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Strengthening IHL

The Swedish working paper from March 2004 notes that recent reports on the use of cluster munitions “raise important questions on the extent to which existing IHL is being adequately implemented and is effective in minimizing the dangers of specific weapons, especially when they are used in populated areas.”¹⁹  IHL could be strengthened on both counts to increase protection for civilians from cluster munitions.

Poor Compliance

The Coalition’s use of cluster munitions in Iraq provides examples of poor compliance with IHL.  The U.S. and U.K. ground forces made widespread use of cluster munitions in populated areas.  Given the foreseeability of civilian casualties from strikes and duds during urban attacks, this conduct raises concerns under the proportionality test, and in many cases was likely indiscriminate.  The attacks also ran counter to U.S. military statements from before and after major hostilities.  An August 2001 U.S. Air Force background paper says that there are “[c]learly some areas where CBUs [cluster bomb units] normally couldn’t be used (e.g., populated city centers).”²⁰  A 2004 letter from the U.S. Marine Corps echoes these sentiments: “Cluster munitions are not suitable to fighting in an urban environment.”²¹  The United States not only targeted populated areas but also employed old models of submunitions, with dud rates of fourteen to sixteen percent or higher.  Such older submunitions are likely to be indiscriminate in effect and increase the chances that an urban strike will violate the proportionality test.  More information on the disturbing use of cluster munitions in Iraq is available in Human Rights Watch’s report Off Target: The Conduct of the War and Civilian Casualties in Iraq.²²             

Human Rights Watch is unaware of any conflict where cluster munitions have been used uniformly in a manner fully consistent with IHL.  In Chechnya, for example, HALO Trust reported civilian casualties during Russian cluster munition strikes on Grozny.  Although the military necessity is not fully known, using these weapons in a large city almost surely violated IHL in some cases.²³  Landmine Action investigated a May 2000 incident in Eritrea during which Ethiopian forces used cluster bombs on an area where locals allege no military was present.²⁴  In total, at least twelve countries have used cluster munitions in nineteen different countries, making the weapon a matter of global concern.²⁵

It appears that most states have not given sufficient consideration to the application of IHL specifically to cluster munitions.  In a CCW working paper, for example, Australia describes its targeting practices but does not address ERW or cluster munitions in any specific way.²⁶  In a more positive example, Norway has instituted a national restriction on the use of air-dropped cluster bombs because of their “low level of precision and high dud rate.”  Only the Ministry of Defense can approve cluster strikes and the weapons must have low dud rates or self-destruct devices.²⁷  When implementing IHL, states should consider cluster munitions in particular and impose more cluster specific regulations.

Effectiveness

If the law were elaborated and made more specific, there is little doubt that civilians would enjoy greater protection from cluster munitions.  The ICRC wrote about the ERW problem that “[a]lthough it could be argued that the general rules of international humanitarian law are sufficient, it is unlikely that they will be applied in an adequate or consistent manner unless specific rules for ERW are adopted.  Clear rules will help identify the minimum norms expected of parties to a conflict and promote their implementation on a broad scale.”²⁸  Such words hold even more truth for cluster munitions, which are unlike other weapons in three major ways.  Cluster munitions are large weapons that, in contrast to unitary weapons, contain dozens or hundreds of smaller submunitions.  Cluster munitions produce an area effect, meaning that their submunitions spread over a footprint around the size of a football field.  When used in populated areas, cluster strikes virtually guarantee civilian casualties, and duds littering rural areas endanger children and livestock.  Finally each cluster munition leaves some unexploded ordnance because the submunitions themselves have high dud rates.  A five percent dud rate applied to 100 unitary weapons leaves five unexploded bombs while the same rate with 100 cluster munitions could typically leave 1,000 duds.  A new legal instrument would increase the clarity and scope of IHL and better protect civilians from cluster munitions’ unique combination of characteristics. 

