Recent columns (dated 22 July and 22 September, 2008) by the Lexington Institute’s Loren Thompson raise questions about the Convention on Cluster Munitions (CCM). In the coming days, I’ll address three of Thompson's central arguments - arguments which track US government positions in many respects:
- (1) taking cluster munitions out of service will result in greater humanitarian suffering due to the use of more high explosive unitary weapons as the only alternative;
- (2) that the Oslo Convention on Cluster Munitions (CCM) is a flawed process, while the more inclusive UN Convention on Conventional Weapons (CCW) offers a more hopeful and reasonable outcome; and
- (3) Thompson's contention that high tech solutions like the U.S. BLU-108 Sensor Fuzed Weapon are an answer to humanitarian concerns.
Thompson argues that “a blanket ban on all cluster munitions will not end the desire of military forces to deny use of contested areas to enemies, and therefore might perversely encourage the use of more lethal ‘unitary’ munitions.” This echoes, almost verbatim, the final paragraph of the 19 June 2008 policy memorandum issued by U.S. Secretary of Defense Robert Gates.
Among the most extreme examples of lethal uses of unitary warheads are the artillery exchanges in the Battle of Verdun in 1916, during which the French and the Germans slaughtered one another’s’ soldiers and civilians en masse with high explosive artillery shells.
According to the US policy memo, cluster munitions supposedly offer a more humanitarian answer. Their presumed genius is to distribute a large amount of explosive power in small packages over a large area using relatively few pieces of equipment, as opposed to many pieces of equipment sending high explosive warheads on lots of single targets. Some militaries like the shot-gun blasts of cluster munitions to attack moving targets, troop concentrations, tank formations and artillery formations. Take these away, so goes the argument, and you create conditions for another Verdun, or at least saturation bombing on a localized level. If we can’t use lots of little bombs to attack contested areas, so goes the argument, we’ll be forced to use lots and lots of big bombs to do the same job. Even more civilians will be injured or killed in process.
In other words, the argument is as follows: if we cannot use one means of warfare (i.e., cluster munitions) that results in indiscriminate and disproportionate attacks, we will be forced to use means or methods that are even more indiscriminate and disproportionate (e.g., saturation bombing with unitary weapons). For states that respect the rule of humanitarian law as it has developed over the past fifty years, such an argument runs into considerable trouble.
The bedrock principles of distinction, proportionality and the legal obligation to take precautionary measures are enshrined in Additional Protocol I to the Geneva Conventions. These principles are considered by many to have reached customary status (see, for example, the Red Cross Customary Humanitarian Law Study) or at the very least worthy of inclusion in military law manuals (see, for instance, chapter 2 of the US Military’s Operational Law Handbook)) Taking indiscriminate cluster munitions out of a state’s arsenal does not relieve its armed forces from these obligations.
The fundamental principle of distinction requires that “Attacks shall be limited strictly to military objectives.” [Protocol I, Art. 52]
Furthermore, attacks have to be proportionate. Article 51(5)(b) of Protocol I spells out the proportionality rule: an “attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” is legally unacceptable.
In light of these humanitarian law principles, for a course of action to be acceptable, the military advantage of the attack must outweigh the anticipated collateral damage. Importantly, the balancing test of the proportionality principle is not between an attack that is less costly to civilians as opposed to another attack that is more costly to civilians. If neither alternative results in an anticipated military advantage that outweighs the anticipated collateral damage of either action, then neither course of action is acceptable. I have written about this elsewhere before the adoption of the CCM (see pp. 40-41, of this article).
In the 2007 Martić case before the International Criminal Tribunal for the Former Yugoslavia (ICTY) the defence advanced the “unitaries would be worse” argument (See also a recent Landmine Action report). In that case, Milan Martić ordered rocket attacks on Zagreb in 1995 in response to the Croatian army’s offensive to retake the breakaway region of Krajina. The attacks killed seven people and injured 214, both directly and because of hazardous unexploded duds.
The weapon chosen by Martić’s commanders? The Orkan rocket system, equipped with cluster submunitions – a weapon that is very similar to the U.S. Multiple Launch Rocket System (MLRS). Martić argued in his defence brief that his armed forces were aiming at military targets in the city and that their only other weapon option was a powerful unitary rocket that would have caused greater damage to civilians. If we cannot use clusters, we would be forced to use unitaries, argued Martić.
How did the court respond? The court found that the Orkan rocket was an indiscriminate weapon, even assuming Martić’s forces were aiming at legitimate military targets in Zagreb:
[T]he Trial Chamber notes the characteristics of the weapon, it being a non-guided high dispersion weapon. The Trial Chamber therefore concludes that the M-87 Orkan, by virtue of its characteristics and the firing range in this specific instance, was incapable of hitting specific targets. For these reasons, the Trial Chamber also finds that the M-87 Orkan is an indiscriminate weapon, the use of which in densely populated civilian areas, such as Zagreb, will result in the infliction of severe casualties. [para. 463].The court did not respond to the “unitary rockets would be worse” argument directly, evidently finding it without merit. In its silence, the court could have been relying on Article 35(1) of Protocol I, that the right of belligerents to choose the means and methods of warfare is not unlimited. Regardless of what other weapons were at hand, cluster munitions were not appropriate to attack the specified military targets in Zagreb. It follows logically that if the only other alternative would be something causing even worse civilian injuries, that alternative would also be prohibited.
Martić is now serving a 35 year sentence. He has renewed the “unitaries would have been worse” argument on appeal. Interestingly, the prosecutor’s office has argued in response that a single unitary rocket aimed at each target actually would have been better, not worse. The prosecutor’s office therefore did not reject entirely the use of unitary weapons, but neither did it endorse their indiscriminate use in large numbers.
History also gets in the way of “unitaries would be worse” argument. One might expect that cluster munition use might reduce the use of unitary weapons. Practice has sometimes shown the opposite – extensive use of such area weapons may well encourage or reinforce the use of large numbers of unitary weapons. The example of Laos immediately comes to mind – the most heavily bombed country in the history of the world was blanketed not only with cluster munitions, but also with rockets, mortars, shells and large general purpose bombs. The availability of vast quantities of cluster munitions did not prevent the use of large numbers of other types of ordnance. And clearance officials consider the unexploded cluster bomblets to be a much greater risk to civilians than the unexploded general purpose bombs.
Visitors to Southern Lebanon following the 2006 war between Israel and Hezbollah can attest to a similar outcome – heavy shelling and bombardment included both cluster munitions and weapons with unitary warheads by the Israeli Defense Forces. Many credit the 2006 war with creating the tipping point for the CCM.
Photo Credit: “p011902.jpg” by PhotosNormandie on Flickr.