Between morality and military interests: norm setting in humanitarian arms control

The concept of humanitarian arms control emerged in the context of the new security\nchallenges of the 21st century. The 1997 Ban on Anti-Personnel Mines, the 2001\nProgramme of Action on Small Arms and Light Weapons (PoA) and the 2008\nConvention on Cluster Munitions all set out to introduce arms control instruments to\nregulate not only uncontrolled transfers of arms, but also to end or to limit the\nindiscriminate use of weapons, and to deal with the long-term effects following intra-state\nconflicts. The three institutions share similar characteristics and thus permit the\nconclusion that a structural change has taken place in arms control and disarmament.\nThis change is a consequence of the changed security environment after the end of the\nCold War: Fragile statehood, economic under-development, internal state conflicts,\nterrorism and transnational organized crime provided the international state community\nwith new challenges calling for different and new forms of arms control.\nThis report identifies the indicators for this change and examines the reasons for the\ndevelopment of particular forms of arms control and disarmament. The three regimes\nbanning anti-personnel mines and cluster munitions and restricting the illicit trafficking\nof small arms and light weapons all show similar characteristics which were decisive for\ntheir evolution and have given a new face to arms control as a whole. The key normative\nagents that were decisive for this structural change included transnational campaigns by\nnon-governmental organizations as well as a number of small and medium-sized states.\nThese alliances managed to get the arms control agreements off the ground despite\nopposition from the leading powers. Two factors were remarkable: On the one hand, the\nspecial negotiating formats which were set up for the Ottawa and Oslo processes and, on\nthe other hand, “new diplomacy”, which was characterized by a mutual “give and take”\nbetween the different actors. By involving NGOs, like-minded states sought global public\nsupport and gained additional legitimacy for their ambivalent undertaking. By granting\ncivil society stakeholders the right to participate in the negotiations, these states also\nenabled NGOs to gain certain influence on the norm generation processes.\nThe change of perspective on arms control also becomes visible in a different,\nindividualized understanding of security. Instead of concentrating exclusively on\nimproving state’s security, attention is now being increasingly directed towards human\nsecurity. Embedded in the concept of “human security”, one finds references to larger\nconcepts such as development aims and conflict resolution practices. Humanitarian arms\ncontrol is concerned with mitigating the consequences of the use of weapons as well as\ntheir deliberate misuse during and following intra-state conflicts. This new understanding\nof arms control lies within the wider context of security sector reform, which seeks to\nmake fragile states capable of guaranteeing public security again, but it also addresses\nindividual human needs in post-conflict situations such as victim rehabilitation and\nreintegration.\nThe new arms control and disarmament agreements are an outcome of specific normgenerating\nprocesses which are to be seen in the context of “new humanitarianism”. The\nmost visible expression and, at the same time, probably the most controversial expression\nII\nof this new humanitarianism are a number of military interventions in response to gross\nviolations of human rights and the deliberate disregard of international humanitarian law,\nas for example in Ruanda or Bosnia. Questions of justice are becoming the direct\nlegitimization for state action and have also inspired and triggered norm-generation\nprocesses in other policy fields – for example, the establishment of the International\nCriminal Court (ICC). Moral convictions or questions of justice also motivated norm\ngenerating actors in the field of humanitarian arms control. In all three cases under\nconsideration, the need for a new institution was determined by the moral conviction that\naction must be taken against numerous incidents of severe injustice where innocent\npeople and civilians were killed or wounded by the indiscriminate use of these weapons in\ncases of intra-state conflicts. This conviction is based on one of the few global concepts of\njustice in international relations which is also anchored in international humanitarian\nlaw, such as the principle of need and proportionality. At the same time, this moral\nconviction has provided the basis for norm development in the field of humanitarian\narms control: The suffering of the civilian population as a result of the use of antipersonnel\nmines or cluster munitions prompted non-governmental organizations to\ndemand of states to take action and seek a norm banning the use of such weapons.\nCertain convictions of justice, which seem to be shared in the international system of\nstates, were finally enshrined in the principles, norms and procedures of the three\nregimes. According to the principle of equality, for example, all states parties must\nrenounce the use of anti-personnel mines or cluster munitions and compile an overview\nof their national stocks of small arms. A further characteristic of humanitarian arms\ncontrol is the comprehensive application of the principles of proportionality, need and\ncompensation. For example, the costs-by-cause principle applies to the clearance of\ncluster munitions. Those states which are particularly affected can rely on technical as\nwell as financial support under the Ban on Anti-Personnel Mines and the Programme of\nAction on Small Arms and Light Weapons.\nThis structural change towards humanitarian arms control is significant for arms\ncontrol and for disarmament as a whole. However, the moral convictions and the\nprinciples of justice demanded by the NGOs in particular touched the limits of national\nand national security interests. Normative conflicts occurred in the negotiating processes\nof all three regimes; particularly over question of the appropriate definition of weapons\ncategories, but also with regard to the possible renunciation of sovereignty, for example\nbanning transfers of arms to non-state actors or prohibiting the private possession of\nweapons. Although the principles of proportionality, necessity and compensation and the\nrecognition of the special needs of the affected states provided an important impetus for\nthe negotiations, the actual implementation process, particularly of the PoA, has been\nvery slow.

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