Effectiveness of the Control and Regulation on Cluster Munitions

On 3^rd and 4^th of December, 2008, the Convention of Cluster Munitions (CCM) was signed in Oslo, Norway by 94 nations[1]. As of 1^st October, 2014, the convention had been joined by a total of 115 states which comprise of 27 signatories and 88 States parties[2]. The role of the convention is to control the use, storage and handling of cluster. The convention provides a framework for action and a categorical prohibition on cluster munitions in a bid to address the unacceptable harm to noncombatants and humanitarian consequences resulting from the use of CMs[3],[4]. This paper seeks to determine if the Convention on Cluster Munitions along with other regulations provide an effective solution in addressing the problem posed by cluster munitions through an analysis of various cases of war and the response to the regulations as well as the history of utilization of cluster weapons. It seeks to answer two major questions. What is the current status of regulation of the use of cluster weapons in armed conflict? Does the implementation of existing rules on weapons and rules of precautions in attack in practice provide an adequate regulation?

The Background on Cluster Munitions

Cluster weapons comprise of those weapons that split up in midair to multiple submunitions that may vary from a few dozens to hundreds. They are usually delivered by aircraft or from the ground by the use of ground systems such as missiles, rockets and artillery. They have gained popularity at war due to their capability. They are capable of hitting and destroying or killing multiple targets in an area with fewer munitions[5]. They also enable small forces to engage larger adversaries hence making them economy of force weapons[6]. A majority of CMs utilize simple mechanized fuses that arm the munitions grounded on its spin rate and explode on impact or upon the expiration of a certain time period. With improved technology, cluster munitions are being developed in such a way that they become increasingly more accurate and minimize the lingering unexploded submunitions. In essence, war technology is striving for improved effectiveness[7].

The use of cluster munitions dates back to the Second World War when they were developed and used by the USSR and Germany[8]. They were extensively employed by the US in the 1960s and 1970s in Southeast Asia[9]. By the end of the conflict, there remained 9 million and 27 million unexploded submunitions and over 10,000 casualties. The weapons have also been used in other wars including by the USSR against Afghanistan, Britain against Falkland Islands, by a coalition of 34 nations against Iraq in the Gulf War, and in Yugoslavia by warring factions. In most cases, the magnitude of usage of these weapons is overwhelming. In Yugoslavia and Kosovo in 1999, a total of 1765 cluster munitions were deployed[10]. These contained about 295 submunitions in total. The US used 1228 cluster munitions in 2001 and 2002 against Afghanistan which contained 248,056 submunitions. Over the first three weeks of the US and British forces engagement with Iraqi forces, in 2003, close to 13,000 cluster munitions were used and contained over 1.8 million submunitions. However, the US has claimed that it has not used such weapons later than 2003[11]. In the 34 day conflict between Israel and Hezbollah in 2006, Israel employed the technology of cluster munitions significantly especially on the last three days of the war. About 1 million cluster bomblets remained unexploded at the end of the conflict. Moreover, the UN attributed 14 civilian deaths to the use of cluster munitions.

The opposition to cluster munitions has grown significantly since the early 2000s. Their opposition is based on various issues that originate from their use. First, the unexploded submunitions have a tendency to explode years after the war. This often results in additional civilian deaths and a tendency to avert social and economic growth in affected areas. Secondly, the use of cluster munitions is indiscriminative of combatants and civilians and often results in multiple civilian deaths[12] . The CCM seeks to avert these effects by prohibiting the use of cluster munitions.

Effectiveness of the Congress

The congress is an important step towards the elimination to civilian deaths. If implemented by those countries that are most often at war, then it is likely that the residue that results from the use of cluster munitions will be eliminated[13]. Even then, the convention has been met with some opposition by important parties. It has clauses that make it prey to powerful entities hence making it unreliable and inoperable.

