121 5.6 Towards an effective Protocol

Table 5.5 Dutch policies on ERW November 2003 – December 2006: Towards an effective Protocol

Objectives After the establishment of Protocol V, the objectives of the Dutch

government were to 1) actively promote the international acceptance of the instrument and the adherence of as many countries as possible, 2) to promote the operation of the protocol and 3) to promote the compliance of its stipulations. An additional objective 4) was to seek progress on the subjects mentioned in the mandate of the GGE’s Working Group on ERW. These subjects included the implementation of existing IHL and the exploration of possible weapons-specific preventive measures.

Results On 12 November 2006 Protocol V entered into force (the Netherlands

ratified on 18 July 2005). In December 2006 28 states had ratified Protocol V. With respect to weapons-specific measures, the Third Review Conference decided to continue consultations on the matter. This modest result motivated Norway to start a parallel process to achieve a prohibition of certain types of cluster munitions outside the framework of the CCW.

Interventions The Netherlands stimulated the ratification process of Protocol V by asking

attention be paid to it in other disarmament arenas. With respect to weapons-specific measures, the Netherlands did not intervene.

Impediments Impediments to the effective implementation of the protocol were 1) the

focus on AVMs in the GGE, 2) slow ratification of Protocol V by militarily significant countries, 3) Dutch presidency of the EU, 4) the ambitious programme of some countries regarding weapons-specific measures.

Objectives

After the establishment of Protocol V, the objectives of the Dutch government were to actively promote the international acceptance of the instrument and the adherence of as many countries as possible, to promote the operation of the protocol and to promote compliance with its stipulations.230 _{Additionally, the Dutch government expressed its}

willingness to implement the mandate of the GGE Working Group on ERW. That implied discussions with its partners on the issues of IHL and weapons-specific preventive measures.231 _{In the summer of 2006 both issues became prominent on the international}

political agenda, when it became clear that Israel had used cluster munitions during its armed intervention against Hezbollah in Lebanon. By that time, a policy shift had occurred in Dutch policy on the issues of IHL and weapons-specific measures. Initially, during the consultations and negotiations on Protocol V the Netherlands had aimed at including weapon-specific measures. After the protocol had been adopted, the Netherlands preference was for existing IHL to be implemented, rather than for new

230 TK, 29200, V, nr. 61.

231 TK, 29200, V, nr. 61 and opening statement by Ambassador Stephen Nellen, Director GICHD, at the occasion of the thirteenth session of the CCW GGE, 6 March 2006.

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regulations to be made on specific weapons in general and cluster munitions in particular.

Results

Within three years, the minimal number of 20 ratifications of Protocol V was achieved, enabling it to come into force. By November 2005 28 States had become States Parties to Protocol V. The Netherlands had ratified on 18 July 2005. Though long ratification procedures were common in the Netherlands, the government had attempted to ratify as soon as possible in order to have some influence on the operation of the protocol. By 12 November 2006, when the protocol entered into force, 27 states had expressed their consent to be bound. The entry into force was marked during a special meeting during the Third Review Conference. It was noted that only a few countries with a large ERW problem had become party to the protocol. During the Review Conference, this problem was addressed in the context of universalisation of the CCW as a whole. As far as the implementation and operation of Protocol V was concerned, the Netherlands succeeded in obtaining the chairmanship of the First Conference of the High Contracting Parties to Protocol V on 6 November 2007 and its PrepCom on 18 June.232

With respect to the weapons-specific measure, little progress was made. The issue proved to be too contentious and any hope for significant progress in the short term had diminished by the end of the conference. A mandate for further action drafted by the EU failed to be adopted, because of the lack of consensus among the EU members. Instead, a mandate drafted by the UK (based on informal consultations with the Permanent Members of the UN Security Council as well as Australia and Canada) proved to be the only realistic compromise. Based on the UK mandate, it was decided that further consultations would take place regarding ‘[…] the application and implementation of existing humanitarian law to specific munitions that may cause explosive remnants of war, with particular focus on cluster munitions […]’.233

For some countries the result was deeply disappointing. Norway declared the Review Conference to have failed and announced the start of a preparatory conference in February 2007 in order to assess the possibilities for a prohibition of cluster weapons with excessive humanitarian consequences. Twenty like-minded countries joined the Norwegian initiative. This group did not include the Netherlands.

