Explosive Road From Dublin: The Legal Flaws in the Convention to Ban Cluster Munitions and Recommendations for Their Cure.

Transcription

1 From the SelectedWorks of Alexandra R. Harrington Winter 2008 Explosive Road From Dublin: The Legal Flaws in the Convention to Ban Cluster Munitions and Recommendations for Their Cure. Alexandra R. Harrington Available at:

2 Explosive Road From Dublin: The Legal Flaws in the Convention to Ban Cluster Munitions and Recommendations for Their Cure. Alexandra R. Harrington, Esq. I INTRODUCTION In a popular Irish folk song, the hero leaves his boyhood home in the Irish countryside and takes the rocky road to Dublin in order to sail to a new life in a new country. 1 However hopeful the hero is throughout his journey, when he arrives at his destination he finds that it is not as hospitable as he had expected. 2 Despite its lighthearted beat, this song is oddly prophetic for an analysis of the Convention to Ban Cluster Munitions. In May, 2008, the Convention to Ban Cluster Munitions ( Cluster Munitions Convention ) was adopted by a group of one-hundred and eleven states meeting in Dublin, Ireland. 3 The reasons offered for the Cluster Munitions Convention by the states and non-governmental organizations that brought cluster munitions into the spotlight are indeed compelling on a purely humanitarian level. It is difficult to hear stories of young children dying or suffering life-altering injuries due to coming in contact with unexploded cluster munitions. It is equally difficult to hear of the obstacles which those civilians who have been injured by cluster munitions face in their communities and in B.A. Politics, B.A. History, New York University; J.D., Albany Law School of Union University; LL.M. in International Law, Albany Law School of Union University. 1 See ROCKY ROAD TO DUBLIN, available at (last visited Jul. 7, 2008). 2 Id. 3 See MESSAGE FROM MINISTER OF FOREIGN AFFAIRS, MICHAEL MARTIN T.D., DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 7, 2008). 1

3 their ability to support themselves. However, sympathy and outrage do not always combine to create a legal instrument that betters the lives of those it seeks to help or the world community, and the Cluster Munitions Convention is an unfortunate example of this. The goal of this article is to highlight the flaws of the Cluster Munitions Convention and offer recommendations for the cure of these flaws in alternate fora to the Cluster Munitions Convention. Part II of this article provides a history of the Cluster Munitions Convention, as well as the statements of various state parties throughout the convention negotiating process. These statements are of particular importance in understanding that the compromises made to allow for the adoption of the Cluster Munitions Convention are grave breaches of the ideals of the state parties themselves. In this Part, emphasis will be placed on the motivating factors behind the Cluster Munitions Convention s creation, amendment and adoption, as well as the way in which particular concerns of state parties were addressed during the negotiation process. Because the Cluster Munitions Convention has separate military and humanitarian and human rights law components, its analysis will be broken down according to these designations, and recommendations will be made at the end of each applicable part. Part III of this article discusses the uniquely military aspects of the Cluster Munitions Convention. It then discusses the way in which individual states have addressed cluster munitions production, sale and use in recent years, as well as other applicable and similar weapons conventions. This Part compares these conventions to the Cluster Munitions Convention and uses these comparisons to demonstrate the weaknesses of the Cluster Munitions Convention. In this Part, it is argued that the best method to provide legal 2

4 protections against the use of dumb cluster munitions and to accomplish many of the goals of the Cluster Munitions Convention is to amend Protocol V of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed Excessively Injurious or Have Indiscriminate Effects. This Part further extrapolates that the most effective method of preventing the sale of dumb cluster munitions is the creation of an industry and state collaborative agreement such as that used in the Kimberley Process to combat the flow of conflict diamonds. It goes on to provide a proposed framework for such a process. Part IV discusses the humanitarian and victim s assistance provisions of the Cluster Munitions Convention in relation to existing international law, particularly the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Civil Rights, the U.N. Convention on the Rights of the Child and the Convention on Rights of Persons with Disabilities. It then profiles the current national, regional and international assistance systems available for demining and assistance to civilian victims of cluster munitions 4 in affected areas. This Part demonstrates the weaknesses of the Cluster Munitions Convention generally in light of the already existing protections and aid schemes. It suggests that the most effective way to ensure that civilian victims of cluster munitions receive adequate assistance and safeguard the rights given them under international law is to strengthen the already existing international conventions which give rise to these rights and allow for a remedy. Ultimately, it is the author s conclusion that the human rights protections offered in the 4 The term civilian victims of cluster munitions is used by the author to describe non-combatants who have been injured by explosions of cluster munitions that occur after the cessation of hostilities. This term, rather than the term cluster munitions victim as used in the Cluster Munitions Convention, is used because it more accurately describes those who are the focus of legal and humanitarian efforts. 3

