VZCZCXYZ0003
OO RUEHWEB

DE RUEHC #2058 1852305
ZNY CCCCC ZZH
O 032309Z JUL 08
FM SECSTATE WASHDC
TO RUEHGV/USMISSION GENEVA IMMEDIATE 0000
INFO RUEKJCS/SECDEF WASHINGTON DC IMMEDIATE
RHMFISS/JOINT STAFF WASHINGTON DC IMMEDIATE

C O N F I D E N T I A L STATE 072058 
 
SIPDIS 
 
E.O. 12958: DECL: 06/30/2018 
TAGS: ARM PREL PGOV UN
SUBJECT: GUIDANCE FOR CCW DELEGATION: JULY 7-25 
 
REF: STATE 66793 
 
Classified By: IO Acting A/S Hook, Reason: 1.4(d) 
 
¶1.    (SBU) BACKGROUND:  The U.S. delegation has participated 
actively in the first two rounds of negotiations (in January 
and April) on the issue of cluster munitions in the Group of 
Governmental Experts (GGE) to the Convention on Certain 
Convention Weapons (CCW).  These two sessions resulted in 
progress on a section of a new Protocol addressing 
international humanitarian law (IHL) issues that arise in the 
context of cluster munitions use, as well as clarifying the 
issues that need to be addressed in the next round of 
negotiations, from July 7-25. 
 
OBJECTIVES 
 
¶2.    (C) The July session will likely be critical in 
determining whether these negotiations will have a successful 
outcome.  The primary objective for the July session will be 
to find some middle ground between the group of countries 
that wants to ban some or all cluster munitions and those who 
oppose any legally binding provisions banning cluster 
munitions or requiring technical improvements in cluster 
munitions.  Any outcome on this core issue must be one we can 
implement consistent with the new DOD policy on cluster 
munitions.  Two other important objectives for the U.S. 
delegation will be to ensure that the section on IHL remains 
consistent with existing law (with the exception noted in 
paragraph 5 below) and to find a way to address victim,s 
assistance, clearance, and international cooperation in a 
manner that does not undercut or complicate implementation of 
Protocol V. 
 
SPECIFIC GUIDANCE 
 
¶3.    (SBU) Definitions.  The U.S. delegation should not 
agree to efforts to define specifically &reliable8 or 
&accurate8 submunitions or establish a list of &good8 vs. 
&bad8 submunitions.  The U.S. delegation may accept a broad 
definition of cluster munitions that generally matches the 
definition the U.S. delegation proposed in January.  The U.S. 
delegation should not accept a definition of cluster 
munitions or submunitions that excludes those systems that 
are generally considered to be cluster munitions.  The U.S. 
delegation may agree to exceptions for nuclear, biological, 
and chemical weapons, as well as for obscurants, 
pyrotechnics, non-lethal systems (e.g., leaflets), 
non-explosive kinetic effect submunitions (e.g., flechettes 
or rods), and electronic effects systems. 
 
¶4.    (C) Technical improvements.  It is anticipated that 
many countries that have expressed an intention to sign the 
Oslo Process treaty text later this year will push to include 
a ban on some or all cluster munitions in the draft 
instrument in the CCW.  At the same time, Russia, as well as 
China, India, Pakistan, and others have signaled that they 
are not willing to join consensus on such a ban and are 
generally skeptical about legally binding provisions or 
technical improvements.  The U.S. delegation should not 
support an explicit ban on cluster munitions.  Instead, the 
U.S. delegation should strive to find common ground between 
these two groups by promoting an article on technical 
improvements to cluster munitions that could, for example, 
focus on the rate of unexploded ordnance produced by cluster 
munitions.  Such an article could be binding or non-binding, 
so long as it does not impose obligations the USG would not 
be able to implement under the new DoD policy (ref septel). 
It should have a transition period of at least 10 years. 
 
¶5.    (C) International humanitarian law.  The U.S. 
delegation should seek to finalize an article that sets forth 
existing IHL as it applies in the context of cluster 
munitions use.  The Friend of the Chair,s paper on IHL from 
the April negotiations should serve as the basis for further 
work on this issue.  If additional elements of existing IHL 
are proposed for inclusion in this article (as they were in 
the chairman,s draft text circulated informally in advance 
of the session), the U.S. delegation should ensure a common 
understanding of any such provisions to ensure that there is 
no confusion among delegations about existing IHL functioning 
as a de facto ban on cluster munitions.  U.S. delegation is 
authorized, if helpful in the course of the negotiations, to 
propose an IHL article that goes somewhat beyond existing law 
along the following lines ) &Those who plan or decide upon 
an attack shall refrain from using cluster munitions against 
military objectives where concentrations of civilians are 
also present unless it is judged, in the circumstances ruling 
at the time, that the use of such weapons against the 
military objectives would cause less incidental loss of life 
to civilians, injury to civilians, damage to civilian 
objects, or a combination thereof, than the use of 
alternative weapons.8 
 
¶6.    (SBU) Transfers.  Israel has proposed text that would 
prohibit the transfer of cluster munitions to terrorist 
organizations.  In this regard, the U.S. delegation may agree 
to a text that restricts transfers to states or agencies 
authorized by states and which prohibits the transfer of 
cluster munitions to non-state actors.  The U.S. delegation 
may also agree to restrictions on transfers along the same 
lines as any eventual article on technical improvements so 
long as a suitable transition period is built into any such 
provision. 
 
¶7.    (SBU) Clearance and international cooperation.  The new 
Protocol should make reference to victim assistance, 
international cooperation and clearance, but should not 
create wastefully duplicative structures in these areas. 
Specifically, the U.S. delegation may accept the 
incorporation by reference or the repetition of obligations 
contained in Protocol V to the CCW.  These obligations should 
not substantially exceed or differ substantively from the 
obligations with respect to ERW more generally contained in 
that Protocol.  They also should not give priority to such 
activities if cluster munitions are involved, as opposed to 
other types of munitions.  The delegation may accept 
additional language related to responsibilities of states 
receiving assistance.  The provision of financial assistance 
must remain voluntary. 
 
¶8.    (SBU) Victim assistance.  The Chairman,s draft text 
closely follows a similar article in the Oslo Process 
document.  The United States is a strong supporter of 
victims, assistance programs and the Delegation should be as 
flexible as possible in language in a new victims, 
assistance provision.  The language should ensure that any 
provision of assistance provided to other states is voluntary 
and connected to strengthening existing international and 
national structures, in particular national health care 
systems.  The delegation should not accept language that 
would create new obligations for the United States for which 
there is no existing legislative authority.  In this regard 
the delegation should take particular care in how provisions 
would apply to any potential victim within the United States. 
 
 
OSLO PROCESS 
 
¶9.    (SBU) The Delegation should make known the U.S. 
interpretation of Article 21 of the Oslo Process Convention 
as agreed at the Dublin meeting May 31, 2008 in keeping with 
the &low-key8 approach set forth in &Guidance on the 
outcome of the Oslo Process8 (ref A).  The delegation may 
also draw from the paper &Assessing/Interpreting Article 21 
with Respect to Interoperability" when engaging on this 
issue.  The delegation may discuss with international 
organizations as well as foreign governments. 
RICE