Docherty’s Testimony Highlights Flaws in Canadian Bill on Cluster Munitions

Posted by Melinda Kuritzky, JD ’13

Hearings continued this week in Canada on a controversial bill that would significantly weaken the international ban on cluster munitions. Senior clinical instructor Bonnie Docherty was among several weapons experts in Ottawa last week to argue that the bill, as written, would undermine the treaty, known as the Convention on Cluster Munitions, and call into question Canada’s credibility on disarmament issues.

In her testimony before the Senate Committee on Foreign Affairs and International Trade, Docherty contended the proposed legislation to implement the treaty falls far short of both the convention’s humanitarian goal and the standards set by other countries.

Two men collect the final remains of 12-year-old Rami `Ali Hassan Shebli, who was killed by a submunition in Halta, Lebanon, six years ago this week. Photograph by Bonnie Docherty.

The Convention strives to eliminate cluster munitions and the suffering they cause by imposing an absolute ban on the use, production, stockpiling and transfer of the weapons. It also requires countries to clear cluster munitions left after an armed conflict and to provide assistance for victims of past use.

One hundred and eleven countries—including Canada—have joined the convention; 77 are full parties bound by all its obligations.  Before Canada can ratify, it must pass legislation detailing how it will implement the Convention.

Bill S-10 creates broad exceptions to the ban on cluster munitions that apply during joint military operations with allies that have not joined the treaty, notably the United States.  In her testimony (audio can be accessed here), Docherty told senators, “The bill contains major loopholes that would allow Canadians to assist with the use of cluster munitions that could kill civilians.”  The bill even allows Canadian soldiers themselves to use cluster munitions if they are on secondment to the United States.

Docherty, who has done extensive field research on cluster munitions over the past decade, also described the civilian suffering caused by cluster munitions.  She told the senators of one particular civilian victim—12-year-old Rami from Lebanon.  On October 22, 2006, his brother was throwing pine cones at him, and when Rami reached for something to throw back, he accidentally picked up a submunition. Before the boy could toss the weapon away, it exploded, killing him instantly. Docherty and her team from the Clinic arrived at the scene just a few hours later.

“While we have much work ahead in our campaign to amend the bill, the hearing provided us the opportunity to highlight the flaws of the bill to the people who can fix them,” Docherty said about her testimony. “I had a lively exchange with several senators, some of whom seemed quite concerned about the threat cluster munitions—and these loopholes—pose to civilians.”

Docherty’s testimony built off a brief jointly submitted to the Senate Committee by the Clinic and Human Rights Watch. In the brief, Docherty and her team of clinical students—Sean Imfeld, Melinda Kuritzky, and Kenny Pyetranker—make specific recommendations for how Bill S-10 should be amended to conform to the spirit and letter of the disarmament treaty. In particular, the brief urges the Senate to remove any exceptions to the absolute ban on cluster munitions and ensure that Canadian troops and government officials never, even during joint military operations, assist with their use.

Cluster munitions are large weapons that contain dozens or hundreds of smaller submunitions.  They cause civilian casualties during attacks, because they spread over a broad area and cannot distinguish between soldiers and civilians in populated areas, and afterwards, because many do not explode on impact.  For more information on cluster munitions, please click here.

Melinda Kuritzky, JD ’13, is a member of Docherty’s team and a student in the Clinic’s Advanced Skills Training for Human Rights Advocacy seminar.

Reflections on a Major Weapons Victory: Overcoming Powerful Opposition, Ban on Cluster Munitions Strengthened

Posted by  Anna Crowe, LLM ’12, Nicolette Boehland, JD ’13, Robert Yoskowitz, JD ’13

“We are the voices of victims, not just diplomats. . . . If we have to pay a political price, if we can just save one single life, it is worth it.  And I think we are not alone.” 

- Representative of Costa Rica, the Fourth Review Conference of the Convention on Conventional Weapons

At precisely 7:05pm on Friday, November 25, the chair of the Fourth Review Conference for the Convention on Conventional Weapons concluded that there was no consensus in the room on the adoption of a proposed protocol regulating cluster munitions.  This seemingly banal statement marked the end of a decade of deliberations and political machinations, and hundreds of days of diplomatic meetings.  More important, it marked a victory for the supporters of the Convention on Cluster Munitions and its goal of eliminating these weapons and the harm they cause.

Nicolette Boehland, JD '13, and Anna Crowe, LLM '12, at the Fourth Review Conference of the Convention on Conventional Weapons in Geneva.

As the Clinic had argued in a joint paper with Human Rights Watch—and in other documents distributed at the Conference—adding a new treaty to the 1980 Convention on Conventional Weapons would have constituted an unprecedented step backwards for the laws of war.  The proposed weak treaty would have legitimized rather than stigmatized future use of cluster munitions, and we are thrilled that it was rejected.  The outcome was in no way certain.

The Clinic has been working for years first to help create and then to promote the 2008 Convention on Cluster Munitions, which prohibits not just the use of these weapons, but also their production, stockpiling, and transfer.  Currently, 108 states have signed on to the ban, which took legal effect last year, and 66 are full states parties.

