Elke Schwager
Taming the Monsters: Restricting the Use of Cluster Munition
Introduction
The inhuman face of human inventions manifests itself clearly in the design of weapons used in warfare. The artist Lukas Einsele elaborately demonstrates in his project “M85—Fragments of a Cluster Bomb” the efforts that are made to design the perfect fuse for cluster munition, thereby guaranteeing the immediate explosion of cluster munition upon impact. We know that despite all the effort put into this aim, the number of unexploded cluster munitions remaining after an attack is immense. The failure rate is extremely high.[1]There is now a certain irony when one contemplates the manner in which cluster munition was used in recent conflicts. In Lebanon, for example, during the conflict between Israel and Hezbollah in the summer of 2006, it seems that the parties to the conflict profited from the high failure rate, which, of course, is perceived as the shortcoming of cluster munition. The weapon was used in densely populated civilian areas resulting in unexploded and still functioning cluster munitions lying around after the attack had ended.[2] This situation guaranteed a huge number of casualties amongst civilians and terror amongst the population even years after the conflict had ended.[3] It is thus interesting to note that not only the weapons themselves used in warfare demonstrate the inhuman face of human inventions, but also the way in which the weapons are used in warfare, not withstanding that this way could even contradict the initial purpose of the weapon. Mankind has, indeed, always been very creative in the art of destruction.
However, mankind is not only designing such monsters like cluster munitions. After having realized what it has created, mankind also tries to tame such weapons and the nature of their utilization. One way of doing so is taking a political and legal approach with the aim to formulate laws that regulate the use of weapons. The legal rules addressing the use of weapons like cluster munitions belong to the law of warfare that is nowadays called international humanitarian law. Its aim is to limit the effects of armed conflict for humanitarian reasons by balancing military concerns and humanitarian requirements. In the following, there will be a short overview of the history of the rules of international humanitarian law before addressing more specifically the recent efforts made to restrict the use of cluster munitions.
International Humanitarian Law
Warfare has always been subject to certain principles and customs. The universal codification of international humanitarian law began in the nineteenth century and can be linked to an individual, Henry Dunant. As a merchant he traveled by the battlefield of Solferino in 1859, where he saw many of the victims of battle in the Franco-Austrian War lying wounded on the field without receiving any help. He suggested not only to create an international organization to assist the wounded military, which was later called the International Red Cross, but also to conclude an international treaty to guarantee the protection of wounded on the battlefield.[4] As a consequence of his efforts, twelve European states signed the first Geneva Convention in 1864 for the protection of military victims of warfare.[5]More efforts to limit warfare followed. To name but a few: In 1868, and this time on the initiative of the Russian government, limitations on the use of weapons of war were introduced by the Declaration of St Petersburg.[6] The first comprehensive code of the laws and customs of law, including some provisions on the protection of civilians, followed in 1899 and 1907 in The Hague.[7] Regarding the widespread use of poison gas during World War I, the international community adopted in 1925 the Geneva Gas Protocol that prohibits the use of asphyxiating, poisonous or other gases.[8]
In the aftermath of World War II, the four Geneva Conventions of 1949 were adopted. Having seen the disastrous consequences of the absence of a convention for the protection of civilians in wartime, the fourth of the Conventions tried to fill this gap.[9] However, the problem of the limitation of the use of weapons and the conduct of hostilities was left aside and is now dealt with in Protocol I to the Conventions, adopted in 1977.[10] Whilst the four Geneva Conventions of 1949 have achieved almost universal participation, the United States or Israel, for example, are still not bound by Protocol I.[11]
The use of certain specific weapons is dealt with by the 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 and its five Protocols (CCW).[12] Provisions on the prohibition or restrictions on the use of certain weapons are the object of the Protocols annexed to the Convention. The Protocols prohibit the use of incendiary weapons, blinding laser weapons and certain types of mines.[13] Only one year after the adoption of the Protocol dealing with mines, in 1997, the Treaty of Ottawa was concluded, which bans antipersonnel landmines.[14] The Treaty was concluded outside the framework of the CCW as negotiations within the CCW failed to achieve a complete ban on antipersonnel landmines.
