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 munitions
Note,
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
mines
Note 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 munitions
Note,
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
