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Transcript of Human Rights Law Final
Dr. RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY, LUCKNOW
HUMAN RIGHTS LAW
A PROJECT ON “THE LAW ON THE BANNING OF CLUSTER
BOMBS”
SUBMITTED TO
Ms. Aparna SinghAssistant Prof. (Law)
SUBMITTED BY
Usman Ghani KhanB.A.LL.B (Hons.)
Xth SemesterRoll No. 150
THE LAW ON THE BANNING OF CLUSTER BOMBS
CONTENTS
1) Introduction2) Humanitarian law aspects
A. DistinctionB. DiscriminationC. ProportionalityD. Taking Reasonable Precautions
3) International tribunal rulings on Cluster BombsA. Eritrea-Ethiopia Claims CommissionB. The Martic JudgmentC. Analysis of the judgments
4) Existing Law Prior to the 2008 TreatyA. The Conventional Weapons ConventionB. The Adoption of a New Protocol on Explosive Remnants of War (ERW)
5) Treaty on Ban of Cluster BombsA. Formation of the TreatyB. Important Aspects of the Treaty
6) Conclusion
INTRODUCTION
Cluster munitions have been used for many years and were first employed during the
Second World War. The first country to do so was Germany, which dropped a bomb
commonly known as the 'butterfly bomb' during air raids on the United Kingdom. Since
then, cluster munitions have been repeatedly used in armed conflicts. Examples are the
Indo-China War from 1950s to the early 1970s, the Gulf War in 1991, Russia/Chechnya
in 1994-1996, Kosovo in 1999, Afghanistan in 2001-2002, Iraq in 2003 and Lebanon in
2006. At least 75 countries worldwide have stockpiled cluster munitions, and 34 of them
are known to produce in total over 210 types of cluster munitions. Cluster munitions have
actually been used in at least 25 countries.1
Cluster bombs came back onto the world stage during the 2006 war between Israel and
Hezbollah, with both sides of the conflict deploying the weapons in irresponsible ways.2
By early 2007, momentum had gathered for a treaty banning cluster bombs.3 Cluster
munitions spread large numbers of smaller bomblets, often referred to as submunitions,
over wide areas often the size of several football fields.4 They are dropped from the air,
delivered in artillery shells, or packed into rocket warheads.5 In many cases, a significant
percentage of the bomblets fail to explode on impact, creating virtual minefields of
unexploded ordnance.6
1 Press release by Cluster Munitions Coalition, 21 May 2007. An overview by CMC of producer countries, countries that own cluster munitions and countries where cluster munitions have been used can be found at <http:// www.stopclustermunitions.org/map.asp?s=0>.2 Human Rights Watch, United States: Cut Off Cluster Munition Sales to Israel, http://hrw.org/english/docs/2007/01/29/usint15212.htm3 Bonnie Docherty, The Time Is Now: A Historical Argument for a Cluster Munitions Convention, 20 Harv. Hum. Rts. J. 53 (2007).4 Federation of American Scientists, Multiple Launch Rocket System, http://www.fas.org/man/dod-101/sys/land/m26.htm (last visited Oct. 23, 2007).5 Federation of American Scientists, Cluster Bombs, http:// www.fas.org/man/dod-101/sys/dumb/cluster.htm (last visited Oct. 23, 2007) (discussing air dropped cluster munitions6 Human Rights Watch, Memorandum to CCW Delegates: A Global Overview of Explosive Submunitions (May 2002), available at http://www.hrw.org/backgrounder/arms/submunitions.pdf (discussing different types of cluster munitions, as well as failure rates).
Whether cluster bombs are a controllable means of attack has been a frequent question
for international law.7 Cluster bombs have been used in at least fourteen armed conflicts
to date.8 Cluster munitions are designed as "area" weapons for destroying light armor and
personnel over a given area.9 The munitions are grouped into several clusters of smaller
bomblets that are designed to explode at or near impact. When a number of cluster bombs
are deployed at once, they are capable of covering an area equivalent to nineteen football
fields.10 Humanitarian groups have widely condemned the use of these munitions on two
bases, namely, that cluster bombs are indiscriminate because they (1) cannot be
selectively and accurately deployed; and (2) the bomblets which do not detonate create
minefields that cannot distinguish between combatants and noncombatants.11 The recent
treaty on the ban of use of cluster bombs concluded in May, 2008 heralds a welcome
change in the position of law in cluster bombs and goers out show the solidarity of the
international community in the collective condemnation of the use of weapons that lead
to ghastly consequences.
