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  • 标题:On the chopping block: cluster munitions and the law of war - unexploded submunitions from cluster bombs
  • 作者:Thomas J. Herthel
  • 期刊名称:Air Force Law Review
  • 印刷版ISSN:0094-8381
  • 电子版ISSN:1554-981X
  • 出版年度:2001
  • 卷号:Spring 2001
  • 出版社:U.S. Air Force. Judge Advocate General School

On the chopping block: cluster munitions and the law of war - unexploded submunitions from cluster bombs

Thomas J. Herthel

MAJOR THOMAS J. HERTHEL *

I. INTRODUCTION:

"Well, we did not build those bombers to carry crushed rose pedals." (1)

General Thomas S. Power

Later this year, delegates to the 2001 Review Conference of the United Nations (UN) Convention on Certain Conventional Weapons (2) (Conventional Weapons Treaty) will meet in Geneva to consider, among other issues, a proposal by the International Committee of the Red Cross (ICRC) to amend the Conventional Weapons Treaty and regulate "remnants of war." (3) The proposed Protocol attempts to address some of the problems caused by unexploded munitions, including unexploded submunitions from cluster bombs. (4)

Until recently, the international community focused primarily on the issue of anti-personnel landmines--desiring to ban their use in armed conflict. (5) Images of injured woman and children, the result of unintended landmine detonations, took center stage and attracted many notable celebrities to the cause, including Princess Diana. (6) The ICRC's efforts, along with those of hundreds of non-governmental organizations (NGOs), culminated in 1997 in Ottawa, Canada, when much of the international community affirmatively banned the use of anti-personnel landmines. (7)

With the battle to outlaw landmines under control, many anti-landmine advocates have turned their focus on another "remnant of war," unexploded cluster munitions delivered by cluster bombs. (8) Described as a "close relative" of the landmine, (9) critics of cluster munitions allege they are indiscriminate and cause superfluous injury. (10) Many NGOs are in this camp that criticize cluster munitions. They claim the North Atlantic Treaty Organization's (NATO) recent air campaign over the former Yugoslavia illustrates the need for a ban, or at least regulation, of the use of cluster munitions. (11) During that conflict, NATO forces dropped an estimated 1,600 cluster bombs, each containing between 147 and 202 submunitions, on targets in Serbia and Kosovo. (12) Despite these, and other recent criticisms, many governments, including those of the United States and Britain, view cluster munitions as both militarily important and lawful when properly employed. (13)

This article examines whether the use of cluster munitions, when properly employed, violates international law. More specifically, it considers the legal basis for regulating anti-personnel weapons, reviews their legality under current treaty law, and specifically examines whether cluster munitions are per se indiscriminate or cause unnecessary suffering and superfluous injury. Part II defines cluster munitions and looks at their developmental history from World War I to present. (14) Part III examines the development of international law, as it pertains to both landmines and cluster munitions. Finally, Part IV evaluates the various arguments regarding cluster munition use and examines their legality under current international law.

II. CLUSTER MUNITIONS

Cluster munitions are not, by definition, landmines. (15) Nonetheless, those who advocate their ban often rely on the similarities in effect between landmines and cluster munitions to justify their position. (16) Specifically, some argue that undetonated cluster munitions, like landmines, can hide themselves in the terrain and lay dormant until disturbed. (17) In reality, however, properly working cluster munitions are far more akin to traditional air-dropped munitions as both are designed to explode at or near impact. (18) Nonetheless, cluster submunitions, like other ordinance, can and do malfunction and fail to detonate as planned. (19) Until detonated or removed, these submunitions, like other unexploded ordnance, pose a danger to anyone who enters the immediate area. (20) Cluster munition critics argue that, because unexploded munitions are similar in nature to landmines, regulation in the same manner is appropriate. (21) One must understand both the development and use of landmines and cluster munitions to fully appreciate the error in this analogy.

A. Landmines

By definition, an anti-personnel mine is a "mine primarily designed to be exploded by the presence, proximity, or contact of a person and that will incapacitate, injure or kill one or more persons." (22) Usually, anti-personnel mines are hand-placed and typically require a degree of pressure applied to the mine's trigger for detonation. (23)

Although the use of rudimentary landmines on the battlefield dates back to as early as 1191, when Richard I used them in his attack on French fortifications during the baffle of Acre, (24) landmines, as we know them today, trace their genesis to World War I, where they were employed to counter early battletanks. (25) The need for landmines arose when it became apparent that "tanks were virtually immune to small-arms fire and could traverse contested land between entrenched armies while providing cover for advancing infantry troops." (26) Militaries responded to the armor threat by developing high explosive anti-tank mines. (27) The large anti-tank mines, however, were easily spotted and could be removed by enemy personnel. The need for antipersonnel mines to protect the larger anti-tank mines became obvious to military planners. (28) Thus were born the first modern anti-personal landmines.

B. Cluster Munitions

Cluster munitions, in contrast to landmines (which are designed to lay dormant until disturbed), are "a group of smaller bombs which are dropped together" from aircraft, (29) and they are designed to explode at or near impact. Cluster munitions, also known as Cluster Bomb Units or "CBUs" (30) in the U.S. military, resemble, in size and weight, other unguided bombs. (31) Cluster bombs are made up of three main components: (1) a dispenser, often called a tactical munitions dispenser (TMD); (2) fuzes to control the weapon; and (3) submunitions, sometimes called bomblets (32) or "bombies." (33) "Once released, CBUs fall for a specified amount of time or distance before their dispensers open, allowing the submunitions to effectively cover a wide area target." (34)

An internal fuse tells each submunition when to detonate--either "above ground, at impact, or in a delayed mode." (35) Submunitions generally have an anti-tank, anti-material, or anti-personnel function. (36) While older variants contained only one type of submunition, new generation cluster bombs, called Combined Effects Munitions, engage an enemy in a variety of ways. (37) For example, the US Air Force's BLU 97/B Combined Effects Bomb combines "anti-armor, incendiary, and fragmentation effects, making it 'effective' against light armor and personnel." (38) To illustrate why cluster munitions are militarily significant, it is important to understand their history and development.

While landmine warfare against opposing armies began in the twelfth-century, the British designed cluster munitions during World War I for the purpose of incendiary attacks against the Germans. (39) By World War II, the United States and other nations were using cluster bombs that delivered fragmentation, chemical, and incendiary payloads. (40) Dubbed "wicked little weapons," by Brigadier General George C. Kenney, (41) the military extensively employed incendiary cluster munitions (mostly napalm) during bombing runs on Tokyo. (42) At the time, however, military planners did not consider cluster munitions very successful due to restrictive delivery devices and an inability to control submunition disbursement patterns. (43)

Following World War II and the conflict in Korea, the United States Navy undertook to develop more accurate cluster munitions by utilizing a newly conceived munitions dispenser. (44) The new dispenser, which began development in July 1959, ( was known as the "Eye-series." (46) Among the most successful in the series was the MK 20 Rockeye. The ordnance, complete with Mk 7 dispenser, Mk 339 time delay fuze, and 247 M118 anti-tank submunitions, (47) disbursed and scattered submunitions in an elongated, doughnut-shaped pattern whose size [was] controlled by the release height of the bomblets." (48) The Navy successfully completed the project by the mid-1960s. The Air Force also adopted it. (49)

By this time, the United States was deeply involved in the war in Vietnam (50) where use of cluster munitions proved particularly attractive. In Vietnam, US aircrews were especially susceptible to attack by anti-aircraft artillery (AAA), as well as the newly employed, Russian designed, surface-to-air missiles (SAM). (51) Because of the AAA and SAM threat, aircrews found it difficult to engage and neutralize the Vietnamese air defenses from altitudes that allowed using single bombs accurately and effectively. (52) Cluster munitions provided the solution; used as a flak-suppression weapon, they could deliver literally hundreds of bomblets with a singe pass, thereby eliminating the need for aircrews to fly at lower altitudes or over the same target more than a single time. (53)

