated in the recent adoption of a new international treaty prohibiting cluster munitions by 107 countries participating in the Oslo Process. Not only does the Convention prohibit cluster munitions, but it also establishes a comprehensive framework to respond to their humanitarian consequences through clearance of contaminated areas, measures to protect civilians from their effects and assistance to affected individuals and communities. While the new treaty provides the only viable solution to eliminate a weapon that has caused tremendous civilian harm over several decades, a number of states, including major military powers as China, India, Israel, Pakistan, Russia and the United States of America, did not participate in its adoption and are unlikely to join the treaty in the short-term. In the interim, it will nevertheless be important to ensure their adherence to, and implementation of, other relevant legal norms pertaining to cluster munitions. These states are also in the process of examining alternative options for regulating cluster munitions, which - even if they fall short of the prohibition in the new treaty - may contribute to reducing their humanitarian consequences.
24. With regard to the United States of America, on 11 March 2009, President Obama signed a legal text forbidding the export of American cluster munitions which have a failure rate superior to 1%. De facto, this means that almost all of the American cluster bombs can no longer be exported. It is however paradoxical that the United States authorises itself to use these arms, the export of which it has prohibited. Since July 2008, a directive of the American Department of Defence in fact indicated that the United States could continue to use all types of cluster bombs until 2018. Afterwards, those having a failure rate superior to 1% will be prohibited from use.
25. The Convention on Cluster Munitions, adopted on 30 May 2008, contains the first specific set of rules within humanitarian law pertaining to these weapons.Note The Convention seeks to put an end to the civilian harm caused by cluster munitions by establishing a comprehensive ban on their use, production, stockpiling and transfer and requiring the destruction of stockpiles. It further commits States Parties to a set of concrete measures aimed at eliminating the cluster munition threat and protecting the civilian population in affected areas and requires them to co-operate and assist each other towards this aim. These measures include the clearance and destruction of all abandoned or unexploded cluster munitions, activities to protect civilians such as the marking of dangerous areas and risk education, and the provision of assistance to survivors of cluster munitions. Cluster munitions are defined in the Convention as “a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions.” (Article 2). Some munitions containing submunitions are excluded from the definition of cluster munitions in the treaty. These munitions must fulfill a cumulative set of criteria aimed at preventing them from having an indiscriminate area effect and minimising the danger of unexploded submunitions: i.e. they must contain less than ten submunitions; each submunition must weigh more than four kilograms, and each submunition must be designed to detect and engage a single target object and be equipped with an electronic self-destruction mechanism and an electronic self-deactivating feature. Also excluded from the definition are munitions containing submunitions that are not explosive, such as those designed to disperse flares or smoke, and submunitions that are designed exclusively for an air defence role. The Cluster Munitions Convention was opened for signature at a ceremony in Oslo on 3 December 2008. It will enter into force six months after 30 states have ratified the treaty. Once it enters into force, annual meetings of States Parties will be held to oversee its implementation. For the time being, 96 states have signed it and only 6 states have ratified it: Austria, Ireland, the Holy See, Laos, Norway and Sierra Leone. Germany will finalize the ratification process by the end of the first-half year 2009.
