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U.S. Statement on International Humanitarian Law to Group of Governmental Experts
July 7, 2008

U.S. Statement on International Humanitarian Law

Group of Governmental Experts to Conventional Weapons Convention (CCW – GGE)

Thank you Mr. Chairman for giving me the opportunity to offer my delegation’s views on draft article 3 in the text you prepared entitled “Protection of civilians and civilian objects” which addresses the issue of international humanitarian law or IHL. At the outset, I would like to offer some general thoughts on this section and to respond to some of the comments we heard this morning. We will likely have some more detailed proposed edits to offer at a later stage.

First, we have heard a number of delegations make the argument that articulating existing principles of IHL as they apply specifically to cluster munitions will somehow undermine other aspects of IHL. The argument seems to be that by selecting certain provisions to highlight in a Protocol on cluster munitions, we would somehow inadvertently cast doubt on the continuing vitality of other provisions of existing IHL which are not included in the new Protocol. This is simply wrong as both a matter of legal interpretation and as a matter of CCW practice. Protocols II and III to the CCW both contain provisions that restate existing principles of IHL in the context of landmines and incendiary weapons respectively. We are not aware of any indication that inclusion of these provisions in these Protocols has somehow eroded any other provisions of IHL. If delegations are truly concerned about this issue, of course, a provision could be included to make very clear that nothing in this Protocol should be read to repeal or otherwise detract from existing provisions of IHL. This concern simply does not strike us as a reason not to include a section on IHL in this protocol.

A second argument that has been made in the context of the discussion on IHL so far is that provisions on the application of IHL to the use of cluster munitions might be interpreted as an endorsement of the legality of cluster munitions. This argument seems to depend on the notion that the Oslo Process has somehow created a new norm of international law that prohibits cluster munitions use and, therefore, any recognition of the possible continued use of these weapons would undercut the progress made by Oslo. It is simply wrong to claim that this new instrument has somehow created a new rule of customary international law. Of course, those countries that do ultimately sign and ratify it will be bound by its obligations. But no customary norm has been developed that binds those who declined to participate in the process and clearly and repeatedly rejected the notion that cluster munitions should be banned. Therefore, while it is true that the inclusion of a provision articulating the legal rules governing cluster munitions use would in some sense confirm that cluster munitions may in fact continue to be used, this is simply a recognition of reality, not a retreat from existing law.

Third, as we stated in the April negotiating session, we believe that the right approach to drafting an IHL section for this Protocol is to work together to identify which provisions of existing IHL have particular applicability in the context of cluster munitions. In our view, this should be the organizing principle for this section. There may be some disagreements among delegations on this issue, but it seems to us to be a manageable challenge for these negotiations. In this regard, we have concerns about including paragraphs 8, and more strongly, 9 and 10, in this article as we have yet to be convinced that they have particular applicability to cluster munitions.

Finally, we would like to reiterate the opposition we expressed in April to the provisions found in paragraphs 3, 5, and 6. As we stated then, we think these proposals do not accurately state existing IHL and are inappropriate to include in a Protocol on cluster munitions.

Thank you Mr. Chairman. As we have indicated on several occasions, we continue to believe that the articulation of existing IHL principles in the specific context of cluster munitions can make a valuable contribution to this Protocol. We hope that other delegations share this view.