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II. Overview of State Practice

Globally, 34 countries are known to have produced over 210 different types of air-dropped and surface-launched cluster munitionsincluding projectiles, bombs, rockets, missiles, and dispensers. Existing cluster munitions contain billions of individual submunitions. Cluster munitions are stockpiled by at least 75 states and have been used in at least 23 countries. According to available information, at least 13 countries have transferred over 50 types of cluster munitions to at least 60 other countries.

International Actions

International awareness of the need to deal with cluster munitions is growing rapidly. Norway’s announcement on November 16, 2006 of its intention to facilitate a process aimed at the negotiation of a new international treaty prohibiting cluster munitions that cause unacceptable harm to civilians is an extremely important development in this process. Belgium became the first country to ban cluster munitions in February 2006.¹ Norway announced a moratorium on the weapon in June and, five months later, extended it until a new treaty is negotiated.

Israel’s use of cluster munitions in Lebanon helped push the already growing movement forward. “The case of Lebanon clearly demonstrates that there is a real need to strengthen humanitarian law in this area. In the Government’s view, the human suffering caused by the use of cluster munitions is unacceptable. This is why Norway will take the lead—together with other like-minded countries and international humanitarian actors—to put in place an international prohibition against cluster munitions,” Norway’s foreign minister said in October. ²

The momentum against cluster munitions increased greatly during the Third Review Conference of the Convention on Conventional Weapons (CCW) held in Geneva from November 7-17, 2006. On the first day of the review conference, UN Secretary-General Kofi Annan issued a statement calling for a “freeze” on the use of cluster munitions in populated areas and the destruction of “inaccurate and unreliable” cluster munitions.³ The International Committee of the Red Cross (ICRC) called on states not only “to immediately end the use of inaccurate and unreliable cluster munitions,” but also to destroy their stocks of such weapons. The ICRC also indicated its intention to hold an expert meeting in early 2007 aimed at identifying the elements a treaty on cluster munitions would need.⁴

By the end of the Review Conference, nearly 30 states had expressed support for a proposal for a mandate to begin negotiations in the CCW on a “legally-binding instrument that addresses the humanitarian concerns posed by cluster munitions” (Appendix I).⁵ However, the proposal was rejected by a number of other states, including China, Russia, the United Kingdom, and the United States, in favor of a weak mandate to continue discussions on explosive remnants of war, with a focus on cluster munitions (Appendix II).⁶ The anti-cluster munition states issued a declaration on the final day of the Review Conference calling for an agreement that would prohibit the use of cluster munitions “within concentrations of civilians,” prohibit the use of cluster munitions that “pose serious humanitarian hazards because they are for example unreliable and/or inaccurate,” and require destruction of stockpiles of such cluster munitions (Appendix III).⁷ Norway then announced it would start an independent process outside the CCW to negotiate a treaty banning cluster munitions that cause unacceptable humanitarian harm. It subsequently indicated it will hold the first meeting in the process on February 22-23, 2007 (Appendix IV).

National Initiatives

Parliamentary initiatives to prohibit or restrict cluster munitions are underway in numerous countries. In October 2004, the European Parliament adopted a resolution calling for an immediate moratorium on the use, production, and transfer of cluster munitions until an international agreement has been negotiated on their regulation or prohibition. More recently, Austria’s parliament passed a resolution calling for a prohibition on cluster munitions with high failure rates and urging the Austrian government to support international negotiations on cluster munitions on July 12, 2006. In August 2006, Germany announced that it would not procure any new cluster munitions, would cease using the two types of cluster munitions in its arsenal with dud rates higher than 1 percent, and would examine whether its existing cluster munitions could be replaced entirely by an alternative weapon. The German parliament passed a resolution effecting these changes on September 28, 2006. Several weeks later, on October 12, the parliament of Luxembourg adopted a motion calling on the government to join international initiatives to ban cluster munitions and to elaborate a law banning cluster munitions. There are parliamentary initiatives to restrict or prohibit cluster munitions in Denmark, France, Germany, Italy, Netherlands, Spain, Sweden, Switzerland, the United Kingdom, and the United States.

