Victim Assistance in CCW Protocol VI: No step forward, two steps back

Posted on November 16, 2011

Victim Assistance in the CCW:

No step forward, two steps back

By Nerina Cevra, Action on Armed Violence

November 2011

In over a decade since the victim assistance was introduced in the 1997 Mine Ban Treaty, states have consistently interpreted victim assistance as an obligatory standard, with clear and mandatory implementation measures.

This standard has been incorporated into the 2008 Mine Ban Treaty’s Cartagena Action Plan and the Convention on Cluster Munitions, and into the CCW framework as well – in Protocol V Plan of Action. The draft Protocol VI on cluster munitions undermines this widely accepted standard.

The current draft text includes qualifications and caveats that render victim assistance voluntary, and challenge its translation into obligatory implementation measures.

1.    Draft Article 11(1) subordinates international obligation to provide assistance to victims to states’ “domestic laws and procedures”.

When a country adopts an international treaty, it must make sure that its domestic laws and procedures are in line with its obligations under the treaty, NOT vice versa.  The Vienna Treaty on the Law of Treaties prohibits states from invoking internal law as a justification for failure to perform a treaty.

This is a new treaty, it sets new standards for states whose laws and procedures are not consistent with the treaty provisions. These states accept an obligation to review and reform their legislative frameworks to ensure it is compliant with the treaty language.  It is the intent of the treaty to make sure that the countries domestic laws and procedures change if they are not up to the international standards universally accepted and codified in a treaty.

2.    Draft Article 11(2) renders voluntary specific measures for implementation of the obligation to provide assistance.

So-called qualifiers of obligations, for example “as appropriate,” “where they do not exist,” “as necessary,” are vague expressions that are used by the states as a justification for failure to perform the treaty. The treaty is being created to articulate what is “appropriate,” “necessary,” etc..

In addition, it is the intent of the treaty to ensure that laws and procedures ARE changed to comply with it. That is why the CCM has an entire Article devoted to national implementation.

These caveats undermine the primacy of international law and effectively downgrade what is currently a legal obligation to provide victim assistance, to a voluntary endeavor.   This is contrary to the purpose of the provision, which is to establish measures as the minimum requirement for adequate victim assistance implementation, and not a list of optional measures for states to pick and choose.

  1. The current draft places the definition of “victim” in a Preambular provision.

International documents related to disarmament (the Mine Ban Treaty Nairobi Action Plan, the Convention on Cluster Munitions) and outside of it (UN GA Resolution: Guidelines on the Right to Remedy and Reparations for Victims) recognize that victims are beyond the individuals killed or physically injured, and that harm includes psychosocial harm, loss of economic opportunity and of the possibility to materialize one’s rights.

The current draft text undermines existing international standard of Victim Assistance and undermines the rights of survivors as guaranteed by other humanitarian and human rights international law.