TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. Defining Cluster Munitions: How They Work and the Function They Serve B. History: The Development of Cluster Munitions and Their Current Use III. THE CONVENTION ON CLUSTER MUNITIONS A. Wide Footprints and High Dud Rates: Why Cluster Munitions Are Particularly Harmful to Civilians B. The Push to Ban Cluster Munitions via Treaty C. Key Provisions of the CCM IV. CLUSTER MUNITIONS AFTER THE CCM A. International Humanitarian Law: Additional Protocol I to the Geneva Conventions B. Prosecutions of IHL Violations Stemming from Cluster Munition Use: The Former Yugoslavia, Eritrea, and Beyond C. The CCW: An Alternate Treaty Approach to Cluster Munitions D. The Status of IHL and Enforcement After the CCM V. THE AMERICAN APPROACH TO CLUSTER MUNITIONS AND THE CCM A. U.S. Policy on the Legality of Cluster Munitions B. The American "Solution" to the Cluster Munition Problem: Building a Better Bomb VI. SOLUTIONS GOING FORWARD A. The Inadequacy of Existing Treaties B. The Inadequacy of the American Approach and How to Improve It VII. CONCLUSION ABSTRACT
Cluster munitions have been a significant weapon in the world's arsenals for the last half-century, but their use has drawn sharp criticism for its impact on civilian populations. The weapons function by releasing dozens of small "bomblets" over a wide area. For years the debate over these weapons was focused on whether they violated the norms of international humanitarian law, but the 2008 Convention on Cluster Munitions has altered the discussion, banning the weapons outright. However, the major states that use the weapons, including the United States, have not joined the Convention, and the use of cluster munitions continues. This Note focuses in particular on the American approach to the weapons. It examines the legal status of the weapons and the degree to which U.S. policy has addressed some of the problems associated with them. Finally, it argues that if the United States insists on using cluster munitions, it must create a stricter policy to ensure that its use of the weapons is actually legal.
Therefore, order all your livestock and whatever else you have in the open fields to be brought to a place of safety. Whatever man or beast remains in the fields and is not brought to shelter shall die when the hail comes upon them.
The recent Convention on Cluster Munitions (CCM, Convention) (1) is the latest attempt by the international community to humanize the conduct of war. Previous efforts focused on prohibitions of other weapons, such as landmines. (2) A body of law, international humanitarian law (IHL), has also arisen in response to "war crimes," seeking to punish those who use methods that unnecessarily increase the suffering caused by warfare. (3) Weapons that violate this body of law may become banned by treaty. (4) Prior to the drafting of the Convention, there was debate about the legality of cluster munitions under IHL. (5) Cluster munitions are common ordnance in many of the world's militaries (6) since the rise in use during the Vietnam War. (7) International courts have convicted commanders for war crimes due to their use of cluster munitions without ruling on whether the weapons were per se illegal, (8) Even after the advent of the Convention, the debate continues. (9) Most of the world's major users and stockpilers of cluster munitions have not signed the CCM, (10) and the United States recently made extensive use of the weapons in Iraq and Afghanistan. (11)
Cluster munitions are capable of causing significant and widespread harm to innocent civilians. (12) Whether this danger is inherent in the weapons themselves or a result of their misuse is often a central point of contention in the debate over their legality. (13) Regardless, both sides agree that unintended casualties are a serious problem, and even the U.S. Department of Defense adopted a policy designed to reduce the potential for collateral damage. (14) The CCM offers a simple solution to the problem--ban the weapons outright. However, without the assent of the world's major users of cluster munitions, the proposal's efficacy in eradicating problems associated with the ordnance is limited. (15) Efforts to prosecute users for war crimes, whether based on a theory of illegal use or per se illegality, are likewise dependent on the agreement of potential defendants to abide by a treaty. (16)
Nations that use duster munitions are reluctant to join treaties that ban the weapons or subject them to war crimes prosecution. As a result, the processes by which these states choose to use the weapons directly impact the credibility of their claims that cluster munitions are legal. Although the United States adopted a policy that will likely reduce the incidence of postwar cluster munition casualties in the future, (17) it has not adequately addressed the issues of when and how cluster munitions are properly used. Sweeping arguments that commanders must engage in proper balancing of costs and benefits before employing cluster munitions are inadequate, providing little actual guidance. Instead, the United States should adopt a stricter policy on the use of cluster munitions, requiring several absolute conditions to be met before cost-benefit balancing can even begin. Rather than maintaining that cluster munitions may be legal, the United States must ensure that every use of the weapons by American forces is in fact legal. Such an approach would not only decrease the collateral damage associated with American cluster munition use, but could also have the salutary effect of influencing the behavior of other user states by setting a high standard for proper use. Sloppy, ad hoc decision-making processes will become even harder to justify when compared to a thorough and regimented approach.
