The qualities that make a cluster bomb militarily desirable also make it dangerous to unintended targets. The weapon attracts two major humanitarian criticisms: 1) cluster bombs are prone to causing civilian casualties during strikes, and 2) they leave large numbers of unexploded bomblets, or duds, that threaten civilians after the conflict. Cluster bombs also provoke debate about responsibility for clearance of the unexploded ordnance.14 The criticisms apply to varying degrees to all cluster bombs, including the CBU-87 and CBU-103 used in Afghanistan.
The lack of control over both bomb and bomblets means that cluster munitions tend to cause extensive civilian harm. Unguided cluster bombs can miss their mark and hit nearby non-military objects. Although unitary dumb bombs represent a similar threat, the humanitarian effects of a cluster bomb accident are often more serious because of the bomblets' wide dispersal. Even if a cluster bomb hits its target, the bomblets may kill civilians within the footprint or, if they blow astray, nearby. The inherent risks to civilian life and property increase when a party uses these weapons in or near populated areas. If cluster bombs are dropped on an area where combatants and civilians commingle, civilian casualties are almost assured.18
In defending use of cluster bombs, the United States has noted that cluster bomb strikes cause less physical destruction than some unitary bomb strikes.19 In Afghanistan, cluster bombs left holes in the walls and roofs of civilian homes but did not level structures as did unitary bombs. This "benefit," however, is primarily relevant to populated areas where there are civilian structures that could be damaged. As discussed above, use of cluster bombs in such areas is too dangerous to civilians. While states should seek to minimize damage to civilian structures during war, they should not do so at the expense of civilian lives.
Cluster bombs produce problematic aftereffects because many of the bomblets do not explode on impact as intended. While all weapons have a failure rate, cluster bombs are more dangerous because they release such large numbers of bomblets and because certain design characteristics, based on cost and size considerations, increase the likelihood of the bomblets' failure.20 As a result, every cluster bomb leaves some unexploded ordnance. In the case of CBUs, technical problems often prevent the BLU from landing perpendicular to the target. The spider cap may never pop off or, if it does, the wind may rip off the parachute that is supposed to stabilize it. "Fratricide," or the collision of bomblets in the air, can crush the canisters, causing damage to the fuzes and/or preventing vertical landings.21 The location of the strike can affect the number that malfunctions. Bomblets that fall on a hard surface, for example, are more likely to explode than those that land in soft, wet areas. Dropping cluster bombs, especially older models, from high altitudes can also increase bomblet failures.
The dud, or initial failure, rate, i.e., the percentage that does not explode, not only reduces cluster bombs' military effectiveness, but also puts civilians at great risk. Unexploded bomblets become de facto landmines that kill civilians returning to the battle area after the attack. Some people consider cluster bomblet duds even worse than landmines because the former are particularly volatile.22 The BLU-97, for example, has a secondary fuze that acts like an anti-handling device.23 In Herat, Afghanistan, from October 2001 to June 2002, cluster bomblets killed 44 percent of their victims and mines 21 percent.24 Cluster bomblet duds also killed four times as many civilians as other types of unexploded ordnance and had higher lethality rates.25 In Kosovo, the lethality rate for clusters (31.7 percent) was almost two and a half times higher than that of landmines (12.9 percent),26 and cluster bomblets were six times more deadly than other ordnance.27 Statistics show children are particularly vulnerable to unexploded bomblets because of their curiosity and failure to understand danger.28 The submunitions, which often litter factories and farmland, roads and residences, also interfere with the economic recovery of a region.29
Because of the danger of duds, cluster bomb clearance is a humanitarian imperative. While the goal is straightforward-clear as quickly, thoroughly, and safely as possible-there are numerous difficulties to overcome and questions to resolve. Demining groups usually assume responsibility for clearance because of their experience with mines and unexploded ordnance. They require, however, funds, staff, training, and equipment to do their work. States and private donors typically fund clearance efforts. Human Rights Watch and many other nongovernmental organizations (NGOs) believe that states that drop cluster bombs should bear a special responsibility to provide assistance with clearance, at least in part because they have information and expertise about their weapons and the location of strikes.30 Other related issues include determining the best way to educate civilians about the dangers of cluster bomblets and developing standardized warning symbols. Slow or inefficient clearance increases civilian casualties, slows economic recovery, and can lead people to risk their lives clearing bomblets themselves.