26. Like other weapons, the use of cluster munitions is regulated by the general rules of international humanitarian law (IHL). Humanitarian law – or the law of armed conflict –regulates the conduct of hostilities (means and methods of warfare) and protects those who are not taking part in hostilities, including civilians. The general IHL rules related to the conduct of hostilities establish limits on how weapons can be used and require specific measures to be taken to protect civilians. The most pertinent rules that apply to the use of cluster munitions include the rule requiring parties to distinguish between civilians and combatants and between civilian objects and military objectives; the prohibition of indiscriminate attacks; the rule of proportionality requiring that the effects of an attack on civilians and civilian objects do not exceed the military advantage expected to be gained; and the rule of feasible precautions obliging parties to avoid or minimise civilian harm when conducting military operations.Note These rules are considered part of customary international humanitarian law, and are therefore binding on all cluster munition users irrespective of whether or not they are signatories to specific IHL treaties.Note Yet, the application of these general rules has not prevented significant numbers of civilian casualties whenever cluster munitions have been employed. The ICRC has stated that it does not consider the general rules of IHL to be adequate to protect civilians from the effects of cluster munitions and has supported a specific prohibition on these weapons.NoteNote
27. The 1980 Convention on Certain Conventional Weapons (CCW) also contains rules that pertain to cluster munitions. The 2003 Protocol on Explosive Remnants of War (Protocol V) seeks to address the post-conflict threat posed by all types of unexploded and abandoned explosive ordnance by providing a framework for the rapid clearance after the end of hostilities of all such explosive remnants of war, including cluster submunitions. Among others, it requires each party to clear or provide assistance for the clearance of any explosive remnants of war (ERW) that result from its operations; to swiftly provide information to clearance agencies about the types and location of munitions used; and to take interim measures to protect civilians, for example by marking contaminated areas and providing warnings and risk education. The ERW Protocol entered into force in November 2006 and, as of 1 September 2008, has 46 States Parties. However, the ERW Protocol does not specifically address the problem of cluster munitions and it does not restrict the use of cluster munitions or any other weapon, nor does it contain any mandatory requirements for states to reduce explosive ordnance contamination. Moreover, and contrary to the new Cluster Munition Convention, the provisions in the Protocol only apply to future conflicts and do not address the threat posed to civilians in countries already affected by ERW before they join the treaty.
28. Following the adoption of the ERW Protocol in 2003, the CCW Group of Governmental Experts has continued to discuss possible preventive measures that might reduce the humanitarian consequences of explosive remnants of war. However, it was only at their annual meeting in November 2007 that States Parties approved a mandate for the Group which focused specifically on cluster munitions. The Group was tasked with negotiating “a proposal to address urgently the humanitarian impact of cluster munitions, while striking a balance between military and humanitarian considerations”.NoteNote The Group was to meet for a total of seven weeks in 2008 and report on the progress made to the meeting of States Parties in November 2008. The meetings have focused on possible elements of a new protocol on cluster munitions, including provisions on the protection of civilians, clearance of cluster munitions, victim assistance and international co-operation. Most of these elements duplicate the general humanitarian law rules on the use of weapons or provisions found in other Protocols to the CCW, including the Protocol on ERW. The inclusion of any new legal rules, for example in the form of restrictions or prohibitions on certain cluster munitions or mandatory technical standards related to reliability and accuracy, have so far not gained widespread support among States Parties. If any such elements can be agreed, they might also be included simply as non-binding best practices in any new instrument adopted.

