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

Treaties, by definition, are formal written agreements between sovereign states. (98) According to one international legal scholar, "international agreements are thought to be legally binding because they have been concluded by sovereign states consenting to be bound." (99) While treaties make up much of the law of armed conflict today, they have not fully supplanted the customary practices of nations and are not the only source of law in this area. (100)

The second primary source of international law, with respect to armed conflict, is customary international law. (101) Like treaties, international law recognizes custom as a source of law regarding armed conflict. (102) The International Military Tribunal at Nuremberg succinctly captured this point:

The law of war is to be found not only in treaties, but also in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists, and practiced by military courts. This law is not static, but by continual adaptation follows the need of a changing world. (103)

The theory behind customary international law is that "states in and by their international practice may implicitly consent to the creation and application of international legal rules." (104) Customary international law, however, is not based solely on the historical practices of nations, as there is a "psychological" element as well. (105) According to the Restatement (Third) of the Foreign Relations Law of the United States, customary international law is developed by state practice only when done out of a "sense of legal obligation." (106) As such, for customary international law to be binding, states must act not only in a consistent manner, but also out of a sense of legal duty. (107) Hence, in examining the laws of war as they pertain to cluster munitions, one must recognize that it is not merely state practice that, in addition to treaties, dictates acceptable norms in international law, but only those state practices followed from a sense of legal obligation.

Today, the law of war, including its historical development and current practice, is solidly established in treaties and customary international law. While a certain amount of brutality is inevitable in all armed conflicts, the idea of regulating the methods of conducting warfare, in an effort to minimize human suffering, has existed for centuries. (108) Clear evidence exists that philosophers, as well as military, political, and religious leaders sought to "alleviate the sufferings of war." (109) These principles guide modern nations today and provide the framework for codification of the law of war. (110)

The first modern international attempt to codify the laws of war occurred with the first Geneva Convention in 1864, following the horrific Battle of Solferino, in northern Italy, in 1849. (111) In 1864, Switzerland, along with eleven other nations, signed the Geneva Red Cross Convention, designed to protect medical personnel on the battlefield. (112) Since that time, the nations of the world have repeatedly attempted to codify the laws of armed conflict. (113)