5 Cluster Munitions Convention are unnecessary if the international community enforces the extant protections afforded by international law. Without using these norms to their utmost capacities, the author argues that the Cluster Munitions Convention will have as little real-world impact as its human rights law predecessors. It is also argued that the terms of the Cluster Munitions Convention endangers the already existing aid schemes for demining and civilian victims assistance. Part V summarizes the flaws in the Cluster Munitions Convention. It then restates the proposals contained in this article and the reasons for them. Finally, it concludes that there is still time to remedy the flaws of the Cluster Munitions Convention and advance the essential goals of it. II BACKGROUND A. Cluster Munitions Cluster munitions, also known as cluster bombs, have been in use militarily for well over a half-century. 5 Unlike a conventional land mine, which must physically be placed in the ground in order to function, 6 or a standard aerial bomb, cluster munitions are comprised of a multitude of small bombs referred to as bomblets. 7 Although cluster munitions are typically dropped from a fighter jet, they differ from a standard aerial bomb in that the bomblets are released from their casing after they are dropped, 5 See GUIDE TO CLUSTER MUNITIONS (providing a concise history of cluster munitions use since World War II). 6 See Daniele Ressler and Elizabeth Wise, Cluster Munitions and ERW in Lebanon, JOURNAL OF MINE ACTION, Winter 2006, available at (last visited Jul. 7, 2008). 7 See Ressler and Wise, supra note 6; GUIDE TO CLUSTER MUNITIONS, GENEVA INTERNATIONAL CENTRE FOR HUMANITARIAN DEMINING, ch. 1 (2007) (hereinafter GUIDE TO CLUSTER MUNITIONS ). 4

6 causing them to fall to the ground over a wider range of area than a standard aerial bomb could cover. 8 It is also possible to deploy cluster munitions from a land-based source, although the majority of those cluster munitions discussed in this article and in general discourse regarding cluster munitions are aerially deployed. 9 Examples of recent military campaigns where cluster munitions have been successfully deployed include Kosovo 10 and Iraq. 11 Much ire was drawn from the international community when Israel used cluster munitions during its 2006 hostilities with Lebanon or perhaps more accurately terrorist forces in Lebanon because many civilian deaths were the result of cluster munitions. 12 Until recently, the standard cluster bomb was what is now referred to as a dumb cluster bomb. As the name suggests, this form of cluster bomb lacked the ability to selfdestruct or self-deactivate in the event that it did not detonate on impact or shortly thereafter. 13 Not all unexploded cluster munitions will explode when touched after their deployment however, a significant number of cluster munitions have exploded in the hands of civilians post-conflict. 14 Much of the humanitarian impetus to ban cluster bombs has come from injuries and deaths associated with dumb cluster munitions found years or even decades after the conflict in a particular region has ceased See id. 9 GUIDE TO CLUSTER MUNITIONS See Ressler and Wise, supra note 6; GUIDE TO CLUSTER MUNITIONS See Ressler and Wise, supra note 6; GUIDE TO CLUSTER MUNITIONS See Ressler and Wise, supra note See BACKGROUNDERS: WORLDWIDE PRODUCTION AND EXPORT OF CLUSTER MUNITIONS: EXAMPLES OF POSITIVE POLICY AND PRACTICE, HUMAN RIGHTS WATCH, available at (last visited Jul. 7, 2008). 14 GUIDE TO CLUSTER MUNITIONS See THE PROBLEM, CLUSTER MUNITION COALITION, available at (last visited Jul. 11, 2008); CLUSTER BOMB, HANDICAP INTERNATIONAL, available at (last visited Jul. 11, 2008); Red Cross steps up campaign against cluster 5

7 In contrast to dumb cluster munitions stand the newer generations of cluster munitions, which have a minimal dud rate and contain features such as self-destruction mechanisms and self-deactivation mechanisms. 16 These cluster munitions have become popular among large militaries, with several notable states requiring that their militaries use only cluster bombs with a small dud rate. 17 Indeed, Congress has made it illegal for the United States to sell cluster munitions abroad unless the cluster munitions have a dud rate of less than or equal to 1%. 18 Despite the Cluster Munitions Convention, cluster munitions are still an important option for regional and international peacekeeping operations and are also regarded as a vital tool in the military arsenals of several states. 19 B. The Road to Dublin As with so many human rights and humanitarian law issues, the first entities to bring international focus on the use of cluster munitions and the civilian victims of cluster munitions were non-governmental organizations. 20 The first issue raised by those seeking to ban cluster munitions was not and has not been their military effectiveness or the national, regional and international security interests advanced in having cluster munitions available in a military arsenal. Instead, the focus was and has consistently been bombs, urges ban, INTERNATIONAL HERALD TRIBUNE, Nov. 6, 2006, available at (last visited Jul. 11, 2008). 16 See GUIDE TO CLUSTER MUNITIONS See infra Part III C. 18 CONSOLIDATED APPROPRIATIONS ACT 646, P.L (2007); see also Stephen D. Mull, U,S. CLUSTER MUNITIONS POLICY, UNITED STATES STATE DEPARTMENT, available at (last visited Jul. 11, 2007). 19 See GUIDE TO CLUSTER MUNITIONS See THE COALITION, CLUSTER MUNITION COALITION, available at (last visited Jul. 7, 2008). 6