Many countries have in recent years decided to remove from service and/or destroy cluster munitions with high failure rates, and some have called for a prohibition on use in populated areas. Argentina, Denmark, Germany, Norway, Switzerland, and the United States, among others, have announced they will not procure cluster munitions in the future with a failure rate greater than 1 percent; Poland and South Africa have said they will establish minimum reliability rates. A growing number of countries have removed from service and destroyed, or are in the process of destroying, inaccurate and unreliable cluster munitions, including Argentina (Rockeye, BLG-66 Belouga), Australia (Rockeye), Belgium (BL-755), Canada (Rockeye), Denmark (Rockeye, 155mm ICM, 155mm ICM [Base Bleed]), France (BLG-66 Belouga), Germany (BL-755, DM-602, DM-612), Netherlands (BL-755, M26 MLRS, M483A1), Norway (Rockeye), Portugal (BL-755), Switzerland (BL-755), and the United Kingdom (M483).

International Humanitarian Law

At the December 2001 Review Conference of the CCW, states parties established a Group of Governmental Experts to discuss ways that states parties could minimize the humanitarian consequences of explosive remnants of war (ERW). As a result of that process, on November 28, 2003, state parties adopted Protocol V, which lays out post-conflict remedial responsibilities and recommends a series of best practice preventive measures for decreasing ERW. Protocol V entered into force November 12, 2006 almost three years after its adoption.⁸ Regrettably, the protocol covers only post-conflict measures. Delegates opted not to negotiate on “preventive measures,” such as technical improvements or use restrictions, or specific weapons systems, such as cluster munitions.

In 2004 and 2005, a Working Group on ERW had a mandate to continue discussions on preventive measures that might reduce the humanitarian consequences of ERW. In March 2005, members of the CCW Working Group on ERW issued a questionnaire to states parties regarding ERW and international humanitarian law (IHL).⁹ Only a few states used this opportunity to articulate their approach to applying IHL principles specifically to cluster munition use, but the IHL survey process did highlight that practice among states is inconsistent.

Norway argued that cluster munition use raises problems under the Geneva Conventions Additional Protocol I Article 51(5)(2) prohibition on indiscriminate bombardments, and, given the wide dispersal pattern, under the Article 51(4) limitations on attacking military targets near civilian areas. It also argued that “the use of cluster munitions, due to their high number of submunitions, their wide dispersal, and, in many cases, their high dud rate” may pose problems under the proportionality test.¹⁰

Both Norway and Brazil suggested that high-altitude aerial bombardment using cluster munitions violates the rule of distinction.¹¹ Switzerland warned that the use of cluster munitions, especially those with a high dud rate, in populated areas may violate the rule of distinction.¹²Ireland said that the rule of discrimination is particularly applicable to submunitions “because when employed against military targets, their wide footprint may strike civilian personnel and objects close to a military objective.”¹³ It also said that military necessity limits the use of all munitions including submunitions.¹⁴

Finally, Mexico, too, commented on military necessity, saying “[T]he principle of protection of the civilian population is considered to be important, since Mexico considers that no military necessity can justify injury to, aggression against or attacks on the civilian population, especially in the specific case of submunitions which cause unnecessary injury or incidental damage.”¹⁵

Several states reported on measures they had taken to prevent harm to civilians from cluster munition use, including such steps as prohibiting or restricting use in populated areas and setting maximum dud (failure) rates. Although not mentioning cluster munitions specifically, the Czech Republic emphasized the significance of training to minimize the humanitarian risks of ERW.¹⁶ Lithuania noted that it does not possess or plan to possess cluster munitions.¹⁷

A couple of states commented generally on the dangers of cluster munitions. Mexico, for example, said in addition to being dangerous for soldiers, submunitions “owing to the scale of their target and the degree of error when they explode…constitute a permanent hazard as long as they are not replaced by another type of weapon with no impact on the civilian population.”¹⁸ Croatia noted twice that “unexploded submunitions may easily become unexploded remnants of war.”¹⁹ 

In contrast, Poland argued that the percentage of unexploded submunitions at present is “negligible,”²⁰ and any IHL problems arising from cluster munitions are already addressed by the CCW.²¹ Russia maintained that only old cluster munitions pose a threat to humanitarian law and that any other IHL concerns are “mythological” in nature.²² Italy calls the use of cluster munitions within the bounds of IHL a “right.”²³ These assertions are at odds with the documented harm to civilians caused by cluster munition use in the recent conflicts in Iraq, Afghanistan, and elsewhere.²⁴