Cluster Bombs and International Humanitarian Law
The Fourth Geneva Convention and Protocol I lay out the law that protects civilians during war.34 Protocol I, adopted to supplement the original protections, includes most of the articles important for this report.35 The basic principle of this branch of IHL is distinction, which requires all parties engaged in an armed conflict to distinguish between civilians and combatants. Article 48 of Protocol I states, "the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."36
Attacks that strike military objects and civilians or civilian objects without distinction are considered indiscriminate and are prohibited.37 While the Protocol recognizes that some civilian deaths are inevitable, it says states cannot legally target civilians or engage in indiscriminate attacks. Article 51(4) and Article 51(5) define the concept of indiscriminate in several ways.38 As discussed below, cluster bombs raise concerns under most of the definitions. While not inherently indiscriminate, cluster bombs are prone to being indiscriminate, particularly when certain methods of attack or older or less sophisticated models are used.
The immediate effects of cluster bombs, i.e., the damage done during strikes, raise concerns under Protocol I's proportionality test, which balances military advantage and civilian impact.39 According to Article 51(5)(b), an attack is disproportionate, and thus indiscriminate, if it "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."40 Some kinds of cluster bomb attacks tend to tip the scale toward being disproportionate. Strikes in or near populated areas are particularly problematic because when combatants and civilians commingle, civilian casualties are difficult to avoid.
An August 2001 U.S. Air Force background paper acknowledges that cluster munitions "must pass [the] proportionality test" and states that there are "[c]learly some areas where CBUs normally couldn't be used (e.g., populated city centers)."41 The definition of a populated area should include not only cities but also villages and their environs.42 The CCW, for example, defines "concentrations of civilians" as "any concentration of civilians, be it permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages . . . ."43 Based on research in Iraq, Yugoslavia, and Afghanistan, Human Rights Watch believes that when cluster bombs are used in any type of populated area, there should be a strong, if rebuttable, presumption under the proportionality test that an attack is indiscriminate.44
Cluster bomb strikes also have the potential to be indiscriminate because the weapons cannot be precisely targeted. Article 51(4)(b) prohibits attacks "which employ a method or means of combat which cannot be directed at a specific military objective."45 Article 51(5)(a), drafted in response to the carpet bombings of World War II, similarly prohibits bombings that treat "separated and distinct" military objectives as one.46 Cluster bombs are area weapons, useful in part for attacking dispersed or moving targets. They cannot, however, be directed at specific soldiers or tanks, a limitation that is particularly troublesome in populated areas. If one analogizes cluster bombing a populated area in order to kill individual soldiers with carpet bombing a city in order to destroy separate military bases, the attack can be interpreted as indiscriminate. The Protocol I principle that multiple targets should not be treated as one supports the argument that cluster bombs should not be used in populated areas.
The aftereffects of cluster bombs also raise concerns under IHL. If the proportionality test is interpreted as encompassing more than immediate loss, the large number of explosive duds may make cluster bomb use disproportionate. As explained above, unexploded bomblets cause greater "loss of civilian life, injury to civilians, and damage to civilian objects" than most types of unexploded ordnance.47 Taking into account both strike and post-strike casualties greatly increases the likelihood that the loss would be excessive in relation to the military advantage, especially if an attack occurred in a populated area or an area to which people might return. The U.S. Air Force has said that the dud rate must be part of the proportionality determination because unexploded bomblets are "reasonably foreseeable."48
Because of their duds, cluster bombs also exemplify weapons that can be indiscriminate in effect. Article 51(4)(c) of Protocol I says that indiscriminate attacks include "those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol."49 Even if a cluster bomb strike is not indiscriminate, its effects may be. The effects become more dangerous if the bomblets litter an area frequented by civilians or the dud rate is high due to poor design, use in inappropriate environments, or delivery from a high altitude. Cluster bomblet duds cannot distinguish between combatants and non-combatants and will likely injure or kill whoever disturbs them. Under either the proportionality test or the effects provision, the high dud rate of cluster bombs combined with the large number of bomblets they release challenges the principle of distinction.