Part one of this paper talks about the violations of the principles of international
humanitarian law that occur because of the use of cluster bombs. Part two of the paper
discusses the position of law made by courts in relation to cluster bombs. Part three deals
with the legal provisions under which cluster bombs were governed prior to the current
treaty. Part four talks about the Oslo process and the coming of the ban treaty in Dublin
in May, 2008. A brief analysis of the provisions will be undertaken. Lastly the researcher
will conclude with her observations and comments.
Part I: HUMANITARIAN LAW ASPECTS
There exist clear justifications within humanitarian law principles in the 1977 Additional 7 Michael Krepon, Weapons Potentially Inhumane: The Case of Cluster Bombs, 52 Foreign Aff. 595, 595-605 (1974)8 Thomas J. Herthel, On the Chopping Block: Cluster Munitions and the Law of War, 51 A.F. L. Rev. 229, 238 (2001).9 Thomas Michael McDonnell, Cluster Bombs Over Kosovo: A Violation of International Law?, 44 Ariz. L. Rev. 31, 96 (2002).
10 Ibid 11 Supra note 8
Protocol I to the Geneva Conventions, portions of which have been recognized as
constituting customary international law. The following is a brief analysis of the
provisions which stand violated by the usage of cluster bombs.
A. Distinction
Additional Protocol I of the Geneva Conventions lays out the principle of requiring
belligerents to distinguish between civilian and military objects and generally has been
recognized as embodying customary international law. The usage of cluster bombs as
discussed in the introduction cannot be precise or targeted largely thus the following
provisions apply.
Article 51(2) from Additional Protocol I (applying to international conflicts) and Article
13(2) from Additional Protocol II (applying to internal conflicts) lay out the basic rule
against making civilians and civilian populations the object of attack.
Article 51(6) of Additional Protocol I attempts to outlaw reprisals against civilians.
Because reprisals usually cannot be directed against the party responsible for the earlier
attack, reprisals often simply lead to a spiral of violence.12 Unfortunately, the provisions
of Article 51(6) may not have reached the level of customary international law, allowing
those not a party to Additional Protocol I to claim the "right" to reprisal when the
following criteria are met:13 "subsidiarity (failure of all other available means); notice
(formal warning of the planned action), proportionality (the damage and suffering
inflicted on the adverse party not to exceed the level of damage and suffering resulting
from its unlawful conduct), temporary character (termination of the reprisal when the
adversary stops violating the law)."14
B. Discrimination
12 Frits Kalshoven, Reprisals, in Crimes of War 309 (Roy Gutmann & David Rieff eds., 1999), available at http:// www.crimesofwar.org/thebook/reprisal.htm13 Ibid 14 Ibid
The discrimination principle stresses that care must be taken in the selection of targets, as
well as the means and methods of attack, to limit the damage to civilians even when
legitimately targeting military objectives. The documentation of damages caused by
cluster bombs in the past in the various conflicts are a clear indicater that the attacks are
indiscriminate.
Article 51(4) of Additional Protocol I states that "[i]ndiscriminate attacks are prohibited"
and defines indiscriminate attacks as follows:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at
a specific military objective; or
(c) those which employ a method or means of combat the effects of which cannot
be limited as required by this Protocol; and consequently, in each such case, are of a
nature to strike military objectives and civilians or civilian objects without
distinction.15
Article 51(5) goes on to define indiscriminate attacks, which consist of "an attack by
bombardment by any methods or means which treats as a single military objective a
number of clearly separated and distinct military objectives located in a city, town,
village or other area containing a similar concentration of civilians or civilian objects."
One must also answer the question of just what constitute civilian populations or objects,
as opposed to military objectives. William Fenrick has succinctly summarized the law
concerning military objectives, describing them as "(i) combatants; (ii) civilians taking a
direct part in hostilities; and (iii) in so far as objects are concerned, those objects which
by their nature, location, purpose or use make an effective contribution to military action
and whose total or partial destruction, capture or neutralisation in the circumstances
ruling at the time, offers a definite military advantage."16
15 Geneva Protocol I, art. 51(4).16 William J. Fenrick, The Prosecution of Unlawful Attack Cases Before the ICTY, 7 Y.B. Int'l. Hum. L. 153, 170 (2004)
Objects normally used for civilian purposes should be presumed to be so used, unless
they meet the above criteria.17 According to the recent codification of customary
international humanitarian law by the Red Cross, "[c]ivilian objects are all objects that
are not military objectives"18 and "[c]ivilians are persons who are not members of the
armed forces. The civilian population comprises all persons who are civilians." 19
The situation gets a bit more complicated when, as in the cases considered here, civilians
are located near military objectives. While there is no treaty governing this situation, the
position of many countries matches that of Australia: "The presence of noncombatants in
or around a military objective does not change its nature as a military objective.
