No Loophole in Cluster Munitions Ban

Countries that have signed the new treaty banning cluster munitions should not in any way facilitate the use of this weapon, even in joint military operations with allies that have not joined the treaty, Human Rights Watch said today in a new legal analysis. Some signatories, particularly military partners of the United States, have promoted a contrary interpretation that threatens to undermine the ban.

In the 19-page paper, "Staying True to the Ban on Cluster Munitions: Understanding the Prohibition on Assistance in the Convention on Cluster Munitions," Human Rights Watch debunks an argument that the treaty permits certain forms of assistance during joint military operations. Countries such as Australia, Canada, and the United Kingdom have made such an argument. The 2008 Convention on Cluster Munitions explicitly prohibits providing any assistance with these deadly weapons.

"If wide loopholes are read into the convention, signatories could effectively load and prime the gun, so long as they didn't pull the trigger," said Bonnie Docherty, Arms Division researcher at Human Rights Watch. "States should resist political pressure from allies, including the United States, to weaken this strong treaty."

Human Rights Watch called on signatories to the convention to understand the prohibition on assistance as broad and absolute. They should pass implementation legislation, develop domestic policies and practices, and issue national interpretive statements supporting this understanding, Human Rights Watch said.

Article 21(3) of the convention allows states parties to engage in joint military operations with non-states parties that might use cluster munitions, but Article 1(1)(c) prohibits states parties from assisting non-states parties with acts banned by the convention.

The Human Rights Watch analysis says that the two provisions should be understood as compatible, allowing military cooperation but not when that would entail facilitating the use of cluster munitions. Under the reading some states are promoting, however, it is conceivable that states parties could participate in planning an attack in which a non-state party used cluster munitions, allow foreign stockpiles on their territory, provide security for stores of the weapons, refuel vehicles transporting cluster munitions, provide transportation of cluster munitions to the battlefront, identify the targets for cluster munition attacks, or even call in the strikes.

"This interpretation just doesn't make sense," said Docherty. "It flies in the face of the treaty's object and purpose, which is to eliminate cluster munitions and the terrible harm they do to civilians. It also makes other provisions of the treaty incoherent, such as the groundbreaking duty on each state to discourage others from using the weapon."

The Convention on Cluster Munitions absolutely bans the use, production, transfer, and stockpiling of cluster munitions. These large weapons carry dozens or hundreds of smaller submunitions that endanger civilians both during attacks and afterward. The convention also requires states to destroy stockpiles of cluster munitions within eight years, clear their territory of unexploded submunitions within 10 years, and provide assistance to victims.

The convention was negotiated in Dublin in May 2008 and opened for signature in Oslo in December 2008. There are currently 98 signatories to the convention, 10 of which have ratified. It will enter into force six months after the 30th ratification is deposited. Twenty of NATO's 28 members are signatories, including Canada, France, Germany, and the United Kingdom, as are Australia and Japan. They are among the states that have expressed the greatest concern about the effect of the convention on joint military operations (interoperability) with non-signatories such as the United States.

Human Rights Watch also calls on all states to sign and ratify the Convention on Cluster Munitions as soon as possible.

The Human Rights Watch paper is being released just in advance of a conference in Berlin (June 25 and 26) that is the first meeting to which all signatory states have been invited since the Signing Conference in Oslo in December 2008.