Regardless of whether cluster bombs violate IHL, states are legally bound to minimize civilian harm. Article 57(2)(a)(ii) of Protocol I imposes a duty on states to "take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects."50 "All feasible precautions" implies that the weapons should be used sparingly, if at all, when it is foreseeable that they will cause at least incidental harm to civilians. The availability of alternative weapons should also be considered. Given the potential indiscriminateness discussed above, the United States, and other countries that use cluster bombs, should avoid strikes in or near populated areas and minimize the long-term effects of duds.51
Because there is currently no cluster bomb treaty, the law does not govern post-strike clearance of bomblets. One can draw principles, however, from the guidelines used for landmines. The 1996 CCW Amended Protocol II on mines, booby-traps, and other devices offers specific guidelines for cleanup responsibilities. It requires parties to record and share information about the mines they used, including location, type, and date laid.52 It also requires States Parties to clear areas under their control and provide technical and material assistance to clear areas in which they laid mines that are no longer under their control.53 Applied to cluster bombs, this model would not only promote an exchange of resources but also require the state dropping bombs to assist the bombed state with clearance. The CCW also helps standardize warning signs, which could be similarly useful for cluster awareness.54 These rules are not legally binding in the case of cluster bombs, but they illustrate guidelines the international community has found appropriate in analogous situations.55
Proposed Cluster Bomb Protocol: CCW Process
While the principles of IHL apply to all weapons, the CCW targets weapons of special concern. Originally negotiated in 1979 and 1980, the convention was amended at review conferences in 1995/1996 and 2001. So far, it includes four protocols that address respectively: weapons with fragments not detectable by X-ray; mines, booby-traps, and similar devices; incendiary weapons; and blinding lasers.56 Any party may propose adding a new protocol to the convention.57 A protocol covering cluster bombs would be an appropriate addition.
In December 2001, at the Second Review Conference of the CCW, States Parties formed a committee of experts to evaluate ways to deal with explosive remnants of war (ERW), including the possibility of negotiating an ERW protocol. Cluster bombs fall under this discussion because they leave significant unexploded ordnance. The review conference tasked the Group of Governmental Experts with a broad mandate to examine:
· Factors and types of munitions that cause post-war humanitarian problems;
This mandate gives the experts the freedom to propose improvements in targeting, technology, and clearance.
The Group of Governmental Experts has met several times in 2002 to discuss issues relating to ERW. In May, States Parties presented papers that raised questions about the five topics and started to formulate national positions. In July, the group listened to the positions of governments and NGOs; in particular, it discussed the scope of the humanitarian threat of submunitions and considered the advantages and disadvantages of regulating ERW generally or by specific weapon. In December, the group will submit its final report to States Parties, making a recommendation about how to proceed. It could recommend drafting one or more protocols under the CCW, turning to a different forum for a solution, or doing nothing. The process could potentially lead to legal negotiations next year.
Human Rights Watch has played an active role in advocating for a new protocol. In December 2001, it encouraged the group of experts to focus on cluster bombs and to consider targeting as well as technology.59 It has also sent representatives to this year's series of meetings in Geneva and provided research on submunitions. While the protocol would not apply to past use of cluster bombs, the effects of cluster bombs in Afghanistan help demonstrate the need for such a protocol and could inform its contents.
14 In addition to the Human Rights Watch documents cited in this section, see, e.g., ICRC, Submunitions and Other Unexploded Ordnance; Landmine Action, Explosive Remnants of War; Virgil Weibe, "Footprints of Death: Cluster Bombs as Indiscriminate Weapons Under International Humanitarian Law," Michigan Journal of International Law 22 (2000): 85-167.
15 While, as noted above, the WCMD is designed to have a CEP of eighty-five feet (twenty-six meters), the Joint Direct Attack Munition (JDAM), which converts a dumb bomb into a satellite-guided bomb, is designed to have a CEP of thirteen meters (less than forty-three feet). U.S. Air Force, Joint Direct Attack Munitions Fact Sheet, available at http://www.af.mil/news/factsheets/JDAM.html (last visited October 10, 2002).
16 Although it has a smaller footprint than older cluster bombs, even the CBU-103 has a greater radius of damage than most unitary explosives.
17 Because of the imprecision and fact that bomblets do not always reliably explode, multiple cluster bombs with overlapping footprints are often used in attacks. The use of multiple bombs increases the potential area of destruction in strikes and produces more unexploded bomblets that have aftereffects.
18 For more information on concerns about cluster bomb strikes, see, e.g., Human Rights Watch, "Cluster Bombs in Afghanistan," pp. 1-3; Human Rights Watch, "Civilian Deaths in the NATO Air Campaign," A Human Rights Watch Report, vol. 12, no. 1 (D), February 2000, pp. 8, 27-28; Human Rights Watch, "U.S. Cluster Bombs for Turkey?" p. 13.
19 Statement of Edward Cummings, Head of the U.S. Delegation to the Second Preparatory Conference of the 2001 CCW Review Conference, April 5, 2001, pp. 2, 6.