Noncombatants in the vicinity of a military objective must share the danger to which the
military objective is exposed."20 Means of communication are generally considered to be
legitimate military targets. Airfields have been identified as such by many countries.21
The multiplicity in views on the point of what would constitute attack a legitimate attack
with civilian populations around or in close vicinity of a military target lends uncertainty
to the position on cluster bombs prior to the 2008 ban treaty.
C. Proportionality
Proportionality, a closely related principle of discrimination, holds that the anticipated
collateral damage from an otherwise legitimate attack cannot be excessive in relation to
any anticipated military advantage.22 How this macabre calculus of war must be
calibrated has been the subject of much debate. Whether the use of cluster bombs and its
outcomes have been proportionate is a much contested debate with on one side countries
17 Geneva Protocol I art. 52(3).18 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law: Vol. I: Rules 29-32 (2005)19 Ibid 20 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International law: Vol. II, Part I 228 (2005)21 Ibid at 21122 "[A]n attack which 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" is indiscriminate. Geneva Protocol I, art. 51(5)(b).
who have been udders of cluster bombs in the recent past justify the usage and claim it is
not a disproportionate measure. However, the other side of the debate is supported by
over a hundred countries and the same is reflected in the ban treaty of 2008.
D. Taking Reasonable Precautions
Parties to a conflict are obligated to take precautions in planning attacks in order to spare
civilians, civilian populations, and civilian objects. This includes choosing weapons with
the purpose of minimizing damage to civilians and civilian objects.23 Those being
attacked must protect civilians "to the maximum extent feasible," including moving
people away from military targets and not locating military objectives in populated
areas.24 These principles provide a useful backdrop to more detailed consideration of the
cases.
Part II: INTERNATIONAL TRIBUNAL RULINGS ON CLUSTER BOMBS
Two international tribunals recently have found defendants liable for civilian deaths
caused by cluster munitions. These decisions may herald a turning point in the regulation
of these weapons. In 2004, the Eritrea-Ethiopia Claims Commission (EECC) held Eritrea
liable for the deaths of civilians killed in cluster munition strikes on Mekele, Ethiopia on
June 5, 1998.25 On June 12, 2007, the International Criminal Tribunal for the Former
Yugoslavia held the former president of the now-defunct Serbian Republic of Krajina
criminally liable for deaths and injuries resulting from cluster munition rocket attacks on
23 Art. 57. The Article is entitled "Precautions in Attack"24 Geneva Protocol I, Article 58 provides:
Precautions against the effects of attacks.... The Parties to the conflict shall, to the maximum extent feasible:(a) without prejudice to Article 49 of the Fourth Convention [prohibiting mass forcible transfers and deportations], endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;(b) avoid locating military objectives within or near densely populated areas;(c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.
25 Partial Award, Central Front (Eri. v. Eth), Ethiopia's Claim 2, 43 I.L.M. 1275, 1294-96 (Eritrea-Ethiopia Claims Comm'n Apr. 28, 2004)
Zagreb, Croatia on May 2 and 3, 1995 (the Martic judgment).26
A. Eritrea-Ethiopia Claims Commission
The 1998 lethal cluster bomb attack on Mekele by Eritrean aircraft at the outbreak of
hostilities with Ethiopia killed scores of civilians and fanned the flames of the conflict.
