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U.S. Delegation Intervention in Support of Article 3 on International Humanitarian Law
July 23, 2008

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

3rd Session, Group of Governmental Experts (GGE)

Thank you Mr. Friend of the Chair. We are eager to start our paragraph by paragraph discussion of this article, but we think it may be appropriate to make some general comments at the outset. Before that, however, let me thank you for your tireless efforts on this topic that has proven exceedingly challenging. While there are obviously different views among delegations about how to approach Article 3, I think there is complete consensus that you have worked extremely hard and inclusively to help us make progress on the issue of international humanitarian law (or IHL). So thank you for that.

I think it will come as no surprise to any delegation here that the United States strongly favors including in this Protocol an article addressing the application of IHL to the use of cluster munitions. As appropriate, we will give our comments on particular paragraphs as we reach them in our discussions today, but for now, I would like to reiterate the reasons we believe Article 3 is important and valuable.

First, we have heard a number of delegations say that it is impossible to seriously address what is to be included in Article 3 without knowing the contents of Article 4, 5 and 6 first. Frankly, we disagree with this argument. It is true that if this Protocol were going to ban all cluster munitions, a provision addressing the rules governing their use would be unnecessary. However, while this may be the objective of some delegations, we all know that an approach that seeks a complete ban will not gain consensus. So, we can easily predict that the outcome of Article 4 will be some kind of regulation or prohibition on certain cluster munitions. That of course means that at least certain cluster munitions will remain legitimate weapons. In our view, therefore, the application of IHL to the use of these weapons in situations of armed conflict will remain highly relevant. So, let’s not hold Article 3 hostage to progress on Article 4. Both articles are important. We need to do considerable work on both to conclude an agreement here. We would urge all delegations to work seriously and constructively on both articles when we return to these issues in our next session in September.

Second, putting aside the legal aspects for the moment, we need to think about the message we are sending with whatever we produce in this body. The purpose of our work is to address the humanitarian concerns associated with the use of cluster munitions. As we have stated on many occasions, my delegation believes that a part of the solution to these concerns is technical improvements to cluster munitions. And we are working to make progress on that front with the idea of finding binding obligations that will have a positive humanitarian impact and can gain consensus. However, as many delegations have stated during the GGE’s work on cluster munitions, the application of IHL to the use of cluster munitions in situations of armed conflict is also an important means of addressing their humanitarian impact. As such, IHL rules that govern the specific use of cluster munitions are critically important. Much of the criticism about cluster munitions use has highlighted the concern that they have not always been used in a manner that is consistent with a strict application of IHL. Therefore, my delegation believes that a Protocol which purports to find a solution to this humanitarian problem, but fails adequately to reflect the role of IHL in governing the use of cluster munitions in situations of armed conflict, runs the risk of not being viewed as a credible result.

Third, and related to my previous point, we need to be mindful of consistency with CCW practice in this area. The first four protocols to the CCW addressed specific types of weapons, like we are doing now. Protocol I simply banned non-detectable fragments. Protocol IV banned blinding laser weapons. Of course, these Protocols did not include any provisions on IHL, because the protocols themselves banned their use during armed conflict. However, Protocols II, and III, which regulated but did not ban landmines and incendiary weapons respectively, took a very different approach, which is the model we should be looking to in our work here. Both of those Protocols included a number of substantive IHL obligations that specifically addressed the use of those weapons. We think that this is the approach we should follow here as well. In fact, given this background, we think that the idea of moving any reference to IHL to the preamble would be perceived as a strong statement that this body does not believe that IHL is particularly relevant or important to addressing the humanitarian concerns associated with the use of cluster munitions. This is a result which risks actually undermining the importance of IHL.

Fourth, turning to the legal analysis of this Article, we have heard many times over the course of the last two and a half weeks that some delegations believe that if Article 3 does not create new IHL, it will have no legal value-added and, as a result, should not be included in the Protocol. This is a flawed legal analysis and fails to consider the broader international context in which we are operating. Much of the argument turns on the fact that Additional Protocol I to the Geneva Conventions includes many of the concepts that appear in the current draft of Article 3. This is true, but it fails to recognize that a number of countries are not parties to AP I, including the United States. Accordingly, including such provisions does have legal effect. Furthermore, a number of delegations have indicated that they believe these provisions in AP I are also customary international law. In some cases, we agree that this analysis is supported by state practice and opinio juris and in other cases we do not. Nor do we believe there is a consensus in the room about which portions of AP I may or may not reflect customary international law. The important point is that, in this context, a mere restatement of existing provisions of IHL applicable to the use of cluster munitions in situations of armed conflict will actually provide clarification about the relevant rules.

In addition, AP I addresses international armed conflict. As we attempt to use verbatim language from AP I, our discussions to date have tended to gloss over the fact that we are working on a Protocol that will apply in both international armed conflicts and non-international armed conflicts. When compared to API, AP II does not contain the same specificity concerning restrictions or prohibitions on military operations that may have an impact upon the civilian population. Consequently, there could be a real value to putting in a CCW protocol provisions that track with AP I because they will explicitly apply to non-international armed conflicts as well.

Clearly then, Article 3 provides value added to IHL by:

providing guidance that is specific to the use of cluster munitions;

even if Art 3 simply restates provisions of AP I, this will have particular value for those nations that are not a party to AP I;

strengthening the argument that such provisions are customary international law, based on our discussions here and subsequent analysis by States; and

establishing specific legal obligations for the use of these weapons during non-international armed conflict.

For all these reasons, therefore, we believe that there is real legal value to including this article.

Mr. Friend of the Chair, I have just offered a summary of the reasons my delegation believes this Article is important. However, I would also like to say a word in response to the claim we have heard that there may be a risk in including such an Article. The argument seems to be that including an article on IHL may accidentally undermine existing law or confuse its application. Part of the answer to this concern is of course that we must do our work in this area carefully and avoid misstating existing rules. However, under your leadership, Mr. Friend of the Chair, I am quite confident we are up to that task. But the concern seems to go deeper than that. It seems to be that even if we correctly state the rules we are trying to include, we may still somehow undermine existing law. As we indicated at the beginning of these negotiations, we believe this is wrong as a matter of legal interpretation. However, we have been persuaded that there could be a perception problem associated with identifying core principles of IHL that apply to cluster munitions without including all relevant rules. Accordingly, we are quite happy to include a provision along the lines of the first paragraph in the Friend of the Chair’s paper that makes abundantly clear that this is not the case. With this addition, we simply do not see the concern about undermining existing law.

I will not go into our paragraph by paragraph comments at this stage, but do wish to conclude with an overall thought about the way this article should be structured. We believe that there should be a middle ground between those who want to delete it entirely and those who seem to want to repeat all of AP I in the article. In our view, the approach should be to identify the key principles that are particularly relevant to the use of cluster munitions in the context of both international and non-international armed conflicts, correctly state those principles, and stop there. We believe this is a manageable task, and one that will have real benefits. Accordingly, we hope all delegations will come back in September ready to engage on this important topic as part of a successful outcome of this negotiation.