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Memorandum to CCW Delegates

Cluster Munitions and International Humanitarian Law:

The Need for Better Compliance and Stronger Rules

Prepared for the Convention on Conventional Weapons (CCW) Group of Governmental Experts on Explosive Remnants of War (ERW)

July 5-16, 2004

The States Parties to the Convention on Conventional Weapons (CCW) have long recognized the dangers of cluster munitions.  They first questioned the civilian harm these weapons cause at the Lucerne Conference in 1974 that eventually led to the CCW.  Over the past several years, the Group of Governmental Experts has addressed cluster munitions as part of the ongoing discussions on explosive remnants of war (ERW).  For 2004, the ERW working group has a mandate “to continue to consider the implementation of existing principles of international humanitarian law” (IHL).¹  Sweden introduced a working paper to guide these discussions in March.  It calls on states to submit information on how they apply IHL to “munitions, including cluster munitions.”²  This Human Rights Watch memorandum presents a legal analysis of cluster munitions to help provide a context for state practice. 

While other CCW documents have analyzed IHL with regard to explosive remnants of war in general,³ this one focuses on cluster munitions in particular.  It describes how cluster munitions raise serious concerns under existing IHL, and shows how despite these concerns, they continue to be deployed in questionable circumstances.  It argues that elaborating IHL with respect to the particular issues that surround cluster munitions may improve the current poor compliance of the basic principles of distinction and proportionality.  Finally it suggests topics to include in a proposed cluster munition protocol.