First, complete prohibition of cluster munitions is non-developmental. Countries that join the convention are prohibited from using, producing, transferring and stockpiling of cluster munitions.[14] This said, they would not be expected to participate in the development of the weapon so that is more effective. Making the weapons more effective will make their usage less hazardous with time. As noted earlier, the usage of cluster munitions is opposed for two major reasons. First, using cluster munitions leaves a lot of residual unexploded submunitions in the areas of attack hence making such areas hazardous in future. Cluster munitions come in the form of physical and chemical weapons. Chemical weapons have a long term effect and will often require that the area in question be left unoccupied for a long time. On the other hand, the physical weapons leave the area unusable due to the risk of such weapons exploding and causing the loss of life[15]. However, with their evolution, weapons are becoming less capable of leaving such residue on the target area. Second, the weapons are capable of causing harm to civilians and combatants indiscriminately. However, with their evolution, they are becoming more accurate and therefore less likely to cause harm to civilians[16].

Since it is not practical to expect that all nations will agree to do away with such weapons, it would be more responsible to place requirements for continuous improvement of the weapons to reduce the negative impacts that such weapons may incur[17]. The removal of some countries from among those working on improving the weapons implies slower development in this sector. In its place would have been regulations that would require more responsible usage and development of the weapons.

The convention criminalizes all parties of an alliance through the paragraphs 1(b) and 1(c). This has threatened alliances like NATO that have been instrumental in promoting democracy in the Europe by combating through its opposition of activities of the Soviet Union[18]. The convention dictates a variety of things that member states may not engage in with non-member states. These include training, sharing of intelligence and joint command. With these requirements, such countries will be required to remove themselves from alliance that would require them to do these activities with non-member states. For these reason, the very alliances that have served to promote democracy will see a depletion of members.

The convection has met with opposition from major nations in the world. While the US, Russia and Britain have been important in regard to maintaining peace in various regions, they have been very opposed to the convention on cluster munitions[19]. These are important parties and their joining the convention would lead to many more countries joining the convention in future. The influence of major super powers is very effective in getting things done. These nations have been negotiating for another convention without success. While the convention they would want would not be as strict as the current one, it would get a bigger following and therefore become more effective.

The current convention is intended for ending the issues that surround cluster munitions. While the convention could be effective in a peaceful era where all nations were in agreement, it is impractical for this situation to arise. There are nations that will always go against the convention in its current state. Moreover, some of the most powerful nations have been against the convention. Creating a convention that will get the support of various stakeholders assures these measures of being successful.  Areas that need looking at are regulation in the place of complete prohibition and promoting further development of the weapons. Moreover, governments should be required to take responsibility of the destruction they make during war that is impermissible under international law.

Recent controversy on Cluster munitions

Various countries have been in the middle of controversy since the implementation of the Convention on cluster munitions. First, Syria was accused of using cluster munitions when the Assad’s government persisted on staying in power despite violent opposition by both the ISIS and civilians. 105 countries including the US and Saudi Arabia opposed Syria’s position in this[20]. According to Biron[21], the 105 countries condemned the Syrian government after the government used the weapons against its own civilians. Moreover, he notes that this issue was raised in a UN General Assembly in May 2013.

The US has also been under controversy since the implementation of the CCM. While the US is a strong supporter of the strict regulation of the utilization of cluster munitions, it has failed to deliver in this matter severally. In 2013, the US transferred about 1300 cluster munitions worth about 641 million to Saudi Arabia. This is contrary to the US’s need to support regulation of these weapons. However, the US is not a member of the CCM and is not bound by the law that prohibits this activity. On the other hand, the US has its own law that prohibits the transfer of cluster munitions to other nations. The only difference is that the US defines the weapons it seeks to regulate differently. The US seeks to eliminate the use of those cluster munitions that have a failure rate of more than 1%. The question would therefore be to determine whether the cluster munitions in question fall under allowable limits. The US has been attempting to make the one percent its military limit[22].

On another note, the US has previously attempted to introduce its own policy for the ratification of other nations. In 2011, the US attempted to introduce a policy that held the position that cluster munitions should be strictly regulated rather than banned[23]. In this policy, the US held that the position that regulating the cluster munitions would eliminate or at least reduce the dangers posed by cluster munitions. It held various concepts that ranged from the limiting the failure rate to getting rid of cluster munitions that did not pass certain standards. In getting rid of certain cluster munitions, the US held that only those cluster munitions that were manufactured prior to 1980. To some extent, this move would have served to eliminate cluster munitions that were engineered poorly without any regard for civilian life or reducing the failure rate.