By the mid-1960s, cluster bomb technology had come a long way. According to Eric Prokoseli, an expert on anti-personnel weapons, "[t]here were three main areas of innovation: techniques for enhanced fragmentation and other refinements in design of small high explosive munitions; techniques to disseminate submunitions from aircraft-carried cluster bombs; and the adaptation of cluster technologies to other weapon platforms." (54) Essentially, enhanced fragmentation meant that planners could design cluster munitions to break into smaller, more controlled, and more lethal bomblets. (55) Better dispensers and the addition of fixed and folded tail fins ensured that the submunitions more accurately hit their targets. (56) Additionally, during the Vietnam War, the military developed new weapons platforms to deliver cluster bombs (57) including artillery, (58) naval guns, (59) and surface-to-surface missiles (SSMs). (60) Advances in cluster technology also led to other innovations, such as the ability to employ landmi nes (as opposed to cluster bombs) by both Aircraft (61) and artillery. (62) By the conclusion of the conflict in Southeast Asia, cluster munitions came in many varieties, were disseminated from various types of dispensers, and could be used to attack a wide range of targets -- including personnel. (63)

Proliferation of cluster bomb technology was incremental following the conflict in Vietnam. (64) By 1978, only the United States, Britain, France, and Germany produced or developed cluster munitions. (65) However, by 1994, at least fourteen countries were producing or using cluster bombs. (66) By 1996, that number had increased by at least another ten. (67) This recent growth reflects cluster munitions' effectiveness on the modern battlefield. As production increased, so too did cluster bomb usage. (68) To date, cluster munitions have been used in at least fourteen armed conflicts around the world, (69) but Operations Desert Storm and Allied Force represent two of the more recent and extensive uses of cluster munitions, and the campaign to ban or regulate cluster munitions began to develop momentum in light of their use during Operations Desert Storm and Allied Force. Specifically, anti-cluster bomb advocates claim that cluster munitions violate the law of war because they are indiscriminate, cause unnecessary suffering and superfluous injury, or both. (70)

1. Operation Desert Storm

The 1991 Persian Gulf War saw the most extensive use of cluster munitions in history. (71) Of the approximately 250,000 bombs coalition forces dropped on Iraq and Kuwait, more than 61,000 were cluster bombs. (72) According to the statistics, the Air Forces' weapons of choice were the CBU-52B, CBU-58B, CBU-71A/B, and the CBU-87 (CEM)--all cluster munitions. (73) In all, the coalition extensively used cluster bombs in attacks on Iraqi radars, SAM sites, communications and transportation infrastructure, as well as dispersed armor, artillery and personnel carriers. (74) Like in Vietnam, however, the most significant problem noted with cluster bombs was a high dud rate. (75) During Operation Desert Storm, at least twenty-five US military personnel were killed by improperly handling submunitions fired by [coalition] forces." (76) In addition, unexploded submunitions delayed the Marines from their capture of the Kuwait City Airport. (77)

2. Operation Allied Force

Humanitarian groups paid significant attention to allied cluster munitions use during Allied Force, despite its being rather limited compared to Operation Desert Storm. (78) Like in the Gulf War, US pilots dropped CBU-87 Combined Effect Munitions, while the British Royal Air Force relied on RBL-755 cluster bombs. (79) Combined, NATO forces dropped 1632 (80) cluster bombs on Kosovo and Serbia. Fewer than 50 of these were the US military's newer Joint Stand Off Weapon (JSOW) (81) and Tomahawk Land Attack Cruise Missiles (TLAM-C). (82) The Air Force's newest cluster munitions, the CBU-97 Sensor Fuzed Weapon, was not deployed during Operation Allied Force. (83)

Pentagon officials first acknowledged NATO's use of cluster munitions less than a month later following comments made by Senator Patrick Leahy on the Senate floor concerning possible aerial mining by NATO forces. (84) Later, on May 8, 1999, NATO came under fire when at least two cluster bombs missed their targets and "landed in two residential areas of Nis in Serbia, around the market place near the center of town and near a hospital several blocks away." (85) Collateral damage was significant; the error killed fourteen civilians and injured another thirty. (86) At the time of the mishap, NATO's targets were Serbian air defense systems and aircraft located at the Nis airfield. (87)

Because of the collateral damage at Nis, President Clinton issued a directive temporarily prohibiting the use of cluster munitions until a complete reevaluation of procedures. (88) Military leaders were quick to point out that the cluster munition use is "totally within the law of armed conflict, and [that] it's legal in the international community to use that weapon." (89) Although the US military's eventually resumed use of cluster bombs, the aerial engagement ended on June 10, 1999. (90) Nonetheless, cluster munitions critics alleged potential violations of the law of armed conflict and began calling for an end to their use. (91) Before examining claims that cluster munitions violate the law of war because they are indiscriminate, cause unnecessary suffering and superfluous injury, or both, it is important to have an understanding of the laws governing armed conflict, and more specifically, antipersonnel weapons.

III. TILE LAW OF ARMED CONFLICT

If international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law. (92)

Professor H. Lauterpacht

International law is generally far more complex than domestic law. (93) Unlike in a sovereign state like the United States, where Congress makes the laws and the President executes them, there are no international political bodies with the ability to unilaterally create and enforce legal norms. (94) Rather, international law primarily derives from nations waiving sovereignty, in part, and agreeing to abide by a set of international rules. (95) As such, "the sources of international law cannot be equivalent to those in most domestic laws." (96) There are two primary sources of international law--treaties and customary law. (97)

Treaties, by definition, are formal written agreements between sovereign states. (98) According to one international legal scholar, "international agreements are thought to be legally binding because they have been concluded by sovereign states consenting to be bound." (99) While treaties make up much of the law of armed conflict today, they have not fully supplanted the customary practices of nations and are not the only source of law in this area. (100)

The second primary source of international law, with respect to armed conflict, is customary international law. (101) Like treaties, international law recognizes custom as a source of law regarding armed conflict. (102) The International Military Tribunal at Nuremberg succinctly captured this point:

The law of war is to be found not only in treaties, but also in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists, and practiced by military courts. This law is not static, but by continual adaptation follows the need of a changing world. (103)

The theory behind customary international law is that "states in and by their international practice may implicitly consent to the creation and application of international legal rules." (104) Customary international law, however, is not based solely on the historical practices of nations, as there is a "psychological" element as well. (105) According to the Restatement (Third) of the Foreign Relations Law of the United States, customary international law is developed by state practice only when done out of a "sense of legal obligation." (106) As such, for customary international law to be binding, states must act not only in a consistent manner, but also out of a sense of legal duty. (107) Hence, in examining the laws of war as they pertain to cluster munitions, one must recognize that it is not merely state practice that, in addition to treaties, dictates acceptable norms in international law, but only those state practices followed from a sense of legal obligation.

Today, the law of war, including its historical development and current practice, is solidly established in treaties and customary international law. While a certain amount of brutality is inevitable in all armed conflicts, the idea of regulating the methods of conducting warfare, in an effort to minimize human suffering, has existed for centuries. (108) Clear evidence exists that philosophers, as well as military, political, and religious leaders sought to "alleviate the sufferings of war." (109) These principles guide modern nations today and provide the framework for codification of the law of war. (110)

The first modern international attempt to codify the laws of war occurred with the first Geneva Convention in 1864, following the horrific Battle of Solferino, in northern Italy, in 1849. (111) In 1864, Switzerland, along with eleven other nations, signed the Geneva Red Cross Convention, designed to protect medical personnel on the battlefield. (112) Since that time, the nations of the world have repeatedly attempted to codify the laws of armed conflict. (113)

One of the first, and still a significant attempt was the St. Petersburg Declaration of 1868. (114) Described as "the cornerstone of the laws of war," (115) the St. Petersburg Declaration of 1868 was the first successful attempt to regulate modern weaponry. (116) While the purpose of the Declaration was to renounce the use of exploding bullets weighing less than 400 grams, the Declaration also made broad statements about how nations should conduct warfare. (117) In its Preamble, three important concepts emerged: the principles of military objective, distinction and humanity: (118)

[T]he only legitimate object which states should endeavor to accomplish during war is to weaken the military force of the enemy ... for this purpose, it is sufficient to disable the greatest possible number of men ... this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable ... the employment of such arms would, therefore, be contrary to the laws of humanity.... (119)

While the international community still recognizes its prohibition against expanding bullets, the Declaration is now more of historical than practical significance. (120) Its rationale is important because it serves as the guiding principles for the modern law of armed conflict. (121)

In practical effect, the current law of armed conflict is found primarily in the Hague Conventions of 1907, (122) the Geneva Conventions of 1949 (123) and its 1977 Protocols (124) and the Conventional Weapons Treaty of 1980 (125) along with its Protocols. (126) The Geneva Conventions and its Protocols generally focus on protecting victims and other noncombatants in war, such as the wounded and sick, (127) the shipwrecked, (128) prisoners of war, (129) and civilians. (130) While the United States has ratified neither of the 1977 Protocols to the Geneva Convention, it generally considers Protocol I reflective of customary international law. (131) On the other hand, the Hague Conventions, along with the Conventional Weapons Treaty, regulate the means and methods of warfare; they focus on the weapons of war and their employment. (132)