The Commission held Eritrea liable for "the deaths, wounds and physical damage to
civilians and civilian objects"27 for "failing to take all feasible precautions to prevent two
of its military aircraft from dropping cluster bombs in the vicinity of the Ayder School
and its civilian neighborhood in the town of Mekele."28 The EECC relied upon Additional
Protocol I, Article 57, "the essence of which is that all feasible precautions to prevent
unintended injury to protected persons must be taken in choosing targets, in the choice of
means and methods of attack and in the actual conduct of operations."29 The Commission
did "not question either the . . . choice of Mekele airport as a target, or [Eritrea's] choice
of weapons." 30
B. The Martic Judgment
On June 12, 2007, the International Criminal Tribunal for the Former Yugoslavia
convicted Milan Martic, the former president of the now defunct Republic of Serbian
Krajina, of war crimes and crimes against humanity.31 Both pre-trial and trial prosecution
witnesses presented evidence about the Orkan submunitions.32 Each rocket used in the
26 Prosecutor v. Martic, Case No. IT-95-11-T, Judgment, ¶¶ 456-73 (June 12, 2007), available at http:// www.un.org/icty/Martic/trialc/judgement/mar-tcjud070612e.pdf.27 Cedric Barnes, Writenet Independent Analysis, Ethiopia: A Sociopolitical Assessment 12 (May 2006) (commissioned by UN High Comm'r for Refugees), available at http://www.unhcr.org/publ/RSDCOI/44f29d704.pdf.
28 Partial Award-Ethiopia, 43 I.L.M. 1275, ¶ VD929 Ibid. ¶ 11030 Ibid 31 Martic, Case No. IT-95-11-T, Judgment, ¶ 477 (June 12, 2007).
32 Transcript of Record at 5114, Martic, Case No. 1T-95-11-T (June 6, 2006) (testimony of Jozef Poje), available at http://www.un.org/icty/transe11/060606ED.htm
Zagreb attack carried 288 KB-1 bomblets, also referred to as "dual purpose improved
conventional munitions".33
The prosecution presented evidence as to the submunitions' gruesome effects on the
human body, their ability to penetrate vehicles, and their minimal effect on buildings. A
single Orkan rocket can disperse its 288 bomblets over an ellipse of approximately 150
meters by 200 meters, or about two hectares in area.34 The Trial Chamber found that the
Orkan was a "non-guided high dispersion weapon, [which] . . . by virtue of its
characteristics . . . was incapable of hitting specific targets."35 The Rule 61 Decision and
the final judgment both considered these three features in reaching their conclusions.
These characteristics were entirely intended by their designers. Prosecution witnesses
testified at the Rule 61 hearing and at trial that if the intent had been to destroy military or
police buildings, the Orkan rocket was the wrong weapon to use because of the minimal
explosive power of the individual bomblets.
C. Analysis of the judgments
Both judgments held the defendants liable. Both cases addressed the deaths of civilians in
densely populated areas. However, there exists a difference in the approaches. The EECC
did not overtly question the use of cluster munitions near civilian areas, but the ICTY did.
The EECC dismissed charges of intentional targeting of civilians; the ICTY used the very
nature of cluster munitions as evidence of intent to target civilians and in the alternative
held that the cluster munitions were indiscriminate and disproportionate as used. Both the
EECC and the ICTY held that commanders should act to prevent future strikes when they
have foreknowledge about the adverse humanitarian effects of weaponry in actual combat
usage.
Part III: EXISTING LAW PRIOR TO THE 2008 TREATY
33 Martic, Case No. IT-95-11-R61, Transcript of the Trial Chamber, Rule 61 Proceedings (Feb. 27, 1996) [hereinafter Rule 61 Proceedings], available at http://www.un.org/icty/transe11/R61/960227IT.htm34 Martic, Case No. IT-95-11-T, Judgment, ¶ 463 (June 12, 2007)35 Martic, Case No. IT-95-11-T, Judgment, ¶ 462
Prior to the conclusion of 2008 Treaty the international community couldn’t reach on any
binding substantive obligations however there existed some piecemeal efforts with direct
or indirect refernce to cluster bombs. The most relevant being the Conventional Weapons
Conventions and protection within humanitarian law.
A. The Conventional Weapons Convention
The Conventional Weapons Convention was concluded in 1980.36 The convention built
upon previous conventions, notably the Hague Peace Conventions of 1899 and 1907 on
the Laws and Customs of War on Land, the four Red Cross Conventions concluded at
Geneva in 1949 and the Additional Protocols on the Protection of Victims of
International Armed Conflicts.
The CCW and the protocols seek to prohibit and restrict the use of certain conventional
weapons that are considered to cause excessive injuries and unnecessary suffering, or that
have indiscriminate effects. The CCW itself does not contain specific limitations on the
use of certain weapons, and is instead confined to general provisions, such as its scope,
entry into force and structure.37 Cluster bombs can be read into the CCW.
