Banning Evil: Cluster Munitions and the Successful Formation of a Global Prohibition Regime

Cluster munitions constitute a substantial part of the military arsenals of all major powers. Their development, procurement and stockpile are a central hard component of national security. Yet, in less than two years, cluster munitions were banned by an international treaty negotiated outside the normal channels, the United Nations (UN), and spectacularly, in less than two years. The treaty is the Convention on Cluster Munitions (CCM) signed in Oslo in December 2008, by almost one hundred states, and quickly enforced force (August 2010).

Realists would dismiss such cases and say that the politics of national security is impervious to change and influence. A few prominent scholars have demonstrated the role of other actors beyond the state in bringing change to other issues that are close to the national security of states. The case of the powerful convention that banned landmines in 1997 proved to be the first hard case in which an issue of national security was brought to change by the penetrating and coordinated influence of non-governmental organizations (NGOs) worldwide.

Differently from landmines, cluster munitions are a highly profitable industry and have a vital place in the military doctrines of the North Atlantic Treaty Organization (NATO) allies and others. One element that fundamentally differentiates landmines from cluster munitions is economic. The latter are much more costly to produce and the trade is substantially more profitable. A major part of global artillery arsenals is made up of cluster bombs. Eighty per cent of United States (US) artillery ammunition, for instance, consists of such munitions. Russia, China and the US are the biggest producers.

I argue that the ban on cluster munitions was brought to life by a stout global prohibition regime by a more complex set of arrangements and coalitions than the landmines case and it represents a moral prohibition regime. In the cluster munitions ban case, few states were as progressive as NGOs.

The ban was brought to fruition by the exceptional combination of state and non-state activism, a new form of diplomacy for the 21st century, and the commanding moral force of international humanitarian law (IHL) as a robust and compelling previously existing normative structure. Clearly, the Convention that banned cluster bombs went beyond IHL but benefited from this powerful normative framework.

The ban of cluster bombs is about military doctrines succumbing to the higher authority of moral and humanitarian concerns. In 1997, the International Campaign to Ban Landmines (ICBL), led by Nobel Peace Laureate chief negotiator Jody Williams, leading civil society worldwide, successfully banned antipersonnel landmines with the Ottawa Treaty.

Yet once again, another set of weapons, namely cluster munitions, has gained prominence on the international agenda. Jody Williams, said upon receiving the Nobel Peace Prize: the landmine does not recognize the peace, after the war is over, it keeps on killing. Cluster munitions also present the same indiscriminate elements with the same ‘unnecessary suffering' component to civilian populations.

In summer 2006, the world watched in dismay, the brief but devastating war between Israel and Hezbollah when the Israeli army fired as many as four million cluster bombs into Lebanese territory during the short-lived war. Unfortunately, de-mining experts say, up to 1 million cluster bombs failed to explode immediately and continue to threaten civilians. Although the war ended in a month, Lebanese citizens continue to live in fear of leftover munitions; unexploded cluster bomb remnants that remain scattered across the country. Due to anti-personal characteristic of cluster munitions, which often leaves children as victims, advocates for banning the weapons created a united voice.

The international outcry for the catastrophic humanitarian consequences of deploying these weapons in densely populated areas, in the summer 2006, helped spark the global movement to ban cluster munitions and to create a global prohibition regime. Some of the other serious precedent situations include during the Cold War, Laos, most prominently. After the end of the Cold War Afghanistan, Iraq, Chechnya, Kosovo, and the EthiopiaEritrea conflict were some of the most notable cases. It is important to notice that the process towards a ban is more than a century old. However the focus of this article will be since the summer 2006. What happened then in Lebanon constituted the shock event that triggered all the action for global prohibition treaty-making.

I use primarily the framework of the illuminating theory of global prohibition regimes to start explaining how this has happened. The ban process started with the creation of the "Oslo Process", a track-two diplomacy course of action, i.e. with the government of Norway's call to negotiate a ban on clusters outside the UN in November 2006. The Oslo Process started with 46 states who committed to begin negotiations in February 2007 towards creating an international instrument to ban the use of cluster munitions (Oslo Conference on Cluster Munitions, 2008).

