The use of cluster munitions in the war on terrorism.

• Author: Ching, Karl C.

1. INTRODUCTION

   Militaries throughout the world value cluster bombs or cluster munitions for their unique and destructive power. (1) But in conflicts where cluster bombs are utilized and when the battles have ended, unexploded cluster bomblets inevitably remain, sometimes wounding and killing innocent people when they return to their homes. (2) When the fighting between Israel and Hezbollah, a militant Shiite Muslim group, ended in August 2006, a conflict known as the 2006 Lebanon War, an estimated one million unexploded cluster bomblets littered the lands of southern Lebanon. (3) The use of cluster bombs is governed by international humanitarian law, which includes Protocol I of the Geneva Conventions. (4) Currently, however, cluster bombs are not explicitly banned under international law. (5) Although controversy often surrounds the use of cluster bombs, the specific facts, methods, and circumstances regarding their use are frequently central to an analysis of their legality under international law. (6)

   This Note argues that the United States's use of cluster bombs in the Global War on Terrorism in Afghanistan and Iraq, and Israel's use of cluster bombs in its conflict with Hezbollah in Lebanon demonstrates the need for stronger international laws regulating the use of cluster bombs with more explicit consequences aimed at preventing civilian casualties during and after an armed conflict. (7) Part II of this Note explores the characteristics of cluster bombs that make them controversial and examines the historical development of the laws relating to the use of cluster bombs in war. (8) Part III outlines cluster bomb use in specific conflicts, with particular emphasis on the use of cluster bombs during the conflict between Israel and Hezbollah in the 2006 Lebanon War. (9) Part IV analyzes the current state of international law in relation to the use of cluster bombs in the war on terrorism and whether more explicit laws are necessary to govern their use, with specific emphasis on the use of cluster bombs in the 2006 Lebanon War. (10) Finally, Part V concludes that while a complete ban on cluster bombs is unnecessary and likely impractical, the use of cluster bombs in the broader war on terrorism demonstrates a need for more explicit laws concerning cluster bomb use with harsher consequences for the misuse of cluster bombs in the international arena. (11)

2. HISTORY

   1. Cluster Weapons

      Essentially, a cluster bomb is a bomb that contains smaller bombs inside. (12) Cluster bombs are weapons that are designed to disperse numerous smaller explosive submunitions over a wide area. (13) Each cluster bomb contains a canister consisting of smaller submunitions, often referred to as bomblets or grenades, which are designed to explode at or near impact in the targeted area. (14) Military forces are able to dispense cluster bombs using aircraft, surface artillery, or rockets. (15) A single cluster bomb dropped from the air can contain hundreds of smaller bomblets causing damage from the numerous smaller explosions every few feet apart. (16)

      The British designed the first cluster munitions during World War I to deliver incendiary attacks. (17) The United States and other countries used cluster bombs in World War II. (18) Military planners consider cluster bombs particularly effective against concentrations of enemy troops, airfields, and air defense units. (19) In the Vietnam War, the United States effectively used cluster bombs to destroy surface-to-air missiles, which were harder to destroy using traditional single bombs. (20)

      Given the military success, cluster bombs have been used in numerous conflicts since the Vietnam War. (21) Cluster bombs were used in at least sixteen armed conflicts in recent history. (22) At a minimum, twenty-three different countries have used cluster bombs and approximately thirty-four countries produce these weapons. (23)

      Controversy sometimes surrounds the use of cluster bombs, primarily because two to thirty percent of the dispensed submunitions fail to explode. (24) Various factors such as weather, wind, soil conditions, mechanical failures, and human error can influence the rate at which a cluster bomb's submunitions fail to explode. (25) Considering that in a single conflict, thousands of cluster bombs may be used, each containing hundreds of submunitions, even an extremely low failure rate may result in thousands of unexploded submunitions remaining on the ground. (26) As a result, these unexploded submunitions present a plethora of dangers to civilians or advancing friendly soldiers. (27) A report by Handicap International, which studied the effects of cluster bombs in twenty-four different countries and regions, found that civilians account for ninety-eight percent of those killed by cluster bombs and children account for twenty-seven percent of casualties. (28)

