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 Singh Assistant Prof. (Law)

SUBMITTED BY

Usman Ghani Khan B.A.LL.B (Hons.) Xth Semester Roll No. 150

THE LAW ON THE BANNING OF CLUSTER BOMBS

CONTENTS 1) Introduction 2) Humanitarian law aspects A. Distinction B. Discrimination C. Proportionality D. Taking Reasonable Precautions 3) International tribunal rulings on Cluster Bombs A. Eritrea-Ethiopia Claims Commission B. The Martic Judgment C. Analysis of the judgments 4) Existing Law Prior to the 2008 Treaty A. The Conventional Weapons Convention B. The Adoption of a New Protocol on Explosive Remnants of War (ERW) 5) Treaty on Ban of Cluster Bombs A. Formation of the Treaty B. 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 Whether cluster bombs are a controllable means of attack has been a frequent question

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 . 2 Human Rights Watch, United States: Cut Off Cluster Munition Sales to Israel, http://hrw.org/english/docs/2007/01/29/usint15212.htm 3 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/dod101/sys/land/m26.htm (last visited Oct. 23, 2007). 5 Federation of American Scientists, Cluster Bombs, http:// www.fas.org/man/dod101/sys/dumb/cluster.htm (last visited Oct. 23, 2007) (discussing air dropped cluster munitions 6 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).

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 Protocol I to the Geneva Conventions, portions of which have been recognized as 7

Michael Krepon, Weapons Potentially Inhumane: The Case of Cluster Bombs, 52 Foreign Aff. 595, 595605 (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 11

Ibid Supra note 8

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 The discrimination principle stresses that care must be taken in the selection of targets, as 12

Frits Kalshoven, Reprisals, in Crimes of War 309 (Roy Gutmann & David Rieff eds., 1999), available at http:// www.crimesofwar.org/thebook/reprisal.htm 13 Ibid 14 Ibid

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 Objects normally used for civilian purposes should be presumed to be so used, unless 15

Geneva Protocol I, art. 51(4). William J. Fenrick, The Prosecution of Unlawful Attack Cases Before the ICTY, 7 Y.B. Int'l. Hum. L. 153, 170 (2004) 16

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 who have been udders of cluster bombs in the recent past justify the usage and claim it is 17

Geneva Protocol I art. 52(3). 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 211 22 "[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). 18

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 Zagreb, Croatia on May 2 and 3, 1995 (the Martic judgment).26 23

24

25

Art. 57. The Article is entitled "Precautions in Attack" 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.

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)

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 Zagreb attack carried 288 KB-1 bomblets, also referred to as "dual purpose improved conventional munitions".33 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, ¶ VD9 Ibid. ¶ 110 30 Ibid 31 Martic, Case No. IT-95-11-T, Judgment, ¶ 477 (June 12, 2007). 29

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 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.htm

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 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 34 35

Martic, Case No. IT-95-11-T, Judgment, ¶ 463 (June 12, 2007) Martic, Case No. IT-95-11-T, Judgment, ¶ 462

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 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 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 . 38 ICRC, Explosive Remnants of War: Cluster Bombs and Land Mines in Kosovo, Geneva, August 2000. 39 The ICRC has published a summary report entitled Expert Meeting on Explosive Remnants of War (2000).

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 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, 40

Text available at at .

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 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 41

Excerpt from the Report of the Meeting of the States Parties in 2003, as contained in CCW/MSP/2003/3, p. 37. See . 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 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 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 44

1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction 45 The text of the Oslo Declaration of 23 February 2007 can be found at the website of the Norwegian Government, . 46 Human Rights Watch, A Dirty Dozen Cluster Munitions, February 2007, www.hrw.org 47 Ibid

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. 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 48

The text is available at . 49

Human Rights Watch, Cluster Bomb Treaty Breaks New Ground, May 30, 2008, available at hrw.org

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 groundbreaking 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 nonsignatories 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 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 50 51

Ibid. Ibid.

assistance for the use of cluster munitions during joint operations and does not allow nonsignatories 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.

52

Article 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 hundreds or thousands or less, but not tens of thousands. 53

52

53

Human Rights Watch, Cluster Bomb Treaty Breaks New Ground, May 30, 2008, available at Hrw.org

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

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 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. 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).

BIBLIOGRAPHY 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 . Human Rights Watch, United States: Cut Off Cluster Munition Sales to Israel, http://hrw.org/english/docs/2007/01/29/usint15212.htm Bonnie Docherty, The Time Is Now: A Historical Argument for a Cluster Munitions Convention, 20 Harv. Hum. Rts. J. 53 (2007). Federation of American Scientists, Cluster Bombs, http:// www.fas.org/man/dod101/sys/dumb/cluster.htm (last visited Oct. 23, 2007) (discussing air dropped cluster munitions 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). Michael Krepon, Weapons Potentially Inhumane: The Case of Cluster Bombs, 52 Foreign Aff. 595, 595-605 (1974) Thomas J. Herthel, On the Chopping Block: Cluster Munitions and the Law of War, 51 A.F. L. Rev. 229, 238 (2001). Thomas Michael McDonnell, Cluster Bombs Over Kosovo: A Violation of International Law?, 44 Ariz. L. Rev. 31, 96 (2002). Frits Kalshoven, Reprisals, in Crimes of War 309 (Roy Gutmann & David Rieff eds., 1999), available at http:// www.crimesofwar.org/thebook/reprisal.htm William J. Fenrick, The Prosecution of Unlawful Attack Cases Before the ICTY, 7 Y.B. Int'l. Hum. L. 153, 170 (2004) Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law: Vol. I: Rules 29-32 (2005)

Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International law: Vol. II, Part I 228 (2005) 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. ICRC, Explosive Remnants of War: Cluster Bombs and Land Mines in Kosovo, Geneva, August 2000. of the Meeting of the States Parties in 2003, as contained in CCW/MSP/2003/3, p. 37. See . Human Rights Watch, Final Talks on Cluster Munition Ban Treaty, May 16, 2008, available at hrw.org The text of the Oslo Declaration of 23 February 2007 can be found at the website of the Norwegian Government, . Human Rights Watch, A Dirty Dozen Cluster Munitions, February 2007, www.hrw.org Rights Watch, Cluster Bomb Treaty Breaks New Ground, May 30, 2008, available at Hrw.org 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 Virgil Wiebe, Footprints of Death: Cluster Bombs as Indiscriminate Weapons Under International Humanitarian Law, 22 Mich. J. Int'l L. 85, 140-42 (2000).