B. The Adoption of a New Protocol on Explosive Remnants of War (ERW)
On 15 September 2000, the ICRC called for a moratorium on the use of cluster weapons
pending the adoption of rules on ERW. This call was based on two reports. The first was
an ICRC study of the effects of ERW in Kosovo following the cessation of hostilities in
2000.38
The ICRC subsequently held a meeting in Nyon (Switzerland) on 18 and 19 September
36 '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.'37 The Third Review Conference decided on 17 November 2006 to establish a compliance mechanism, The text of the mechanism can be consulted at <http:// www.unog.ch/80256EDD006B8954/(httpAssets)/5A1EC120B18FE5EBC125726C00629C1F/ $file/Compliance.pdf>.38 ICRC, Explosive Remnants of War: Cluster Bombs and Land Mines in Kosovo, Geneva, August 2000.
2000 at which it drew attention to the problem caused by Explosive Remnants of War.39
This in fact signalled the start of the discussions in the CCW framework of a protocol on
ERW. The Second Review Conference of the States Parties to the CCW in December
2001 was to decide on the elaboration of the proposals concerning the ERW problem and
the adoption of a possible new protocol to the CCW.
The first formal round of negotiations for an instrument on ERW took place from 10 to
12 March 2003. They led to the adoption of Protocol V on ERW on 28 November 2003.40
The protocol was thus the first multilateral instrument to deal with the problem of the
explosive remnants of war. The main element of the protocol is that the Contracting
Parties involved in a conflict are obliged to clear the areas under their control of ERW as
quickly as possible after the cessation of hostilities
No consensus could be reached on binding measures to prevent ERW which would be
applicable before the use of weapons (for example, with regard to the procurement,
stockpiling and life span) or on the actual use of such weapons, with a view to avoiding
ERW as far as possible. However, states did undertake to discuss this in the future. The
protocol entered into force on 12 November 2006. The protocol had been ratified by 32
states by the autumn of 2007.
Although Protocol V recognises the serious humanitarian post-conflict problems caused
by ERW and introduces general remedial measures designed to reduce the presence,
effects and risk of ERW, it became apparent even during the negotiations that various
states as well as international and non-governmental organisations did not regard an
instrument that deals only with a post-conflict situation as adequate.
The ERW problem therefore remained on the agenda even after the adoption of Protocol
V. The meeting of States Parties decided at the end of November 2003 on Explosive
39 The ICRC has published a summary report entitled Expert Meeting on Explosive Remnants of War (2000).40 Text available at at <http://www.unog.ch/80256EDD006B8954/(httpAssets)/ 5484D315570AC857C12571DE005D6498/ $file/Protocol+on+Explosive+Remnants+of+War.pdf>.
Remnants of War should continue its work in 2004 on the basis of the following mandate
of preventive measures aimed at improving the design of certain specific types of
munitions, including submunitions, with a view to minimising the humanitarian risk of
these munitions becoming explosive remnants of war. Exchange of information,
assistance and cooperation would be important elements of such best practices.41 This
mandate was renewed for 2005 and 2006.
During the discussions in November 2006, a group of 25 countries led by Norway
submitted a declaration calling for a ban on the use of cluster weapons within
'concentrations of civilians' and for a ban on the use of cluster weapons that cause serious
humanitarian hazards on account of their unreliability or inaccuracy.42 No consensus
could be achieved for the declaration.
Part IV: TREATY ON BAN OF CLUSTER BOMBS
A. Formation of the Treaty
The treaty process was launched in Oslo, Norway in February 2007 when 46 nations
agreed to conclude by the end of 2008 an agreement prohibiting cluster munitions “that
cause unacceptable harm to civilians.” The treaty text was developed during international
meetings in Peru, Austria, and New Zealand, with more than 140 countries participating
in at least part of the process.43
41 Excerpt from the Report of the Meeting of the States Parties in 2003, as contained in CCW/MSP/2003/3, p. 37. See <http:// www.unog.ch/80256EDD006B8954/(httpAssets)/EE986DFBB43D3E8EC12571DE006E6E75/ $file/03+Mandates+_MSP+2003.pdf>.
42 The 25 countries called for an agreement that should, inter alia: prohibit the use of cluster munitions within concentrations of civilians; prohibit the development, production, stockpiling, transfer and use of cluster munitions that pose serious humanitarian hazards because they are, for example, unreliable and/or inaccurate; assure the destruction of stockpiles of cluster munitions that pose serious humanitarian hazards because they are, for example, unreliable and/or inaccurate, and in this context establish forms for cooperation and assistance. See doc. CCW/CONF.III/11 (Part III), p. 41.