Over the following year and a half, several conferences around the world were held to continue to craft the prohibition regime on banning cluster munitions. Three months after Oslo, states met again in Lima in May 2007, and again in Vienna in December. Discussions were held to work towards creating a treaty, with negotiations that spanned from specific definitions of cluster munitions to the extent of the assistance to victims.

By February 2008, states met in New Zealand reaching an agreement known as the Wellington Declaration. This was a commitment by states to attend the Dublin conference three months later, setting final negotiations for a treaty to ban cluster munitions. The conference in Dublin lasted 10 days in May 2008 resulting in 107 states that signed and decided upon a final treaty.

The global prohibition regimes literature usually deals with activities that must be suppressed, such as piracy, slavery, and drug trafficking. I will start out using this literature's mostly known framework (Nadelmann and Andreas, 2006). For the purposes of my argument, the activities to be suppressed and subsequently prohibited are the use, development, production, acquisition, stockpile, and transfer of cluster munitions (CCM, article 1). Nadelmann and Andreas have pointedly observed that most global prohibition regimes follow a common evolutionary pattern that usually has five stages (Nadelmann and Andreas, 2006, 20-22).

In the first stage, the activity is still viewed as legitimate and normal. The state is usually the most common accomplice or protagonist. If any constraints are in place, they derive from bilateral treaties or political caution. At this stage, moral notions or evolving international norms play no role. The second stage entails the framing of the activity as a problem and as an evil. This framing, or "redefinition" as they say, is done by moral entrepreneurs, legal scholars, or religious groups.

The redefinition or reframing is gradual and at this stage, government officials are still involved to some degree in accepting or even serving as guarantors of the activity to be suppressed. In the third stage, regime change advocates and activists begin to protest and campaign vigorously using many tools ranging from diplomatic pressure to campaigning to military intervention. They spouse suppression and criminalization through international treaty making. These advocates include, for Nadelmann and Andreas, governments that typically exert hegemonic influence in an issue area as well as moral entrepreneurs.

If victorious, the process reaches a fourth stage that is the one of a fully existing prohibition regime: the activity becomes the subject of criminal laws (and police action) and institutions and treaties form to coordinate. This stage means that some states will not have the political will or legal and financial capacity to implement and carry out the treaties' obligations. At this stage, criminal organizations still engage into the suppressed activity. In certain cases, the regime reaches a fifth stage. At this stage, the activity perhaps only exists in some areas. The reason why I chose this framework is summed up by:

"global prohibitions regimes are more likely to involve moral and emotional considerations than are most other global regimes. Like many criminal laws, they seek not to regulate but to ban; the underlying assumption is that certain activities must be prohibited because they are evil. Transnational moral consensus regarding the evil of a particular activity is not, however, sufficient to ensure the creation of a global prohibition regime" (Nadelmann and Andreas, 2006, 228).

Nadelmann and Andreas' framework will only be partly useful for the purposes here because of the strong criminal law component leading to regime formation in their theory (Nadelmann, 1990), perhaps still absent in this emerging prohibition regime against cluster munitions. However, this framework is pertinent here because this new regime is indeed about deciding on an issue out of moral conviction and this is what happened to banning the evil caused by cluster bombs.

I argue that two complementary theoretical frameworks will be needed to fully explain the rise of this new regime: one is the constructivist framework of international norms, and the other is from a branch of International Law, namely, International Humanitarian Law (IHL), also called the Laws of War. It is generally accepted that the definition of international norms is: a standard of right or wrong, a prescription or proscription for behavior "for a given identity." (Katzenstein, Wendt, and Jepperson, 1996). This is pertinent because the prohibitions set by the CCM were based upon a few powerful norms laid out by IHL (distinction between civilians and combatants, choice of weapon consistent with the need to avoid collateral damage, and weapon that is proportional to the desired military objective).