The totality of treaty and customary international law produces four basic principles to guide military planners--military necessity, distinction, proportionality, and humanity (133) Military necessity holds that armies should not attack targets unless they gain a military advantage by doing so, and even then, they may attack only military objectives. (134) Next, the principle of distinction states that states should wage wars "against the enemy's military forces, not its civilian population." (135) The principle of proportionality recognizes that there will be civilian casualties and destruction of civilian property during armed conflict, but calls upon military planners to balance the needs of the military against likely collateral damage, and to proceed to attack only when the military necessity outweighs likely collateral damage. (136) Finally, the principle of humanity dictates that military planners should minimize unnecessary suffering. (137) If a means or method of warfare is not outlawed it is legal. Accordingly, in analyzing the legality of cluster munitions, these four principles govern exclusively, absent any more restrictive international agreements. In other words, as there are no existing treaties restricting the use of cluster munitions, their use must violate one or more of these four guiding principles to be unlawful under the current international legal regime.

IV. LAW AND ANALYSIS

Cluster munitions critics raise several issues and concerns. Their arguments, however, can be broken down into three distinct propositions. (138) First, at least one nation has affirmatively stated that the use of cluster bombs is a per se violation of current international law. (139) A second group of critics argues that the weapons are illegal because they are inhumane; in other words, they cause unnecessary suffering and superfluous injury. (140) Finally, the argument most often expressed by critics is that cluster munitions are illegal because they are indiscriminate. (141) This last argument has two prongs: (1) cluster munitions are indiscriminate because they cannot be accurately employed; (142) and (2) cluster bombs are indiscriminate because many of their bomblets do not detonate as designed, creating fields of duds, incapable of distinguishing between combatants and noncombatants. (143) The delegates to the 2001 Conventional Weapons Review Conference, scheduled to take place later this year, may rais e these arguments. (144) The 2001 Conference, however, will not be the first time the international community addressed the issue of cluster munitions. (145) In the past, States have considered whether to impose restrictions on cluster bomb usage and opted against imposing such restrictions. (146) Accordingly, neither treaty nor customary international law limits how states might employ cluster munitions during future armed conflict.

1. Treaty Law: Landmines and Cluster Munitions Are the Use of Cluster Munitions in Violation of Existing International Treaties or Agreements?

a. Previous Regulation Attempts: Lucerne & Lugano

As the United States was embroiled in war in Southeast Asia, the International Committee for the Red Cross Conference of Government Experts on Weapons that May Cause Unnecessary Suffering or May Have Indiscriminate Effects (Lucerne Conference) met in 1974 to consider possible bans or restrictions on certain antipersonnel weapons. (147) Sweden, along with six other countries concerned about many of the antipersonnel weapons used by the United States in Vietnam, initiated the conference that eventually led to the formulation of the Conventional Weapons Treaty several years later. (148) Among the weapons examined were "cluster warheads with bomblets which act through the ejection of a great number of small calibered fragments or pellets ...." (149) In addition to cluster munitions, delegates to the Conference explored possible bans on incendiary weapons, delayed-action weapons, (150) small-caliber projectiles, (151) weapons producing flechettes, (152) and fuel-air explosives. (153)

At Lucerne, as is the case today, proponents of a ban on cluster munitions alleged that "the weapons under consideration had a wide area coverage and, hence, could easily affect combatants and civilians without discrimination; they also caused unnecessary suffering." (154) Critics of cluster munitions claimed the weapons caused unnecessary suffering by inflicting multiple wounds. (155) On the other hand, other experts believed cluster munitions were "an improvement from the humanitarian point of view over weapons with random fragmentation." (156) The conference ended with no resolution on this issue of cluster munitions and did not, in any way, outlaw or regulate their use. (157)

The debate over cluster munitions continued two years later in Lugano, Italy, at the second International Committee for the Red Cross Conference of Government Experts on Weapons that May Cause Unnecessary Suffering or May Have Indiscriminate Effects (Lugano Conference). (158) Like at Lucerne, little agreement existed on the issue. (159) Further, to gain some common ground, the delegates agreed to exclude combined effects munitions from debate altogether. (160) While discussions of the alleged indiscriminate effects of cluster munitions occurred, the focus of the conference, with regard to cluster bombs, centered on the issue of unnecessary suffering. (161) Experts opposed to cluster munition regulation waged a three-pronged attack. (162) First, they pointed out that banning cluster munitions would require the military to use more high explosive ordnance to accomplish the same results over a wide area, potentially causing more damage and suffering than typically done by cluster bombs. (163)

Second, they argued that several types of other weapons have fragmentation effects, such as artillery shells, aircraft bombs, landmines, and hand grenades, and that the military needs these types of weapons, including cluster bombs, for defensive operations to cover large areas and for attacking anti-aircraft emplacements. (164) Finally, the experts pointed out that controlled cluster munitions caused less suffering than did random fragmentation weapons. (165) In the end, the Report of the General Working Group did little more than inconclusively restate both propositions:

Such weapons were considered, so it was explained, to cause undue suffering because of the multiplicity of the wounds they might inflict on individuals; they were also considered to lend themselves to uses that could particularly easily be indiscriminate, whether intentionally or inadvertently. By way of counter-argument to the contention about multiple injuries, reference was made to a comprehensive study that had been undertaken of wounds inflicted by fragmentation munitions of the controlled or pre-fragmented type and of the older uncontrolled type. While it appeared true from this study that the former type tended to cause a higher proportion of multiple injuries among casualties, than the latter, higher mortality rates were found among casualties caused by the latter. Though the degree of pain in each case could not be quantified, the comparison thus suggested that, on one criterion, the newer types of fragmentation munition caused less suffering than the older. (166)

While thirteen countries supported an outright ban on the use of antipersonnel cluster munitions, the proposal to outlaw the weapon failed. (167) As one expert noted, "[a]ll weapons could cause extremely serious, excruciating injuries. War by its very nature [is] cruel. The most convincing way for governments to observe their humanitarian obligations therefore [is] to pursue a consistent policy of peace... ." (168)

b. The Conventional Weapons Treaty and the Ottawa Treaty (169)

As with the Lucerne and Lugano Conferences, the Conventional Weapons Treaty (Protocol II) did nothing to limit the use and employment of cluster munitions. (170) While the Lucerne and Lugano Conferences generated momentum to regulate non-detectable fragments, landmines, and incendiary weapons that carried over to the formulation of the 1980 Conventional Weapons Treaty, for the most part, the Treaty ignored cluster munitions. (171)

As stated earlier, the Land Mine Protocol to the Conventional Weapons Treaty regulates the use of landmines and booby-traps. (172) The treaty also regulates, but does not ban, remotely delivered mines, including those deployed using cluster technology. (173) The signatories of the Land Mine Protocol specifically left out cluster bombs from the treaty's scope. (174)

In May 1996, at the first review conference of the Conventional Weapons Treaty, the delegates drafted and approved the Amended Mine Protocol. (175) Like its predecessor, the Amended Mine Protocol excludes cluster bombs from regulation. (176) Unlike the original Land Mine Protocol, however, the Amended Mine Protocol includes a definition for an "anti-personnel mine." (177) According to Article 2(3), "'[a]nti-personnel mine' means a mine primarily designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons" (emphasis added). (178) Cluster bombs are not included, however, since they are designed to be activated not by the target, but rather, by a self-contained fuze. (179) In its advice and consent to the treaty, the United States Senate specifically noted that it is:

this characteristic ... that distinguishes a mine from so-called unexploded ordnance or UXO. UXO is not covered by the Protocol, either the 1980 or the amended version. Unexploded ordinance is a result of a malfunction of a munition; UXO is not "designed" in any sense, and, in particular, is not designed to be detonated by the presence, proximity or contact of [sic] person. Although UXO presents a serious problem that requires concerted attention, it is a problem outside the scope of [the Amended Mine Protocol]. (180)

Similarly, the Ottawa Treaty (181) does not ban or regulate the use of cluster munitions. (182) While the International Committee to Ban Landmines (183) attempted to include cluster munitions by drafting a definition of antipersonnel mine based on its effect, rather than its design, the NGOs' definition was rejected by the Treaty's signatories. (184) Rather, "the government experts . . . defined prohibited weapons by their design, not their effect." (185) Nonetheless, the International Campaign to Ban Landmines compromised their position and supported the current definition, which, like the Land Mine Protocol and the Amended Mine Protocol before it, focuses on how the weapon detonates. (186) According to the ICRC, "[t]he definition of an antipersonnel mine laid down in the Ottawa treaty . . . covers all 'person'-activated mines." (187) There fore, the Ottawa Treaty does not ban or regulate cluster mines. (188)

As accusations flew that NATO was using illegal weapons during Operation Allied Force, the British Defense Minister, Mr. John Spellar, clearly stated that cluster bombs "are not landmines under the international convention . . . ." (189) On June 13, 2000, the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia agreed in its final report. (190) The Committee affirmatively stated "[there is] no specific treaty provision which prohibits or restricts the use of cluster bombs although, of course, cluster bombs must be used in compliance with the general principles applicable to the use of all weapons." (191)

2. Geneva Protocol I and Customary International Law: Do Cluster Munitions Cause Unnecessary Suffering and Superfluous Injury, as Prohibited by the Law of Armed Conflict?