8 on the physical and economic affects experienced by civilian victims of cluster munitions. In 2007, Norway became the first state to adopt the mantle of cluster munitions banning in the international arena. 21 Following Norway s commitment to creating an international law method to ban the use of cluster munitions, the issue gained further attention at the state level, and a conference of interested states was held in Vienna. 22 At this conference, forty-six states agreed that a draft treaty to ban the use of cluster munitions and to provide assistance to the civilian victims of cluster munitions should be created. 23 Throughout the next months, a series of conferences were held at the regional and international level with the goal of advancing the draft treaty. 24 This process culminated in May, 2008, when one-hundred and eleven states gathered in Dublin and, after a series of negotiations, adopted the Cluster Munitions Convention. 25 According to its terms, the Cluster Munitions Convention will open for state signature in December, 2008, 26 although the municipal legal structure of most adopting states will require formal municipal ratification in order for the Cluster Munitions Convention to become binding under municipal law. C. Objections and Compromises 21 See OSLO PROCESS, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 2008). 22 See VIENNA CONFERENCE ON CLUSTER MUNITIONS, AUSTRIAN FOREIGN MINISTRY, available at (last visited Jul. 7, 2008). 23 Id. 24 See THE SOLUTION, CLUSTER MUNITION COALITION, available at (last visited Jul. 7, 2008). 25 See id; see also MESSAGE FROM MINISTER OF FOREIGN AFFAIRS, MICHAEL MARTIN T.D., DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 7, 2008). 26 See CONVENTION ON CLUSTER MUNITIONS art

9 The vehement debates in Dublin centered on both the military and humanitarian law aspects of the draft Cluster Munitions Convention and demonstrate the disconnect in goals of states which have adopted the Cluster Munitions Convention. In many ways, the disconnect calls into question the true level of commitment to the entire Cluster Munitions Convention. Essentially, this disconnect surrounded those states which have used cluster munitions effectively from a military and/or peacekeeping standpoint and those which are the site of unexploded cluster munitions, resulting in civilian victims of cluster munitions. States which are members of NATO and/or participate frequently in U.N. or other peacekeeping operations voiced severe concern over the Vienna draft of the Cluster Munitions Convention because its wording would likely have been interpreted to mean that a signatory state would violate its obligations under the Cluster Munitions Convention in the event that it had even tangential contact with a peacekeeping or other joint military endeavor which used or authorized the use of cluster munitions. 27 Additionally, many states in this group objected to the definition of cluster munitions as being imprecise for the purpose of the Cluster Munitions Convention. 28 There was a concerted effort to include terms in the definitions section of the Cluster Munitions 27 See DISCUSSION PAPER CLUSTER MUNITIONS AND INTER-OPERABILITY: THE OSLO-PROCESS DISCUSSION TEXT AND IMPLICATIONS FOR INTERNATIONAL OPERATIONS, AUSTRALIA, CANADA, CZECH REPUBLIC, DENMARK, FINLAND, FRANCE, GERMANY, ITALY, NETHERLANDS, SWEDEN, SWITZERLAND, UNITED KINGDOM; GENERAL STATEMENT, AUSTRALIA, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 11, 2008);. Interestingly, the U.N. opined that, because its peacekeeping operations are, in its view, bound only to follow principles of customary international law, the contested provisions of the proposed Cluster Munitions Convention would have little effect on U.N. peacekeeping operations. See UNMAT STATEMENT RELATED TO INTEROPERABILITY, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 11, 2008). 28 See STATEMENT BY CANADA, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 11, 2008). 8

10 Conventions that would have provided a more precise and legally cognizable definition of not only cluster munitions but also how they function. 29 However, these proposals were ultimately rejected in favor of a narrow exception for certain classes of cluster munitions that have a self-destruction or self-deactivation mechanism, provided that several other limits are in-place as well. 30 Some states attempted to reverse statements in the Vienna draft convention that would have done away with the ability of a signatory state to use cluster munitions in further technological developments; this issue was lost for proponents of retaining the ability to use cluster munitions for technological advancement. 31 The Cluster Munitions Convention did, however, take into account the need for signatory states to retain some cluster munitions training/demining lessons. 32 Procedurally, there was an intense debate regarding the time within which states would be required to phase out their use and ownership of cluster munitions completely. 33 Ultimately, it was agreed that state parties would have eight years within which to phase out ownership and use of cluster munitions, although an additional procedure exists in the 29 See CCM/18, PROPOSAL BY JAPAN FOR THE AMENDMENT OF ARTICLE 2, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 11, 2008); CCM/19, PROPOSAL BY GERMANY FOR THE AMENDMENT OF ARTICLE 2, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 11, 2008); CCM/20, PROPOSAL BY FRANCE FOR THE AMENDMENT OF ARTICLE 2, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 11, 2008); CCM/21, PROPOSAL BY SWITZERLAND FOR THE AMENDMENT OF ARTICLE 2, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 11, 2008). 30 CONVENTION ON CLUSTER MUNITIONS art Id. art. 3 (6). 32 See CONVENTION ON CLUSTER MUNITIONS. 33 DECLARACION DEL SENOR VICEMINISTRO DE RELACIONES EXTERIORES DE LA REPUBLICA BOLIVARIANA DE VENEZUELA, EMBAJADOR JORGE VALERO, EN LA CONFERENCIA DIPLOMATICA DE DUBLIN SOBE MUNICIONES DE RACIMO, available at (last visited Jul. 11, 2008) (trans. by author); CCM/10, PROPOSAL BY JAPAN FOR AMENDMENT OF ARTICLE 1, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 11, 2008). 9