The roots of the Treaty of Ottawa are similar to the inspiration of the very first universal conclusion of a treaty on international humanitarian law. As mentioned earlier, one individual, Dunant, lobbied successfully for its conclusion. 130 years later, again, it was not nation states that were promoting the conclusion of a treaty containing a complete ban on antipersonnel landmines. Six nongovernmental organizations, amongst them Handicap International,[15] which had experienced the terrible effects of landmines in their work on a daily basis, founded, in 1992, the International Campaign to Ban Landmines.[16] The campaign lobbied successfully for the conclusion of a treaty containing a complete ban for antipersonnel landmines. Eventually, the Canadian government strongly supported the Coalition and the Treaty of Ottawa was adopted. Meanwhile, 156 states are parties to the Treaty[17] and those states that are not member states (like the United States), do not, nevertheless, produce or use landmines anymore as the Treaty has lead to a universal stigmatization of antipersonnel landmines.[18] The International Campaign to Ban Landmines was awarded the Nobel Prize in 1997 for its efforts.
Following the history of international humanitarian law, one might be astonished that the treaties always only seem to be a reaction to the atrocities committed beforehand. One could wonder why it does not seem to be possible to find rules that would prevent the atrocities from being committed in the first place. International humanitarian law does provide for rules dealing with the use of weapons in combat in general. There are fundamental rules which have to be considered at any time:[19] the prohibition to use weapons calculated to cause unnecessary suffering and the rule to always distinguish between combatants and civilians. Theoretically, one can deduce from these rules the prohibition of a specific weapon.[20] For example, the rockets V1 and V2 used by the Germans in World War II would be forbidden as they cannot distinguish between military and civilian object and are therefore inherently not discriminatory and likely to injure civilians.[21] But without any clarifications, without written rules prohibiting the use of a specific weapon, there will always be room for different interpretations of the general rules and thus the question of whether a specific weapon is already prohibited by the general rules.
International humanitarian law is trying to protect humanitarian concerns. But it is still the law of war and therefore military concerns have to be considered as well. To illustrate the point, in 1996, the International Court of Justice had to rule on the question whether the use or the threat of nuclear bombs would be in accordance with international law. It was a split decision and the court found that
in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.[22]
This means that in the desperate case of defending the very existence of a state, the military interest of using nuclear weapons would prevail over humanitarian concerns. However, international law is constantly developing and in the 14 years that have passed since the court has ruled on the question, the position of the state in international law is less sacrosanct than it was. The value of the individual and the interest of the international community are increasingly recognized under international law.[23] In the light of this development the court might come to another conclusion today.
Convention on Cluster Munition
Having considered the framework of international humanitarian law, it is time to address the Convention on Cluster Munitions.[24] The Convention is, to speak literally, the daughter of the Treaty of Ottawa. The process leading to the conclusion of the Convention and the text of the Convention are quite similar. Here again, the initiative for the Convention came from nongovernmental organizations, amongst them Handicap International. After their encounters with the dreadful consequences of such weapons in their daily work, they founded the Cluster Munition Coalition in 2003 in order to obtain a universal ban on the munition.[25] The devastating effects of the employment of cluster munition during the war in Lebanon in 2006 brought the subject on the agenda of nation states. Nevertheless, negotiations within the CCW, the Convention on Conventional Weapons, the traditional forum for discussing weapons issues,[26] did not lead to a ban. Within the CCW the opinion prevailed that it would be better to set lower standards and therefore have more parties to the treaty. Insisting on a complete ban, the Cluster Munition Coalition found a strong partner in the Norwegian Government. It seems that after tests by the UK military revealed that the failure rate of cluster munition to self destruct was considerably higher than the producers had promised[27] and a research of the Norwegian Defense Research Establishment doubted the military utility of cluster munition.[28] Norway, therefore, took the lead and launched an initiative in February 2007, known as the Oslo Process. At the first global conference in Oslo, 46 of the 49 participating states agreed on a political commitment to establish a new legally binding instrument prohibiting cluster munitions before the end of 2008.[29] The final conference took place in Dublin in May 2008, where the text of the Convention was adopted. The Convention stipulates a complete ban of cluster munitions. A key feature of the Oslo process was the active participation in discussions and final negotiations of civil society, represented by the Cluster Munition Coalition, organizations of the United Nations and the International Committee of the Red Cross. Only 15 months after it opened for signature in Oslo, the thirtieth state ratified the Convention on February 16, 2010, triggering its entry in force on August 1, 2010.[30] 108 states have so far signed the Convention and of these 57 states have ratified the Convention.[31]What seems to be a triumph of humanitarian concerns is a compromise between political, military, and economic interests. The different interests and their realization in the Convention can be demonstrated especially when looking at article 2 of the Convention that defines what cluster munition means in the context of the Convention. The stipulation is very important, as cluster munition is prohibited according to the Convention. So everything that is considered to be cluster munition can no longer be produced or used, whereas everything that falls outside the scope of the definition can still be employed by the state parties to the Convention. According to Paragraph 1, Sentence 1 of the article, “Cluster Munition” means a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions. This first part of the definition for cluster munition is straightforward. So why did the states agree upon that definition and the prohibition which follows?
