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

One of the first, and still a significant attempt was the St. Petersburg Declaration of 1868. (114) Described as "the cornerstone of the laws of war," (115) the St. Petersburg Declaration of 1868 was the first successful attempt to regulate modern weaponry. (116) While the purpose of the Declaration was to renounce the use of exploding bullets weighing less than 400 grams, the Declaration also made broad statements about how nations should conduct warfare. (117) In its Preamble, three important concepts emerged: the principles of military objective, distinction and humanity: (118)

[T]he only legitimate object which states should endeavor to accomplish during war is to weaken the military force of the enemy ... for this purpose, it is sufficient to disable the greatest possible number of men ... this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable ... the employment of such arms would, therefore, be contrary to the laws of humanity.... (119)

While the international community still recognizes its prohibition against expanding bullets, the Declaration is now more of historical than practical significance. (120) Its rationale is important because it serves as the guiding principles for the modern law of armed conflict. (121)

In practical effect, the current law of armed conflict is found primarily in the Hague Conventions of 1907, (122) the Geneva Conventions of 1949 (123) and its 1977 Protocols (124) and the Conventional Weapons Treaty of 1980 (125) along with its Protocols. (126) The Geneva Conventions and its Protocols generally focus on protecting victims and other noncombatants in war, such as the wounded and sick, (127) the shipwrecked, (128) prisoners of war, (129) and civilians. (130) While the United States has ratified neither of the 1977 Protocols to the Geneva Convention, it generally considers Protocol I reflective of customary international law. (131) On the other hand, the Hague Conventions, along with the Conventional Weapons Treaty, regulate the means and methods of warfare; they focus on the weapons of war and their employment. (132)

The totality of treaty and customary international law produces four basic principles to guide military planners--military necessity, distinction, proportionality, and humanity (133) Military necessity holds that armies should not attack targets unless they gain a military advantage by doing so, and even then, they may attack only military objectives. (134) Next, the principle of distinction states that states should wage wars "against the enemy's military forces, not its civilian population." (135) The principle of proportionality recognizes that there will be civilian casualties and destruction of civilian property during armed conflict, but calls upon military planners to balance the needs of the military against likely collateral damage, and to proceed to attack only when the military necessity outweighs likely collateral damage. (136) Finally, the principle of humanity dictates that military planners should minimize unnecessary suffering. (137) If a means or method of warfare is not outlawed it is legal. Accordingly, in analyzing the legality of cluster munitions, these four principles govern exclusively, absent any more restrictive international agreements. In other words, as there are no existing treaties restricting the use of cluster munitions, their use must violate one or more of these four guiding principles to be unlawful under the current international legal regime.