Notably, the fight against cluster munitions intensified in the early 1990s when the US troops had to visit their battlefields in 1991. After this point, it became the priority of weapon engineers sought to minimize the percentage of unexploded submunitions[24]. The process of increasing the effectiveness of these weapons however took a reasonably long time to effect. Eventually, especially after the conflicts that took place in 2001-2002 in Afghanistan, 2003 in Iraq and between Israel and Hezborah in 2006, it was determined that making these weapons effective would not make the weapons any safer in the opinion of most countries. It was this development that led to the creation of the convention on cluster munitions.

Another way to look at cluster munitions is through the 1997 ban on land mines. Following the widespread use of landmines in the Second World War and subsequent conflicts, it was determined that the danger they posed to civilians years after the conflict was too much and mainly inhuman. Andrew Latham[25] argues that the Ottawa Convention that resulted was signed by over 120 countries. It led to the banning of landmines to the point that they have lost all their initial popularity.

Cluster munitions have an important similarity with land mines. They are non-discriminatory. Furthermore, they cause harm to combatants and civilians alike many years after the conflict. When landmines were banned in 1997, countries that were affected by cluster remnants felt that the next stage should be to strive for the eradication of cluster munitions[26]. With the foundation that had been laid by the Ottawa Convention, it was easier to create regulations limiting or banning the use cluster munitions in war.

On the humanitarian law, cluster munitions fail on various counts. First, they are non-discriminative in nature. When cluster munitions are used in populated areas, they will often cause the loss of civilian life. The humanitarian law prohibits the use of such weapons as may be launched without a specific target[27]. There is a need to increase the accuracy of these weapons for use in the battlefield. Second, the launching of an attack which may be expected to cause the loss of civilian life, destruction to civilian objectives, cause injury to civilian life or any combination of these aspects is prohibited[28]. The use of cluster munitions does not insure against this problem. Finally, military action is always required to encompass feasible precautions. It is important that all military action exercise constant care to ensure that civilians are protected.

Prior to the creation of the convention in 2007 and 2008, NGOs were pushing governments to create laws banning cluster munitions. While this would have worked to some extent, there would have been inconsistencies in these laws and in the regulations and this would have resulted in probable conflict[29]. While countries would seek to create policies that were determined to end the utilization of cluster munitions, there would be a general likelihood that these attempts would fail. One reason would be that the independent nations would also attempt to remain militarily relevant. One way would have been to attempt to legalize the use of cluster munitions in certain situations, or even certain cluster munitions as it is the case with the US.

There are two weaknesses with the US case. While the US argues that its weapons have a failure rate of 1 %, the failure rate is determined under ideal conditions. On the battleground, however, the results have been far less reliable. The main reason for this is that the probability of exploding depends on various factors including the nature of the ground, the weather and features. If the battleground has tree, for example, the submunitions have likelihood to hang in the trees and fail to explode. In a similar case, if the land falls on marshy or muddy ground, they may not explode. This will result to an increased failure rate. It would be more reliable to use the failure rate that is obtained in such situations to determine the acceptability of such weapons.

With the guidance of the CCM, many countries have taken responsibility by developing laws that govern cluster munitions. The ratification process of the CCM has been of great help in this regard. As countries strive to ratify the convention, most of them have also found themselves in need of creating further legislations. Some, for example, have created laws, independent or as part of the ratification process that have been intent to stop funding to organizations that create cluster bombs[30].

Boer and Oosterwijk[31] document various scenarios about countries standing up against cluster munitions. In their report, they note that various countries have drawn policies that prohibit the investment of cluster munitions. According to the report, by 2013, 8 states had adopted policies that prohibited various forms of investment in cluster munitions. On the other hand, 23 states had not made any legislation with regard to investment in cluster munitions. They however held the position that direct investment in cluster munitions should be banned. Finally, they note that two states have tabled legislations towards the prohibition of funding in cluster munitions.