Defining Cluster Munitions: How They Work and the Function They Serve
Cluster munitions target an area rather than a single point. This type of ordnance, which can be delivered by several means, (18) consists of a container that releases submunitions, or bomblets, while in flight. (19) The result is a shower of small explosives that cover a large area. (20) The recent Convention on Cluster Munitions, which bans the weapons, defines a cluster munition as "a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions." (21) Although the Convention sets 20 kilograms as the maximum weight for submunitions, in practice submunitions are much smaller. Usually the size of tennis balls or soda cans and weighing only a few kilograms, submunitions are more akin to hand grenades than other bombs. (22) Although small in size, these bomblets are powerful (23) and versatile, often delivering antipersonnel fragmentation, armor-piercing shape charges, and incendiary effects in the same compact package. (24) The multiple effects of the submunitions are designed to achieve the intended uses of cluster munitions; they are deployed against troop formations, vehicle convoys, airfields, antiaircraft weapons, and other targets that combine personnel and light armor. (25)
Today's cluster munitions can be delivered by aerial bombs, (26) artillery shells, (27) artillery rockets, (28) and cruise missiles. (29) The primary weapon, or dispenser, carries scores, even hundreds, of submunitions. (30) At a predetermined point prior to reaching the target, the dispenser releases the submunitions, dispersing them in the air and blanketing the target area. (31) As the bomblets fall to the earth, their explosive mechanisms become armed, usually by rapid spinning (32) or the deployment of small parachutes, (33) Once armed, the submunitions explode either shortly before landing, on contact, or shortly after landing. (34) The submunition casings are often scored to create a fragmentation pattern of uniformly shaped projectiles, rather than irregular shards of metal. (35) These fragments make bomblets powerful antipersonnel weapons, capable of killing or seriously wounding anyone standing within 150 meters of the explosion, (36) Each bomblet essentially acts similar to a powerful variant of the hand grenade. Many submunitions are designed to serve multiple purposes, and thus contain directional charges designed to penetrate armor (37) or an incendiary element, such as zirconium, which burns at a very high temperature. (38) The anti-armor bomblets usually must land in a particular manner to detonate, in order to ensure that the charge fires in the right direction. Thus, they are usually stabilized by parachutes in their descent. (39)
The size of the "footprint," the area covered by the bomblets, varies based on several factors, including release altitude, wind, and number of submunitions. (40) Roughly speaking, however, most cluster munitions are designed to have a footprint at least the size of a football field, and often larger. (41) When multiple cluster munitions are deployed in tandem, the area multiplies. For example, the U.S. Army's Multiple Launch Rocket System can fire twelve rockets together, creating a footprint roughly sixty football fields in size. (42) A fully loaded B-52 bomber, delivering forty cluster bombs in a "carpet bombing" attack, can cover over 27,000 football fields. (43) Multiple cluster munitions can also be targeted at the same point, increasing the saturation of submunitions within the footprint. (44) Although some cluster munitions have precision guidance systems, (45) the vast majority are not "smart bombs" and are unguided once fired or released. The same factors that affect the size of the footprint affect the accuracy of the weapon as a whole--the location of the footprint can vary by distances as large as the footprint itself. (46)
The initial appeal of cluster munitions during the Vietnam War was this ability to blanket large...