It is also probably true that the CCM already started prescribing behavior for the non-signatories with an ongoing significant stigmatizing effect. It can also be said that the ban is not yet a taboo as some observers are saying. An authoritative normative view of taboos, vis-à-vis issues that are closely related to national security, advances that a taboo is not the behavior of non-use itself but rather the normative belief about the behavior (Tannenwald, 2005, 4). A taboo is an intensely powerful kind of prohibition that is concerned with the protection of individuals from behavior that is associated with peril. A taboo is larger than a norm and it has characteristics of prohibition, danger, and its non-observance involves consequences (Tannenwald, 2005, 4).

The nuclear taboo, for example, is a de facto taboo not a de jure taboo because there is no prohibition on the use based on an international treaty (the Non-Proliferation Treaty does not contain express references). The case of the cluster bombs ban includes a de jure prohibition and the subjective element about it is the possible political opprobrium that will result on the use. However, this subjective element and the strong ascendance of the political opprobrium occurred because they were based on the force of the existing concrete and usually adhered to IHL norms. The four Geneva Conventions and their Protocols are the most widely ratified international treaties in international law, and clearly represent the moral framework for the conduct of security relations vis-à-vis the use of arms in international relations.

Cluster Munitions

Cluster Munitions, or cluster bombs or weapons, are conventional weapons that may be used against a number of targets, invented for large theater wars during the Cold War, which never occurred. They consist of a container or dispenser projected when airborne, land or sea-based that scatter clusters of bomblets over wide areas. They are theoretically designed to detonate prior or right after impact.

Cluster bombs are a threat to civilians in particular because a large number of unexploded bomblets consistently fail to detonate and the operation area usually covers a wide radius. Even a single fired container of cluster bombs that was launched and failed to detonate, the failure would scatter two hundred to six hundred hazardous bomblets over a large area. Furthermore, functioning like landmines, duds or unexploded bomblets without self-destruct devices are sentinels that could remain dangerous for decades after the end of a conflict and remain a serious menace to civilian populations.

Due to the destructive and lethal potential of cluster bombs, international efforts have gained momentum that led to successful multilateral negotiations to prohibit cluster munitions at the end of 2008. Most cluster munitions have not been used, they are still in stock of the great producers' arsenals: United States, Russia, and China.

First stage: the activity is still viewed as legitimate and normal.

Prior to the Convention on Cluster Munitions (CCM), there were no restrictions on the production, use, and transfer of cluster bombs as well as no legal international means of protecting potential victims against the use of cluster munitions. Historically, the 1980 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, also known as the Convention on Certain Conventional Weapons (CCW) was the first tentative albeit ineffective step.

The CCW was negotiated by 51 states in 1980. Its key goal is the protection of combatants from inhumane injuries and the prevention of non-combatants from accidentally being wounded or killed by certain types of arms. It applies to both international and intrastate conflicts. It entered into force in December 1983 and now has 111 high contracting parties. The CCW was a response to the Vietnam War by the international community, where the suffering caused by the indiscriminate use of the weapons with which the CCW deals was immortalized by the photo of Phan Thị Kim Phúc that was taken just after South Vietnamese planes bombed her village. AP Photographer Nick Út and NBC cameraman Le Phuc Dinh filmed her and her family emerging from the village after the air strike, running for their lives. This photo became one of the most famous photos to emerge from the Vietnam War and it received the Pulitzer Prize in 1972.

When the states parties to the CCW failed in November 2006 to agree on a mandate to continue on a path to negotiations addressing the humanitarian problems caused by cluster munitions, Norwegian Foreign Minister Jonas Gahr Støre invited interested states and organizations to a meeting in Oslo. On 22– 23 February 2007, Norway hosted the Oslo conference in which a group of 46 states met and, except for Japan, Romania and Poland, agreed on a process to develop and conclude a new treaty that would prohibit cluster munitions by 2008. The aim of the meeting was to start a process towards an international instrument on cluster munitions together with other concerned states and humanitarian actors. The 46 key states agreed to define key users, producers and stockpilers, and the countries mostly affected by cluster munitions were present (CMC 2007a).

