JURIST Guest Columnists Steven Solomon of the World Health Organization and David Kaye of the UCLA School of Law say that while the recently concluded Dublin Cluster Bomb Treaty represents a major advance in the law of war, it is not a clear victory or clear defeat for anyone, including the United States...
ate last month over one hundred nations concluded a treaty to ban cluster bombs. Though the news was only lightly reported in the United States, it received major coverage in Europe, widely described as a major diplomatic defeat for the United States. Coming just a bit over a decade since the Ottawa Convention that banned anti-personnel landmines, the Dublin Ban raises the question: How big a defeat is this for the United States?
Actually, Dublin is a mixed bag, doling out portions of both victory and defeat for the United States and the ban's advocates. It is certainly not the Bush Administration's Ottawa, Kyoto (for the climate change protocol of the same year) or Rome (for the international criminal court of 1998), negotiations where the Clinton Administration lost hard-fought and high-profile battles.
Ban proponents hail the treaty as a milestone with good reason, for cluster munitions which typically involve a device that can disperse from a few to hundreds of submunitions, or bomblets can impose severe humanitarian costs. They may accidentally disperse to hit civilian objects; some may fail to explode, remaining long after conflict has ended like a landmine, until a civilian stumbles upon one. And since each munition may contain hundreds of bomblets, even a tiny failure rate can cause substantial civilian harm.
Perhaps most importantly, the treaty begins a long-term process of stigmatization, making cluster bombs harder politically for the United States and other militaries to use even if available legally. Further, the treaty's provisions on victim assistance, stockpile destruction and clearance will reinforce global efforts to reduce the toll taken by explosive remnants of war of all sorts. Together these constitute a victory ban proponents should be happy to celebrate.
The ban was opposed by U.S. military planners because they see cluster munitions as integral to U.S. operations, and feel the technical safeguards incorporated into US cluster weapons address the humanitarian risks. Bush Administration officials so opposed a ban that they did not send representatives to Dublin.
Yet U.S. allies won for the United States a loophole that it could not win for itself. They preserved American flexibility to use cluster munitions in joint operations with allies that might join the treaty, including key NATO partners like Britain.
A variety of pressures compelled the NATO powers in Dublin to support a ban in principle, but the biggest difficulty the ban presented to them was how their armed forces could continue to work together if they were bound not to use, transfer or stockpile cluster bombs, nor to "assist anyone" outside the treaty in doing so. NATO states called this assistance ban the "interoperability problem," and for them it was a showstopper, committed as they are to joint operations with the United States.
The stage in Dublin was thus set for discord between, on the one side, ban proponents looking to replicate the Ottawa landmine ban convention's blanket prohibition of a problematic weapon, and, on the other, a NATO-led group of countries committed to ensuring that the interoperability migraine they had after Ottawa would not be followed by a cluster headache after Dublin.
NATO won this particular battle. Drafters tucked into the Dublin treaty a provision that permits countries that sign it to "engage in military cooperation and operations" with countries that don't join even when those countries might use cluster bombs. For the United States, this addresses concerns about whether members of its coalitions are party to the cluster ban; they can cooperate militarily even if the United States uses cluster munitions.
This is a clear break from the Ottawa mine ban treaty, which doesn't include such a provision.
Cluster ban proponents opposed this loophole but evidently determined that a good treaty with NATO states in was better than a great one with them out. A failure to reach agreement in Dublin would have reanimated an alternative negotiating process under a competing treaty, the Convention on Conventional Weapons, where major military powers such as Russia, China and the United States all of which oppose a ban would have called the shots.
Dublin, then, while a major advance in the law of war, is neither clear victory nor clear defeat for anyone. It gives something for everyone to cheer and jeer.
But for Americans, there remains a more general shortfall. The Bush Administration opted out of engaging with others who sought objectives seemingly at odds with our own, and, as a result, weakened another kind of interoperability the political and diplomatic interoperability that is an essential element of American leadership in the international community.
The Dublin Ban is unlikely to be the last of its kind. One hopes that, next time, a confident American foreign and military policy can engage allies and adversaries to ensure the greatest protection to the widest numbers of civilians. Steven Solomon is Principal Legal Officer at the World Health Organization in Geneva, Switzerland; David Kaye is the Executive Director of the UCLA School of Law International Human Rights Program. Both negotiated law of war agreements under the Clinton and Bush Administrations.