5.2 Technological and military approaches to the cluster munition problem

29. The possibility of reducing the humanitarian consequences of cluster munitions through the development of new and improved weapons technology has been the subject of much discussion both within the Oslo Process and the CCW. A number of governments have advocated technical solutions to improve the reliability and accuracy of cluster munitions as the best avenue to address the humanitarian concerns related to their use. While technical improvements do form part of the solution, as illustrated by the exceptions included in the Cluster Munition Convention, it has also become clear that no single technical “fix” can address the humanitarian concerns associated with cluster munitions. This is why the new Convention instead establishes a strict set of cumulative technical requirements intended to eliminate all cluster munitions that have caused harm to civilians and only allow munitions without such characteristics. The prohibition of these weapons is further combined with a range of practical measures to minimise their humanitarian consequences in areas where they have already been used.
30. The technical solutions most commonly proposed include the reduction of failure rates, both through the improvement of the primary fusing mechanisms and the inclusion of self-destruct and self-neutralisation features to ensure elimination of unexploded submunitions if the primary fuse has failed. However, attempts to improve the reliability of cluster munitions through such measures have in practice not provided an adequate solution to the problem of unexploded ordnance. Cluster submunitions often contain highly complex fusing mechanisms and the causes of failure are many and varied. While it is possible to improve fusing mechanisms to increase reliability, it is difficult if not impossible to affect all the factors that may lead submunitions to fail.Note Another concern with regard to failure rates is the often widely divergent claims made by producers and stockpilers of cluster munitions based on failure rates achieved during controlled tests, and those seen when the same munitions are actually used on the battlefield. Numerous reasons that can help explain the differences in performance have been identified by experts, including factors related to the transportation and storage of munitions, environmental conditions during use (e.g. altitude, terrain, weather), the age of munitions and human errors when these weapons are used in stressful and dangerous combat situations.Note
31. Improved accuracy, in turn, can be achieved by replacing existing cluster submunitions with precision-guided submunitions capable of being targeted at a specific military objective. This is done by equipping submunitions with sensors or other features that allow for recognition and location of point targets.Note The development of more accurate cluster munitions may allow the user more easily to distinguish between military and civilian objects and may as such contribute to addressing some of the concerns with current models. The development of precision-guided weapons is also likely to result in cluster munitions that contain fewer individual submunitions, thus reducing the potential for large-scale unexploded ordnance contamination. In the short-term, however, such munitions are not likely to be widely available to most of the world’s military forces.
32. In view of these limitations, it is unrealistic to expect that the cluster munition problem can be effectively addressed only by improving their accuracy and reliability. While technical improvements, which may reduce the risk to civilians should be encouraged, it is now widely acknowledged that no simple technical solution exists that will effectively eliminate the humanitarian concerns associated with cluster munitions. In addition, technical solutions tend to be costly and thus generally not favoured by less wealthy states or those without an indigenous arms production capacity. It also has to be kept in mind that the majority of cluster munitions in existing stocks are old models, known to have high failure rates and contain large numbers of free-falling submunitions. These weapons are also likely to become increasingly unreliable as their shelf life is exceeded by years or even decades. Moreover, only a very limited number of current cluster munitions are equipped with submunitions that are precision-guided. Technical improvements that are made to future cluster munitions would therefore not prevent the massive humanitarian consequences that could be expected if only a fraction of current stocks are used.
33. The intended military role and perceived utility of cluster munitions - as well as their limitations - must also be reassessed, now that more accurate and reliable munitions have become available and the operational necessities on the battlefield have changed. Due to developments in military technology - for example in the design of fuses and guidance systems - it has become possible to undertake the functions previously performed by cluster munitions with weapons that do not have the same area-wide effect or create similar problems of unexploded ordnance contamination.
34. Beyond the limitations of the weapons themselves, most cluster munitions in current stocks were designed for battlefield scenarios that are rare in today’s armed conflicts, such as bombardment of large formations of armoured vehicles and personnel. Increasingly, hostilities are carried out in or near populated areas where military objectives and civilians objects are in close proximity. Not only does the use of area weapons in such settings raise legal concerns regarding the application of international humanitarian law, but the high risk of civilian casualties is also likely to be counter-productive from a politico-military perspective. The newer generation of precision-guided munitions may be both better suited to these contexts from a military standpoint and, if used responsibly and in accordance with humanitarian law, likely to cause less harm to civilians.

