September 3, 2014
Cluster Munitions Ban: National Laws Needed
Posted by Cara Solomon
This afternoon, the International Human Rights Clinic released a joint report with Human Rights Watch urging countries to enact strong laws to implement the treaty banning cluster munitions. The report, “Staying Strong: Key Components and Positive Precedent for Convention on Cluster Munitions Legislation,” was researched and written primarily by Senior Clinical Instructor Bonnie Docherty, as well as clinical students Amy Tan, Fletcher ’14, and Nick Sansone, JD ’15.
Bonnie presented the report in Costa Rica today at the annual meeting of countries that have joined the Convention on Cluster Munitions. For more information, see below for the press release from Human Rights Watch.
Cluster Munitions Ban: National Laws Needed
Annual Treaty Meeting Opens in Costa Rica
(San Jose, Costa Rica, September 3, 2014) – Countries around the world should enact strong laws to implement the treaty banning cluster munitions, Human Rights Watch said in a report released today at an international meeting of nations party to the treaty.
The 81-page report, “Staying Strong: Key Components and Positive Precedent for Convention on Cluster Munitions Legislation,” urges countries to pass robust national legislation as soon as possible to carry out the provisions of the treaty. The report describes the elements of a comprehensive law and highlights exemplary provisions in existing laws. The report was jointly published by Human Rights Watch and Harvard Law School’s International Human Rights Clinic.
“To maximize the global cluster munition treaty’s impact, all countries should adopt national laws that apply its high standards at home,” said Bonnie Docherty, senior researcher in the arms division at Human Rights Watch and lead author of the report. “Prohibitions that can be enforced in domestic courts can help ensure that these deadly weapons don’t harm civilians.”
Cluster munitions are large weapons that disperse dozens or hundreds of submunitions. They cause civilian casualties during attacks, especially in populated areas, because they blanket a broad area with submunitions. In addition, many of the submunitions do not explode on impact and thus linger, like de facto landmines, killing or injuring civilians long after the initial attack.
Representatives from governments, UN agencies, and the Cluster Munition Coalition (CMC) are convening in San Jose, Costa Rica, from September 2 through 5, 2014, for the Fifth Meeting of States Parties to the Convention on Cluster Munitions. They will discuss a range of matters relating to the status of the convention, including national legislation.
The 2008 Convention on Cluster Munitions obliges states parties to enact national laws that penalize violations of its absolute prohibition on cluster munitions with imprisonment or fines. The treaty also requires destruction of stocks, clearance of remnants, and victim assistance. As of August 2014, 84 countries were full parties to the Convention on Cluster Munitions, and another 29 countries had signed it.
According to “Cluster Munition Monitor 2014,” an annual report on the status of the treaty, 22 states parties have enacted national legislation dedicated to implementing the convention, while another 19 are in the process of drafting, considering, or adopting national legislation. Twenty-six states parties view other, more general national laws as sufficient to enforce the convention’s provisions.
While no single law represents best practice, Human Rights Watch and the Harvard Clinic highlighted provisions of existing implementation statutes that offer support for each essential element of legislation. National legislation should incorporate both the prohibitions and the positive obligations to minimize the humanitarian harm caused by cluster munitions, the groups said.
Legislation should ban use, production, development, and stockpiling of cluster munitions and make assisting any of these activities an offense.
The laws should also specify that it is unlawful for a country to be the host for stockpiles from other countries, to allow transit of cluster munitions across national territory, or to invest in production of cluster munitions.
“The legislative process is an opportunity to help resolve debates concerning interpretation of the convention and its scope,” said Docherty, who is also a lecturer on law in the Harvard Clinic. “National laws should make clear that countries are forbidden from assisting with the use of cluster munitions, even when operating with allied forces that might use them.”
National legislation should also set deadlines for destroying stockpiles and clearing land contaminated by cluster munition remnants. It should lay the groundwork for a national program to assist victims. Finally, implementation legislation should be broad enough to impose liability on both individuals and corporations with legal ties to the country, even if they commit offenses outside of the country.
While there have been no reports or allegations of states parties violating the convention’s prohibitions, according to “Cluster Munition Monitor 2014,” Syrian government forces have used cluster munitions since mid-2012, resulting in many hundreds of civilian casualties. Reports have also emerged of cluster munition attacks in 2014 in South Sudan and Ukraine, but it is unclear which armed forces participating in those conflicts are responsible. None of these three governments have joined the treaty.