Settled law holds that the means and methods employed by a military force to injure the enemy is not unlimited. (192) According to the 1907 Hague Convention (Hague II), "[i]t is especially forbidden . . . [t]o employ arms, projectiles, or material calculated to cause unnecessary suffering." (193) While earlier versions of the Hague Convention use the term "superfluous injury" in lieu of "unnecessary suffering," the two terms are generally considered synonymous. (194) More recently, Geneva Protocol I reaffirmed this proposition by adopting the language of both Hague Conventions. (195) According to Article 35: "1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering." (196) Neither phrase, however, has been objectively defined. (197)

The very phrase "unnecessary suffering," implicitly recognizes that a degree of legitimate suffering accompanies any armed conflict. (198) In other words, some degree of necessary suffering is lawful and, therefore, a weapon is not unlawful simply because it produces a significant amount of suffering. (199) Rather, one must balance the degree and intensity of suffering against military necessity before a weapon is deemed to cause unnecessary suffering or superfluous injury. (200) Because military necessity is continually changing, there is no formula that is uniformly applicable to resolve this issue. (201) According to one scholar:

[A] balancing test is applied between the force dictated by military necessity to achieve a legitimate objective vis-a-vis injury that may be considered superfluous to the achievement of the stated or intended objective (in other words, whether the suffering caused is out of proportion with the military advantage to be gained.) (202)

As such, necessary suffering is that degree of suffering, not otherwise prohibited by international law, required to accomplish a lawful military outcome. (203) When examining any weapon, one must consider the military necessity of the weapon; how and why the weapon is used. (204) Generally, military necessity is defined as "the necessity for measures which are essential to attain the goals of war ...." (205) One must weigh this factor against the suffering caused by cluster munitions. (206) However, the effects of cluster munitions cannot be looked at in isolation. (207) Rather, one must also consider the effects of other "comparable weapons." (208)

Critics charge that cluster bombs cause unnecessary suffering and/or superfluous injury because they inflict multiple wounds and have a high lethality rate. (209) Cluster bombs, however, are not the only lawful weapons that cause multiple injuries or death to enemy forces. (210) For example, high explosive artillery and mortar rounds, fragmentation grenades, and other air-dropped munitions are no less lethal to the enemy soldier than are cluster munitions. (211) In a recent legal review, one expert noted:

Wounding by more than one projectile is extremely common on the battlefield due to the various lawful fragmentation munitions in use, such as antipersonnel landmines, artillery and mortar fragments, canister rounds, Claymore mines, and hand or rifle grenades, as well as the extensive projection towards an enemy force of automatic and semiautomatic small arms fire. (212)

Each of these lawful weapons possesses the probability of inflicting multiple wounds, including lethal wounds, on an enemy. (213) In fact, arguably, cluster munitions may be more humane than other weapons, as they disperse pre-cast bomblets rather than fragmented shards of melted steel. (214)

Additionally, absent a consensus among nations, as is the case with poisonous gas, it is impossible to objectively define how much suffering constitutes unnecessary suffering. (215) The delegates to Geneva Protocol I recognized this significant issue, stating:

From a strictly medical standpoint it seems impossible at the present stage of medical knowledge to objectively define suffering or to give absolute values permitting comparisons between human individuals. Pain, for instance, which is but one of many components of suffering, is subject to enormous individual variations. Not only does the pain threshold vary between human beings: at different times it varies in the same person, depending on the circumstances. (216)

As the Commentary goes on to explain, "in the eyes of the victim all suffering is superfluous and any injury is unnecessary." (217)

While cluster munitions inflict a degree of suffering on its victims, this does not end the analysis. To be unlawful, the suffering inflicted by cluster munitions must outweigh the legitimate military necessity prompting their use. Causing suffering without legitimate military gain clearly violates international law. (218) However, the military necessity for the use of cluster munitions is significant. (219) Generally, cluster munitions are excellent area weapons. (220) In addition to their usefulness against AAA and SAM sites, cluster bombs are effective against armor, artillery, vehicles, and troops. (221) They minimize the risk and exposure of aircrews to enemy fire because they facilitate striking a target with a single sortie rather than by flying multiple aircraft over the same target a number of separate times. (222) Further, the use of cluster munitions may actually reduce collateral damage. (223) As pointed out at the Lugano Conference, without cluster bombs, air forces must use more high explosive o rdnance to accomplish the military goal, creating the increased possibility of a weapon missing its target and causing unintended collateral damage. (224) Finally, cluster munitions are perhaps the most effective weapons at stopping or slowing an enemy assault. (225) For these reasons, the military necessity of cluster munitions is considerable; unitary bombs are not practical alternatives.

While cluster munitions, like many other weapon systems, are lethal and often cause multiple wounds, there are significant military advantages to using them. On balance, it is impossible to objectively say that cluster munitions cause unnecessary suffering or superfluous injury as a matter of law. The delegates to Geneva Protocol I recognized that "obstacles will be met in applying this principle [unnecessary suffering] to specific weapons...." (226) Further, as they point out, "[t]he Protocol does not impose a specific prohibition on any specific weapon. The prohibitions are those of customary law, or are contained in other international agreements." (227) As illustrated earlier, no such international agreements ban the use of cluster munitions. Additionally, in light of the recent proliferation of cluster munitions production and use, it can hardly be argued that customary law bans their current employment. There is no evidence that states are not refraining from using cluster munitions (state practice) or that they are doing so out of a sense of legal obligation. Accordingly, whether cluster munitions cause superfluous injury or unnecessary suffering can only be determined on a case-by-case basis and in light of current military necessity.

3. Are Cluster Munitions Indiscriminate Because They are Incapable of Being Accurately Deployed or Because Their Bomblets Do Not Always Detonate as Designed, and Thus Create Minefields Incapable of Distinguishing Between Combatants and Noncombatants?

As stated earlier, "the only legitimate object which states should endeavor to accomplish during war is to weaken the military force of the enemy." (228) By implication, if weakening the enemy's army is the only legitimate military objective, this grants the civilian population some form of immunity from attack. (229) While the 1949 Geneva Conventions reiterate the basic premise that noncombatants should be protected, Geneva Protocol I actually codifies the current rule of distinction. (230) According to Geneva Protocol I, Article 48:

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. (231)

Accordingly, before military planners can deem any target legally susceptible to attack, regardless of the type of weapon system employed, it must be a proper military objective (232) and must be distinguished from the civilian population and civilian objects. (233)

While Geneva Protocol I permits attacks against military objectives, not surprisingly it prohibits attacks against civilians and the civilian population. (234) More specifically, Article 51 prohibits two types of attacks against the civilian population, direct attacks and indiscriminate indirect attacks. (235) In relevant part, Article 51 states:

(2) The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population is prohibited....