5.3 Parliamentary initiatives

35. National parliaments have in many countries played a central role in putting the humanitarian concerns related to cluster munitions on the national political agenda and in adopting new national policies and laws to address these. These include parliaments in a number of European countries, such as Austria, Belgium, Bosnia and Herzegovina, Germany, Hungary, Norway, Serbia, Sweden, Switzerland and the United Kingdom.NoteNote
36. So far, two countries have adopted national laws prohibiting cluster munitions. Belgium was the first country to do so. The Belgian law was adopted in the House of Representatives in February 2006 and entered into force in June 2006. It establishes a comprehensive ban on cluster munitions and requires existing stocks to be destroyed within three years. The Belgian parliament was also the first to pass legislation in March 2007 prohibiting investments in the production of cluster munitions and anti-personnel mines. Austria became the second country to pass a national prohibition on cluster munition, which entered into force on 7 January 2008.Note
37. In other countries, parliamentary initiatives have, among others, contributed to the establishment of national moratoria on the use of cluster munitions until the humanitarian problems have been resolved; prohibitions or restrictions on cluster munition use in populated areas; and the removal from service or destruction of stocks of certain types of cluster munitions known to be inaccurate or have high failure rates. In several cases, parliaments have also been instrumental in putting pressure on their governments to support an international ban on cluster munitions and to engage in the international effort to achieve this goal.
38. Regional parliamentary forums have also supported international efforts to prohibit cluster munitions and called for national measures to address their humanitarian consequences. At its Sixteenth Annual Session in Kyiv, Ukraine in July 2007, the Parliamentary Assembly of the Organization for Security and Co-operation in Europe (OSCE) adopted a resolution on the ban on cluster munitions. The Assembly called on OSCE Participating States to adopt legislation banning the use, production, transfer and stockpiling of cluster munitions that gravely affect civilians. It further stressed the importance of the adoption of the Oslo Declaration and urged OSCE Participating States to stimulate a global process towards a prohibition on these weapons.Note On 25 October 2007, the European Parliament adopted a resolution entitled “Towards a global treaty to ban all cluster munitions”. Note In this resolution, the European Parliament reaffirms the need to strengthen international humanitarian law by adopting an international ban on the use, production, transfer and stockpiling of cluster munitions and expresses its support for the Oslo Process. It also calls on EU member states to adopt comprehensive national prohibitions on cluster munitions. With respect to states that have used cluster munitions and other explosive munitions, it calls for them to take responsibility for the clearance of related explosive remnants of war, to take measures to protect civilians and humanitarian workers from their effects and to assist affected communities. In addition, the resolution urges all states to adhere to the Protocol on Explosive Remnants of War, welcomes efforts made by the EU to start negotiations within the Convention on Certain Conventional Weapons of a protocol that addresses the humanitarian consequences of cluster munitions and regrets the lack of progress in this regard. The 2007 resolution follows up on a previous resolution passed by the European Parliament in October 2004, in which it called for an immediate moratorium on the use, stockpiling, production, transfer or export of cluster munitions until the conclusion of an international agreement to regulate, restrict or prohibit these weapons.Note Outside Europe, the Asia-Pacific Parliamentary Forum passed a resolution in January 2008, which notes the work done both within the Oslo Process and the CCW on cluster munitions.Note