Many previous initiatives throughout the last century attempted to set standards for the use of cluster munitions, thus paving the way for these processes (Prokosch 1995, Borrie 2009). Major NGOs and the International Committee of the Red Cross (ICRC) have been campaigning on this issue for many years.

However, pressure for controls on cluster munitions had been building for years by the use of such munitions in a large number of conflicts, including Afghanistan (during the Cold War and in 2001), Albania (1998–99), Bosnia and Herzegovina (1992–95), Cambodia (1969– 73), Chechnya/Russian Federation (1994– 96), Croatia (1995), Eritrea (1998), Ethiopia (1998), Iraq (1991 and 2003–06, where the almost three thousand casualties reported overshadows the problem of unreported casualties, and clearance is made difficult by the bad security situation), Israel (2006), Kosovo (1999, where NATO forces used cluster munitions with widespread humanitarian consequences, including placing a heavy burden on public health systems), Kuwait (1991), Laos (1965–73), where over 50 million cluster bombs were dropped within a kilometer of villages), Lebanon (2006, where total casualties reached 587 by April 2007), Montenegro (1999), Nagorno-Karabakh/Azerbaijan (1992–94), Serbia (1999), Sierra Leone (1997), Sudan (1996–99), Syria (1973), Tajikistan (1992–97), Vietnam (1965–75, where by 1975 approximately 300 cluster bombs had been dropped per square kilometer), and Western Sahara/Morocco (1975–88) (HI 2007). The worst-affected countries were Afghanistan, Cambodia, Iraq, Laos and Vietnam.

Throughout 2007, a group of approximately 15 like-minded or countercore states appeared: Australia, Canada, the Czech Republic, Denmark, Finland, France, Germany, Italy, Japan, the Netherlands, Slovakia, Spain, Sweden, Switzerland and the UK. Their main concern was that the generation of a norm against the use of cluster bombs would cause them a legal conundrum vis-à-vis joint operations with the US and other non-high contracting parties, especially within NATO (Borrie 2009: 173).

The 46 key states agreed to define key uses, producers, and stockpilers, and the countries mostly affected by cluster munitions were present.

A discussion held in November 2008 to finalize negotiations towards a sixth CCW Protocol that would address cluster munitions failed to reach an agreement. All in all, the CCW is an important process because it brings together all the producers and users, many of whom had no role in shaping the language agreed upon in Oslo.

However, the CCW High Contracting Parties were very reluctant to even pursue a new international commitment that represented a move away from their traditional balance between military and humanitarian considerations that the CCW always struck. However the proper starting of a rejection of the norm deeply held until then – i.e. the retention of cluster bombs in arsenals – meant moving away from this balance and actually embrace a new realization: the use of cluster bombs and its accompanying humanitarian impacts outweigh military necessities.

Second stage: gradual re-framing as a problem and as an evil by moral entrepreneurs.

Two key recent events led up to the drawing up and signing of the CCM: in the fall of 2005, Norway elected a government that held a majority in parliament that eventually embraced the concept of a ban. In March 2006, Belgium passed legislation banning cluster bombs (Borrie 2009: 64). Both processes were catalyzed by the same shock event, namely the brief but devastating war between Israel and Hezbollah in Lebanon in the summer of 2006.

Even though the conflict only lasted for a month, it killed almost 300 people, contaminated an area of approximately 37 million square meters and left hundreds of thousands of unexploded munitions. One of the parties to this conflict clearly and severely violated the principle of the choice of a proportional weapon according to IHL. This breach of this important principle produced a lasting tragic humanitarian disaster (Kellenberger 2007).

From 2006 through 2008, two disarmament diplomacy processes potentially dealing with cluster munitions gathered speed. One was aimed at prescribing regulations for the production, use and transfer of cluster bombs, and the other at proscribing all these activities. The former negotiation track took place within CCW. The latter negotiation track was a typical track-two diplomacy negotiation process outside the United Nations, called for by one country, Norway, known as the Oslo Process.