20 Human Rights Watch, A Global Overview of Explosive Submunitions, pp. 4-5.
21 Human Rights Watch found evidence of all three of these failures in Afghanistan. Demining consultant Bob Gannon hypothesized that fratricide was particularly common in this conflict. Human Rights Watch interview with Bob Gannon, Ronco, near Kandahar, Afghanistan, March 24, 2002.
22 Some people also argue that unexploded cluster bomblets are worse than landmines because while the latter are designed to main, the former are designed to kill. Human Rights Watch, "Cluster Bombs in Afghanistan," p. 11.
23 ICRC, Submunitions and Other Unexploded Ordnance, p. F-2.
24 Regional Mine Action Center (RMAC) Herat, Cluster Victims 2002; RMAC Herat, Mine/UXO Victims 2002. Both documents were obtained in June 2002 and record casualties for the first nine months of the war. Cluster bomblets killed twenty civilians and injured twenty-five. Mines killed three and injured eleven.
25 Other types of unexploded ordnance killed five civilians and injured seven. RMAC Herat, Cluster Victims 2002; RMAC Herat, Mine/UXO Victims 2002.
26 Landmine Action, Explosive Remnants of War, p. 7. Cluster bomblets injured ninety-seven civilians and killed forty-five. Landmines injured 221 and killed thirty-three.
27 Cluster submunitions caused ninety-seven injuries and forty-five deaths. Other types of unexploded ordnance caused nineteen injuries and eight deaths. Ibid.
28 See, e.g., Associated Press, "Humanitarian Groups Criticize U.S. Attacks with Cluster Bombs," St. Louis Post-Dispatch, December 27, 2001; Human Rights Watch, "Ticking Time Bombs," p. 6; Human Rights Watch, "U.S. Cluster Bombs for Turkey?" p. 17; Landmine Action, Explosive Remnants of War, pp. 44, 53.
29 For more information about concerns about cluster bomb duds, see, e.g., Human Rights Watch, "Cluster Bombs in Afghanistan," pp. 1-3; Human Rights Watch, "Ticking Time Bombs," pp. 3-6; Human Rights Watch, "U.S. Cluster Bombs for Turkey?" pp. 13-14.
30 See, e.g., Landmine Action, Explosive Remnants of War, p. 56 ("The users of explosive munitions, including cluster submunitions, should be responsible for the clearance of unexploded ordnance, or for providing financial assistance sufficient to ensure its clearance, without delay, after active hostilities have ceased.").
31 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August, 12, 1949; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August, 12, 1949; Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949; Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 [hereinafter Fourth Geneva Convention]. See also Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977 [hereinafter Protocol I]; Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977.
32 According to the U.S. Army Judge Advocate General's Operational Law Handbook, the United States views as "either legally binding as customary international law or acceptable practice though not legally binding" the following Protocol I articles discussed in this report: Article 51 (protection of the civilian population) and Article 57 (precautions in attack). Mike O. Lacey and Brian J. Bill, eds., Operational Law Handbook (Charlottesville: Judge Advocate General's School, 2000), pp. 5-2, 5-3. For a fuller discussion of customary law, see Peter Malanczuk, Akehurst's Modern Introduction to International Law, 7th ed. (London: Routledge, 1997), pp. 39-48.
33 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate Effects [hereinafter CCW]. The original convention was adopted in 1980 and was amended at review conferences in 1995/1996 and 2001. Afghanistan has not signed the CCW. The United States has ratified the Framework Convention, Protocol I, and Protocol II (as amended in 1996).
34 These treaties apply primarily to international conflicts, such as the war in Afghanistan. Geneva Conventions, Common Art. 2; Protocol I, Art. 1(3). Protocol I also applies to "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination." Protocol I, Art. 1(4).
35 The Preamble of Protocol I notes that the parties "believ[ed] it necessary . . . to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application." Protocol I, Pmbl.
36 Ibid., Art. 48.
37 Ibid., Art. 51(4).
38 The five kinds of indiscriminate attacks enumerated in Protocol I are those that: are 1) not directed or 2) cannot be directed at "a specific military objective," 3) have effects that violate the Protocol, 4) treat separate urban military objectives as one (carpet bombing), and 5) are disproportionate. Ibid., Art. 51(4, 5).
39 In this context, disproportionate attacks are a subset of indiscriminate attacks. "The attacks which form the subject of this paragraph [Art. 51(5)] fall under the general prohibition of indiscriminate attacks laid down at the beginning of paragraph 4." Claude Pilloud et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: ICRC, 1987), p. 623. See also ibid., p. 683.