11 event that a state party cannot meet this obligation. 34 It should be pointed out that the specifics of this allowance are sparse and the decision-making process at issue is rather arbitrary from a fairness and guaranteed outcome perspective. 35 States in which cluster munitions were used, as well as civilian victims of cluster munitions right s groups and civilian victims themselves, were particularly adamant that the final Cluster Munitions Convention contain provisions for victims assistance. 36 Statements made by the representatives of various state parties that fall into this category evince a belief that the Cluster Munitions Convention s aim should be to assist civilian victims of cluster munitions and to assist in demining efforts. 37 Although it was not directly stated during the negotiations, it was clear that, to these groups, the military impact and import even to their own interests - of a complete ban on cluster munitions was secondary at best and nearly retributive at worst. 38 Further, the author maintains that these negotiations were tellingly silent on the need for states that are home to civilian victims of cluster munitions and their families to adopt their own municipal legislation and social norms that would provide concrete and actionable rights and protections to for 34 CONVENTION ON CLUSTER MUNITIONS art See id. 36 See CLOSING STATEMENT BY VIETNAM, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 11, 2008). See also REPUBLIC OF MOZAMBIQUE, STATEMENT BY HIS EXCELLENCY MR. HENRIQUE BANZE, DEPUTY MINISTRY OF FOREIGN AFFAIRS AND CO-OPERATION AT THE DIPLOMATIC CONFERENCE ON THE CLUSTER MUNITIONS, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 11, 2008) (stating Mozambique s perspectives on the issue of cluster munitions use in light of its general wartime experiences). 37 See id. 38 See OPENING AND GENERAL STATEMENTS, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 11, 2008); CONFERENCE DOCUMENTS, DUBLIN DIPLOMATIC CONFERENCE ON CLUSTER MUNITIONS, available at (last visited Jul. 11, 2008). 10

12 these classes of people. 39 Additionally, the humanitarian and human rights law portions of the Cluster Munitions Convention negotiations were entirely silent on the impact of the Cluster Munitions Convention on the current demining and civilian victims of cluster munitions programs which involve adoptive states and states such as the United States, which has refused to adopt the Cluster Munitions Convention. 40 III Military Components of the Cluster Munitions Convention and a Proposed Solution A. Military Components of the Cluster Munitions Convention In the Preamble to the Cluster Munitions Convention, the adoptive parties stress military, humanitarian and human rights law issues as the justification for the creation of the Cluster Munitions Convention. 41 However, as these statements relate to the military aspects of the Cluster Munitions Convention, they are vague at best and potentially violative of the core concepts of state sovereignty that underlie the international legal system at worst. The Preamble demonstrates that the Cluster Munitions Convention does not allow for any instances in which cluster munitions could be deployed, which is troublesome given the position of a significant number of state parties that the option of participation in a peacekeeping or other joint military operation which uses cluster munitions is a key military right of any state. 42 The boundaries of interfering with the national military entities and their rights to decide what weapons and measures are 39 See id. 40 See id. 41 See generally CONVENTION ON CLUSTER MUNITIONS Preamble. 42 Id. para 2. ( Determined to put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use, when they fail to function as intended or when they are abandoned. ). 11

13 sufficient for their own security purposes are called into question in the Preamble as well. 43 The Preamble also attempts to bind armed groups distinct from the armed forces of a State to the terms of the Cluster Munitions Convention, an attempt that is both legally and practically impossible. 44 Although the Preamble recognizes the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed Excessively Injurious or Have Indiscriminate Effects ( CCW ) and its protocols, it does not discuss the interrelation between the CCW and the Cluster Munitions Convention or explain the need for a separate Cluster Munitions Convention when the CCW and its protocols already exist. 45 The final version of the Cluster Munitions Convention incorporates the concept of banning the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians. 46 Whether and how a cluster munition might pose an acceptable or unacceptable level of harm to the civilian population is unclear throughout the terms of the Cluster Munitions Convention. 47 Article 1 of the Cluster Munitions Convention sets forth a broad ban on all aspects of the production and use of cluster munitions. 48 This ban is non-derrogable unless a state party exercises its right to withdraw from the Cluster Munitions Convention. 49 Even then, the withdrawal provisions of the Cluster Munitions Convention allow a state party to 43 See id. para. 4 ( Deeply concerned also at the dangers presented by the large national stockpiles of cluster munitions retained for operational use and determined to ensure their rapid destruction. ). 44 Id. para. 12 ( Resolved also that armed groups distinct from the armed forces of a State shall not, under any circumstances, be permitted to engage in any activity prohibited to a State Party to this Convention. ). 45 Id. para Id. para 18 (emphasis added). 47 See generally CONVENTION ON CLUSTER MUNITIONS. 48 Id. art. 1 (1) ( Each State Party undertakes never under any circumstances to: (a) use cluster munitions; (b) Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions; (c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention. ). 49 Id. art