      Some human rights groups equate the dangers of unexploded cluster bomblets to landmines. (29) These groups argue that unexploded dud cluster bomb submunitions function like antipersonnel mines even though cluster bombs are not covered under the 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Landmines and on their Destruction (Mine Ban Treaty). (30) Others, however, argue that unexploded cluster bomblets are not equivalent to landmines, and unexploded bomblets should simply be treated as unexploded ordinance. (31)

      One possible solution to the problem of unexploded dud cluster bomblets is the use of bomblets equipped with self-destruct mechanisms that would destroy the bomblet if it fails to properly detonate upon reaching its target. (32) In January 2001, former U.S. Defense Secretary William Cohen called for cluster bomb dud rates to not exceed one percent by 2005. (33) Further, the U.S. Army has equipped certain cluster bomblets with self-destruct fuses in an effort to eliminate duds. (34)

      Another common criticism associated with cluster bombs is their potentially wide, and sometimes indiscriminate area of dispersal, which has the potential to damage unintended civilian infrastructure. (35) The submunitions contained in a single cluster bomb's canister are able to cover areas as large as two or three football fields. (36) Consequently, some human rights groups believe that using cluster bombs in a populated area may violate international humanitarian law because the bomblets' wide dispersal pattern might theoretically make it difficult to avoid civilian casualties if civilians are present near the targeted area. (37) The accuracy of a cluster bomb, however, may depend on a number of factors including: "target intelligence, planning time, weather, crew experience, altitude at which the bomb is dropped, enemy defenses, and human factors." (38)

   2. The Laws of War Relating to the Use of Cluster Bombs

      1. International Humanitarian Law

         To date, no specific treaty exists to explicitly govern the use of cluster bombs in combat. (39) Nonetheless, countries that use cluster bombs are required to abide by the norms established by existing international humanitarian law, which is also referred to as the laws of war. (40) In an armed conflict, international humanitarian law applies. (41)

         International humanitarian law comes from two sources: customary law and treaty law. (42) Customary international law consists of "customs of States in the international arena that are applied in a consistent fashion" and include international law's settled rules as recognized through the general acquiescence of civilized nations. (43) Even states that are not parties to a particular treaty or non-state-actors, such as Al-Qaeda terrorists, who cannot legally ratify treaties, are bound by customary international law. (44) Hence, if a treaty contains core provisions of customary international law, a state that has not ratified the treaty, or a terrorist organization, is still theoretically bound to the treaty's applicable provisions involving customary international law. (45) Moreover, customary international law is part of U.S. law to the limited degree that "where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations." (46)

      2. The Geneva Conventions and Protocol I

         Modern international humanitarian law has evolved, in part, through a series of treaties--most notably the four Geneva Conventions of 1949 and the two 1977 Additional Protocols to the Conventions. (47) In times of war, the Geneva Conventions and its two Protocols protect victims and noncombatants, including the wounded, prisoners of war, and civilians. (48) The Geneva Conventions of 1949 are binding on almost all countries in the world, including the United States. (49)

         Protocol I is particularly pertinent to the laws of war relating to the use of cluster bombs in armed conflicts. (50) Protocol I offers "internationally accepted legal standards" in the evaluation of the problems that cluster bombs, modern weaponry, and modern aircraft pose to civilian populations. (51) Moreover, Protocol I protects civilians during times of war and prohibits states from legally targeting civilians or engaging in indiscriminate attacks. (52) The principle of distinction, which is found within Protocol I, requires all parties to distinguish between civilians and combatants. (53) The principle of proportionality, which is also found within Protocol I, balances the countervailing weights of military advantage with civilian impact. (54) Although the United States has declined to ratify either of the Geneva Protocols, Protocol I is considered indicative of customary international law based on the legal norms that are derived from common state practices that bind all nations despite any specific legal commitments. (55)

      3. Conventional Weapons Treaty

         The Conventional Weapons Treaty (CCW) also provides insights into the legality of cluster bomb use under...