On the chopping block: cluster munitions and the law of war.

• Author: Herthel, Thomas J.

MAJOR THOMAS J. HERTHEL *

1. INTRODUCTION:

   "Well, we did not build those bombers to carry crushed rose pedals." (1)

   General Thomas S. Power

   Later this year, delegates to the 2001 Review Conference of the United Nations (UN) Convention on Certain Conventional Weapons (2) (Conventional Weapons Treaty) will meet in Geneva to consider, among other issues, a proposal by the International Committee of the Red Cross (ICRC) to amend the Conventional Weapons Treaty and regulate "remnants of war." (3) The proposed Protocol attempts to address some of the problems caused by unexploded munitions, including unexploded submunitions from cluster bombs. (4)

   Until recently, the international community focused primarily on the issue of anti-personnel landmines--desiring to ban their use in armed conflict. (5) Images of injured woman and children, the result of unintended landmine detonations, took center stage and attracted many notable celebrities to the cause, including Princess Diana. (6) The ICRC's efforts, along with those of hundreds of non-governmental organizations (NGOs), culminated in 1997 in Ottawa, Canada, when much of the international community affirmatively banned the use of anti-personnel landmines. (7)

   With the battle to outlaw landmines under control, many anti-landmine advocates have turned their focus on another "remnant of war," unexploded cluster munitions delivered by cluster bombs. (8) Described as a "close relative" of the landmine, (9) critics of cluster munitions allege they are indiscriminate and cause superfluous injury. (10) Many NGOs are in this camp that criticize cluster munitions. They claim the North Atlantic Treaty Organization's (NATO) recent air campaign over the former Yugoslavia illustrates the need for a ban, or at least regulation, of the use of cluster munitions. (11) During that conflict, NATO forces dropped an estimated 1,600 cluster bombs, each containing between 147 and 202 submunitions, on targets in Serbia and Kosovo. (12) Despite these, and other recent criticisms, many governments, including those of the United States and Britain, view cluster munitions as both militarily important and lawful when properly employed. (13)

   This article examines whether the use of cluster munitions, when properly employed, violates international law. More specifically, it considers the legal basis for regulating anti-personnel weapons, reviews their legality under current treaty law, and specifically examines whether cluster munitions are per se indiscriminate or cause unnecessary suffering and superfluous injury. Part II defines cluster munitions and looks at their developmental history from World War I to present. (14) Part III examines the development of international law, as it pertains to both landmines and cluster munitions. Finally, Part IV evaluates the various arguments regarding cluster munition use and examines their legality under current international law.

2. CLUSTER MUNITIONS

   Cluster munitions are not, by definition, landmines. (15) Nonetheless, those who advocate their ban often rely on the similarities in effect between landmines and cluster munitions to justify their position. (16) Specifically, some argue that undetonated cluster munitions, like landmines, can hide themselves in the terrain and lay dormant until disturbed. (17) In reality, however, properly working cluster munitions are far more akin to traditional air-dropped munitions as both are designed to explode at or near impact. (18) Nonetheless, cluster submunitions, like other ordinance, can and do malfunction and fail to detonate as planned. (19) Until detonated or removed, these submunitions, like other unexploded ordnance, pose a danger to anyone who enters the immediate area. (20) Cluster munition critics argue that, because unexploded munitions are similar in nature to landmines, regulation in the same manner is appropriate. (21) One must understand both the development and use of landmines and cluster munitions to fully appreciate the error in this analogy.

   1. Landmines

      By definition, an anti-personnel mine is a "mine primarily designed to be exploded by the presence, proximity, or contact of a person and that will incapacitate, injure or kill one or more persons." (22) Usually, anti-personnel mines are hand-placed and typically require a degree of pressure applied to the mine's trigger for detonation. (23)

      Although the use of rudimentary landmines on the battlefield dates back to as early as 1191, when Richard I used them in his attack on French fortifications during the baffle of Acre, (24) landmines, as we know them today, trace their genesis to World War I, where they were employed to counter early battletanks. (25) The need for landmines arose when it became apparent that "tanks were virtually immune to small-arms fire and could traverse contested land between entrenched armies while providing cover for advancing infantry troops." (26) Militaries responded to the armor threat by developing high explosive anti-tank mines. (27) The large anti-tank mines, however, were easily spotted and could be removed by enemy personnel. The need for antipersonnel mines to protect the larger anti-tank mines became obvious to military planners. (28) Thus were born the first modern anti-personal landmines.