14 withdraw effectively with six months notice except that, where the state party is engaged in an armed conflict at the expiration of the six month withdrawal period, the state party will continue to be deemed bound by the full terms of the Cluster Munitions Convention until the end of the armed conflict. 50 This again calls into question the place of state sovereignty in the Cluster Munitions Convention and creates a situation where a State Party s ability to defend itself could be called into question due to the lack of cluster munitions as part of its military arsenal. Although the CCW and Anti-Personnel Landmines Convention contains similar provisions, this provision in the Cluster Munitions Convention is particularly troublesome to the author because of the potential military utility of cluster munitions during a conflict. Under the Cluster Munitions Convention, the definition of cluster munitions is rather generic: a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions. 51 There are three exceptions to this definition, one for munitions that use certain pyrotechnic and other lighted devices, 52 one for munitions designed to produce electrical or electronic effects, 53 and one that provides that [I]n 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) (iii) (iv) Each explosive submunition weighs more than four kilograms; Each explosive submition is designed to detect and engage a single target Each explosive submunition is equipped with an electronic selfdestruction mechanism; 50 Id. 51 Id. art. 2 (2). 52 Id. (a). 53 CONVENTION ON CLUSTER MUNITIONS art. 2 (2)(b). 13

15 (v) Each explosive submunition is equipped with an electronic selfdeactivating mechanism. 54 Although there currently are cluster munitions varieties which feature self-destruction and/or self-deactivation mechanisms, the above definition is extremely narrow and is written to essentially rule out the use of even more technologically advanced cluster munitions. Further, because the Cluster Munitions Convention only allows state parties to retain cluster munitions for the purposes of demining training activities, it forecloses the ability of states to create more advanced cluster munitions for future conflicts, taking into account the humanitarian concerns voiced by the parties to the Cluster Munitions Convention. Signatories to the Cluster Munitions Convention must segregate the cluster munitions in their arsenals and destroy them within eight years of adopting the Cluster Munitions Convention unless an extension is granted or the state retains cluster munitions for training purposes. 55 The amount of cluster munitions that a state party may retain in order to conduct training exercises is defined as: not [to] exceed the minimum number absolutely necessary for these purposes. 56 The vagueness of this definition is legally troubling because it does not allow any interested party to know when a state has retained more cluster munitions than intended under the Cluster Munitions Convention. In order to destroy cluster munitions, each state party is required to use existing destruction rules and the terms of the International Mine Action Standards. 57 Should national rules and regulations not exist, the state party is required to promulgate them Id. (c). 55 CONVENTION ON CLUSTER MUNITIONS art Id. art. 3(6). 57 Id. arts. 3, Id. art. 3(1) 14

16 Additionally, although the Cluster Munitions Convention sets out a list of factors to be taken into consideration in the event that a state party seeks an extension of time to destroy its cluster munitions arsenal, the mechanisms through which a determination on the request are to be made remain exceptionally vague. 59 This can be viewed as problematic, particularly in light of the potential for such decisions to become highly political in nature. The Cluster Munitions Convention is silent on the issue of consequences for state parties which cannot or do not fulfill their obligations under the cluster munitions destruction requirements. 60 Further, state parties known to have deployed cluster munitions within their jurisdiction are required to clear them within ten years of adopting the Cluster Munitions Convention. 61 A set of factors to be taken into consideration by a state party during its cluster munitions clearance activities is provided and the clearance requirements are imputed to a state party regardless of whether it used the cluster munitions in its territory. 62 When a state has used cluster munitions in the jurisdiction of another state, the using state is strongly encouraged to inform the receiving state as to the characteristics of the cluster munitions used and the areas of their deployment, as well a to provide other methods of assistance. 63 As with the mandatory destruction period for cluster munitions, state parties may request an extension of the time during which they are required to perform cluster munitions clearance activities 64 ; similarly, there are articulated factors for 59 Id. art. 3 (4). 60 See generally id. art CONVENTION ON CLUSTER MUNITIONS art Id. art. 4(4). 63 Id. 64 Id. art. 4(5). 15

17 such requests in the Cluster Munitions Convention, however the decision-making process is equally vague. 65 In terms of progress updates, each state party is required to provide the U.N. Secretary General with periodic updates and reports on its cluster munitions destruction and clearance activities. 66 While directly related to the terms of the Cluster Munitions Convention, it is possible that some of these disclosures could pose a risk to the military and national security of the reporting state party. Thus, the intent and terms of the military components of the Cluster Munitions Convention are at once restrictive and vague. They are restrictive in the overall ban of cluster munitions, their use for future technological research, and the ability of a state party to be involved in a peacekeeping or joint military operation that contemplates the use of or uses cluster munitions. They are vague in that details surrounding key concepts, timing requirements and extension grants are undefined and poorly articulated. B. Other Relevant International Conventions Multilateral conventions regarding the conduct of warfare and the treatment of civilians are not new to international law. The purposes of these conventions were and have been the protection of civilians and military forces during combat. Early examples of such agreements include the 1868 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight 67 and the 1907 Declaration 65 Id. art. 4(6). 66 Id. art See DECLARATION RENOUNCING THE USE, IN TIME OF WAR, OF EXPLOSIVE PROJECTILES UNDER 400 GRAMMES WEIGHT. Saint Petersburg, 29 November/ 11 December