(4) Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

(5) Among others, the following types of attacks are to be considered as indiscriminate: (a) an attack by bombardment by any method or means which treats as a single military objective a number of clearly separate and distinct military objectives located in a city, town, or village, or other area containing a similar concentration of civilians or civilian objects; and (b) an attack which may be expected to cause incidental loss of civilian loss of 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. (236)

Accordingly, military planners may not target a legitimate military objective when the means and methods employed are of a nature to strike military objectives and civilians without distinction. (237) Article 51 provides two examples of such a situation: attacks whereby the city, town, or village are the target, and attacks which are expected to cause excessive collateral damage in relation to the military benefit anticipated. (238) Additionally, Geneva Protocol I, Article 57, provides military planners, for the first time, with enumerated precautionary measures they must take to avoid unnecessary collateral damage. (239) Article 57, in pertinent part, provides:

In the conduct of military operations, (240) constant care shall be taken to spare the civilian population, civilians and civilian objects. (241)

With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: (i) do everything feasible to verify that the objectives to be attacked are neither civilian nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them; (ii) take all feasible precautions in the choice of means and methods of attack (242) with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects; (iii) refrain from deciding to launch any 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; (b) an attack shall be canceled or suspended if it becomes apparent that the o bjective is not a military one or is subject to special protection or that the attack 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; (c) effective advanced warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit. (243)

The culmination of these provisions reasserts several long-standing customary norms. First, military planners may not directly target civilians or the civilian population. (244) Second, attacks which are incapable of being directed against a military objective are indiscriminate and, therefore, prohibited. (245)

Opponents of cluster munitions rely on this second facet in alleging that cluster bombs are illegal. (246) Specifically, they argue that because of the large area covered by the weapon, it is incapable of being accurately controlled. (247) They further argue that cluster bombs "too often miss the target...." (248) As referenced earlier, its fuze and the altitude at which the aircraft drops the munitions directly control the area coverage of cluster munitions, not any inherent error in the munition itself. (249) Generally, releasing the bomb at higher altitudes causes more dispersion of bomblets and, therefore, a wider area is covered; the converse is true for lower altitude drops. (250)

When evaluating a weapon's lawfulness based solely on its accuracy, it is important to remember that all munitions, from a single rifle round to a 2000 pound bomb, are incapable of being accurate 100% of the time. (251) Rather, the accuracy of all weapons depend on a multitude of factors: target intelligence, planning time, weather, crew experience, altitude at which the bomb is dropped, enemy defenses, and human factors such as fear, fatigue, mistake, and the "friction of war." (252) Despite the lack of any mandates by either custom or treaty, the US, as a matter of internal policy, often attempts to compensate for several of these factors with high-tech weaponry, such as precision-guided munitions. (253) In all cases, however, military planners evaluate each target for its legality, as well as attempt to determine the most accurate and effective weapon to employ in order to accomplish their lawful military goals. (254)

Military planners are capable of directing cluster munitions at lawful military objectives. Take, for example, the situation of a formation of tanks in an open field, or aircraft sitting on a runway preparing to take off (255) To suggest that cluster munitions are incapable of accurately striking these targets is preposterous--history has shown otherwise. (256) Rather, the type of weapons contemplated by the delegates to Geneva Protocol I in drafting this definition of indiscriminate attacks were "primarily long-range missiles which cannot be aimed exactly at the objective." (257) Iraq's launching of uncontrolled SCUD missiles into Israel and Saudi Arabia, not the dropping of cluster munitions, were what the delegates contemplated. (258) On the other hand, the effective employment of cluster munitions against legitimate military objectives is possible; they are not indiscriminate by their very nature.

Nonetheless, improvements in technology are making cluster munitions even more accurate. (259) New guiding mechanisms make the CBUs much more accurate than unguided munitions, significantly reducing the possibility of unintended collateral damage. Reducing the likelihood that submunitions will fall outside the intended target area minimizes collateral damage. Given these factors, in light of the fact that cluster munitions are an "area weapon" designed to strike targets over a larger than normal geographic sector, it is impossible to objectively state that cluster munitions are incapable of being directed at a military objective. The fact that cluster munitions create a large battlefield footprint is not, by itself, reason to consider the weapon indiscriminate. Rather, this factor must be taken into account by planners during the normal targeting legal analysis.

The final types of indiscriminate attacks prohibited by Article 51 are those that "employ a method or means of combat ... [that is] of a nature to strike military objectives or civilian objects without distinction." (260) This is where the comparison between antipersonnel landmines and cluster munitions emerge. (261) According to many critics of cluster munitions, if the weapon malfunctions and produces "duds," these duds, like landmines, are incapable of distinguishing between civilians and lawful combatants. (262) Arguably then, they are indiscriminate. (263) This argument, however, is flawed.

The Commentaries to Article 51 describe two ways that a weapon is, by its character, indiscriminate. (264) First, there are "methods which by their very nature have an indiscriminate character, such as poisoning wells." (265) The Commentators specifically point to bacteriologic warfare and poisoning drinking water as the types of means they envision being indiscriminate. (266) In accord with international law, the only way a weapon is determined to be indiscriminate, by its very nature, is by a consensus of sovereign nations through treaty or customary law. (267) With respect to cluster munitions, delegates to the Lucerne and Lugano Conferences addressed and rejected the very issue of a treaty to regulate cluster munitions. (268) Further, the current state practice of developing and using cluster munitions is contrary to the proposition of illegality. (269) Even landmines, designed to lay dormant and detonate later in time, are not considered per se indiscriminate by the world community, although some suggest that the trend is leaning toward that direction. (270) Rather, at Ottawa, it took a consensus of nations to determine that, as a matter of policy and/or domestic law, they choose to refrain from using landmines in the future. Customary international law, however, still recognizes their legality. (271)

Unexploded ordnance is not a new phenomenon unique to cluster munitions, as Europe was littered with UXOs following World War II. (272) All weapon systems malfunction at various times. (273) While cluster munitions have a "dud rate" of between 5-7%, (274) it is important to remember that the "remnants of war" that critics complain of are the unintended, unexploded submunitions--not intentionally laid minefields. (275) According to Major General Wald:

Now these cluster bombs ... there are some duds in there. Very few. But when they are, it's like any other unexploded ordnance. This is not a mine. There's no proximity on it where if you walk by or make the ground rumble or anything like that it's going to go off. So they're just like any other unexploded ordnance any place in the world. But they are not a mine. They have no timers on them whatsoever or anything like that. I think it's just like a 500-pound bomb, except there are several of them in a cluster. (276)

Accordingly, in light of current customary international law, cluster munitions are not by their very nature indiscriminate.

The second way weapons can be indiscriminate, "does not depend on the nature of the weapons concerned, but on the way in which they are used." (277) The military can always use an otherwise lawful weapon unlawfully. (278) More specifically, when expecting an attack to produce excessive collateral casualties "in relation to the concrete and direct military advantage anticipated," it is indiscriminate. (279) In other words, collateral damage is disproportionate to military gain. It is important to note that enemy combatants are never collateral damage that one must consider. Accordingly, one need not weigh enemy combatant casualties against the "concrete and direct military advantage" as the destruction of the combatants themselves provides such advantage.

The principle of proportionality holds that military planners must take all feasible precautions to ensure that collateral damage to non-military objectives is proportionate to the potential and expected military gain and consistent with mission accomplishment. (280) According to Protocol I, Article 51 (5)(b), "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" would be indiscriminate and therefore, in violation of international law. (281)

Military planners must evaluate whether the use of cluster munitions will cause collateral damage on a case-by-case basis. (282) Like every other target analysis, technical experts, with input from military lawyers, should consider, among other things, the lawfulness and military value of the target, as well as the feasibility, based on aircraft capabilities and enemy air defenses, to accurately strike the proposed target. (283) By doing so, commanders fulfill their legal and ethical obligations. As it pertained to Operation Allied Force, one military spokesperson wrote:

Cluster munitions are governed by the same Law of Armed Conflict requirements that apply to the use of any other weapon in the military inventory. When considering a strike against a specific target, the military advantage is weighed against the collateral effects. If the expected collateral damage is judged to be excessive in relation to the military advantage, the attack does not take place. The task of "producing targets" was a laborious process involving lawyers, targeteers, and intelligence analysts, who were charged with reworking all attack plans for any target where more than 20 civilians might be killed. (284)

Accordingly, planners must balance expected collateral damage against the concrete and direct (as opposed to speculative) military value anticipated.285 Should cluster munitions be the weapon of choice, weaponeers should consider all viable alternatives, i.e., dropping at various altitudes and with various spin rates, in an effort to best reduce civilian casualties, while placing aircrews at no additional risk. Mission planners should consider not only the direct and immediate consequences of a cluster munitions strike with respect to immediate collateral damage, but in light of the known dud rates, the fact that additional collateral damage is likely to occur in the future from UXOs. (286)

As with the use of any weapon, the likelihood of collateral damage increases when it is used in areas populated by civilians. (287) Magnifying this fact for cluster munitions is the sheer number of submunitions deployed by each bomb and the resulting large footprint. Even so, a large footprint, by itself; is not enough to render an otherwise lawful weapon unlawful. While prohibiting the use of cluster munitions in populated areas is unwarranted, military planners should proceed with extreme caution to ensure that a more precise weapon could not accomplish the desired military aim. Said another way, as a matter of policy, military planners should avoid the use of cluster munitions near populated areas unless the direct military benefit clearly outweighs the likely collateral damage, both during and after the conflict. Nonetheless, when used properly, cluster munitions are lawful under customary international law.

