Cluster munitions: Recent developments

• Author: Erkan Agin
• Position: Judge Advocate, Turkish General Staff
• Pages: 108-132

108 MILITARY LAW REVIEW [Vol. 215

CLUSTER MUNITIONS: RECENT DEVELOPMENTS

MAJOR ERKAN AGIN*

Several months after the end of the conflict, Ahmed was

walking with his nine-year-old brother when they were

attracted by a shiny object. Ahmed picked it up and the

cluster bomb exploded.1

I. Introduction

Cluster munitions (CMs) are one of the most effective and efficient

weapons against a range of targets for armed forces.2 However, their

drawbacks (i.e., large area effects and high failure rates) which cause

civilian casualties and property damage have consistently raised valid

humanitarian concerns over the years.3 A recent effort to overcome these

concerns produced the Convention on Cluster Munitions (CCM),4 which

prohibits the use, development, production, stockpiling, and transfer of

CMs. The CCM is the result of a dramatic rise in the number of States

believing that the only way to stop unnecessary harm to civilians by CMs

is their total abolition.5

* Judge Advocate, Turkish General Staff. Presently assigned as Assistant Legal Advisor,

Ankara, Turkey. LL.M., 2012, The Judge Advocate General’s School, U.S. Army,

Charlottesville, Virginia; J.D., 2000, University of Ankara, Turkey; LL.M., 2004,

Institution of Social Sciences, University of Ankara. Previous assignments include

Assistant Legal Advisor, Turkish General Staff Legal Advisory (OTJAG), Ankara,

Turkey 2009–2011, Disciplinary Officer, 6th Motorized Infantry Brigade, Şirnak,

Turkey, 2007–2009; Military Prosecutor, 6th Major Command, Adana, Turkey, 2002–

2007. This article was submitted in partial completion of the Master of Laws

requirements of the 60th Judge Advocate Officer Graduate Course.

1 Victims’ Stories, HANDICAP INT’L UNITED STATES, http://www.clusterbombs.us/victims-

stories/ (describing twelve-year-old Ahmed Kamel’s experiences and casualties due to

unexploded ordnance (UXO) of cluster munitions in Iraq).

2 Memorandum from Robert M. Gates, U.S. Sec’y of Def., to the Secretaries of the

Military Departments et al., subject: DoD Policy on Cluster Munitions and Unintended

Harm to Civilians 1 (June 19, 2008), available at http://www.defense.gov/news/d2008

0709cmpolicy.pdf [hereinafter Defense Policy Memorandum].

3 See Virgil Wiebe, Footprints of Death: Cluster Bombs as Indiscriminate Weapons

Under International Humanitarian Law, 22 MICH. J. INT’ L. 85, 87 (2000–2001).

4 Convention on Cluster Munitions, opened for signature Dec. 3, 2008, 48 I.L.M. 357,

http://treaties.un.org/doc/Publication/CTC/26-6.pdf [hereinafter CCM].

5 See Etian Barak, None to Be Trusted: Israel’s Use of Cluster Munitions in the Second

Lebanon War and the Case for the Convention on Cluster Munitions, 25 AM. U. INT’L L.

REV. 423, 425 (2010).

2013] CLUSTER MUNITIONS UPDATE 109

While the CCM provides an absolute ban on CMs, a parallel effort to

solve the problem by regulation6 attempted to strike a balance between

military necessity and humanity. This effort aimed to regulate CMs with

a new Protocol to the Certain Conventional Weapons Treaty (CCW),7

rather than eliminate them outright.8 However, the new process, led by

the United States, ended with no agreement in the Fourth Review

Conference of the CCW. As a result, the CCM remains the only

international agreement specifically addressing CMs.

A major reason the CCM has fallen short in actually minimizing the

dangers of CMs is the lack of participation of the major producer,

stockpiler, and user states, including the United States.9 The United

States argues that any meaningful and lasting agreement on the limitation

of CMs’ unnecessary harm must include the major producers and

suppliers.10 However, the CCM has already had a stigmatizing effect.11

Whether or not because of the CCM, the United States has issued a

national policy12 on CMs, and has also supported regulating them under

the auspices of the CCW13 to minimize the unintended harm to civilians

caused by CMs.

United States policy heavily rests on the argument that CMs are legal

weapons under current International Humanitarian Law (IHL).14 The

6 Id. at 429.

7 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, Oct. 10, 1980, 1342U.N.T.S. 137, 19 I.L.M. 1523 [hereinafter CCW].

8 See Barak, supra note 5, at 423.

9 See Jeff Abramson, CCW Considers Limits on Cluster Munitions, ARMS CONTROL

TODAY, Oct. 2008, at 43 (arguing that ninety percent of world stockpiles are not covered

by the CCM, according to the chairman of the Group of Governmental Experts on CMs).

10 See Melanie Khanna, Legal Advisor, U.S. Mission to the UN and Other Int’l Orgs. in

Geneva, Opening Statement for the United States Delegation, Aug. 22, 2011, available at

http://geneva.usmission.gov/2011/08/23/ccw-protocol/; see also Joseph Anzalone, The

Virtue of a Proportional Response: The United States Stance Against the Convention on

Cluster Munitions, 22 PACE INT’L L. REV. 204 (2010).

11 See Jessica Corsi, Towards Peace Trough Legal Innovation: The Process and the

Promise of the 2008 Cluster Munitions Convention, 22 HARV. HUM. RTS. J. 145, 156

(2009) (arguing that opponent States of Convention on Cluster Munitions (CCM) will

likely find it increasingly difficult to continue using CMs after ratification of the

convention). See Cluster Munitions Information Chart, HUMAN RIGHTS WATCH (2010),

http://www.hrw.org/news/2009/07/17/cluster-munition-information-chart (listing notable

examples of policy and practice among current non-signatory states to the CCM).

12 Defense Policy Memorandum, supra note 2, at 1.

13 See Khanna, supra note 10.

14 Defense Policy Memorandum, supra note 2, at 1.