18 Prohibiting the Discharge of Projectiles and Explosives from Balloons. 68 These agreements soon became outdated as the terms and technology of warfare shifted during the Twentieth Century. Applicable modern military conventions are discussed below. 1. The CCW The CCW was enacted by the international community in 1980, with several protocols amplifying its provisions to follow. 69 The CCW seeks to provide civilians with protections during wartime that are different from the Geneva Convention protections in that they relate to the conduct of military activities on a tactical level. 70 The Preamble to the CCW states that state parties understand the principle that prohibits the employment in armed conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 71 While this is itself a somewhat statement, in the opinion of the author it is far more precise than the concept of unacceptable harm to civilians because it recognizes the realities of civilian and military life under wartime conditions. Although the main body of the CCW is essentially a procedural mechanism, it contains several key points that differ from the Cluster Munitions Convention. First, state 68 See DECLARATION PROHIBITING THE DISCHARGE OF PROJECTILES AND EXPLOSIVES FROM BALLOONS. The Hague, 18 October See CONVENTION ON CERTAIN CONVENTIONAL WEAPONS, DISARMAMENT, UNITED NATIONS OFFICE AT GENEVA, available at (last visited Jul. 7, 2008). 70 See generally 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 Preamble. 71 Id. para 3. 17

19 parties are free to withdraw from the CCW on one year s notice. 72 The CCW does state that, where a State Party withdraws from the CCW and is engaged in a conflict covered by the CCW s terms, it is still bound by the terms of the CCW; however, state parties are only bound to the protocols they have signed onto and, as discussed below, no protocol has been signed by every signatory to the CCW itself. 73 Overall, the CCW shares the same basic goals as the Cluster Munitions Convention vis a vis civilian protections during wartime. 74 There are currently one hundred and five state parties that have acceded to the CCW, seventy-two of which have adopted the Cluster Munitions Convention. 75 Six states have signed the CCW but have not acceded to it, three of which have adopted the Cluster Munitions Convention. 76 There are thirty-seven U.N. member states that have not signed the CCW but have adopted the Cluster Munitions 72 Id. art Id. 74 See generally 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. 75 See STATES PARTIES, CONVENTION ON CERTAIN CONVENTIONAL WEAPONS, DISARMAMENT, UNITED NATIONS OFFICE AT GENEVA, available at ee nsf/(httpPages)/3ce7cfc0aa4a7548c12571c00039cb0c?OpenDo cument&expandsection=1#_section1 (last visited Jul. 7, 2008); 111 COUNTRIES ON BOARD, THE TREATY, CLUSTER MUNITION COALITION, available at (last visited Jul. 7, 2008). Specifically, these states are: Albania, Argentina, Australia, Austria, Belgium, Benin, Bolivia, Bosnia and Herzegovina, Bulgaria, Burkina Faso, Cambodia, Cameroon, Canada, the Czech Republic, Denmark, Ecuador, El Salvador, Estonia, Finland, France, Germany, Guatemala, the Holy See, Honduras, Hungary, Ireland, Italy, Japan, the Lao People s Democratic Republic, Lesotho, Liberia, Lithuania, Luxembourg, Madagascar, Mali, Malta, Mexico, Moldova, Montenegro, Morocco, the Netherlands, New Zealand, Nicaragua, Niger, Norway, Panama, Paraguay, Peru, the Philippines, Portugal, Senegal, Serbia, Seychelles, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Togo, Uganda, the United Kingdom, Uruguay, and Venezuela. Id. 76 SIGNATORIES TO THE CCW, CONVENTION ON CERTAIN CONVENTIONAL WEAPONS, DISARMAMENT, UNITED NATIONS OFFICE AT GENEVA, available at ee nsf/(httpPages)/3ce7cfc0aa4a7548c12571c00039cb0c?OpenDo cument&expandsection=2%2c1#_section2 (last visited Jul. 7, 2008); 111 COUNTRIES ON BOARD, THE TREATY, CLUSTER MUNITION COALITION, available at (last visited Jul. 7, 2008). The states among this group that have adopted the Cluster Munitions Convention are: Iceland, Nigeria, and the Sudan. Id. 18

20 Convention. 77 Thus, there is widespread international support for the CCW as a military tool. In addition to the protocols to the CCW, Article 1 of the CCW was amended in 2004 to incorporate additional aspects of the Geneva Conventions into the definition of conflicts covered by the CCW and to specify that the CCW generally applies to domestic conflicts within state parties. 78 The Protocol on Non-Detectable Fragments more commonly known as Protocol I to the CCW states that: It is prohibited to use any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays. 79 Protocol II the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices was enacted in 1980 and subsequently amended in As amended, Protocol II relates to the use on land of the mines, booby-traps and other devices... including mines used to interdict beaches, waterway crossings or river crossings, but does not apply to the use of anti-ship mines at sea or in inland 77 STATES NOT PARTIES, CONVENTION ON CERTAIN CONVENTIONAL WEAPONS, DISARMAMENT, UNITED NATIONS OFFICE AT GENEVA, available at ee nsf/(httpPages)/3ce7cfc0aa4a7548c12571c00039cb0c?OpenDo cument&expandsection=3%2c2%2c1#_section3 (last visited Jul. 7, 2008); 111 COUNTRIES ON BOARD, THE TREATY, CLUSTER MUNITION COALITION, available at (last visited Jul. 7, 2008).These states are: Angola, Bahrain, Belize, Botswana, Brunei Darussalam, Burundi, Chad, Comoros, Congo, the Cote D Ivoire, the Democratic Republic of the Congo, Fiji, Ghana, Guinea, Guinea-Bissau, Indonesia, Jamaica, Kenya, Kyrgyzstan, Lebanon, Malawi, Malaysia, the Marshall Islands, Mauritania, Mozambique, Nepal, Palau, Papua New Guinea, Qatar, Samoa, San Marino, Sao Tome and Principe, Swaziland, Timor-Leste, the United Republic of Tanzania, Vanuatu, and Zambia. Id. 78 See CONVENTION ON CERTAIN CONVENTIONAL WEAPONS, DISARMAMENT, UNITED NATIONS OFFICE AT GENEVA, available at (last visited Jul. 7, 2008). 79 See PROTOCOL ON NON-DETECTABLE FRAGMENTS. 80 See CONVENTION ON CERTAIN CONVENTIONAL WEAPONS, DISARMAMENT, UNITED NATIONS OFFICE AT GENEVA, available at (last visited Jul. 7, 2008). 19