6 Addressing the cluster munition problem: proposed actions for Council of Europe member states

39. The Convention on Cluster Munitions provides a comprehensive response to the cluster munition problem by prohibiting their use, production, stockpiling and transfer; requiring the destruction of existing stocks; and establishing a framework for cooperation and assistance to address their humanitarian consequences in areas already affected. The Convention is the only existing framework that can effectively eliminate the humanitarian concerns associated with cluster munitions. The most urgent priority is therefore to encourage all states to sign and ratify the treaty in order to ensure its rapid entry into force and subsequent implementation. Only by doing so can states prevent the cluster munition problem from continuing to grow and reduce the number of new victims claimed by these weapons each year.
40. Once states have become parties to the Cluster Munition Convention, they should strive to ensure rapid implemention of its key provisions. National parliaments will have a key role to play, in particular, in establishing national implementing legislation, including penal sanctions for activities prohibited by the treaty. Parliamentary actions will also be crucial to ensure allocation of the resources needed for implementation, including for the destruction of stockpiles in those states possessing cluster munitions and for the clearance and destruction of abandoned or unexploded cluster munitions in areas under the state’s jurisdiction or control. The necessary resources and structures must also be put in place to provide, in accordance with international human rights law, adequate medical care, rehabilitation and psychological support to cluster munition victims and to ensure their social and economic inclusion. States Parties in a position to do so are furthermore required to provide technical, material and financial support to assist States Parties that are affected by cluster munition in implementing the treaty.
41. Future States Parties should seek to promote the Cluster Munition Convention with other states that have not yet joined the treaty. Parliamentarians can play an important role in this promotional work through their bilateral contacts with parliamentarians in other countries and through the work of inter-parliamentary bodies such as the Assembly.
42. In countries that are not yet able to become party to the Cluster Munition Convention, the goal should be to work towards their earliest possible adherence to this treaty. In the interim, these states should be urged to take measures likely to reduce or minimise the cluster munition problem. Such intermediary measures may include establishing national moratoria on the use, acquisition, production and transfer of cluster munitions or at a minimum imposing limitations on the use of cluster munitions, for example by prohibiting their use in or near populated areas. Countries possessing cluster munitions should also undertake to destroy those cluster munitions known to cause the most serious humanitarian problems and to begin moving military doctrine and deployment away from the use of cluster munitions towards alternatives that are less likely to cause civilian harm. Alternatives to cluster munitions, in particular those that fulfill the cumulative criteria for exceptions contained in the Cluster Munition Convention, should also be considered in the procurement or development of new weapons. As evidenced by the many recent parliamentary initiatives on cluster munitions, national parliaments are in a unique position to affect such changes in national policies or laws on cluster munitions.
43. If - despite the fact that most countries have agreed to outlaw cluster munitions - a state should nevertheless use these weapons in the future, it will be crucial to ensure adherence to and strict implementation of other relevant IHL rules that pertain to these weapons. In particular, the international humanitarian law rules of distinction, proportionality, feasible precautions and the rule against indiscriminate attacks must be rigorously applied if cluster munitions are used. In light of these rules, the legality of using such weapons in or near populated areas must be considered and the long-term threat to civilians of unexploded submunitions taken into account. Parliamentarians should monitor the conduct of their government and raise such concerns if cluster munitions are ever used.
44. All states should be urged to adhere to the Protocol on Explosive Remnants of War as it seeks to minimise not only the post-conflict threat posed by abandoned and unexploded cluster munitions, but all other explosive remnants of war. Until such time that states become party to the Cluster Munition Convention, full implementation of the ERW Protocol should be encouraged as it provides at least a partial response to the cluster munition problem by alleviating the dangers to civilians when these weapons have been used.
45. States that are taking part in the on-going work on cluster munitions within the CCW’s Group of Governmental Experts should seek to ensure that its outcome makes a real contribution to addressing the humanitarian consequences of cluster munitions. If any new instrument can be adopted within this framework, it will only have a positive impact if it adds to existing humanitarian law by establishing new prohibitions, restrictions or requirements related to cluster munitions. Also, it should complement and not contradict the standards already established in the Cluster Munition Convention. States that support the Cluster Munition Convention have a particular responsibility in this regard. To ensure that they are fully implemented by CCW states Parties, any new standards should be legally binding. Parliaments should help ensure their swift ratification if new rules are adopted.

7 Conclusion

46. Much time has already been lost in responding to the humanitarian consequences of cluster munitions. For the thousands of civilians that, during the past 50 years, have lost their lives, limbs or someone they love to these weapons, the response comes too late. Yet, the recent adoption of the Cluster Munition Convention by more than 100 countries provides hope that the cluster munition problem can be halted before it gets even worse. In order for this to be achieved, countries must ratify and implement the treaty as a matter of urgency. However, even those states that are not ready to embrace a complete prohibition should not delay in taking other intermediary steps to minimise the humanitarian consequences of cluster munitions. Now that an international norm has been established that defines cluster munitions as prohibited weapons, they will be stigmatised as weapons that should not be used. This will make it more difficult for all states to use these weapons in the future and likely lead to a reconsideration of their military role and utility also by those states that have not joined the treaty.
47. The question each state must ask itself is not whether cluster munitions continue to have a military utility. All weapons do. The question is whether their military utility is outweighed by their humanitarian consequences and whether alternatives exist that are likely to be less harmful to civilians. More than half of the world’s states have already answered this question in the affirmative.
48. I strongly urge all Council of Europe member states to follow their example by prohibiting cluster munitions and putting an end to their unacceptable humanitarian consequences.