On another note, prohibition of investment in cluster munitions is rather non-developmental. Cluster munitions still have the hope of being improved. Classifying them as a dead case prevents further improvement on these organizations. Moreover, as long as not all states have ratified the CCM, terrorist groups will continue to have access to cluster munitions through various methods. Some terrorists have, moreover, amassed weapons for their use. Unless the whole international community determines to disarm such organizations, it will be difficult to win the war against cluster munitions.

Are there options to cluster munitions? Another way to counter the usage of cluster munitions would be to provide a more reliable weapon that would be used in a manner similar to that of cluster munitions. While the US has not signed the CCM, it has shown a tendency to comply with the convention. In a recent development, the US has developed sought to create weapons that are compliant with the CCM. The AWP is a good example. The US has contracted Lockheed Martin to develop the weapon that has similar impact at war as cluster munitions without the looming negative impact[32]. The development of this weapons show some development in regard to the fight against cluster munitions. Any attempts to comply with the CCM shows that the convention along with other laws have a significant impact. Gradually, states are making a departure from the use of cluster munitions.

While there is a gradual departure from the usage of cluster munitions, a more reliable method would be to create laws that are more agreeable with other states. The fact that some countries have not signed the convention implies that they are uncomfortable with it. Those countries that are not signatories to the convention continue to engage in free trade with each other[33]. As noted earlier, the US and Saudi Arabia are good examples of this fact. The development of laws that were more inclusive would resolve this issue. Alternatively, safer weapons could be made available for those intending to get the impact of cluster weapons.

Being a signatory of the convention does not automatically translate to compliance. Syria, for example, has been using the convention to its advantage. In order for the war to be won against cluster munitions, more countries should be made to join[34]. Moreover, the law should be strict enough to ensure that all members comply. With a big following, compliance will be enhanced with sanctions.

While sanctions would make a significant impact for undeveloped countries, they may not work for countries like the US and China[35]. There is therefore a need to develop a more reliable instrument with regard to controlling the use of cluster munitions. This will help enable countries like the US and China to join. Moreover, these countries are especially strong when it comes to exerting sanctions on countries. With their inclusion, it would be possible to push certain countries like Syria to comply with the laws prohibiting the use of cluster munitions[36]. These countries are also important when it comes to the development of new weapons. Support from various countries will lead to better and more complete departure from the usage of cluster munitions.

In conclusion, the battle against cluster munitions has been a heated one. The one problem with fight against the use of cluster munitions is the lack of support from some countries. Moreover, some members of the convention have not been adhering to the rules of the convention. If the convention was created such as to ensure more following, it would be easier to ensure compliance from these countries by using the option of sanctions. Other laws are also helping in the regulation of cluster munitions. The Humanitarian law, for example, ensures that weapons comply with certain standards. The US law on cluster munitions has helped in the development of weapons that would be more reliable for use in battle.

References

Primary References

UN General Assembly, ‘Assembly, UN General. “65Th Session.” Resolution 65/277: Political Declaration On HIV/AIDS: Intensifying Our Efforts To Eliminate HIV/AIDS-Adopted By The General Assembly’ (2011) <http://cns.miis.edu/nam/documents/Statement/2010-10-04_General_Debate.pdf> accessed 31 December 2014

The Convention on Cluster Munitions, ‘The Convention On Cluster Munitions’ (2014) <http://www.clusterconvention.org/> accessed 31 December 2014

Wiebe V, ‘For Whom The Little Bells Toll: Recent Judgments By International Tribunals On The Legality Of Cluster Munitions’ SSRN Journal

Dullum O, ‘Cluster Weapons – Military Utility And Alternatives’ (Norwegia Defense Research Establishment 2007)

Secondary References

Baker B, ‘Are Cluster Bomb Alternatives Just As Bad? – Army Technology’ (Army Technology, 2014) <http://www.army-technology.com/features/featureare-cluster-bomb-alternatives-just-as-bad-4333003/> accessed 3 January 2015

Barak E, ‘None To Be Trusted: Israel’s Use Of Cluster Munitions In The Second Lebanon War And The Case For The Convention On Cluster Munitions’ (2014) 25 American University International Law Review

