Points on humanitarian benefit of draft protocol
Statement to the Group of Governmental Experts (GGE)

Delivered by Stephen Mathias
Head of the U.S. Delegation

November 6, 2008

We have listened carefully to the argument made by some states that the draft text we are working on here would have no humanitarian benefit.

In our view, the appropriate standard by which to judge the adequacy of an eventual protocol is whether it will have a significant humanitarian benefit on the ground.

The U.S. delegation is convinced that the Chairman’s draft that we are working on meets this standard.

The most significant humanitarian benefit can be found in paragraphs 1 and 2 of Article 4. These paragraphs would have the effect of forcing States Parties to make major changes in their cluster munitions arsenals.

Paragraph 2(a) would require not only that submunitions include at least one of a specified list of safeguards, but also that such safeguards effectively ensure that unexploded submunitions no longer function as explosive submunitions. This is a very high standard.

Many, if not most, of the cluster munitions that currently exist do not even have one safeguard. To meet this new requirement will require most of the cluster munitions in existing arsenals to be removed from active stocks.

Paragraph 2(b) also sets a very high standard for future cluster munitions. As we have said regarding our own policy, this new standard will affect almost our entire arsenal. Over 95% of our cluster munitions stocks will have to be replaced to meet this new standard.

Further, the requirement to achieve this result over the range of intended operational environments addresses the issue raised by many regarding the discrepancy between results achieved in testing and real results on the ground in situations of armed conflict.

Furthermore, the requirements in paragraph 4 of Article 4 take effect immediately and are not subject to the transition period that is available with respect to paragraphs 1 and 2. These provisions will immediately move the development and use of new cluster munitions in a positive, more humanitarian direction.

The requirements in Article 7 dealing with clearance and destruction are compatible with similar requirements in Protocol V on explosive remnants of war and address one of the main humanitarian effects of cluster munitions, their impact on civilians after a conflict.

There are also a number of important restrictions on transfers that take effect immediately, without regard to the transition period in Article 4. For example, the proposed cut-off date for the transfer of cluster munitions (those manufactured before 1990) is significant. We believe that the bulk of the world’s cluster munitions, many of which were created during the Cold War, would be affected by this immediate transfer ban. To illustrate, approximately three-quarters of U.S. Army cluster munitions were manufactured before 1990. Furthermore, the ban on transfers to non-state actors is an important provision that will likely produce significant benefits.

A number of delegations have argued against a long transition period. Without entering into the debate over exactly how long the transition period should be, it is worth noting that the very fact that a number of countries need a long transition period to meet the obligations of Article 4 is a sign of the significance of these requirements. If countries did not believe that they would need to make significant changes to their arsenals to comply with these requirements, there would be no need for them to insist on a lengthy transition period, as they have.

There are numerous other provisions in the draft text that would have a significant positive impact. For example, the provisions on international humanitarian law provide important guidance on the appropriate use of cluster munitions, particularly in the context of non-international armed conflicts and for States that are not parties to Additional Protocol I to the Geneva Conventions. Article 5 on storage and destruction, Article 8 on recording, retaining, and transmission of information, and Article 10 on victims assistance are all also significant.

Stepping back from this discussion of the specific provisions in the draft text, it is also important to keep in mind the context in which we are operating. Approximately 90% of the world’s stockpiles of cluster munitions are held by countries that do not support a complete ban on cluster munitions. Therefore, keeping in mind the points we have just made, if we can achieve consensus on a text along the lines of the one we are working on, it is likely to have a very significant humanitarian impact.

It would be deeply disappointing if some states turn their backs on the possibility of achieving consensus on a text that would have a significant humanitarian benefit because it does not go as far as they would like. This would be a real tragedy.

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