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

The debate over cluster munitions continued two years later in Lugano, Italy, at the second International Committee for the Red Cross Conference of Government Experts on Weapons that May Cause Unnecessary Suffering or May Have Indiscriminate Effects (Lugano Conference). (158) Like at Lucerne, little agreement existed on the issue. (159) Further, to gain some common ground, the delegates agreed to exclude combined effects munitions from debate altogether. (160) While discussions of the alleged indiscriminate effects of cluster munitions occurred, the focus of the conference, with regard to cluster bombs, centered on the issue of unnecessary suffering. (161) Experts opposed to cluster munition regulation waged a three-pronged attack. (162) First, they pointed out that banning cluster munitions would require the military to use more high explosive ordnance to accomplish the same results over a wide area, potentially causing more damage and suffering than typically done by cluster bombs. (163)

Second, they argued that several types of other weapons have fragmentation effects, such as artillery shells, aircraft bombs, landmines, and hand grenades, and that the military needs these types of weapons, including cluster bombs, for defensive operations to cover large areas and for attacking anti-aircraft emplacements. (164) Finally, the experts pointed out that controlled cluster munitions caused less suffering than did random fragmentation weapons. (165) In the end, the Report of the General Working Group did little more than inconclusively restate both propositions:

Such weapons were considered, so it was explained, to cause undue suffering because of the multiplicity of the wounds they might inflict on individuals; they were also considered to lend themselves to uses that could particularly easily be indiscriminate, whether intentionally or inadvertently. By way of counter-argument to the contention about multiple injuries, reference was made to a comprehensive study that had been undertaken of wounds inflicted by fragmentation munitions of the controlled or pre-fragmented type and of the older uncontrolled type. While it appeared true from this study that the former type tended to cause a higher proportion of multiple injuries among casualties, than the latter, higher mortality rates were found among casualties caused by the latter. Though the degree of pain in each case could not be quantified, the comparison thus suggested that, on one criterion, the newer types of fragmentation munition caused less suffering than the older. (166)

While thirteen countries supported an outright ban on the use of antipersonnel cluster munitions, the proposal to outlaw the weapon failed. (167) As one expert noted, "[a]ll weapons could cause extremely serious, excruciating injuries. War by its very nature [is] cruel. The most convincing way for governments to observe their humanitarian obligations therefore [is] to pursue a consistent policy of peace... ." (168)

b. The Conventional Weapons Treaty and the Ottawa Treaty (169)