Reporting committee: Political Affairs Committee

Reference to committee: Reference No. 3364 of 25 June 2007

Draft resolution and draft recommendation unanimously adopted by the committee on 28 April 2009

Members of the committee: Mr Göran Lindblad (Chairman), Mr David Wilshire (Vice-Chairman) (alternate: Mr Nigel Evans), Mr Björn Von Sydow (Vice-Chairman), Mrs Kristina Ojuland (Vice-Chairperson), Mrs Fátima Aburto Baselga, Mr Francis Agius, Mr Alexander Babakov (alternate: Mr Sergey Markov), Mr Viorel Badea, Mr Denis Badré, Mr Ryszard Bender, Mr Andris Bērzinš, Mrs Gudfinna Bjarnadottir, Mr Pedrag Boškovic, Mr Luc Van den Brande, Mr Mevlüt Çavuşoğlu, Mr Lorenzo Cesa (alternate: Mr Pietro Marcenaro), Mr Titus Corlătean (alternate: Mr Ioan Mang), Ms Anna Čurdová, Mr Rick Daems, Mr Dumitru Diacov, Ms Josette Durrieu, Mr Frank Fahey, Mr Joan Albert Farré Santuré, Mr Pietro Fassino (alternate: Mr Andrea Rigoni), Mr Per-Kristian Foss, Mr György Frunda, Mr Jean-Charles Gardetto, Mr Marco Gatti, Mr Charles Goerens, Mr Andreas Gross, Mr Michael Hancock, Mr Davit Harutiunyan (alternate: Mr Avet Adonts), Mr Joachim Hörster (alternate: Mr Johannes Pflug), Mrs Sinikka Hurskainen, Mr Tadeusz Iwiński, Mr Bakir Izetbegović, Mr Michael Aastrup Jensen (alternate: Mr Mogens Jensen), Mr Miloš Jevtić (alternate: Mr Miloš Aligrudic), Mrs Birgen Keleş, Mr Victor Kolesnikov, Mr Konstantion Kosachev (alternate: Mr Alexander Pochinok), Mr Jean-Pierre Kucheida, Ms Darja Lavtižar-Bebler (alternate: Mr Zmago Jelincic Pleminiti), Mr René van der Linden (alternate: Mr Tuur Elzinga), Mr Dariusz Lipiński, Mr Juan Fernando López Aguilar, Mr Younal Loutfi, Mr Gennaro Malgieri, Mr Dick Marty, Mr Frano Matušić, Mr Dragoljub Mićunović (alternate: Mr Branko Ružić), Mr Jean-Claude Mignon, Ms Nadezhda Mikhailova, Mr Aydin Mirzazada (alternate: Mr Sabir Hajiyev), Mr Joāo Bosco Mota Amaral, Mr Gebhard Negele, Mrs Miroslava Nemcova, Mr Zsolt Németh, Mr Fritz Neugebauer, Mr Hryhoriy Omelchenko, Mr Theodoros Pangalos, Mr Aristotelis Pavlidis, Mr Ivan Popescu, Mr Christos Pourgourides, Mr John Prescott (alterante: Mr Rudi Vis), Mr Gabino Puche, Mr Ilir Rusmali, Mr Oliver Sambevski (alternate: Mr Zoran Petreski), Mr Ingo Schmitt, Mr Samad Seyidov, Mr Leonid Slutsky, Mr Rainder Steenblock, Mr Zoltán Szabó, Mr Mehmet Tekelioğlu, Mr Han Ten Broeke, Lord Tomlinson (alternate: Mr Denis MacShane), Mr Petré Tsiskarishvili, Mr Mihai Tudose, Mr Ilyas Umakhanov, Mr José Vera Jardim, Mr Luigi Vitali, Mr Wolfgang Wodarg, Ms Gisela Wurm, Mr Boris Zala, Mr Emanuelis Zingueris.

Ex-officio: MM. Mátyás Eörsi, Tiny Kox

N.B.: The names of the members who took part in the meeting are printed in bold

Secretariat of the committee: Mr Perin, Mrs Nachilo, Mr Chevtchenko, Mrs Sirtori-Milner, Ms Alléon