What are Cluster Munitions?
Cluster munitions are weapons designed to cover an area with explosive force. While early versions were used during the Second World War, the most widely used types were designed as ‘force multipliers’ against the background of the Korean War, where the US faced an opponent with superior troop numbers.9 They were not widely deployed however until the Vietnam War, during which Cambodia, Lao PDR and Vietnam were carpeted in hundreds of millions of cluster munitions (Prokosch, 1995, pp. 81–125). The basic principle of a cluster munition is that instead of having a unitary munition with one large explosive charge, one can design a single projectile – air-dropped bomb, artillery shell, rocket – to carry a number of smaller explosive submunitions. Most explosive submunitions have a shaped explosive charge designed to penetrate armour and a fragmentation casing designed to spread shrapnel and kill people. So with one shot, a projectile produces many smaller explosions and spreads its fragmentation over a wider area, making it more likely to kill or injure personnel or destroy objects within this area. When the location of a target is uncertain or it is moving and where there are multiple targets, cluster munitions are supposed to give a particular advantage.
These properties of cluster munitions are precisely the same properties that cause concern from a humanitarian point of view. If a weapon saturates an entire area with explosive force, the user should be sure that no civilians are present in that area or that the advantage gained from the attack will be proportional to the expected damage to civilians. In addition, the unexploded ordnance effect of cluster munitions is qualitatively and quantitatively different from that of other weapons, precisely because of the large numbers of explosive items delivered in a single attack: ten unitary projectiles with a 10 per cent failure rate will leave one unexploded item whereas ten cluster munitions with 100 submunitions each and a 10 per cent failure rate will leave 100 unexploded items – ten times as many.
The further development of cluster munitions was bound up with preparations for conflicts that would involve large-scale battles between columns of armour and personnel: the scenario of the Warsaw Pact tanks rolling across the plains of Europe. This scenario did not happen. Instead they were used in the Vietnam War, including in a failed attempt to halt supply lines along the Ho Chi Minh trail. They were also used in the first Gulf War in Kuwait and Iraq, prompting one of the most expensive clearance operations in recent history (McGrath, 2000, pp. 33–35). The Balkans conflict in the 1990s saw several instances of use, both surface delivered by Yugoslav forces in Croatia and Bosnia and air dropped by NATO forces in Serbia and Kosovo (HRW, 1999; Wiebe, 2000). The weapons also proliferated during the 1970s and 1980s leading to use by Ethiopia and Eritrea against each other in 1998 and by Sudan against rebels around the same time. The US-led campaigns in Afghanistan in 2001–2002 and Iraq in 2003 saw significant use of cluster munitions, causing the same humanitarian problems identified in previous conflicts (HRW, 2003, pp. 56, 80).
The history of cluster munition use by Israel is of particular interest. The US had supplied large quantities of cluster munitions to Israel in the 1970s, following the Vietnam War. Israel first used them in Lebanon in 1978, both from the air and from rockets and artillery. Again, in 1982, Israel made use of cluster munitions, this time leading to a public outcry, including in the US, whose Congress decided to launch an inquiry into the issue that year. On the basis that Israel’s use had violated the transfer agreement that placed specific (although secret) restrictions on the use of cluster munitions, the US suspended all transfers of this particular weapon to Israel. Israel was again in the spotlight over its use of cluster munitions in 2006 when its massive cluster bombardment of southern Lebanon caused serious civilian suffering and hit the headlines worldwide. As the casualties mounted from the hundreds of thousands of unexploded submunitions littering towns and villages south of the Litani river, so political pressure began to intensify on other states that continued to justify cluster munitions as legitimate weapons of war (Bolton, 2006; Landmine Action, 2006, p. 3; Reuters, 2006).
The Campaign to Ban Cluster Munitions
Public disquiet over the suffering caused by cluster munitions first surfaced in the 1970s, following reports coming out from the Vietnam War (Prokosch, 1995, pp. 87–154; Shoemaker, 1994). Against the background of general concern over the conduct of warfare more broadly, two diplomatic conferences took place in Switzerland. They were convened by the ICRC in Lucerne in 1974 and Lugano in 1976. Many issues were on the agenda but one of the concrete proposals by 13 states read: ‘anti-personnel cluster warheads or other devices with many bomblets which act through the ejection of a great number of small-calibred fragments or pellets are prohibited for use’ (ICRC, 1976). It is notable that it was the fragmentation – because of its area effect – that underpinned the concern over cluster munitions in the 1970s. The post-conflict problems associated with unexploded ordnance would only come to dominate the discourse on cluster munitions’ humanitarian harm subsequently, in particular in the wake of the successful movement to ban antipersonnel landmines in the 1990s.