232 This can be explained by the fact that the Netherlands was still regarded to be a front runner on ERW by 2006.

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Interventions

Early 2004, the Dutch government expressed its willingness to promote Protocol V by printing leaflets, making (bilateral) consultations and by organising seminars.234 _This

shows its intention to continue with its leading role with respect to ERW. In addition to the methods mentioned, the Dutch government also intervened in the process by financing particular programmes and seminars organised by others and by raising the issue of ERW in other disarmament arenas.235 _{In the CODUN and the GGE, for example,}

the Dutch delegation repeatedly addressed the importance of the ratification of Protocol V. It also communicated this within the context of the UN by supporting and sponsoring relevant resolutions.236 _{Moreover, in 2004 and 2005, informal meetings}

were organised in Garderen at which the focus was on the operation of Protocol V, cluster munitions and IHL, AVMs, and the operation of the Ottawa Convention. During the meeting of 2004 it was suggested that the Netherlands could undertake démarches in its capacity as EU President from July to December 2004. The alternative of national démarches with a division of labour among like-minded countries was also proposed. However, none of these proposals were actually realised.

Furthermore, the Dutch delegation made an important intervention regarding Protocol V in the preliminary work to the Third Review Conference. When the US delegation tried to make the PrepCom for the First Conference of High Contracting Parties to Protocol V an informal meeting, the Dutch delegation responded by organising an informal (en marge) meeting of 22 countries to prevent this. This tactic was successful. Consensus was achieved to hold a formal PrepCom prior to the conference.

By then, the creation of weapon-specific measures and IHL had evidently become less prominent on the Dutch policy agenda. In May 2006, the Dutch CD delegation proposed that the Netherlands join a group of like-minded countries that were calling for a prohibition on cluster munitions. This group of countries, including Norway, Belgium, New Zealand, Ireland, Sweden, Slovenia and Switzerland, issued a political declaration in which they stated they were looking for agreement to 1) prohibit the use in populated areas of cluster munitions that are not precision-guided, 2) prohibit cluster munitions that pose a risk to civilians after use, and 3) further consider measures to address the humanitarian problems caused by cluster munitions. The memorandum of the CD delegation was, among other things, born out of the increasing international pressure on the Dutch government to join the group of front runners. The like-minded group wanted to include the Netherlands because of its humanitarian profile and the critical mass behind the Dutch position afforded by the operational abilities of the Dutch

234 TK, 29200, V, nr. 61.

235 The Dutch government co-funded the 2003-2004 global ERW survey of Landmine action (file 811584, no date), for example. It also funded the conference launching the cluster munitions coalition (file 840428, 29 September 2003).

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armed forces. However, in an official instruction of 8 June 2006 it was made clear that such a political declaration would not be in accordance with Dutch policy. As far as IHL and cluster weapons were concerned, the Netherlands focused on the implementation of existing IHL rather than on supporting the creation of new regulations. It was claimed that since the GGE meeting in November 2005, the Dutch focus on existing IHL had been explicitly mentioned in several instructions to the Dutch delegations. On weapons-specific measures, the Netherlands took a position between the countries focusing mainly on the user aspects (military necessity) and the countries focusing mainly on the humanitarian aspects of the issue. The Netherlands aimed at the greatest possible reliability of cluster munitions. However, it did not commit itself to the specific 99 percent reliability rate proposed earlier by the US and Switzerland. Instead, the Dutch government concluded that the 99 percent rate initiative had only been relevant during the last phase of the ERW negotiations in 2003. At that time the Dutch chair had expected that the US would wish to have the initiative explicitly included in Annexe 3 of the ERW Protocol (under the heading of ‘future production’). That had not been the case and in the following years the US proposal had not resulted in concrete US policy.

The Third Review Conference was characterised by great political and public pressure (because of the use of cluster munitions in Lebanon) to achieve a significant result regarding cluster munitions. Prior to the conference there had been no consensus within the EU, but during the conference the pressure to achieve a common position increased. That stimulated the Netherlands (and other EU members) to adjust its position during the first few days of the Review Conference in the direction of the position of EU members and like-minded countries Austria, Sweden and Ireland. These countries preferred a legally binding instrument containing new user regulations on cluster munitions, for example, through prohibiting the use of cluster munitions in densely populated areas.

Impediments

Having completed the successful negotiations on Protocol V, the Dutch government handed over the coordination of the GGE to Finland. The GGE continued to exist and now focused mainly on the AVM issue, which had been raised parallel to the ERW process, but which had not led to an instrument. After the ERW protocol had become a reality, attention focused almost entirely on AVMs, thus forming an impediment to progress on the ERW issues that had not been addressed by Protocol V. Not until 2006 did the attention for weapons-specific measures in general, and cluster weapons in particular, increase.

A second important impediment to the Dutch objectives was that large politically and militarily significant countries such as the US were in no rush to implement the Protocol. In December 2005, the US, Russia and China said they were about to ratify the

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