Diplomats from more than 100 countries are currently engaged in heated deliberations in Geneva over a proposed protocol, put forward by the United States and others, that would allow the use of certain cluster munitions indefinitely.  The International Human Rights Clinic has joined a group of nongovernmental organizations in arguing against the proposal, which would threaten the impact of an existing international treaty that protects civilians by absolutely banning the weapons.

Senior Clinical Instructor Bonnie Docherty consults with NGO delegates on a new version of the proposed weak treaty on cluster munitions. Photo by Gemima Harvey/CMC

If adopted, the proposed protocol would directly compete with the Convention on Cluster Munitions, a treaty that seeks to eliminate the devastating effects of cluster munitions on civilians.  More than 108 countries have signed on to that convention, which went into force August 2010, and 66 states are full parties, bound by all its provisions.  The convention prohibits use, production, transfer, and stockpiling of cluster munitions and obliges states to provide assistance to victims of past use.

The United States, which is not a party to the Convention on Cluster Munitions, has led the charge for the new protocol over the last week at the Review Conference of the Convention for Conventional Weapons (CCW) in Geneva.  The protocol would be attached to the CCW framework convention, an umbrella treaty with protocols governing specific types of weapons.  Protocol supporters argue that certain major stockpilers and users of cluster munitions who are not currently party to the Convention on Cluster Munitions might join this proposed protocol because it is not a complete ban.

But the Clinic argued in a paper distributed to delegates last week that the new protocol would constitute an unprecedented step backwards in terms of international humanitarian law.  The international community has never adopted a treaty that provides weaker protections for civilians from armed conflict than a treaty already in force.

Furthermore, adoption of the proposed protocol would water down the stigmatization of cluster munitions by permitting future use.  Though the proposed protocol would ban cluster munitions produced prior to 1980, it would allow states to continue to use some other models of cluster munitions for 12 years and some forever.  The proposed treaty also contains weak and inadequate provisions regarding stockpiling destruction and victim assistance.

The Clinic strongly believes that, much like antipersonnel landmines, cluster munitions cause an unacceptable level of harm to civilians.  Because they release dozens or hundreds of explosive submunitions across a large area, civilian casualties are virtually guaranteed when cluster munitions are used in populated areas, as they often have been.  In addition, the submunitions frequently fail to explode on impact, leaving explosive remnants that can kill and injure civilians months or years after a conflict has ended.

A team from the Clinic traveled to Geneva this week as part of the Human Rights Watch (HRW) delegation.  The Clinic has a longstanding partnership with HRW on weapons issues; Senior Clinical Instructor Bonnie Docherty is also a senior researcher in HRW’s Arms Division.  We, along with Robert Yoskowitz, JD ’13, are working under her supervision at the CCW conference this week.

During the conference, we have provided real-time legal analysis of each new draft protocol text.  We have also written articles for the regular CCW News produced by the Cluster Munitions Coalition (CMC), a coalition of NGOs, including HRW, that campaigns to ban cluster munitions and that helped create the CCM.  The Coalition is lobbying hard this week to prevent the proposed protocol from moving forward.

In order for the CCW conference to adopt a new protocol on cluster munitions, there must be consensus—and there is clearly no consensus yet.  There are still two days of negotiations left, however.  The atmosphere is tense, but hopes are high for a good outcome.

Nicolette Boehland, JD ’13, and Anna Crowe, LLM ’12, are members of the Clinic’s Cluster Munitions team.