V. CONCLUSION

Cluster munitions are versatile, effective, and lawful weapons, and current international agreements do not ban their use. Properly employed, they neither cause unnecessary suffering nor are indiscriminate. Despite the aspirational view of international law held by some, customary law does not prohibit the use of cluster munitions, and absent states refraining from using cluster munitions, out of a sense of legal obligation (rather than because of national policy), no such prohibition can exist.

Nonetheless, states are not free to employ weapons any way they choose. Military planners must strike a balance between military necessity and humanitarian requirements every time the decision to strike a particular military objective occurs. By its very nature, the result will be subjective. One must apply their best judgment, exercising good faith and common sense, and make a decision about whether a particular attack will be lawful in light of the principles of international law. Military commanders are best situated to do just that. They best know their strategic and tactical objectives, the capabilities and shortcomings of their available weapons, and the risks involved to the civilian population. To presume that military leaders will systematically disregard or dismiss humanitarian concerns is both unfair and historically inaccurate. Military members, perhaps more than anyone else, suffer during war. The military recognizes and appreciates humanitarian concerns. Likewise, military commanders recognize a nd appreciate the rule of law.

I've spent a lot of time with lawyers in the past on this. When I was a planner at the CAOC, we had a lawyer at the CAOC in 1994. In the Gulf War they had lawyers. Every target-type set is reviewed for legal approval. So it's part of the process. And I'm pretty proud of our government, the fact that we do spend a lot of time checking the legality of all types of things we do....

Major General Charles Wald (288)

(1.) THE MILITARY QUOTATION BOOK 115 (James Charlton ed, 1990).

(2.) 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 Protocols), Oct. 10, 1980, _ stat._ 1342 U.N.T.S. 137 [hereinafter Conventional Weapons Treaty]. See generally THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 177-98 (Dietrich Schindler & Jiri Toman eds. 1988) [hereinafter THE LAWS OF ARMED CONFLICTS].

(3.) Although what comprises "remnants of war" is the subject of debate, it generally includes unexploded ordnance and undetonated landmines remaining on the battlefield at the conclusion of an armed conflict. The United States Department of Defense (DOD) defines explosive ordnance as "all munitions, weapon delivery systems, and ordnance that contain explosives, propellants, nuclear materials, and chemical agents. Included in this definition are bombs, missiles, rockets, artillery rounds, ammunition mines, and any other similar item that can cause injury to personnel or damage to material." Unexploded ordnance, according to the DOD, consists of the above listed items "after they (1) are armed or otherwise prepared for action; (2) are launched, placed, fired or released in a way that cause hazards; and (3) remain unexploded either through malfunction or design." US Government Accounting Office (GAO), Unexploded Ordnance: A Coordinated Approach to Detection and Clearance Is Needed, GAO/NSIAD-95-197 (Sept. 20, 1 995).

(4.) The ICRC proposes a four-pronged approach. First, they would require those countries that use cluster munitions to be responsible for their clean up after the conflict. Second, to facilitate clearance of unexploded munitions, the ICRC would require users of cluster munitions to provide the weapons' technical data to NGOs. Third, the proposal would require those who use cluster munitions, or any ordnance likely to have long-term effects, to warn the civilian populations of the dangers of such unexploded ordnance. Finally, the ICRC proposes to outlaw the use of cluster munitions against military objectives located near the civilian population. See International Committee of the Red Cross, Preparatory Committee for the 2001 Review Conference of the United Nations Convention on Certain Conventional Weapons, at ://www.icrc.org (Dec. 14, 2000) (on file with the Air Force Law Review).

(5.) See generally Alert News, UK Anti-Landmine Group Seeks Ban on Cluster Bombs, at http://www.alertnet.org/resources/147016 (Aug. 8, 2000) (on file with the Air Force Law Review); Mennonite Central Committee, Drop Today, Kill Tomorrow: Cluster Munitions as Inhumane and Indiscriminate Weapons, at http://www.mcc.org/clusterbomb/drop_today/index.html (last visited Oct. 8, 2001) (on file with the Air Force Law Review).

(6.) Peter Ford, New Crusade Targets Cluster Bombs, CHRISTIAN SCI. MONITOR (Sept. 8, 2000) available at http://www.csmonitor.com/durable/2000/09/08/p1s1.htm (on file with the Air Force Law Review).

(7.) See INTERNATIONAL CAMPAIGN TO BAN LANDMINES, LANDMINE MONITOR REPORT 1999 1-6 (1999). The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and On Their Destruction, Sept. 18, 1997, 36 I.L.M. 1507 [hereinafter Ottawa Treaty], took effect on March 1, 1999. At that time, 135 countries had signed the treaty. Id.

(8.) See Ford, supra note 6. According to Ford:

Once, the world's armies used land mines as an essential weapon in their armories. But a grass-roots campaign, bolstered by the late Diana, Princess of Wales, achieved an international ban.... Now another weapon is being targeted. Building on the momentum and moral foundation created by the land-mine effort, humanitarian groups are turning their sights to the cluster bomb, a munition central to the US and NATO military strategy.

Id.

(9.) Mennonite Central Committee, supra note 5.

(10.) See 145 CONG. REC. S10070-71 (daily ed. Aug. 3, 1999) (statement of Sen. Leahy) (arguing that cluster bombs are inaccurate and indiscriminate); ERIC PROKOSCH, Cluster Weapons, in PAPERS IN THE THEORY AND PRACTICE OF HUMAN RIGHTS, No. 15, at 10-15 (1995); Carmel Capati, Note and Comment, The Tragedy of Cluster Bombs in Laos: An Argument for Inclusion in the Proposed International Ban on Landmines, 16 WIS. INT'L L.J. 227, 240-43 (1997); Ford, supra note 6; Mennonite Central Committee, supra note 5; Virgil Wiebe, Footprints of Death: Cluster Bombs as Indiscriminate Weapons Under International Humanitarian Law (2000) (unpublished article) (on file with author). Under current international law, weapons are illegal if they are, in fact, indiscriminate and/or cause unnecessary suffering or superfluous injury. Generally, the term "indiscriminate" means that the weapons cannot be directed at a lawful military target, even if employed properly. See generally Protocol Additional to the Geneva Convention of 12 Augu st 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 51(4), June 8, 1977, 16 I.L.M. 1391, available at http://www.icrc.org [hereinafter Geneva Protocol I] (on file with the Air Force Law Review). For a detailed discussion of the principles of discrimination, unnecessary suffering, and superfluous injury, see infra Parts Ill - IV.

(11.) See Titus Peachey and Virgil Wiebe, Cluster Munitions-The Bombs That Keep On Killing, at http://www.icbl.org/lm/2000/report/LMWeb-60.php3 (last visited Feb. 3, 2001) (on file with the Air Force Law Review); BBC News, Call for Cluster Bomb Ban, at http://news.bb.co.uk/hi/english/uk/newsid_870000/8706444.stm (Aug. 8, 2000) (UK Working Group on Landmines); Human Rights Watch, Cluster Bombs: Memorandum For Convention on Conventional Weapons Delegates, at http:/www.hrw.org/hrw/about/projects/arms/memocluster.htm (Dec. 16, 1999); Mennonite Central Committee, supra note 5; Moratorium on Cluster Bombs Urged, WASH. POST, Sept. 5, 2000, available at http://www.iansa.org/news/2000/sep_00/mora_clus.htm [hereinafter Moratorium] (last visited Nov. 26, 2001) (on file with the Air Force Law Review).

(12.) Human Rights Watch, supra note 11 (stating that during Operation Allied Force, the US military dropped 1100 CBU-87 cluster bombs, each containing 202 submunitions, while British forces dropped approximately 500 RBL-755 cluster bombs, containing 147 submunitions each).