The United States, however, wanted to produce a separate treaty that would have allowed cluster munition use under the Convention on Conventional Weapons framework. 

Challenge to Australia: Don’t Do the Bidding of the U.S. on Cluster Munitions

Posted by Cara Solomon

In a strongly worded opinion piece today in Australia’s National Times, Senior Clinical Instructor Bonnie Docherty urged the Australian Senate to take the responsible course in its implementation of the international ban on cluster munitions and push back against proposed legislation that would blunt the impact of the ban.  The Senate is scheduled to debate the bill in the coming days.

A US Air Force bomber drops cluster munitions during a training exercise.

“The Australian Senate has a chance to avoid an embarrassing double standard in its approach to international law.  But it needs to decide: does it want to ban cluster munitions or not?  Is it willing to stand by its signed commitment to eliminate these indiscriminate weapons immediately rather than do the bidding of the United States, which wants to put off a ban until at least 2018?

If the Senate passes the Cluster Munition Prohibition Bill without amendment, Australia will be in the unfortunate position of having arguably the world’s weakest national law to carry out the international ban on cluster munitions. The Senate, which is scheduled to debate the bill in coming days or as early as today, should instead seize the opportunity to strengthen the proposed legislation, increasing protection for civilians in armed conflict and remaining true to the international law Australia claims to support . . . .”

To read the full opinion piece, click here.

Bonnie Docherty, who is also a Senior Researcher in the Arms Division of HRW, examines a cluster munition in Lebanon.

The International Human Rights Clinic has worked with Human Rights Watch (HRW) for several years to push for an international ban on cluster munitions; when the Convention on Cluster Munitions, which codifies the ban, took effect last August, the team shifted its focus to urging states to implement it effectively.

In January, Maria van Wagenberg, JD ’11, and Mona Williams, JD ’11, helped Bonnie write a critique of the Australian government’s proposed implementation legislation, which allows for broad exceptions to the Convention’s ban in the event of joint military operations with countries not party to the Convention, such as the United States.  The paper was jointly submitted—by the Clinic and HRW—to the Australian Senate committee reviewing the bill.  In March, Bonnie testified before the committee by telephone, arguing against the country’s proposed legislation.

The committee ultimately forwarded the bill to the Senate without changes.

For more on our work on cluster munitions, click here.

Coming on Monday: Weapons Experts Discuss Cluster Munitions Ban

Event Notice

“Banning Cluster Munitions: Challenges to Implementing a New Disarmament Treaty”

 April 11, 2011
12:00- 1:15 pm
Pound Hall 201

Lunch will be served

In August 2010, the Convention on Cluster Munitions became the most significant disarmament treaty to enter into force in a decade.  The question now is: will the Convention achieve its goal of eliminating cluster munitions and the harm they cause to civilians?

This panel will examine the major challenges the Convention faces, including attracting new states parties, promoting strong implementation and interpretation, and dealing with opposition from the United States and other key
military powers.  The panel will include four experts who have been actively engaged in the process to ban cluster munitions: Bonnie Docherty of the International Human Rights Clinic at Harvard Law School; Mark Hiznay of Human Rights Watch; Zach Hudson of the U.S. Campaign to Ban Landmines; and Earl Turcotte, former Canadian diplomat and treaty negotiator.

This event is being co-sponsored by the Harvard Immigrant and Refugee Clinic, the Harvard Law School Forum, the Harvard Human Rights Journal, Harvard International Affairs Council, Harvard National Security and Law Association and HLS Advocates for Human Rights.

Pushing Australia for Stronger Weapons Ban

Posted by Cara Solomon

This morning, at 2 am, while most of us were sleeping, Bonnie Docherty testified before an Australian Senate committee—from her living room in Cambridge.  Via telephone, she told the committee that Australia’s proposed legislation on implementing the Convention on Cluster Munitions falls far short of the Convention’s goal and the standards set by other countries.

The Convention absolutely bans cluster munitions and requires countries to provide assistance for victims of past use. More than 100 countries—including Australia—have signed on; 52 have ratified.  Before Australia can ratify, it must pass legislation detailing how it will implement the Convention.

Mona Williams (left) and Maria van Wagenberg, both J.D. ’11, pictured here at the First Meeting of States Parties to the Convention on Cluster Munitions in Laos in November 2010.

In January, Bonnie and two of her students (Maria van Wagenberg, JD ’11, and Mona Williams, JD ’11) wrote a critique of the government’s proposed legislation, which allows for broad exceptions to the Convention’s ban in the event of joint military operations with countries not party to the Convention, such as the United States.  The paper was jointly submitted to the committee by the Clinic and Human Rights Watch.

And that’s why Bonnie was called to testify.  Here’s what she had to say about the Senate hearing:

“The senators asked good questions and seemed receptive.  I’m glad we—meaning civil society—were able to present a united front on all the issues we wanted to raise, including on joint operations.  But I’m aware it will be a challenge to persuade the parliament to adopt the changes we want—in part because Australia feels great pressure from the U.S., which has not yet joined the Convention.”

For the Clinic’s submission to the Australian parliament, and for Bonnie’s testimony, look under “documents” on our cluster munitions page.