43 Human Rights Watch, Final Talks on Cluster Munition Ban Treaty, May 16, 2008, available at hrw.org
As a decision to develop a legally binding instrument could not be taken at the CCW
Review Conference in November 2006, Norway called officially on states, the ICRC and
relevant NGOs to develop a legally binding instrument on cluster munitions outside the
CCW framework. Norway was supported by 24 countries. This was in fact the same path
as the one that led to the adoption of the Ottawa Convention on Land mines.44 Amended
Protocol II was adopted under the CCW in 1996. This protocol imposed stricter rules on
the use of anti-personnel mines, but did not ban them. This did not go far enough for
some countries, which wanted an instrument that would ban anti-personnel mines
outright. Ultimately, this led to the Ottawa Convention, or Mine Ban Treaty.
A 'kick-off meeting', otherwise known as the Oslo Conference on Cluster Munitions, was
held in Oslo on 22 and 23 February 2007. This was eventually attended by 49 countries.
Many important producer countries, such as China, India, Iran, Israel, Pakistan, the
Russian Federation and the United States were absent. Various international
organisations were also represented at the meeting, as was the Cluster Munition
Coalition. During the conference, various aspects of the use of cluster munitions were
considered, as well as the scope for and difficulties presented by the adoption of an
international approach to the illegitimate use of these weapons.
The Final Declaration of the Conference45 was adopted by 46 of the 49 countries present.
It was a political declaration and not a legally binding document. Three countries--
Poland, Romania and Japan--indicated in Oslo that they could not (yet) endorse the
declaration. According to the data of Human Rights Watch,46 17 of the 46 countries that
adopted the declaration do not possess cluster munitions and need not therefore take
specific measures. Sixteen of the 29 Oslo signatories that possess cluster munitions also
produce them.47
44 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction45 The text of the Oslo Declaration of 23 February 2007 can be found at the website of the Norwegian Government, <http:// www.regjeringen.no/upload/UD/Vedlegg/Oslo%20Declaration%20(final)%2023% 20February%202007.pdf>.46 Human Rights Watch, A Dirty Dozen Cluster Munitions, February 2007, www.hrw.org47 Ibid
In the final declaration, Norway provided that the participating countries committed
themselves to conclude by 2008 a legally binding instrument that will (i) prohibit the use,
production, transfer and stockpiling of cluster munitions that cause unacceptable harm to
civilians, and (ii) establish a framework for cooperation and assistance that ensures
adequate provision of care and rehabilitation to survivors and their communities,
clearance of contaminated areas, risk education and destruction of stockpiles of
prohibited cluster munitions. In addition, the final declaration stated that the participating
countries would consider taking steps at the national level and would address the
humanitarian challenges posed by cluster munitions within the framework of
international humanitarian law and in all relevant fora.48
B. Important Aspects of the Treaty
The new cluster munitions treaty adopted in Dublin on May 30, 2008. The treaty
immediately bans all types of cluster munitions, rejecting initial attempts by some nations
to negotiate exceptions for their own arsenals, as well as calls for a transition that would
delay the ban for a decade or more. In addition to the prohibitions on use, production,
stockpiling, and trade, the treaty also includes very strong provisions requiring states to
provide assistance to victims and to clean up areas affected by cluster munitions.
“This treaty will make the world a safer place for millions of people,” said Steve Goose,
director of the Arms division at Human Rights Watch. “Cluster munitions have been
tossed on the ash heap of history. No nation will ever be able to use them again without
provoking the immediate revulsion and disapproval of most countries in the world.”49
This is the most significant achievement of the treaty because there were speculations
that certain kinds of cluster bombs might be permitted, but eventually no such thing
happened and there was overwhelming support to ban all kinds of cluster bombs in the
international community.
48 The text is available at <http:// www.stopclustermunitions.org/files/Lima%20discussion%20text%20EN.doc>.
49 Human Rights Watch, Cluster Bomb Treaty Breaks New Ground, May 30, 2008, available at hrw.org
This convention is a comprehensive ban on cluster munitions as a class of weapons. In
many ways it is more comprehensive than the 1997 Mine Ban Treaty. It bans not just
some cluster munitions, but all cluster munitions. It does not try to differentiate between
good cluster munitions and bad cluster munitions, it bans them all. The weapons that are
covered in the Article 2(C) exclusion cannot have the indiscriminate wide area effect and
excessive unexploded ordnance effect of cluster munitions, and thus should not be
considered cluster munitions.
