An African Reflection on Cluster Munitions

African Charter Article# 23: All peoples shall have the right to national and international peace and security.

Summary & Comment: Here is a positive evaluation of the results of the recently concluded Convention on Cluster Bombs that analyses Africa’s role, and what African countries need to do to implement the ban and gain benefit from it. The new Convention completely bans production and requires the destruction (of stockpiles) of cluster munitions. JK

On 30 May 2008, 111 governments participating in the Dublin Diplomatic Conference formally adopted the text of a new Convention on Cluster Munitions. The Convention is the culmination of what has become known as the Oslo Process. Similar to the process that resulted in the 1997 Convention on Anti-Personnel Mines, the Oslo Process involved like-minded states in co-operation with global civil society negotiating a new disarmament treaty outside of the United Nations’ usual structures and processes - such as the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, otherwise known as the Convention on Conventional Weapons (CCW).

Calls to curb the use of cluster weapons gained momentum since the conflict in Lebanon in 2006 where it is believed Israel dropped 4.3 million sub-munitions. De-mining agencies estimated some one million failed to explode posing a severe risk to civilians. Since August 2006, over 40 civilians have been killed and more than 230 injured. In November 2006, Norway announced that it would lead an effort to prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians, after the United States, Russia, and some other countries party to the CCW refused to initiate negotiations on these weapons. The Oslo Process began in earnest in February 2007 when 46 countries first committed themselves to ban cluster munitions.

The Norwegian government thus deserves special praise for taking the lead in both raising awareness of the humanitarian disaster caused by the use of the weapon and for developing an intense process of consultations in Oslo, Peru, Austria, New Zealand, Mexico, Costa Rica, Zambia, Serbia and Belgium on how to effectively address the humanitarian problems caused by cluster munitions. The Irish government’s decisive role in hosting the negotiations should also be applauded. The historic significance of the Convention, with its many groundbreaking provisions is seen as a new chapter in disarmament and a milestone in international law.

In his closing address at the Dublin Conference, Micheal Martin, the Foreign Minister of Ireland, stated: “Rarely if ever in international diplomacy have we seen such single-minded determination to conclude a convention with such high humanitarian goals in such a concentrated period of time. …The Convention is strong and ambitious. Its ban on cluster munitions is comprehensive. It sets new standards for assistance to victims and for clearing affected areas. And even though we all know that there are important states not present, I am also convinced that together we will have succeeded in stigmatizing any future use of cluster munitions…

The new Convention completely bans the production, and requires the destruction (of stockpiles) of cluster munitions. According to the Convention a munition will be excluded if, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, it has the following five characteristics:
1. each munition contains fewer than 10 explosive submunitions;
2. each explosive submunition weighs more than four kilogram;
3. is designed to detect and engage a single target object;
4. is equipped with an electronic self-destruction mechanism and
5. is equipped with an electronic self-deactivating feature.

Only cluster munitions that have all of these five characteristics may be retained or used in military operations.

The Convention contains excellent provisions on victim assistance, on clearance, transparency, and international cooperation and assistance. The victim assistance provision includes a very broad definition of “cluster munition victims,” covering affected individuals as well as their families and communities. According to the text, States have an obligation to provide medical care, physical rehabilitation, socio-economic and psychological support to cluster munition victims, as well as to collect data on the victims. In addition, the text includes a detailed list of concrete actions that States shall have to take in order to support the victims.

Humanitarian assistance for victims and affected communities, as well as obligations of affected countries and donors to clear contaminated land, go beyond what was agreed in the anti-personnel landmine treaty and builds on the Convention on the Rights of Persons with Disabilities. The Convention does however have a number of weak or unclear provisions, including the issue of ‘interoperability’, that is, the ability of States Parties to nevertheless participate in joint military operations with States not party to the Convention and who might want to use cluster munitions banned under the Convention.

Such countries include the United States, Russia, China, India, Israel and Pakistan who did not attend the Dublin talks, and are unlikely to become parties to the agreement. While the Convention requires States Parties to encourage others to join the Convention, to notify Non States Parties of their obligations under the Convention, to promote the Convention’s norms, and to discourage Non States Parties from using cluster munitions, it is not clear that intentional assistance and indefinite foreign stockpiling are prohibited.

While some African countries have been vocal on the need for all types of cluster munitions to be banned, according to the delegate from Benin, “We are happy about achieving a treaty despite almost no consensus on all the points. Africa will benefit and we are proud even though we are not affected. The only problem is that the treaty is weak when one looks at interoperability. This was echoed by Uganda: “We are satisfied but believe that the text could have been better. We are not pleased with interoperability but at least there are no transition periods and the treaty will help in curtailing armed group activities,” said a delegate.

For many of the 111 nations that formally adopted the Convention on 30 May, the official view of the Convention on Cluster Munitions was summed up by the lead delegate for Austria, Alexander Marschik. It is, he said, like the attitude of parents towards their child: although it may not be perfect, it is something that "we are proud of". Several African States that participated in the negotiations also shared this view.

The signing of the treaty will take place in Oslo on 3 – 4 December 2008, and it will enter into force six months after 30 governments have ratified it. However, in order for the treaty to enter into force rapidly with African states at the forefront of accelerating the process, it is critical that those states that have not been actively involved in the entire Oslo Process are brought up to speed on why compromises were reached and why not all types of cluster munitions are no longer allowed to be produced or used. Uganda’s confirmation that it will host a post-Dublin Africa-wide meeting on the Convention on Cluster Munitions in Kampala from 29 September 2008 to 1 October 2008 may just be what is needed for Africa to take the lead in the ratification process.

*Gugu Dube is an Intern ,and Noel Stott is a Senior Research Fellow with the Arms Management Programme at the Institute for Security Studies in Tshwane (Pretoria).

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