   2. Cluster Munitions

      Cluster munitions, in contrast to landmines (which are designed to lay dormant until disturbed), are "a group of smaller bombs which are dropped together" from aircraft, (29) and they are designed to explode at or near impact. Cluster munitions, also known as Cluster Bomb Units or "CBUs" (30) in the U.S. military, resemble, in size and weight, other unguided bombs. (31) Cluster bombs are made up of three main components: (1) a dispenser, often called a tactical munitions dispenser (TMD); (2) fuzes to control the weapon; and (3) submunitions, sometimes called bomblets (32) or "bombies." (33) "Once released, CBUs fall for a specified amount of time or distance before their dispensers open, allowing the submunitions to effectively cover a wide area target." (34)

      An internal fuse tells each submunition when to detonate--either "above ground, at impact, or in a delayed mode." (35) Submunitions generally have an anti-tank, anti-material, or anti-personnel function. (36) While older variants contained only one type of submunition, new generation cluster bombs, called Combined Effects Munitions, engage an enemy in a variety of ways. (37) For example, the US Air Force's BLU 97/B Combined Effects Bomb combines "anti-armor, incendiary, and fragmentation effects, making it 'effective' against light armor and personnel." (38) To illustrate why cluster munitions are militarily significant, it is important to understand their history and development.

      While landmine warfare against opposing armies began in the twelfth-century, the British designed cluster munitions during World War I for the purpose of incendiary attacks against the Germans. (39) By World War II, the United States and other nations were using cluster bombs that delivered fragmentation, chemical, and incendiary payloads. (40) Dubbed "wicked little weapons," by Brigadier General George C. Kenney, (41) the military extensively employed incendiary cluster munitions (mostly napalm) during bombing runs on Tokyo. (42) At the time, however, military planners did not consider cluster munitions very successful due to restrictive delivery devices and an inability to control submunition disbursement patterns. (43)

      Following World War II and the conflict in Korea, the United States Navy undertook to develop more accurate cluster munitions by utilizing a newly conceived munitions dispenser. (44) The new dispenser, which began development in July 1959, ( was known as the "Eye-series." (46) Among the most successful in the series was the MK 20 Rockeye. The ordnance, complete with Mk 7 dispenser, Mk 339 time delay fuze, and 247 M118 anti-tank submunitions, (47) disbursed and scattered submunitions in an elongated, doughnut-shaped pattern whose size [was] controlled by the release height of the bomblets." (48) The Navy successfully completed the project by the mid-1960s. The Air Force also adopted it. (49)

      By this time, the United States was deeply involved in the war in Vietnam (50) where use of cluster munitions proved particularly attractive. In Vietnam, US aircrews were especially susceptible to attack by anti-aircraft artillery (AAA), as well as the newly employed, Russian designed, surface-to-air missiles (SAM). (51) Because of the AAA and SAM threat, aircrews found it difficult to engage and neutralize the Vietnamese air defenses from altitudes that allowed using single bombs accurately and effectively. (52) Cluster munitions provided the solution; used as a flak-suppression weapon, they could deliver literally hundreds of bomblets with a singe pass, thereby eliminating the need for aircrews to fly at lower altitudes or over the same target more than a single time. (53)

      By the mid-1960s, cluster bomb technology had come a long way. According to Eric Prokoseli, an expert on anti-personnel weapons, "[t]here were three main areas of innovation: techniques for enhanced fragmentation and other refinements in design of small high explosive munitions; techniques to disseminate submunitions from aircraft-carried cluster bombs; and the adaptation of cluster technologies to other weapon platforms." (54) Essentially, enhanced fragmentation meant that planners could design cluster munitions to break into smaller, more controlled, and more lethal bomblets. (55) Better dispensers and the addition of fixed and folded tail fins ensured that the submunitions more accurately hit their targets. (56) Additionally, during the Vietnam War, the military developed new weapons platforms to deliver cluster bombs (57) including artillery, (58) naval guns, (59) and surface-to-surface missiles (SSMs). (60) Advances in cluster technology also led to other innovations, such as the...