40 Protocol I, Art. 51(5)(b).
41 U.S. Air Force, Bullet Background Paper on International Legal Aspects Concerning the Use of Cluster Munitions, August 30, 2001. This is an informal paper prepared by the office of the Air Force Judge Advocate General.
42 Cluster bomb strikes near populated areas, especially villages, can be as problematic as those in populated areas. For example, a target in a city is clearly problematic if it has homes surrounding it one mile (1.6 kilometers) in every direction. A more rural target may have no homes immediately around it but may have a village one mile away. Even though open fields separate the military base and that village, the latter is at much at risk as a city home one mile away from an urban base. The only difference between the cases is that the village has a smaller footprint that does not extend to the base. The case studies of Qala Shater and Ishaq Suleiman, discussed below, illustrate this point. The threshold for "near" may depend on the accuracy of the specific type of cluster bomb used.
43 CCW, Protocol III (Prohibitions or Restrictions on the Use of Incendiary Weapons), Article 1(2). CCW Protocol III prohibits attacks on concentrations of civilians with air-delivered incendiary weapons. It allows limited such attacks with other kinds of incendiary weapons, provided that a "military objective is clearly separated from the concentration of civilians and all feasible precautions are taken with a view to . . . avoiding, and in any event minimizing, incidental loss of civilian life . . ." (emphasis added). Note that separation of the military objective and concentration of civilians is not sufficient. Ibid., Art. 2(2, 3).
44 In other words, a cluster bomb strike on a populated area would be considered indiscriminate under the law, unless the military, which would bear the burden of proof, could prove the military advantage of a particular strike outweighed the civilian harm.
45 Protocol I, Art. 51(4)(b).
46 Ibid., Art. 51(5)(a).
47 Ibid., Art. 51(5)(b) (quoting the proportionality test).
48 U.S. Air Force, Bullet Background Paper on International Legal Aspects Concerning the Use of Cluster Munitions.
49 Protocol I, Art. 51(4)(c) (emphasis added).
50 Ibid., Art. 57(2)(a)(ii).
51 The law of war also prohibits the use of "inhumane" weapons, which are those that cause "superfluous injury or unnecessary suffering." See, e.g., ibid., Art. 35(2). This prohibition is designed to protect combatants, not civilians, from inhumane weapons, such as mustard gas or dum dum bullets. A few opponents have argued that cluster bombs cause superfluous injury or unnecessary suffering and should be banned as inhumane, but most critics focus on their humanitarian problems. For more information on this debate, see Thomas J. Herthel, "On the Chopping Block: Cluster Munitions and the Law of War," Air Force Law Review 51 (2001): 256-59; Thomas Michael McDonnell, "Cluster Bombs Over Kosovo: A Violation of International Law?" Arizona Law Review 44 (2002): 66-74. Further discussion of the debate is beyond the scope of this Human Rights Watch report.
52 CCW, Protocol II as Amended 3 May 1996 (Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices), Art. 9 and Technical Annex [hereinafter CCW, Amended Protocol II].
53 Ibid., Art. 10(2, 3).
54 Ibid., Technical Annex, para. 4.
55 The Mine Ban Treaty also offers guidelines on clearance. It requires States Parties "to destroy or ensure the destruction of all anti-personnel mines in mined areas under its jurisdiction or control, as soon as possible but not later than ten years after the entry of force of this Convention." Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on Their Destruction, Art. 5(1), September 18, 1997 [hereinafter Mine Ban Treaty]. The treaty also requires States Parties to facilitate the "exchange of equipment, material and scientific and technological information, concerning the implementation of this Convention" and says, "Each State Party in a position to do so shall provide assistance for mine clearance and related activities." Ibid., Art. 6(2, 4). Unlike the CCW Protocol, the Mine Ban Treaty bans rather than merely regulates these weapons. Ibid., Art. 1. While the United States is not party to the Mine Ban Treaty, Afghanistan deposited its instrument of accession on September 11, 2002, and will formally become a State Party on March 1, 2003. For an updated list of States Parties, see the International Campaign To Ban Landmines (ICBL) website at www.icbl.org.
56 There are two versions of the CCW mine protocol, the original Protocol II from 1980 and the amended version from 1996. The original version remains in force only for States Parties that did not become party to the 1996 version.
57 CCW, Framework Convention, Art. 8(2).
58 Final Document of the Second Review Conference of the States Parties to the CCW, December 21, 2001, CCW/CONF.II/2, pp. 12-13.
59 Human Rights Watch, Statement to the Second Review Conference of the Convention on Conventional Weapons (CCW), Geneva, December 21, 2001.