Blazeby L, ‘The Convention On Cluster Munitions And Its Domestic Implementation’ (2009) 35 Commonwealth Law Bulletin

Boer R and Oosterwijk S, ‘Countries’ Best Practices To Ban Investments In Cluster Munitions’ (IKV Pax Christi, the Netherlands and FairFin, Belgium 2013)

Cumberland S, ‘Banning Cluster Munitions’ (2009) 87 Bulletin of the World Health Organization

Docherty B, ‘Breaking New Ground: The Convention On Cluster Munitions And The Evolution Of International Humanitarian Law’ (2009) 31 Human Rights Quarterly

Kidd R, ‘Is There A Strategy For Responsible U.S. Engagement On Cluster Munitions?’ (U.S. Department of State, 2008) <http://2001-2009.state.gov/t/pm/rls/rm/104697.htm> accessed 31 December 2014

Engdahl O and Wrange P, Law At War: The Law As It Was And The Law As It Should Be (BRILL 2008)

Fares Y and others, ‘Pain And Neurological Sequelae Of Cluster Munitions On Children And Adolescents In South Lebanon’ (2013) 34 Neurological Sciences

Fares Y, Fares J and Gebeily S, ‘Head And Facial Injuries Due To Cluster Munitions’ (2014) 35 Neurological Sciences

Feickert A and Kerr P, ‘Cluster Munitions: Background And Issues For Congress’ (Oai.dtic.mil, 2013) <http://oai.dtic.mil/oai/oai?verb=getRecord&metadataPrefix=html&identifier=ADA590433> accessed 31 December 2014

Grosscup B, ‘Cluster Munitions And State Terrorism’ (2011) 62 Mon. Rev.

Hayashi M, ‘The Convention On Cluster Munitions And The Clearance Of Cluster Munition Remnants: Whose Responsibility, And How To Ensure Effective Implementation?’ (2012) 3 Journal of International Humanitarian Legal Studies

Hiznay M, ‘Operational And Technical Aspects Of Cluster Munitions’ (2006) 4 Disarmament forum

Latham A, ‘To Walk Without Fear: The Global Movement To Ban Landmines Maxwell A. Cameron, Robert J. Lawson And Brian W. Tomlin, Eds. Toronto: Oxford University Press, 1998, Pp. Xvi, 491’ (1999) 32 Canadian Journal of Political Science

Mastorodimos K, ‘The Legality Of Cluster Munitions In International Humanitarian Law And An Assessment Of The Need For The New Treaty’ SSRN Journal

McGoldrick D and Hulme K, ‘III. THE 2008 CLUSTER MUNITIONS CONVENTION: STEPPING OUTSIDE THE CCW FRAMEWORK (AGAIN)’ (2009) 58 International and Comparative Law Quarterly

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[1] Eitan 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’ (2014) 25 American University International Law Review.

[2] The Convention on Cluster Munitions, ‘The Convention On Cluster Munitions’ (2014) <http://www.clusterconvention.org/> accessed 31 December 2014.

[3] The Convention on Cluster Munitions (2014)                                                                 

[4] Konstantinos Mastorodimos, ‘The Legality Of Cluster Munitions In International Humanitarian Law And An Assessment Of The Need For The New Treaty’ SSRN Journal.

[5] Richard Kidd, ‘Is There A Strategy For Responsible U.S. Engagement On Cluster Munitions?’ (U.S. Department of State, 2008) <http://2001-2009.state.gov/t/pm/rls/rm/104697.htm> accessed 31 December 2014.

[6] Andrew Feickert and Paul K Kerr, ‘Cluster Munitions: Background And Issues For Congress’ (Oai.dtic.mil, 2013) <http://oai.dtic.mil/oai/oai?verb=getRecord&metadataPrefix=html&identifier=ADA590433> accessed 31 December 2014.

[7] Feikert and Kerr (2013)

[8] Beau Grosscup, ‘Cluster Munitions And State Terrorism’ (2011) 62 Mon. Rev.