Many militaries have realized that cluster munitions are not that much use to them any more.[32] Cluster munitions were designed for Cold War-era operations with large formations of tanks or troops. They constituted the only viable way to defeat armored targets at long distance in an indirect mode. In modern warfare, their use is limited. Armored vehicles have been fitted with kits that limit the effect of small bomblets, rendering cluster weapons less effective against such targets. Sometimes, cluster munitions even endanger friendly troops when they have to cross areas that have been earlier bombarded. Furthermore, after the war in Lebanon and the media reports on the fatal consequences of cluster munitions, states have seen the negative impact that the use of cluster munitions have in public opinion. Therefore, there seemed to be no real advantage any more for states in using traditional cluster munitions. Humanitarian interests could prevail and states agreed to the prohibition of the defined cluster munitions.
Besides these issues, there were economical interests involved in the drafting. The definition of cluster munition contains some exclusions. The so-called sensor fused or alternative cluster munition is not considered to be cluster munition according to the Convention. A sensor fused cluster munition is guided in the sense that the warhead has a detector that scans the target area. If a target is sensed, the warhead fires a kinetic-energy projectile against it. For some states it was crucial to include in the Convention an exclusion for alternative cluster munitions. Germany threatened to leave the conference if it would not get this exception.[33] Besides Germany, Australia, Canada, France, the Netherlands, Sweden, and Switzerland were in favor of this exception, and they got their will. According to the Convention, alternative cluster munition is not considered to be cluster munition and therefore not forbidden. The definition of the alternative cluster munition the states finally agreed upon reads in Article 2 Paragraph 1 Sentence 2 of the Convention as follows:
A munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics: (i) Each munition contains fewer than ten explosive submunitions;
(ii) Each explosive submunition weighs more than four kilograms;
(iii) Each explosive submunition is designed to detect and engage a single target object;
(iv) Each explosive submunition is equipped with an electronic self-destruction mechanism;
(v) Each explosive submunition is equipped with an electronic self-deactivating feature.
This is a rather detailed list of characteristics that alternative cluster munition has to fulfill. And in fact, there are only three existing models of cluster munition that fulfill these criteria: SADARM, which was the prototype for sensor fused cluster munitions, the SMArt 155 and the BONUS.[34] It is thus interesting to learn that the SMArt 155 is produced by Germany and the BONUS by Sweden in partnership with France. SADARM was produced by the United States, but they have stopped production. The states mentioned, which were in favor of the exception, have, if they are not producers themselves, either already acquired these alternative cluster munitions or are planning to do so.[35] Another model of alternative cluster munition, which, however, does not fall within the specific criteria of the Convention, is the BLU 10 that is produced by the US-American firm Textron. As the United States did not participate at the conference they could not influence the criteria for the definition of alternative cluster munition. The German companies Diehl and Rheinmetall, which developed the SMArt munition, have promised that the munition will diminish collateral damage, as it is able to recognize its target safely and can distinguish it from objects that are not targeted. But it is not clear how the weapon should distinguish between a tank and a truck used for civil purposes. The munition is not tested and the German government does not distribute any information about it.[36]
Another interesting economical fact is that due to their degree of sophistication, these types of cluster munitions are rather expensive in comparison to ordinary cluster munitions. One alternative cluster munition costs around 20.000 Euro;[37] poorer states will not, therefore, be able to equip their military with these weapons.
Amongst the members of the Cluster Munition Coalition, the exclusion of alternative cluster munitions from the Convention and therefore from the ban was hotly disputed. Many members of the civil society wanted to achieve a complete ban of all types of cluster munitions and did not wanted to water down the prohibition right from the start. Some, especially some prominent American lobbyists from civil society, signaled to states right from the start of the negotiations that they would accept such an exclusion. One argument for the acceptance of the exclusion of alternative cluster munition was the chosen approach of drafting the definition of cluster munition. Considering alternative cluster munition not as an exception to a prohibition, but as an exclusion from a prohibition allows one to say that the Convention prohibits all cluster munitions, instead of having to state that it forbids only most of them.
All in all, the convention is still an achievement: it prohibits cluster munitions like the M85 and it sets new standards in victim assistance. And even if states like Israel and the United States have not signed the Convention, it may have an impact on them. As we have seen with the Treaty of Ottawa on antipersonnel landmines, a treaty can lead to a stigmatization of the forbidden weapon with the effect that even states which are not parties to the treaty no longer produce or use the weapon.