London Sunday Telegraph
May 18, 2008 By Tim Shipman, in Washington
British soldiers fighting alongside American troops in Afghanistan and Iraq would face criminal prosecution if the government goes ahead with plans to sign a treaty limiting the use of cluster bombs, senior US diplomats have warned.
Gordon Brown’s government is on another collision course with the Bush administration because American officials are concerned that the UK may trade expose British troops to possible legal action, to placate critics of cluster bombs. Mr Brown has already irritated the White House by keeping his distance diplomatically and reducing British troop numbers in Iraq.
Representatives from 122 nations, including Britain will meet in Dublin tomorrow to finalise the terms of a deal that would outlaw the use of most cluster munitions.
Pressure groups have battled for a decade to ban the bombs, because the small bomblets dropped on airfields and enemy tanks do not always explode during wartime and have been blamed for killing and maiming civilians later. But American officials are frantically warning their allies not to sign the treaty as it now stands, because it would undermine Nato and criminalise British soldiers who fight alongside them.
Under the terms of the so-called Oslo process, any member of the military fighting alongside a country like the US, which refused to join the treaty, must face “criminal penalties”.
A senior state department warned that under the treaty, British frontline troops who call in artillery support or air strikes from an American warplane, all of which carry cluster munitions, could be hauled into court.
He said: “It would really place their military commander on the ground in a moral dilemma whether they ask for fire support to protect their soldiers or whether they do something that might expose them to criminal penalties back at home.” The treaty could also lead to further overstretch of British forces, because the UK would have to deploy its own air cover instead of relying on the US Air Force.
A Foreign Office spokesman acknowledged that there is a problem with the treaty, saying: “We don’t want to leave our troops exposed”. But he admitted: “We’re quite clear that we want to sign the treaty. That’s the bottom line.”
That sort of language has the US government concerned. Two senior American diplomats told The Sunday Telegraph that they are worried Gordon Brown will cave in to demands from campaigners, many of whom are based in London, to sign the treaty even if they cannot get the details changed.
“We anticipate that the UK will be under the most public pressure of any country in Europe,” the senior diplomat said.
Britain has already angered campaigners by insisting that the armed forces will continue to use a limited range of modern cluster munitions, which leave fewer of the unexploded bomblets that kill children. That leaves ministers even less room for manoeuvre.
Critics see parallels with the way the Labour government has approached negotiations in Brussels, vowing to water down unappealing legislation but then zealously enforcing it at home.
When Britain signed up to the International Criminal Court, Labour passed war crimes legislation in the UK, which was then used to prosecute frontline soldiers in Iraq, to the fury of many in the military.
In this case the government would again have to pass laws that could put its own soldiers in the dock.
The State Department official said: “The treaty requires states to pass criminalisation penalties. We would advise them to not do anything that allows them to do anything that criminalises them working with Nato.”
Patrick Mercer, the former Tory security spokesman, said: “The spectacle, yet again, of our fighting men being hauled into court is unacceptable. The practicalities of fighting alongside our allies are difficult enough already. If we sign and many of those on the frontline with us don’t, this is going to erode our troops’ fighting confidence even further.”
Other Nato countries like Greece, Turkey and Croatia have also refused to join the so-called Oslo process, meaning Britain would face complications fighting with them too.
There is no guarantee that Britain will be able to change the treaty. The UK is one of just 20 nations, including France, Australia, Japan and Canada, that want aspects of it changed - and more than 40 votes against a draft would be needed to block the two thirds majority that could adopt it.
If Britain fails to get its way the government will have no option but to sign or leave the conference, something they have said they would not do.
The state department official said: “If there was a vote, Nato could lose. The question is: would they still sign up to the treaty? They would be under tremendous pressure to do so.”
American officials say they are not taking part in the Oslo process because military rivals like Russia and China have refused to sign. The US instead wants cluster bombs included in a worldwide treaty on conventional arms which would include all the major military powers.
The US is also concerned that the treaty could undermine humanitarian operations because it would prevent US and other armed forces entering the airspace or waters of any nation that signed the treaty to help out.
Thomas Nash, the coordinator of the Cluster Munitions Coalition, which wants a total ban, said that the whole point of the treaty is to “stigmatise” the use of cluster munitions and those who cooperate with countries that use them.
“It is an established concept of law that if something is a crime, helping someone do it is also a crime. We want the UK government to ban cluster munitions and British forces to not do anything at all to encourage, induce or assist in their use. If that means UK troops have to curtail some of their activities with the US, that’s what will have to happen.”
He said he expected Britain to pass laws that limit the individual criminal responsibility of soldiers if they unknowingly participated in a cluster attack. But he added: “If a British soldier was embedded with US forces and has to press the button on a cluster bomb, that’s a problem.”