[9] UN General Assembly, ‘Assembly, UN General. “65Th Session.” Resolution 65/277: Political Declaration On HIV/AIDS: Intensifying Our Efforts To Eliminate HIV/AIDS-Adopted By The General Assembly’ (2011) <http://cns.miis.edu/nam/documents/Statement/2010-10-04_General_Debate.pdf> accessed 31 December 2014.

[10] Konstantinos Mastorodimos, ‘The Legality Of Cluster Munitions In International Humanitarian Law And An Assessment Of The Need For The New Treaty’ SSRN Journal.

[11] Feikert and Kerr (2013)

[12] Youssef Fares and others, ‘Pain And Neurological Sequelae Of Cluster Munitions On Children And Adolescents In South Lebanon’ (2013) 34 Neurological Sciences.

[13] Eitan 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’ (2014) 25 American University International Law Review.

[14] Convention on Cluster Munitions (2014)

[15] Dominic McGoldrick and Karen Hulme, ‘III. The 2008 cluster munitions convention: stepping outside the CCW framework (again)’ (2009) 58 International and Comparative Law Quarterly.

[16] Mika Hayashi, ‘The Convention On Cluster Munitions And The Clearance Of Cluster Munitions Remnants: Whose Responsibility, And How To Ensure Effective Implementation?’ (2012) 3 Journal of International Humanitarian Legal Studies.

[17]Mika Hayashi, (2012)

[18] Bonnie Docherty, ‘Breaking New Ground: The Convention On Cluster Munitions And The Evolution Of International Humanitarian Law’ (2009) 31 Human Rights Quarterly.

[19] Bonnie Docherty, (2009).

[20] Alexander Breitegger, Cluster Munitions And International Law (Routledge 2012).

[21] Alexander Breitegger, (Routledge 2012).

[22] Carey Biron (2013)

[23] Sarah Cumberland, ‘Banning Cluster Munitions’ (2009) 87 Bulletin of the World Health Organization.

[24] Mark Hiznay, ‘Operational And Technical Aspects Of Cluster Munitions’ (2006) 4 Disarmament forum.

[25] Andrew Latham, ‘To Walk Without Fear: The Global Movement To Ban Landmines Maxwell A. Cameron, Robert J. Lawson And Brian W. Tomlin, Eds. Toronto: Oxford University Press, 1998, Pp. Xvi, 491’ (1999) 32 Canadaian Journal of Political Science.

[26] Sarah Cumberland, ‘Banning Cluster Munitions’ (2009) 87 Bulletin of the World Health Organization.

[27] Virgil Wiebe, ‘For Whom The Little Bells Toll: Recent Judgments By International Tribunals On The Legality Of Cluster Munitions’ SSRN Journal.

[28] Youssef Fares, Jawad Fares and Souheil Gebeily, ‘Head And Facial Injuries Due To Cluster Munitions’ (2014) 35 Neurological Sciences.

[29] Konstantinos Mastorodimos, ‘The Legality Of Cluster Munitions In International Humanitarian Law And An Assessment Of The Need For The New Treaty’ SSRN Journal.

[30] Roos Boer and Suzanne Oosterwijk, ‘Countries’ Best Practices To Ban Investments In Cluster Munitions’ (IKV Pax Christi, the Netherlands and FairFin, Belgium 2013).

[31] Roos Boer and Suzanne Oosterwijk (2013)

[32] Berenice Baker, ‘Are Cluster Bomb Alternatives Just As Bad? – Army Technology’ (Army Technology, 2014) <http://www.army-technology.com/features/featureare-cluster-bomb-alternatives-just-as-bad-4333003/> accessed 3 January 2015.

[33] Sarah Cumberland, (2009)

[34] Ove Dullum, ‘Cluster Weapons – Military Utility And Alternatives’ (Norwegia Defense Research Establishment 2007).

[35] Leonard Blazeby, ‘The Convention On Cluster Munitions And Its Domestic Implementation’ (2009) 35 Commonwealth Law Bulletin.

[36] Ola Engdahl and Pal Wrange, Law At War: The Law As It Was And The Law As It Should Be (BRILL 2008).