Verdun, via Oslo?

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. (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. (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. (3) Thompson's contention that high tech solutions like the U.S. BLU-108 Sensor Fuzed Weapon are an answer to humanitarian concerns.

So, on to the first question: will banning cluster munitions result in the unintended consequence of great humanitarian harm from unitary weapons?

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.

Virgil Wiebe


Photo Credit: “p011902.jpg” by PhotosNormandie on Flickr.

Run with the Hare and Hunt with the Hounds?

This blog has repeatedly reported on the two “complementary and mutually reinforcing” processes currently underway to address the humanitarian impact of cluster munitions. The Oslo Process, which culminated in the adoption of the Convention on Cluster Munitions (CCM) in May this year, and the Convention on Certain Conventional Weapons (CCW) which has mandated a Group of Governmental Experts (GGE) to “negotiate a proposal to address urgently the humanitarian impact of cluster munitions”.

In November, the GGE will meet for the last time this year, perhaps producing a Protocol VI on cluster munitions. The CCM will be opened for signature in Oslo a month later. For States that intend to sign the CCM in December, some interesting legal questions arise as to the CCM’s relationship with a future CCW protocol on cluster munitions.

Defeating the Object and Purpose of a Cluster Munitions Ban?
States that sign the CCM become bound by its provisions as soon as the treaty enters into force for them through ratification. Until such time, all signatories are under a legal obligation not to defeat the CCM’s object and purpose (art. 18 Vienna Convention on the Law of Treaties (VCLT)). As such, they may not engage in actions that undermine the CCM’s aim “to put an end for all time to the suffering and casualties caused by cluster munitions”, to ensure the rapid destruction of cluster munitions stockpiles, effectively and efficiently clear cluster munitions remnants and to ensure the full realization of victims’ rights – in short to completely ban cluster munitions.

In all likelihood, a protocol on cluster munitions emerging from the CCW will be much more permissive than the CCM. The transfer and even the use of many existing types of cluster munitions would be allowed in certain situations, in particular during an initial “transition period” (see our last blog). Are CCM signatories that continue to partake in negotiations on a CCW protocol (in case no text is agreed in November) and that sign or ratify such a protocol defeating the CCM’s object and purpose? - Especially since the CCM prohibits to “assist, encourage or induce anyone to engage in any activity prohibited to a State Party” under the CCM? “It depends”, would probably be the lawyer’s answer, on whether the prohibition to encourage others forms part of the CCM's object and purpose, and on whether negotiating, signing or ratifying an instrument that regulates rather than prohibits cluster munitions is in itself an act of encouragement – encouragement being quite an open concept.

A Succession of Treaties on Cluster Munitions.
Under the assumption that the CCM enters into force before a future CCW protocol, how will that impact on the CCM?

In accordance with the Vienna Convention on the Law of Treaties, the CCM’s provisions will prevail over those of the CCW protocol only if the CCW protocol provides that “it is subject to or that it is not to be considered as incompatible with” the CCM (art. 30 VCLT). If however - as is presently the case - both treaties are silent on their mutual relationship, the provisions of the earlier treaty - most probably the CCM - will only apply “to the extent that they are compatible with the provisions of the later treaty”, i.e. the CCW protocol. Depending on how this “compatibility” requirement is interpreted, the CCM’s impact could be significantly reduced. For instance, if the CCW protocol allows the use of cluster munitions with a self-destruct mechanism (such as the M85, which wreaked havoc in Lebanon), the CCM’s obligation never under any circumstances to use cluster munitions would be incompatible and would simply not apply.

States wishing to prevent this could clarify in the CCW protocol’s text that its provisions are without prejudice to any more restrictive rules on cluster munitions by which the parties are bound. A phrase reserving the continued applicability of international humanitarian law (IHL) is already included in the Chairman’s draft text (art. 1(4)):

This Protocol is without prejudice to existing or future international humanitarian law [which provide for stricter obligations or which have wider applicability] [applicable to the High Contracting Parties establishing [stricter] obligations][which specifically addresses the subject matter of this Protocol].