Throughout 2007 and for part of 2008, the CCW and the Oslo Processes overlapped, and were entangled politically and diplomatically (Borrie 2009: 160). This is because the former included all the major producers and users of cluster munitions and the latter included member states who were not at the CCW negotiations, the states worst affected by contamination, and the UK (as a major user and producer) and other NATO allies. The CCW NATO states hoped to maneuver the CCW negotiations (held in Geneva) towards a result that would not substantially harm their newer stocks of cluster bombs and at the same time allow them to claim the "humanitarian high ground" (Borrie 2009: 161).

The Oslo Process represented a broad moral coalition amongst states, civil society and UN agencies that brought together a new standard to protect civilians and helped to cement a new form of diplomacy. The UN Secretary General welcomed it, accepted the depositary functions for the treaty that was the result of the process and offered assistance with regard to treaty obligations for the CCM. The treaty was based on the principle that the necessities of war ought to yield to humanitarian considerations and to do so unfalteringly on behalf of humanity (O'Ceallaigh 2008). The CCM represents the irresistible moral compelling force that the existence of these weapons is incompatible with life in the 21st century, at a time when the nature of war has changed so dramatically:

Achieving the broadest possible support for international humanitarian law norms is an important objective .... But historically the highest levels of State participation have been achieved by the adoption of clear and morally compelling agreements. We urge States to reflect carefully on these procedural issues which are an integral element of ensuring the effectiveness and credibility of international humanitarian law agreements in the field of arms (Kellenberger 2007, emphasis added).

Endorsements against the use of cluster munitions signaled an emerging stigmatization pattern and the real path to reframing the issue. NATO affirmed in July 2007 that it would not use cluster bombs in Afghanistan because of apprehension regarding the potential humanitarian effects, as well as possible contraventions of IHL (Rappert 2008). Rapidly, the re-framing as an evil accompanied by the stigma against use of the weapons broadened, deepened and intensified (Nash 2008).

Beyond the pioneering domestic legislations passed by Belgium and Norway, in March 2009 the US Congress passed a one-year moratorium on the transfer of cluster munitions with a failure rate of less than 1%, which represents the majority of the American arsenal (Mines Action Canada 2009). In the 2008 hostilities between Georgia and Russia, Human Rights Watch concluded that both sides used cluster munitions. What followed was both sides trying to deny the weapons' use and justify their conduct on moral grounds (HRW 2009). It appears, therefore, that by 2009, the reframing of the use of cluster munitions as an evil activity not to be conducted by civilized nations was complete.

In the Ottawa landmines treaty and probably also with regard to the CCM, even though many important producer states have not ratified the multilateral mandates arising from the two agreements, two facts emerge as a result: one is the drying up of demand for the weapons and the second is a considerable reduction in the number of victims per year. This latter fact helps strengthen the case for the moral force of the rising prohibition, and a firm path towards the construction of the prohibition regime.

The events in Lebanon were a turning point for the ICRC position on cluster munitions to turn into taking a stand and acting vigorously towards contributing to the re-framing of production, use and transfer of cluster bombs as an evil (Borrie 2009: 241). The background was the Ottawa landmines process, which has fundamentally contributed to changing behavior. The media have been sensitized and the landmines ban has meant the construction of a taboo that makes it almost unthinkable for states to use them.

For example, the Israeli government wanted to mine the wall separating Israel from the Palestinian territories, but it was dissuaded from doing so at the highest level; so even though Israel had refused to ratify the Ottawa treaty, it decided not to use landmines (Hiznay 2008). The most startling example of non-use has been the US, which has not deployed landmines since the first Gulf War and is pressured not to use them because of joint NATO operations. Four million landmines have been cleared and destroyed, and the trade is dead (Hiznay 2008). The Ottawa treaty is a striking example of the development of a taboo that prevents the use of a particular weapon.