Despite the efforts of a number of states to respond to public disquiet after the Vietnam War, there was no traction on cluster munitions from these meetings in Switzerland. They did however lead directly to the establishment of the Convention on Certain Conventional Weapons (CCW), which did get traction on incendiary weapons (prohibited for use in populated areas) and would become the home for criticism of and discussions on both landmines and cluster munitions in the 1990s and 2000s, respectively.10 Reflecting the ‘arms control’ rather than humanitarian agenda of the great powers, the CCW’s restrictions on weapons gave ‘the impression of having been written to satisfy the needs of military forces … rather than to protect civilians’ (Prokosch, 1995, p. 162). Indeed, one US negotiator said the US ‘entered the CCW negotiations as a holding action’ to prevent any major restrictions on the weaponry it felt was necessary for its national security (Roach, 1984, p. 4).
The CCW considered cluster munitions obliquely as part of its agenda for the first time at the Second Review Conference in December 2001. Although a major reason for the adoption of this mandate was the concern over cluster munition use in Kosovo in 1999, official consideration was confined to the examination of all explosive remnants of war, ‘including submunitions’. Virtually no state would even use the term ‘cluster munition’ during the deliberations, let alone talk about any type of restriction on them. Discussions were quickly limited to ‘post-conflict generic measures’ to address concerns from explosive remnants of war, with NGOs sidelined to statements at the end of each session.11
Despite its shortcomings, the CCW offered a number of important elements to the campaign against cluster munitions. First, it provided a platform for criticism of the weapons on the formal agenda of virtually all stockpilers of the weapon. Second, it provided a place for NGOs to meet and strategise among themselves. Third, it kept the issue on the agenda of progressive governments and provided a useful forum for sharing strategy between these governments and the NGOs gathered with them. Fourth, and very importantly, the CCW had shown a possible path for the negotiation of a prohibition on a particular weapon: by allowing for the pressure to build on antipersonnel landmines in the early 1990s and then by failing to deal with the problem adequately in 1996, the CCW provided the diplomatic space for Canada to launch a stand-alone process to prohibit the weapons outright. The fact that this process had resulted in the successful 1997 treaty banning the weapon was always in the minds of those involved in the CCW discussions (or nondiscussions) on cluster munitions from 2001 onwards. Ultimately, the CCW would provide a similar ‘success through failure’ at the 2006 Review Conference during which Norway took the role of Canada in inviting all states to join it at a meeting to be held in Oslo in a few months’ time. This first Oslo Process meeting in February 2007 was the launch of a global effort to prohibit cluster munitions which culminated in the signing of the treaty in Oslo in December 2008.
If one thinks of the CCW’s deliberations from 2001 to 2006 as a kind of gestation period for the Oslo Process, then the adoption of the 2003 CCW Protocol V on Explosive Remnants of War (ERW)12 could be considered a kind of premature birth. The Protocol failed to address the issue of cluster munitions. Indeed, one could argue that it was specifically designed to relieve the pressure governments may have been feeling (or were able to predict given the Ottawa Process lessons) on cluster munitions, rather than actually to address it. The serious problems caused by cluster munitions in Kosovo were a particular point of reference for progressive governments, with the ICRC and NGOs seeking to promote specific action on the weapon and the UN Mine Action Service using the experience in Kosovo to single out cluster munitions as an especially problematic weapon.13 States reluctantly agreed to a separate track on ‘preventive measures’ to address specific weapons issues, including their design, but this was never taken seriously and did not result in any firm outcome. States such as the US, Russia, China and others maintained that full implementation of Protocol V would deal with the whole range of problems from unexploded ordnance, including cluster munitions. This was part of an effort to confine the scope of the cluster munition problem to the post-conflict impact (rather than the area-effect problems identified in the 1970s) and to situate the problem as only one small part of this broader post-conflict ERW problem. It is to some extent ironic that these very same states have later been reluctant to talk about cluster munitions in the context of Protocol V, instead insisting on a separate track to achieve a new protocol specifically on cluster munitions. In Protocol V’s favour, though, it contains important provisions on recording, retaining and transferring information. However, these are only important if they are properly implemented, something which is far from obvious in the wake of conflicts in Georgia and Gaza. Protocol V is also significant in the way that it recognises explosive weapons as a particular category of problematic weapons.