21 waterways. 81 Protocol II is binding on state parties in the conduct of their international and domestic military campaigns, except in regard to quelling riots and maintaining security within a state. 82 Protocol II encompasses several forms of mines, including remotely-delivered mines. 83 Defined as a mine not directly emplaced but delivered by artillery, missile, rocket, mortar, or similar means, or dropped from an aircraft, 84 remotely-delivered mines are governed by Article 6 of Protocol II. 85 Article 6 prohibits the use of anti-personnel mines unless they confirm with certain self-destruction and selfdeactivation mechanism requirements. 86 It further prohibits the use of other remotelydelivered mines without self-destruction and self-deactivation mechanisms unless the use of such remotely-delivered mines is not feasible. 87 Article 6 also features an advance warning system requirement for the use of remotely-delivered mines that may affect the civilian population, unless circumstances do not permit. 88 Thus, Protocol II, as amended in 1996, provides protections that require the responsible use of remotely-delivered mines. 89 Protocol II also features a detailed section on prohibited and acceptable transfers of weaponry by and between state parties. 90 The acceptance of these provisions by the eighty-nine signatory states to the amended Protocol II indicates that there is international support for transfer restrictions on some weapons which are in line with certain provisions of the Kimberly Process Certification Scheme discussed in Part III.C. below. 81 PROTOCOL ON PROHIBITIONS OR RESTRICTIONS ON THE USE OF MINES, BOOBY-TRAPS AND OTHER DEVICES art. 1 (1). 82 Id. (4) 83 See id. art. 2 (2). 84 Id. 85 Id. art Id. art. 6 (2). 87 PROTOCOL ON PROHIBITIONS OR RESTRICTIONS ON THE USE OF MINES, BOOBY-TRAPS AND OTHER DEVICES art. 6(3). 88 Id. art. 6(4) 89 See generally id. 90 Id. art

22 Amended Protocol II also features extensive provisions governing reporting the use of covered weapons post-conflict unless such reporting poses a security threat 91 demining requirements, 92 and the provision of technological and other assistance to states in which covered weapons have been deployed. 93 Of the eighty-nine states that have acceded to the amended Protocol II, sixty-one have adopted the Cluster Munitions Convention. 94 Again, this demonstrates the state of acceptance of amended Protocol II as an international military guide. Protocol III of the CCW was also enacted in 1980 and is formally known as the Protocol on Prohibition or Restrictions on the Use of Incendiary Weapons. 95 Protocol IV the Protocol on Blinding Laser Weapons was adopted in Finally, Protocol V the Protocol on Explosive Remnants of War was adopted in Protocol V is of vital importance for the issue of cluster munitions use and control because, under its terms, cluster munitions would be covered as explosive remnants of war ( ERW ), 98 both 91 Id. art Id. art PROTOCOL ON PROHIBITIONS OR RESTRICTIONS ON THE USE OF MINES, BOOBY-TRAPS AND OTHER DEVICES art STATES PARTIES, CONVENTION ON CERTAIN CONVENTIONAL WEAPONS, DISARMAMENT, UNITED NATIONS OFFICE AT GENEVA, available at ee nsf/(httpPages)/3ce7cfc0aa4a7548c12571c00039cb0c?OpenDo cument&expandsection=1#_section1 (last visited Jul. 7, 2008); 111 COUNTRIES ON BOARD, THE TREATY, CLUSTER MUNITION COALITION, available at (last visited Jul. 7, 2008). These states are: Albania, Argentina, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Burkina Faso, Cambodia, Cameroon, Canada, Chile, Costa Rica, Croatia, the Czech Republic, Denmark, Ecuador, El Salvador, Estonia, Finland, France, Germany, Guatemala, the Holy See, Honduras, Hungary, Ireland, Italy, Japan, Liberia, Lithuania, Luxembourg, Madagascar, Mali, Malta, Moldova, Morocco, the Netherlands, New Zealand, Nicaragua, Niger, Norway, Panama, Paraguay, Peru, the Philippines, Portugal, Senegal, Seychelles, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Togo, the United Kingdom, Uruguay and Venezuela. Id. 95 See PROTOCOL ON PROHIBITION OR RESTRICTIONS ON THE USE OF INCENDIARY WEAPONS. 96 See PROTOCOL ON BLINDING LASER WEAPONS. 97 See PROTOCOL ON EXPLOSIVE REMNANTS OF WAR. 98 Id. art 2 (4). 21