The role of particular individuals was vital to the moral reframing of all activities associated to cluster bombs to be considered evil. John Borrie advances the idea of an "informal network of individuals" or a group of "humanitarian disarmers" who were significant to the achievement of the prohibition treaty. Prominent in the category of influential individuals was Ambassador Steffen Kongstad, deputy secretary general for humanitarian affairs at the Ministry of Foreign Affairs in Norway. He had been involved in the Ottawa landmines process and therefore was instrumental via the legacy and wisdom he brought to the cluster ban process.

From the NGO standpoint, there was a genuine coalition of individuals, involving Thomas Nash, coordinator of the Cluster Munitions Coalition (CMC) that is a network of civil society organizations, including NGOs and faith-based and professional groups, that has been participating in the CCW and Oslo Process; Steve Goose, director of the Human Rights Watch Arms Division; and Grethe Østern of Norwegian People's Aid, co-chair of the CMC. This ‘triumvirate' worked hard to spread the word broadly, working both locally and globally.

They provided assistance to the campaign, set up parliamentarian groups and in particular targeted David Miliband, the then UK foreign secretary by getting inside the space where Miliband and his staff walked (including metro stations near work), and using the local media, the BBC and working with grassroots movements (like women's groups). The UK domestic scene contributed to all this as Gordon Brown was unpopular at home and wanted to seize the limelight through support of a good cause (Conway 2008).

Initially, Mexico (through Ambassador Pablo Macedo) and New Zealand (through Ambassador Don Mackay) were the first to join Norway in setting up the first off-the-UN conference. Following them were Austria, Ireland and Sweden, forming a core group. Other interested states included Belgium, the Holy See, Lebanon and Peru (Borrie 2009: 141).

At the end of the Oslo conference, the group consolidated around Austria, Ireland, Mexico, New Zealand, Norway, and Peru. The Holy See later joined as a fully fledged member. The resulting benefits were the use of the moral clout and extensive diplomatic networks in the developing world by this core group (Borrie 2009: 162). On the other side of the coin, the US, Brazil, China, India, Israel, Pakistan and Russia, all major cluster munitions users, rejected the Oslo Process throughout (Borrie 2009: 149). They were still accepting the activities and were acting as guarantors of the continued uses of cluster bombs.

An important step achieved during the moral reframing was during one of the preparatory conferences to the CCM, the Vienna conference. The Norwegian's People's Aid, an influential NGO, presented a report, entitled M-85: An Analysis of Reliability. It exposed the fact that, despite the incorporation of high-quality selfdestruction mechanisms, M-85 bomblets presented a higher-than-anticipated level of failure rate that did not prevent contamination (Borrie 2009: 189).

This report struck down the argument by some states that technical improvements had reduced failure rates, since the M-85 bomblets were lauded as among the best models. As the conference concluded, there was a sense of optimism for continuing discussions at the next major meeting in Wellington, New Zealand. The dramatic increase in participation and support for the Oslo Process was an acknowledgement of the growing stigmatization of cluster munitions and a sign that the process was irreversible, with the majority of the international community fully supporting a total ban.

The dwindling bond among likeminded states (the counter-core group of guarantors) attempting to weaken the treaty proved to be vital in the lead-up to Dublin where the CCM was cinched. Three factors led to this loosening of the raison d'être of this group. The first was the French military review of the utility of the cluster bombs it possessed in its arsenal. The review, carried out before Wellington, ascertained that the cluster bombs the French had were of limited utility. Substitute capabilities that would not engender the same humanitarian setbacks like the BONUS sensor-fused system (a type of cluster bombs) would be able to fill the gap (Borrie 2009: 251).

This led the French to start a back-channel bilateral consultation with Norway, which had the same interest in maintaining the sensorfusing munitions. Secondly, not all of these like-minded states had cluster munitions; for instance, Australia did not. In addition, among the ones who had such weapons, the capabilities and types of weapons varied considerably. Thirdly, interoperability, still an outstanding issue, was less of a concern for those countries that were not part of a military alliance, such as Finland, Sweden and Switzerland. Thus, the reasons for the solidarity of this group of states began to dissipate (Borrie 2009: 255-277).Continued on Next Page »