Cluster Munition Use in Eastern Ukraine: Learning from the experience of Syria and its accession to the CWC!

According to a report of Human Rights Watch of 20 October 2014 (see here), cluster munitions have been used massively in the ongoing conflict in Eastern Ukraine. It can be recalled here that, in 2008, the Convention on Cluster Munitions (Oslo Convention), that prohibits the use, development, production, acquisition, stockpiling, retainment and transfer of these weapons (Article 1 § 1), was adopted. It follows the logic of the Ottawa Convention, its “sister treaty” that prohibits anti-personnel mines in a absolute and comprehensive manner. Ukraine is not a State Party to the Oslo Convention, that has been ratified by 88 States to date.

The allegations by Human Rights Watch are serious. In respect of the use  of cluster munitions, it is noteworthy to recall the case of Milan Martić before the International Criminal Tribunal for the former Yugoslavia (ICTY). In early May 1995, ethnic Serb forces had fired cluster munitions by Orkan rocket against Zagreb. These attacks were reported to have killed seven civilians and injured more than 200 others. On 12 June 2007, Milan Martić was convicted by the ICTY of “Violations of the laws or customs of war” (Article 3 of the Statute of the tribunal) and crimes against humanity (Article 5 of the Statute) and sentenced to 35 years’ imprisonment, inter alia, for having ordered these attacks against civilians in Zagreb. The judgment reads as follows in the relevant paragraph:

The evidence shows that the M-87 Orkan was fired on 2 and 3 May 1995 from the Vojnić area, near Slavsko Polje, between 47 and 51 kilometres from Zagreb. However, the Trial Chamber notes in this respect that the weapon was fired from the extreme of its range. Moreover, the Trial Chamber notes the characteristics of the weapon, it being a non-guided high dispersion weapon. The Trial Chamber therefore concludes that the M-87 Orkan, by virtue of its characteristics and the firing range in this specific instance, was incapable of hitting specific targets. For these reasons, the Trial Chamber also finds that the M-87 Orkan is an indiscriminate weapon, the use of which in densely populated civilian areas, such as Zagreb, will result in the infliction of severe casualties. By 2 May 1995, the effects of firing the M-87 Orkan on Zagreb were known to those involved (…). Furthermore, before the decision was made to once again use this weapon on Zagreb on 3 May 1995, the full impact of using such an indiscriminate weapon was known beyond doubt as a result of the extensive media coverage on 2 May 1995 of the effects of the attack on Zagreb.” (ICTY, Prosecutor v. Milan Martić, Judgment, Case No. IT-95-11-T, 12 June 2007, § 463. An appeal against this judgment was dismissed by the Appeals Chamber: Prosecutor v. Milan Martić, Judgment, Case No. IT-95-11-A, 8 October 2008, in particular § 239 and seq.).

Human Rights Watch reports the use of cluster munitions by Ukrainian government forces. This allegation will have to be confirmed. In any event, in the light of the seriousness of the issue at stake and the danger that constitutes the use of these weapons to the human being, in particular the innocent civilan population, as confirmed by the ICTY (above), the international community, and in particular the European Union (EU), should include the ratification of the Oslo Convention by Ukraine in its peace agenda.

The ongoing conflict in Syria involving the use of chemical weapons, the “forced” ratification by Syria of the CWC and, as a result, the destruction of its stockpiles could serve as an example. The way how the chemical weapons crises in Syria was tackled is indeed unprecedented, in particular the fact that Syria, one of the few States that had not ratified the CWC, was “forced” to respect the obligations deriving from this treaty.

It goes without saying that the two situations are very different, in particular as far as the role of the UN Security Council is concerned, that was instrumental in the Syrian crisis – together with the OPCW -, by qualifying the use  and possession a threat  to international peace and security and proposing a concrete solution to this problem (UNSC Resolution 2118(2013). For various reasons, the Security Council does not play a significant role in the Ukrainian crises, but other actors are relevant, in particular the Organization for the Security and Cooperation in Europe (OSCE) as well as the EU.

The use and possession of cluster munitions should be addressed to by the parties within the negotiations with a view to settling the Ukrainian crises. Moreover, as things stand today, Ukraine aspires, in the longer run, an accession to the EU.  It would be a pitty if this organization would not use this window of opportunity and its influence to condition a possible accession on the prior ratification of the Oslo Convention by this country. By way of reciprocity, the pro-russian rebels could engage not to use these weapons by unilateral declaration (for an organization that engages in favor of unilateral declarations by non-state actors, in particular in the field of landmines, see “Geneva Call”; for more information click here).

To sum up, the administration of chemical weapons by the international community in the Syrian crisis could serve as a positive example to be followed towards humanization of the Ukrainian conflict.

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