This is a convention with no exceptions – no exceptions for individual nations’ own
particular types of cluster munitions, which would have weakened the treaty severely.
This is a convention with no delays. There is no transition period, which would have
undermined the integrity of the treaty.
The convention contains excellent provisions on victim assistance, which are ground-
breaking and historic in their own right. It has very good provisions on clearance,
transparency, and international cooperation and assistance, all of which are an
improvement on the Mine Ban Treaty, taking advantage of lessons learned over the past
decade.
Although several of the world’s biggest users or stockpilers of cluster munitions were not
present at the Dublin talks, including the United States, Russia, China, India, Brazil,
Pakistan, and Israel. But experience with the Mine Ban Treaty suggests that even non-
signatories will ultimately feel bound by the ban on cluster munitions. Although the
United States has still not signed the Mine Ban Treaty, for example, it has not used,
exported, or produced any antipersonnel landmines since the treaty was negotiated 11
years ago.50 This essentially means that the fact that there exists a treaty with
overwhelming international support will act as a significant deterrent to countries who
intend to use cluster bombs. “The most important thing this treaty does is to stigmatize
cluster munitions,” said Goose. “The stigma will grow and deepen over time, and
ultimately make the use of cluster munitions unthinkable by anyone.”51
50 Ibid. 51 Ibid.
The new treaty’s sole disappointment came in Article 21, which is designed to provide
legal protection for a signatory’s armed forces if another country uses cluster munitions
during joint military operations. Human Rights Watch urged governments to make clear
in official statements a “common understanding” that the treaty does not allow deliberate
assistance for the use of cluster munitions during joint operations and does not allow non-
signatories to stockpile cluster munitions on the territory of signatory states.
Article 21 of the treaty also includes a requirement that signatories actively discourage
use by other states. 52Article 21 on “interoperability” is the only stain on the fine fabric
of the treaty text. The language is not clear that foreign stockpiling and intentional
assistance with prohibited acts are banned in all circumstances. There is further
clarification required from countries that Article 21 does not allow indefinite foreign
stockpiling or intentional assistance. If foreign stockpiling of cluster munitions is allowed
it undermine the fundamental obligations of the treaty.
Ideally states must not delete or undercut the prohibition on assisting non-signatories with
the use of cluster munitions. This is a core prohibition that is essential to the strength of
the treaty and to the promotion of the norm against the weapon. We understand that states
want to ensure legal protections to their soldiers for any unintentional assistance that
could occur during joint military operations. But, we do not understand why the concerns
cannot be addressed as they were for the Mine Ban Treaty, which contains identical
language, through national declarations and implementation laws. It is crucial that in
dealing with this issue, negotiating states make it clear that they object to any use of
cluster munitions by any armed force.
In addition to those related to Article 21, this includes that transit of cluster munitions is
prohibited, that investment in cluster munition production is prohibited, and that the
“minimum number absolutely necessary” of submunitions retained for training means
52 Human Rights Watch, Cluster Bomb Treaty Breaks New Ground, May 30, 2008, available at Hrw.org
hundreds or thousands or less, but not tens of thousands. 53
CONCLUSION
Nations have used cluster munitions extensively over the past four decades in multiple
conflicts around the world.54 Each time they are used, significant concerns have been
raised about their relative military utility when balanced against the death and destruction
to civilians and civilian property. Their wide-area coverage and poor targeting
53 Steve Goose, Cluster Munition Coalition Statement to the Committee of the Whole on the Agreement to Adopt the Cluster Munitions Convention, May 28, 2008, available at hrw.org
54 Virgil Wiebe, Footprints of Death: Cluster Bombs as Indiscriminate Weapons Under International Humanitarian Law, 22 Mich. J. Int'l L. 85, 140-42 (2000).
dramatically increase the likelihood that civilians will be injured during a conflict. Their
unacceptably high failure rates result in thousands if not hundreds of thousands of
unexploded bomblets which kill and injure children and adults, deny access to
agricultural and grazing land, and prevent rapid post-conflict reconstruction and
development. Thus, the treaty will do so much good and give stronger legal basis to the
prevention of use of cluster bombs in times to come.
BIBLIOGRAPHY
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