On the chopping block: cluster munitions and the law of war - unexploded submunitions from cluster bombs

Air Force Law Review, Spring, 2001 by Thomas J. Herthel

MAJOR THOMAS J. HERTHEL *

I. INTRODUCTION:

"Well, we did not build those bombers to carry crushed rose pedals." (1)

General Thomas S. Power

Later this year, delegates to the 2001 Review Conference of the United Nations (UN) Convention on Certain Conventional Weapons (2) (Conventional Weapons Treaty) will meet in Geneva to consider, among other issues, a proposal by the International Committee of the Red Cross (ICRC) to amend the Conventional Weapons Treaty and regulate "remnants of war." (3) The proposed Protocol attempts to address some of the problems caused by unexploded munitions, including unexploded submunitions from cluster bombs. (4)

Until recently, the international community focused primarily on the issue of anti-personnel landmines--desiring to ban their use in armed conflict. (5) Images of injured woman and children, the result of unintended landmine detonations, took center stage and attracted many notable celebrities to the cause, including Princess Diana. (6) The ICRC's efforts, along with those of hundreds of non-governmental organizations (NGOs), culminated in 1997 in Ottawa, Canada, when much of the international community affirmatively banned the use of anti-personnel landmines. (7)

With the battle to outlaw landmines under control, many anti-landmine advocates have turned their focus on another "remnant of war," unexploded cluster munitions delivered by cluster bombs. (8) Described as a "close relative" of the landmine, (9) critics of cluster munitions allege they are indiscriminate and cause superfluous injury. (10) Many NGOs are in this camp that criticize cluster munitions. They claim the North Atlantic Treaty Organization's (NATO) recent air campaign over the former Yugoslavia illustrates the need for a ban, or at least regulation, of the use of cluster munitions. (11) During that conflict, NATO forces dropped an estimated 1,600 cluster bombs, each containing between 147 and 202 submunitions, on targets in Serbia and Kosovo. (12) Despite these, and other recent criticisms, many governments, including those of the United States and Britain, view cluster munitions as both militarily important and lawful when properly employed. (13)

This article examines whether the use of cluster munitions, when properly employed, violates international law. More specifically, it considers the legal basis for regulating anti-personnel weapons, reviews their legality under current treaty law, and specifically examines whether cluster munitions are per se indiscriminate or cause unnecessary suffering and superfluous injury. Part II defines cluster munitions and looks at their developmental history from World War I to present. (14) Part III examines the development of international law, as it pertains to both landmines and cluster munitions. Finally, Part IV evaluates the various arguments regarding cluster munition use and examines their legality under current international law.

II. CLUSTER MUNITIONS

Cluster munitions are not, by definition, landmines. (15) Nonetheless, those who advocate their ban often rely on the similarities in effect between landmines and cluster munitions to justify their position. (16) Specifically, some argue that undetonated cluster munitions, like landmines, can hide themselves in the terrain and lay dormant until disturbed. (17) In reality, however, properly working cluster munitions are far more akin to traditional air-dropped munitions as both are designed to explode at or near impact. (18) Nonetheless, cluster submunitions, like other ordinance, can and do malfunction and fail to detonate as planned. (19) Until detonated or removed, these submunitions, like other unexploded ordnance, pose a danger to anyone who enters the immediate area. (20) Cluster munition critics argue that, because unexploded munitions are similar in nature to landmines, regulation in the same manner is appropriate. (21) One must understand both the development and use of landmines and cluster munitions to fully appreciate the error in this analogy.

A. Landmines

By definition, an anti-personnel mine is a "mine primarily designed to be exploded by the presence, proximity, or contact of a person and that will incapacitate, injure or kill one or more persons." (22) Usually, anti-personnel mines are hand-placed and typically require a degree of pressure applied to the mine's trigger for detonation. (23)

Although the use of rudimentary landmines on the battlefield dates back to as early as 1191, when Richard I used them in his attack on French fortifications during the baffle of Acre, (24) landmines, as we know them today, trace their genesis to World War I, where they were employed to counter early battletanks. (25) The need for landmines arose when it became apparent that "tanks were virtually immune to small-arms fire and could traverse contested land between entrenched armies while providing cover for advancing infantry troops." (26) Militaries responded to the armor threat by developing high explosive anti-tank mines. (27) The large anti-tank mines, however, were easily spotted and could be removed by enemy personnel. The need for antipersonnel mines to protect the larger anti-tank mines became obvious to military planners. (28) Thus were born the first modern anti-personal landmines.