23 as explosive ordinances 99 and unexploded ordinances. 100 Protocol V requires that state parties with ERWs located within their jurisdiction 101 provide information and support to states in which they have deployed munitions which are ERWs, 102 mark the location of ERWs for the benefit of the local population, 103 and record and report information on the use and location of ERWs. 104 Of the forty-three states that have currently acceded to Protocol V, thirty-six have also adopted the Cluster Munitions Convention Chemical and Biological Weapons Conventions Biological weapons have been the subject of regulation by the international community since The most recent international agreement regarding curtailing the use of biological weapons was created in 1972 and is known as the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction ( Biological Weapons 99 Id. art. 2(1). 100 Id. art. 2(2). 101 Id. art Id. 103 PROTOCOL ON EXPLOSIVE REMNANTS OF WAR art. 3; see also id. art Id. art STATES PARTIES, CONVENTION ON CERTAIN CONVENTIONAL WEAPONS, DISARMAMENT, UNITED NATIONS OFFICE AT GENEVA, available at ee nsf/(httpPages)/3ce7cfc0aa4a7548c12571c00039cb0c?OpenDo cument&expandsection=1#_section1 (last visited Jul. 7, 2008); 111 COUNTRIES ON BOARD, THE TREATY, CLUSTER MUNITION COALITION, available at (last visited Jul. 7, 2008). These states are: Albania, Australia, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Denmark, El Salvador, Estonia, Finland, France, Germany, Guatemala, the Holy See, Hungary, Ireland, Liberia, Lithuania, Luxembourg, Madagascar, Malta, Moldova, the Netherlands, New Zealand, Nicaragua, Norway, Portugal, Sierra Leone, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, and Uruguay. Id. 106 See PROTOCOL FOR THE PROHIBITION OF THE USE IN WAR OF ASPHYXIATING, POISONOUS OR OTHER GASES, AND OF BACTERIOLOGICAL METHODS OF WARFARE. 22

24 Convention ). 107 The Biological Weapons Convention has not been amended, although the various meetings of experts and state party representatives have agreed to expand the terms and protections of the Biological Weapons Convention beyond its original text by interpretation. 108 No part of the CCW attempts to regulate or enter into the field of prohibiting or regulating biological weapons, as these are not regarded as conventional forms of weapons within the scope of the CCW. 109 Likewise, chemical weapons are governed by the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction ( Chemical Weapons Convention ). 110 The Chemical Weapons Convention, which is administered through the Organisation for the Prohibition of Chemical Weapons, 111 again operates outside of the CCW framework because chemical weapons are not traditionally classified as conventional weapons. 112 The Chemical Weapons Convention traces its history to the same 1925 convention as the Biological Weapons Convention does; the 1925 convention did not address conventional weapons at all See THE BIOLOGICAL WEAPONS CONVENTION, DISARMAMENT, UNITED NATIONS OFFICE AT GENEVA, available at ocument (last visited Jul. 7, 2008). 108 See BIOLOGICAL WEAPONS CONVENTION, BACKGROUND INFORMATION, THE BIOLOGICAL WEAPONS CONVENTION, DISARMAMENT, UNITED NATIONS OFFICE AT GENEVA, available at cument (last visited Jul. 7, 2008). 109 See generally 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. 110 See CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION, STOCKPILING AND USE OF CHEMICAL WEAPONS AND ON THEIR DESTRUCTION. 111 See ABOUT OPCW, ORGANISATION FOR THE PROHIBITION OF CHEMICAL WEAPONS, available at (last visited Jul. 7, 2008). 112 See id. 113 See CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION, STOCKPILING AND USE OF CHEMICAL WEAPONS AND ON THEIR DESTRUCTION PREAMBLE PARAS 3, 4. The 1925 convention was formally known as the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Id. 23

25 Both the Chemical Weapons Convention and the Biological Weapons Convention state that they regulate entities that are of their nature different aspects of warfare and weaponry because of their duality of military and civilian uses. 114 This duality permeates both conventions, especially the Chemical Weapons Conventions, and separates chemical and biological weapons from weapons such as cluster munitions. 115 Interestingly, the Chemical Weapons Convention contains extensive provisions regarding the transportation, production and transfer of licit and illicit chemicals. 116 This is insightful because these provisions share many of the same ideas and goals as those contained in the Kimberley Process, providing some precedence for the idea of such regulations. In another Kimberley Process-esque area, the Chemical Weapons Convention places much of the onus for implementing its terms squarely on signatory states and provides set procedures for signatory states to follow when carrying out these requirements. 117 Reference to the Chemical Weapons Convention and the Biological Weapons Convention has been made in order to illustrate the kinds of weapons that the CCW does not and was not intended to cover. This is important to bear in mind when discussing the Cluster Munitions Conventions because, in contrast, Protocol V of the CCW does already address cluster munitions. Thus, there is no reason to go outside the extant framework of the CCW and its governing structure in order to address specific issues involving cluster munitions. 114 Id.; CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION AND STOCKPILING OF BACTERIOLOGICAL (BIOLOGICAL) AND TOXIN WEAPONS AND ON THEIR DESTRUCTION. 115 See id. 116 See generally CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION, STOCKPILING AND USE OF CHEMICAL WEAPONS AND ON THEIR DESTRUCTION. 117 Id. art. VII. 24