To avoid ambiguity (Is the CCM an IHL treaty, a disarmament treaty, or both?) the brackets in this paragraph could be removed and a specific reference to a cluster munitions treaty binding on the parties could be introduced. Additionally, parties to the CCM could declare upon signature and/or ratification of a CCW protocol that the CCM continues to govern their mutual relations. The provisions of the CCW protocol would then only apply to the relations between States Parties to both treaties on the one hand and States Parties to the CCW protocol only on the other.

Complementary but Mutually Exclusive?
Under international law, States have to perform all treaties they are bound by in good faith. Assuming that some States will in the future be bound both by the CCM and a CCW protocol on cluster munitions, how will States implement two differing sets of rules on cluster munitions?

Clearly, the CCM is wider in scope than any future CCW protocol on cluster munitions. The CCM applies at all times, whereas a CCW protocol will probably only apply during international and non-international armed conflict. Furthermore, the CCM binds State parties in their relations to all other States and reservations are not permitted, whereas a CCW protocol will normally not govern the relations between a State Party to the protocol and a State not party to it. Reservations and objections to those reservations will further bi-lateralise treaty relations under the CCW protocol. Finally, the CCM bans all activities with weapons it defines as cluster munitions (with few exceptions), whereas the CCW protocol will probably only regulate or ban a portion of the weapons it defines as cluster munitions (although its definition of what weapons are cluster munitions is wider). Given the CCM’s broad scope, States bound by both treaties are unlikely to violate the CCW protocol by simply applying the provisions of the CCM in all aspects regulated by both treaties.

As mentioned above, however, once the CCM enters into force, States Parties to it are under a legal obligation never under any circumstances to “assist, encourage or induce anyone to engage in any activity prohibited” under the CCM (art. 1(c)). As but one example of a potential conflict, in the latest draft of the GGE Chairman’s room paper there is a provision (art. 1(4)) that encourages (Option A) or obliges (Option B) States “in a position to do so” to “facilitate the exchange of equipment, material, and scientific and technological information” to improve cluster munitions. Clearly, such assistance would contribute to the development, production, stockpiling, transfer or use of cluster munitions that are banned under the CCM. Providing assistance in this way must be considered a violation of the CCM.

One way out of these conflicting obligations for States Parties to both treaties is to argue that they are not “in a position to” facilitate technology exchange. Another, somewhat cynical argument is that in military cooperation and operations with States not parties to the CCM, technology exchange is allowed under infamous article 21 of the CCM (see our previous posts). That, however, would probably contravene the obligation on CCM States Parties to promote the norms of the CCM in situations of military cooperation with non-party States (art. 21(2)).

Legitimize or Stigmatize?
After 3 December 2008, CCM signatories have to give some serious thought to whether their continued participation in negotiations of a “weak” CCW protocol and eventually its signature and ratification are compatible with their obligations under the CCM. If States end up being bound by both instruments they have to clearly address their mutual relationship so as to avoid replacing the CCM with a subsequent “weaker” CCW protocol. As to the substantive obligations, the CCM’s provisions, which are likely to be wider in scope and more restrictive, will in practice overshadow those of the CCW protocol. All this raises serious doubts about the added benefit of negotiating and joining a “weak” CCW protocol on cluster munitions.

This should, however, not be a reason for States wishing to urgently and effectively address the humanitarian impact of cluster munitions to defer signature of the CCM until after a CCW protocol has entered into force - especially as such entry into force may be a long time in coming. Rather, States should sign the CCM and, if they remain engaged in the CCW process, do their utmost to ensure that any future CCW protocol on cluster munitions does not legitimize weapons that the CCM bans. A strong, though partial solution, such as a complete and immediate transfer ban on all cluster munitions, would be one solution.

Maya Brehm and Virgil Wiebe.

Photo Credit: "Dog 'shooting' rabbit" by Kaspar's Butlers on Flickr.