New Convention on Cluster Bombs Adopted at International Conference

By Lauren McCollough

A treaty banning cluster bombs will be signed at a meeting in Oslo this December after it was adopted by more than 100 countries at a special conference last month.  The treaty marks a major step forward in international efforts to ban the use of cluster bombs, which have attracted widespread criticism because they often leave unexploded “bomblets” that can kill or maim civilians.  Nevertheless most of the world’s major military powers, which hold by far the greatest arsenals of cluster bombs, have not adopted the treaty and will not be bound by it.

Cluster bombs, or cluster munitions as they are properly called, are dropped from the air or fired from the ground.  They explode in mid-air and scatter small bombs over a large area, often more than 100 yards.  Each bomb can contain dozens or even hundreds of sub-munitions.  Critics of the weapons say that they are inherently inhumane because of their tendency to kill or injure non-combatants, both because sub-munitions are dispersed across a wide area and because in many cases the small bomblets do not explode on impact, resulting in de facto land mines.  According to human rights groups, up to a quarter of the civilians killed by active sub-munitions remaining on the ground after deployment are children.

Most recently, the war between Israel and Lebanon brought global attention to the use of cluster bombs.  The UN estimates Israel dropped more than 4 million Vietnam-era cluster munitions during the 34-day war, of which a quarter failed to explode.  Cluster munitions have also been used regularly in Iraq by US and UK ground forces.  The great majority of the confirmed 13,000 injuries and deaths estimated to have been caused by cluster bombs occurred in Vietnam.

The new convention marks the culmination of a negotiating process launched in February 2007 in Oslo.  As with the Ottawa Treaty to ban landmines, proponents of the cluster munitions treaty chose to circumvent an existing UN-sponsored weapons negotiation in the hope of quickly assembling a critical mass of countries sympathetic to a ban.  Among the countries that did not participate in the negotiations and have not adopted the treaty are the United States, Russia, Israel, China, India and Pakistan.  Supporters of the convention hope that it will help stigmatize the use of cluster bombs and persuade other countries to avoid the use of the weapons in practice even if they are not legally bound to do so.

The draft treaty requires the signatories not to use, produce or transfer cluster munitions, and to destroy existing stockpiles within eight years (with exceptions for special circumstances).  States are also required to fund international programs to help clean up unexploded sub-munitions from old battlefields.  The treaty forbids states parties to assist anyone to engage in the use of cluster bombs, but it says that they “may engage in military cooperation and operations” with other states that continue to use cluster munitions.  The United States had used its influence with allies to argue strongly for this concession, asserting that the treaty would otherwise make future allied military operations more difficult.

The convention also leaves open the possibility that states that are party to it may be able to use similar weapons in the future, as long as these are technologically advanced or “smart” weapons that contain fewer than ten sub-munitions, and where each sub-munition is light, and designed to engage a specific target and self-destruct or deactivate if it does not immediately explode.

Campaigners have long argued that the use of cluster bombs is in most cases unlawful under existing provisions of international humanitarian law that forbid indiscriminate weapons.  According to the first Additional Protocol of 1977, it is prohibited to conduct attacks that “employ a method or means of combat which cannot be directed at a specific military objective” or “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.”  These provisions are widely agreed to be part of customary international law, binding even on countries that are not party to the Additional Protocol.

However military lawyers have generally maintained that the use of cluster bombs does not necessarily violate these rules.  They point out that an area can itself be a military objective, as for instance when armed forces or mobile weapons are deployed across an open expanse of territory.  According to the United States Air Force legal manual, “Cluster bombs, or CBUs, are used to attack area targets such as concentrations of military personnel, vehicles or armor. Among other things, the use of cluster munitions reduces the risks to aircrews and equipment by reducing the number of sorties required to effectively attack such military objectives.” Proponents of cluster munitions argue that disproportionate harm to civilians is caused only by the weapons’ use in inappropriate circumstances, and that it should be left to the commander on the ground to decide on the choice of weapons to be used, depending on the facts at the time.

Although it seems unlikely that the United States will agree to a ban on cluster munitions, it is worth noting that Sen. Barack Obama, the Democratic candidate for president in this year’s elections, has voted in favor of limits on their use.  In September 2006, the Senate voted on an amendment introduced by Sen. Dianne Feinstein to a defense spending bill that would have forbidden the use or transfer of cluster munitions except where rules of engagement ensure that they would not be used “in or near any concentrated population of civilians, whether permanent or temporary, including inhabited parts of cities or villages, camps or columns of refugees or evacuees, or camps or groups of nomads.” (The language is taken from a similar provision in the Protocol on Incendiary Weapons).  Sen. Obama voted for the amendment (both Sens. Clinton and McCain voted against).  It was defeated by 70 votes to 30.

Update:

On July 9, 2008, the US Department of Defense issued a new policy on cluster munitions designed in part to respond to the conclusion of the draft Convention on Cluster Munitions.  The policy reaffirmed that cluster munitions "are legitimate weapons with clear military utility," useful in attacks against "massed formations of enemy forces, individual targets dispersed over a defined area, targets whose precise location is not known, and time-sensitive or moving targets."

However, recognizing the need to minimize unintended harm to civilians, the new policy requires that by the end of 2018 the United States "will no longer use cluster munitions which, after arming, result in more than one percent unexploded ordnance across the range of intended operational environments."  Between now and 2018, the use of any cluster munition which is expected to result in more than one percent of unexploded sub-munitions requires the approval of the applicable combatant commander.

In addition, the US military will remove from its active inventory any cluster munitions that exceed operational planning requirements or for which there are no operational planning requirements.

Related Chapters from Crimes of War: What the Public Should Know:

Weapons

Related Links:

Convention on Cluster Munitions (.pdf file)

Cluster Munitions Policy Released

US Department of Defense Press Release

July 9, 2008

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