(13.) See US DEPARTMENT OF DEFENSE, Report to Congress: Kosovo/Operation Allied Force After-Action Report (2000) [hereinafter KOSOVO/OPERATION TION ALLIED FORCE AFTER-ACTION REPORT]. According to the Report, combined effects cluster munitions are an effective weapon against such targets as air defense radars, armor, artillery, and personnel. However, because the bomblets are dispensed over a relatively large area and a small percentage of them typically fail to detonate, there is an unexploded ordnance hazard associated with this weapon. These submunitions are not mines, are acceptable under the laws of armed conflict, and are not timed to go off as antipersonnel devices.

Id. According to military experts, cluster munitions are particularly effective at covering wide areas and dispersed targets, such as armor columns in transit. Major John Scotto, Remnants of War Conference at The Judge Advocate General's School of the Army (Feb. 20, 2001) (notes on file with author) [hereinafter Weapons Briefing]. See also Ford, supra note 6 (quoting Pentagon spokesman Lieutenant Colonel (LT COL) Vic Warinsky stating "cluster bombs are a useful munition that serve a valuable military purpose").

(14.) It is important to note that the term "cluster munitions" includes not only air delivered cluster bombs, but also artillery and missiles that employ cluster technology. This article, although occasionally referencing ground-based cluster delivery systems, focuses primarily on air-dropped cluster bombs.

(15.) By definition, cluster bombs are guided or unguided air-delivered munitions consisting of a container capable of carrying and dispensing various types of submunitions over wide-area targets. Mennonite Central Committee, supra note 5 (on file with the Air Force Law Review) (according to the authors, "[c]luster weapons and landmines are different in design and intended function. Both weapons can be delivered by air, but only landmines are intended to rest in the soil indefinitely and blow up when disturbed."). While the GATOR mine system is also said to be in the CBU family, this paper focuses on those weapons designed to detonate on impact or shortly thereafter.

(16.) See Mennonite Central Committee, supra note 5. "Despite [the] differences in technology and design, cluster weapons are very similar to landmines in their actual effect. The failure rate for cluster munitions has been placed between 5 percent and 30 percent, insuring that any use of these weapons will result in the reckless and unregulated creation of minefields." Id. But see Weapons Briefing, supra note 13 (stating that, depending on the type of weapon, cluster bomb dud rates range from 1-7%). The term "dud" includes not only live unexploded cluster munitions, but also those submunitions that have either self-exploded or are incapable of detonating because its battery died. Weapons Briefing, supra note 13.

(17.) Mennonite Central Committee, supra note 5.

(18.) If functioning properly, cluster bombs should detonate on impact or shortly thereafter. See DEPARTMENT OF THE AIR FORCE, Air University, Cluster Bombs, at http://www.au.af.mil/database/projects/ay1996/acsc/96-004/hardware/do cs/cluster.htm (last visited Nov. 11, 2000) [hereinafter Air University] (on file with the Air Force Law Review).

(19.) See generally Human Rights Watch, Ticking Time Bombs-Report 1999, at ://www.igc.org.hrw/reports/1999/nato2/nato995-02.htm (last visited Feb. 3, 2001) (on file with the Air Force Law Review); Mennonite Central Committee, supra note 5.

(20.) See Human Rights Watch, supra note 19; Mennonite Central Committee, supra note 5.

(21.) According to the Mennonite Central Committee:

[W]hile cluster weapons are different in design from landmines, experience demonstrates that their effects are nearly identical. Cluster weapons kill and maim civilian populations, and continue to do so long after hostilities cease. The rationale that led the international community to stand with the survivors of landmine injuries and enact a ban on anti-personnel landmines, also applies to cluster weapons.

Mennonite Central Committee, supra note 5.

(22.) On Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as Amended on 3 May 1996 (Protocol II as Amended on 3 May 1996) Annexed to 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, Article 2(3), available at http://www.unog.ch/frames/disarm/distreat/mines.htm [hereinafter Amended Mine Protocol] (on file with the Air Force Law Review). Note that the Ottawa Treaty adds the following additional language: "Mines designed to be detonated by the presence, proximity or contact of a vehicle as opposed to a person, that are equipped with anti-handling devices, are not considered anti-personnel mines as a result of being so equipped." Ottawa Treaty, supra note 7. See also Efaw, supra note 24, at 90. For a more detailed discussion of these definitions, see infra Parts III and IV.

(23.) See Efaw, supra note 24, at 91-92. Today, there are many variants of landmines. Modern landmines are typically characterized by their mode of operation and activation or by their method of deployment. Generally, landmines have three primary modes of operation: (1) blast, (2) fragmentation, and (3) bounding (a secondary charge lifts the mine to a desired height before the main charge detonates). While they most often detonate by direct pressure, landmines may also activate by a tripwire or proximity fuze (a fuze that detonates the mine when something passes within a certain distance of the mine). Deployment methods also vary. In addition to hand emplacement, the military can deploy mines mechanically or remotely via aircraft or artillery. See MCGRATH, supra note 24, at 17-19 (providing a detailed discussion of landmine characteristics).

(24.) JOHN HEWITT, ANCIENT ARMOUR & WEAPONS 1980 (1996); CPT Andrew C.S. Efaw, 159 MIL. L. REV. 87, 87-88 (1999). Other historians, however, trace the origin of landmines to the American Civil War, where primarily the Confederate forces employed them. See RAE MCGRATH, LANDMINES AND UNEXPLODED ORDNANCE, 1-2 (2000); Jack H. McCall, Jr., Infernal Machines and Hidden Death: International Law and the Limits on the indiscriminate Use of Land Mine Warfare, 24 GA. J. INT'L & COMP. L. 229 (1994).

(25.) MCGRATH, supra note 24, at 1-2.

(26.) Id. at 1.

(27.) Id. See also Efaw, supra note 24, at 87-89.

(28.) MCGRATH, supra note 24, at 1. Armies protected their anti-tank mines with anti-personnel mines and anti-handling devices so that the anti-tank mines were difficult to relocate. Antipersonnel mines became stand-alone weapons once military planners recognized their utility. See generally id.

(29.) ERIC PROKOSCH, THE TECHNOLOGY OF KILLING, A MILITARY AND POLITICAL HISTORY OF ANTIPERSONNEL WEAPONS 82 (1995).

(30.) MCGRATH, supra note 24, at 21.

(31.) See generally DEPARTMENT OF THE AIR FORCE, ARMAMENT PRODUCT GROUP MANAGER, 1999 WEAPONS FILE 6-1-13 (1999) [hereinafter WEAPONS FILE]; PROKOSCH, supra note 29, at 84-85; Air University, supra note 18.

(32.) See Air University, supra note 18.

(33.) Capati, supra note 10, at 231. One must be clear that cluster bomb is the composite of these three parts--it is the submunition, many of which are contained in a cluster bomb, that is dispersed and actually detonates. It is undetonated or unexploded submunitions that critics attack.

(34.) See Air University, supra note 18.

(35.) Id.

(36.) Id.

(37.) See CPT Kelly Leggette, The Air Force's New Cluster Weapon, The Combined Effects Munition, USAF FIGHTER WEAPONS REV., Spring 1986, at 24-32, cited in Mennonite Central Committee, supra note 5.

(38.) Edmond Dantes, CBU-87 Combined Effects Munition: The Pilots Weapon of Choice, ASIA DEFENCE J., March 1991, at 82, quoted in Mennonite Central Committee, supra note 5.

(39.) PROKOSCH, supra note 29, at 82; Capati, supra note 10, at 227. See also PROKOSCH, supra note 10, at 1.

(40.) PROKOSCH, supra note 29, at 82; Capati, supra note 10, at 231.

(41.) PROKOSCH, supra note 29, at 82.

(42.) Id.

(43.) TOM CLANCY, FIGHTER WING: A GUIDED TOUR OF AN AIR FORCE COMBAT WING 140 (1995).

(44.) Id. The dispenser, called the Mk 7, served as the vehicle to carry a load of submunitions. The dispenser had a fuze that would, at a preplanned altitude, detonate and cause the dispenser to break apart and release its payload of submunitions. A second charge then ignited, forcing the submunitions into the desired pattern and onto their target. Id.

(45.) PROKOSCH, supra note 29, at 115 (citing a 1982 US Naval Weapons Center fact sheet on the development of the Eye-series bombs). Because the Navy feared more modem aircraft could not successfully employ outdated World War II style bombs, the Bureau of Ordnance requested the development of "new free-fall bombs and bombing systems that would improve the Navy's air-attack capability against a wide variety of tactical targets." Id.