First, the legal standards that apply to explosive duds could be clarified with an eye to improving compliance and enforceability.  Legal experts disagree, for example, on whether the proportionality test encompasses the long-term effects of submunitions.  A U.S. Air Force legal document says that the dud rate must be part of this determination because unexploded bomblets are “reasonably foreseeable.”²⁹  British lawyer Christopher Greenwood argues the opposite in a CCW paper on IHL and ERW.  Speaking about unexploded ordnance in general, he wrote that “only the immediate risk” can be relevant because “[t]he risks posed by ERW once the immediate aftermath of an attack has passed are too remote to be capable of assessment at that time.”³⁰  Even the ICRC has expressed uncertainty on this point.  In a 2002 CCW document, it wrote, “It remains to be determined . . . the extent to which the long-term effects of unexploded munitions must be taken into account in making the determinations required by the principle of proportionality.”³¹  A new protocol could greatly clarify the factors to be considered when performing a proportionality test for cluster munitions.

Second, the scope of the law, especially with respect to preventive measures to protect civilians from cluster munitions, could be expanded.  A CCW discussion paper submitted by Canada outlines three aspects necessary to IHL.  It must cover “(i) the use of munitions that may become ERW; (ii) means to prevent munitions from becoming ERW (technical and other measures); and (iii) the post-conflict risks resulting from Explosive Remnants of War.”³²  Point (i) is only addressed by Geneva Protocol I, which as discussed above, could be clarified to minimize the harm caused by strikes and duds.  CCW Protocol V sets binding rules related to post-conflict remedial measures, applicable to point (iii).  It does not, however, address point (ii)’s preventive fixes, particularly important for cluster munitions, except for “encourag[ing]” parties to take “generic preventive measures” to minimize ERW.  Protocol V includes a voluntary (and weak) technical annex, which says that states should “examine ways and means of improving the reliability of explosive ordnance that it intends to produce or procure, with a view to achieving the highest possible reliability.”  Protocol V does not discuss targeting choices, such as use in populated areas.  A new protocol could fill gaps and strengthen the standards on preventive measures to minimize civilian harm.

Third, a new protocol could resolve debates on how to measure the balance between military necessity and humanitarian objectives by either banning cluster munitions in specific situations, or creating a strong presumption against their legality.  For example, there is lively debate on whether civilian harm outweighs military necessity, or vice versa, with respect to cluster munitions.  Professor Thomas McDonnell opposes the use of cluster munitions because of the civilian casualties they cause, while Major Thomas Herthel defends the weapons as valuable to the military arsenal.  Scholars, nongovernmental organizations, and some military experts generally concur that strikes on populated areas should be avoided because the broad footprint makes civilian casualties almost inevitable.  According to the ICRC, “Of particular concern is the use of submunitions against military objectives in populated areas where the weapon’s quantity and failure rate pose significant dangers to civilians.  The ICRC has also expressed concern about the immediate casualties during conflict when the weapon is used against military objectives in civilian areas.”³³  Even cluster supporter Herthel acknowledges that the risk of civilian harm increases when cluster munitions are used in populated areas.  Urban strikes, however, are not explicitly regulated or prohibited under the current proportionality test.  A cluster protocol could ensure that strikes with non-precision guided submunitions are banned or that at least there is a rebuttable presumption that they are disproportionate and therefore illegal.

The widespread use of cluster munitions in populated areas is a testament to the need for a new protocol, given that there is a growing consensus such strikes should be avoided.  In Iraq, the United States developed an elaborate vetting process for cluster strikes, which included review by a lawyer in the field.  Despite such precautions, U.S. ground forces made extensive use of clusters in populated neighborhoods and killed or injured more than a thousand civilians.  According to General Sir Hugh Beach, the British government used law officers to scrutinize strikes in Kosovo, yet many scholars have called NATO’s cluster bombing indiscriminate.³⁴  The fact that even states that generally follow IHL cause disproportionate civilian harm with cluster munitions suggests that a binding protocol that elaborated standards with respect to these weapons would help to remedy the situation.