While the CCW deliberations from 2001 to 2006 made no progress in tackling the issue of cluster munitions, a number of external events took place that shaped the future global efforts to ban the weapon. In 2001 and 2002 the use of cluster munitions by US-led forces in Afghanistan raised awareness of the issue (HRW, 2002). Again in 2003 in Iraq, US and UK use of the weapon put a spotlight on the problems, which were not being addressed – in the CCW or elsewhere (HRW, 2003). This led the NGOs active on the question to join forces and establish the Cluster Munition Coalition (CMC),14 an NGO coalition campaign modelled on and including many members from the International Campaign to Ban Landmines, which won the Nobel Peace Prize in 1997 for its role in achieving the Ottawa Convention. Throughout 2004 and 2005, individuals within the CMC spent considerable effort developing an intellectual framework to justify a prohibition on cluster munitions. This work proved highly influential in determining the future strategy of the CMC, its partnership with governments and the process as a whole.15 In 2005, a newly elected Norwegian government adopted a policy platform which included an objective on promoting an international ban on cluster munitions (Landmine Monitor, 2009, p. 134). In February 2006 Belgium’s parliament banned the weapon, in response to a civil society campaign led by Handicap International and supported by the global CMC (Landmine Monitor, 2009, p. 39). Austria’s parliament passed a unanimous decision in July 2006 to promote an international ban on the weapon (Landmine Monitor, 2009, p. 35).
Then, generating immense political pressure for a ban, television screens around the world conveyed the horrific aftermath of the Israeli bombardment of Lebanon with cluster munitions. In that hot August and September, as displaced people flocked back to their homes south of the Litani river they found the rubble of their homes infested with unexploded cluster bombs. There were dozens of casualties in the first few weeks alone (Landmine Action, 2006). According to a UN mine action official in Lebanon, ‘The scope was extensive and unprecedented in any modern use of these types of cluster weapons’– some 26 per cent of arable land in Southern Lebanon was contaminated (Peterson, 2007).
The suffering in Lebanon occurred in the run-up to the Third Review Conference of the CCW and provided a poignant and highly charged atmosphere for that meeting in November 2006. Such a flagrant disregard for the laws of war dramatically demonstrated the indiscriminate effects these weapons could have on noncombatants, even long after the war had finished. As around 30 countries lined up in favour of negotiations on a strong cluster munition instrument, the US and others pushed back, with the UK providing a mandate that sought to be strong enough to deflect accusations of inaction in the face of Lebanon but weak enough to prevent a prohibition that many states did not want to contemplate (Borrie, 2008). The UK mandate could not stop the momentum behind the campaign, pushed by civil society and now supported by the media and a powerful collection of small and middle power states. Norway launched the Oslo Process on the last day of the Review Conference and the path to the Convention on Cluster Munitions had begun. After discussions at international conferences in Oslo (February 2007), Lima (May 2007), Vienna (December 2007) and Wellington (February 2008), a draft treaty was forwarded to the Diplomatic Conference in Dublin as the basis for negotiations. This text was negotiated over two tough weeks and adopted unanimously by participating states. It was signed in Oslo by 94 states on 3–4 December.16
Overview of the Convention on Cluster Munitions
There are many ways to analyse the Convention on Cluster Munitions. In many ways it is very similar to the 1997 Mine Ban Treaty. We will not attempt a detailed analysis of the Convention here. Instead, we will consider five key elements that characterise the treaty. For a more detailed analysis of the Convention, we recommend the forthcoming legal commentary on the Convention edited by Stuart Casey-Maslen and due to be published by Oxford University Press in 2010.
First, the treaty entails a comprehensive prohibition. It bans cluster munitions as a whole category of weapons. It bans the use, production, stockpiling and transfer. This comprehensive approach has been identified as a critical element in promoting the stigmatisation of the weapon and the norm-building power of the Convention. A weak regulation full of exceptions, it is argued, would not have resulted in the establishment of a norm that would curb the behaviour of those who remain outside it (Rappert, 2008).
Second, the treaty has a holistic approach. Not only does the treaty ban the weapon, but it provides for clearance, victim assistance, stockpile destruction and international cooperation and assistance to ensure that all affected countries receive the help and the funds they need to meet their obligations.
Third, the convention drew on lessons learned from the Mine Ban Treaty. The language on clearance and reporting has built on that of the Mine Ban, notably the comprehensive approach to national planning and extensions and provisions for victim assistance. The incorporation of the human rights approach based on the UN Convention on the Rights of Persons with Disabilities and the broad definition of a victim have been noted as some of the more groundbreaking aspects of the Convention (Survivor Corps, 2008).
Fourth, the treaty is largely preventive. Countries like Lao PDR have suffered considerably from cluster munitions, but only a very limited proportion of stockpiles worldwide have been used. These stocks reach into billions of submunitions. Many states, including those in Africa and Latin America, noted during the negotiations that it was important to act now, in order to prevent more countries from suffering the fate of the Lao people. Indeed, many participants in the process noted that it would prevent the problem from reaching a global scale that could eclipse the landmine problem.
Finally, the process itself was characterised by close partnerships between states, civil society, the UN, ICRC and other international organisations. It is this aspect that we will explore in the rest of this article.