By Marco Chol, Legal Advisor, International Committee of the Red Cross at South Sudan Delegation in Juba
Cluster munitions release explosive submunitions: small, unguided explosives or bomblets that are designed to explode prior to, on or after impact. Theses bomblets disperse over a large area and often fail to ‘detonate as intended, lying on the ground for years, even decades, after the war has ended, waiting to kill or maim any man, woman or child who touches or steps on them’.
Recognizing the grave danger for civilians, States concluded the Convention on Cluster Munitions (CCM) in 2008. This year, 1 August 2020, marked the 10th anniversary of the CCMs entry into force.
The CCM reinforces fundamental customary international humanitarian law (IHL) rules that require parties to armed conflict to distinguish at all times between civilians and combatants, to direct operations only against military objectives and to take constant care to spare civilians and civilian objects. On the basis of this Convention, cluster munitions are prohibited.
The CCM imposes international obligations upon States Parties to refrain from using, developing, producing, acquiring, stockpiling, retaining or transferring cluster munitions. It also prohibits assisting, encouraging or inducing anyone to undertake prohibited activities. States possessing or affected by cluster munitions must take action in specific areas: destroying stockpiles, clearing remnants of cluster munitions and providing assistance for victims.
Cluster Munitions and South Sudan To Date
In the East and Horn of Africa, Djibouti, Kenya, Tanzania and Uganda have signed the CCM, but only two States, Rwanda and Somalia, are party to it. Since its independence in 2011, the Republic of South Sudan has expressed its interest to join the Convention. In 2017, based on a proposal put forward by the Ministry of Justice, the South Sudan Council of Ministers passed the CCM’s accession instrument. In addition to this step the constitution requires approval of the parliament and assent of the President for the country to become party to a treaty. These steps were not completed following the Council of Ministers’ decision so the treaty and its critical provisions do not yet bind South Sudan.
Despite the fact that South Sudan is not yet a party to CCM, it has participated as an observer in meetings of the Convention, most recently in September 2018, when it reaffirmed that it has not used, produced, or stockpiled cluster munitions. In April 2020, South Sudan submitted its first Article 7 Report of the Convention on Cluster Munitions – a voluntarily report on measures taken in respect of cluster munitions. This records the nature and types of munitions in the country, the extent of programs to remove or destroy them, the extent of educational programs to prevent harm and, importantly, measures undertaken to clear areas contaminated by such weapons. Amongst other things, the report noted that South Sudan had made ‘progress in cluster munitions clearance [between] 2011 [and] 2019[:] 18,101,789 square metres of land has been cleared from cluster munitions contamination and 3, 270, 629 square metres of land reduced through non-technical survey methodology’. It explains that ‘12,481-cluster munition and 1,549’ unexploded ordinances were destroyed in the reporting period. Despite these achievements, the report also recognizes the need for further action with ongoing international support, particularly from 2020 to 2027, in several key domains, including clearance, risk reduction and assistance to victims.
Setting the Legal and Policy Framework to Humanitarian Ends
Positive voluntary steps relating to the CCM by South Sudan suggest that the will is there in South Sudan to be bound by this treaty. Decisive action is needed by the executive and legislature to complete the process to bringing the Cluster Munitions Convention into its law, and strengthening international humanitarian law in South Sudan.
Appropriate local legislation and definition of a medium-term policies will definitively transform South Sudan consistent commitment into a tangible framework that can continue to move forward clearance, risk education and assistance to victims. It will enable the State to receive international cooperation and assistance for clearance, stockpile destruction, victim assistance and risk education, as well as economic and social recovery of affected State Parties; and benefit from the experience and expertise of other states and engaged actors’ through participation and contributions to the Meeting of States Parties.
From 23 – 27 November 2020, Switzerland will host the second Review Conference of the CCM. The Conference will adopt a new Action Plan to guide the Convention’s implementation for the next five years, including to increase the number of States Parties. In the lead-up to the Conference, States that have not done so already are encouraged to consider the benefits of expressing their intention to be bound by this fundamentally humanitarian treaty. This is the right time for South Sudan to act and demonstrate its commitment to the Cluster Munitions Convention.
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Marco Chol is a South Sudanese lawyer, working as legal advisor at the International Committee of the Red Cross at South Sudan delegation in Juba. He is a holder of a Bachelor of Laws, a specialized Post-Graduate Diploma in Human Rights and IHL from the University of Khartoum, a master’s in international Humanitarian Affairs from the University of York, UK. He can be reached at cmarco@icrc.org