(46.) Id. According to Prokosch, the Eye-series bombs consisted of, in part, the "Bigeye" (nerve gas dispenser), the "Gladeye" (fragmentation dispenser), the "Rockeye" (antitank cluster bomb), the "Deneye" (aerial mine dispenser), the "Weteye" (chemical bomb), the "Fireye" (fire bomb), and the "Briteye" (flare system). Id.

(47.) CLANCY, supra note 43, at 140. According to Clancy, the M118 submunition looked much like "hypodermic syringes." Id.

(48.) Id.

(49.) Id.

(50.) See generally GEORGE C. HERRJNG, AMERICA'S LONGEST WAR: THE UNITED STATES AND VIETNAM 108-31 (2d ed. 1986). In February 1965, the US military began striking targets over North Vietnam. Originally, bombing began as a reprisal (Operation Flaming Dart) for a Vietcong attack on the US Army barracks in Pleiku. However, within two days, President Johnson decided to escalate the bombing, and Operation Rolling Thunder was underway. Id. at 129-30.

(51.) TOM CLANCY AND GENERAL CHUCK HORNER, EVERY MAN A TIGER: THE GULF WAR AIR CAMPAIGN 89-95 (2000).

(52.) See id. at 89-91. In addition, many of the aircraft used by both the Air Force and Navy were poorly equipped to bomb in bad weather. Both services relied on cluster bombs to "compensate for the lack of all weather capability." MAJ Gregory C. Kane, Air Power and its Role in the Battles of Khe Sanh and Dien Bien Phu (1997) (unpublished Research Paper, Air Command and Staff College) (on file at Air University Library, AU/ACSC/0344/97-03).

(53.) See PROKOSCH, supra note 29, at 83-84. Major General Evans, Air Force Director of Development and Special Assistant for Counterinsurgency, stated in 1968 that "[f]or flak suppression we developed a weapon which could be delivered in a dive mode and released above the zone of intense ground fire.... Although this was developed as a flak suppression weapon, its area target applications [are] obvious." Id. See generally CLANCY, supra note 43, at 140.

(54.) PROKOSCH, supra note 10, at 3.

(55.) Id.

(56.) Id. at 5. Additionally, according to Prokosch, Vietnam-era cluster munitions compared to those used in World War II with an equivalent payload, "produced two to three times as many effective fragments...." Id.

(57.) Id. at 6.

(58.) The military designed bomblet-filled artillery shells for 105mm and 155mm howitzers, as well as for 8-inch guns. Id.

(59.) The Navy designed cluster munitions for its 16-inch coastal guns. Id.

(60.) The Army fitted a cluster warhead on its Lance SSM. Id.

(61.) The US employed three aerial-delivered anti-personnel mines during the Vietnam War. They included the "gravel mine," delivered from helicopters or airplanes, and tactical jets delivered the Dragontooth and Wide Area Antipersonnel Mine (WAAPM). Id.

(62.) Artillery-delivered cluster munitions, the Area Denial Artillery Munitions (ADAM), contain 155mm shells with 36 anti-personnel grenades each. See PROKOSCH, supra note 29, at 108, 123 n.83.

(63.) Id. at 82-83. One of the most extensive uses of cluster munitions occurred during the bombing efforts over Laos. In an effort to interdict Vietnamese supply lines, the US Air Force dropped more than two million tons of bombs on Laos. HERRING, supra note 50, at 240-41, 269. According to Congressman Dennis J. Kucinich (Ohio), many of the twenty-three million tons of bombs dropped on Laos were cluster bombs. He estimates that four million unexploded bomblets remain in Vietnam, Laos, and Cambodia. See ___ CONG. REC. H6293 (daily ed. July 22, 1999) (statement of Rep. Kucinich) (House Amendment 341 to the 2000 Department of Defense Appropriations Act attempted to prohibit further funding for the procurement of cluster bombs). See also Capati, supra note 10, at 229-30.

(64.) PROKOSCH, supra note 29, at 177-78.

(65.) Id. According to Prokosch, Britain, France and Germany produced a combined five models of high explosive cluster bombs, compared to thirty-two models the US produced. Id. at 177.

(66.) Chile, China, France, Germany, Iraq, Israel, Italy, Poland, Russia, South Africa, Spain, UK, US, and the former Yugoslavia. Id. at 178.

(67.) Belgium, Brazil, China, the Czech Republic, Egypt, India, North Korea, South Korea, Sweden, and Turkey. JANE'S INTERNATIONAL DEFENCE DIRECTORY 961 (1996) cited in Wiebe, supra note 10, at n.34. The US DOD currently believes that sixteen countries, in addition to the United States, actively produce cluster munitions. They include Chile, China, France, Germany, Greece, Israel, Poland, Russia, Singapore, Slovak Republic, South Africa, Spain, United Arab Emirates, United Kingdom, and Former Yugoslavia. COL Paul Hughes, Cluster Munitions Briefing at the Judge Advocate General's School of the Army (Feb. 20, 2001) (handout on file with author) [hereinafter Hughes Briefing].

(68.) See generally PROKOSCH, supra note 29, at 177-79.

(69.) See generally Mennonite Central Committee, supra note 5. The Soviets used cluster bombs in Afghanistan, as did Israel in 1973 during their conflict with Egypt and Syria. See PROKOSCH, supra note 29, at 178-79. Additionally, the Mennonite Central Committee alleges that cluster munitions were also used in Angola, Azerbaijan, Bosnia (by Serbian forces), Checbnya (by Russia), Ethiopia, Georgia, Lebanon (by Israel), Nicaragua, Sierra Leone (by Nigeria), and Turkey (against Kurdish rebels). Mennonite Central Committee, supra note 5.

In 1999, India reportedly dropped cluster bombs on Pakistani targets in the Kashmir region. Surinder Oberoi, India Accepts Peace Talks with Pakistan but Continues Offensive, AGENCE FRANCE PRESS, June 8, 1999, cited in Wiebe, supra note 10, at n.36.

(70.) See, e.g., Mennonite Central Committee, supra note 5. See also Federal Republic of Yugoslavia, Federal Ministry of Foreign Affairs, Aide Memoire on the Use of Inhumane Weapons in the Aggression of the North Atlantic Treaty Organization Against the Federal Republic of Yugoslavia, May 15, 1999 (on file with author) (alleging cluster bombs are a "banned military means").

(71.) Human Rights Watch, supra note 19. In all, the United States dropped 57,421 cluster bombs on Iraq and Kuwait. THOMAS A. KEANEY & ELIOT A. COHEN, REVOLUTION IN WARFARE? AIR POWER IN THE PERSIAN GULF 280 (1995).

(72.) Department of the Air Force, Gulf War Air Power Survey (GWAPS), Vol. III, 235, cited in Human Rights Watch, supra note 19 (includes US and British-dropped CBUs, but excludes French and Saudi Arabian CBU usage during the operation).

(73.) Id. Generally, CBU-52/58/71s are Vietnam-style cluster bombs carrying a payload of between 217 and 650 bomblets. See Air University, supra note 18. The CBU-52B dispenses 220 BLU-61/B (Bomb Live Units) bomblets in the shape of a donut. Military planners designed the weapon for employment against soft skin targets and troop concentrations. The CBU-58B dispenses 650 BLU-63/B bomblets, each weighing approximately one pound. Like the CBU-52B, the weapon disperses the bomblets in a donut-shaped pattern, with a hole in the center. The CBU-58B is effective on personnel and light armor. The CBU-71B is an anti-personnel and anti-material weapon that possesses an additional incendiary capability. It dispenses 650 BLU-86/B anti-personnel and anti-material bomblets with a time delay fuze. The CBU-87 CEM dispenses 202 BLU-97 shaped charge, fragmentary, and incendiary submunitions in a rectangular pattern. WEAPONS FILE, supra note 31, at 6-2 to 6-7. See CLANCY, supra note 43, at 141-42. The CBU-87 is a Combined Effect s Munition that dispenses 202 bomblets over an 800 by 400 foot area. Air University, supra note 18. During the operation, the Air Force successfully employed the CBU-87 as an anti-armor and anti-personnel munition. Id.

(74.) Human Rights Watch, supra note 19.

(75.) See 145 CONG. REC. S10070-71, supra note 10 (statement of Sen. Leahy) (dud rates during the Gulf War were as high as 20%); Rachel Stohl, Cluster Bombs Leave Lasting Legacy, WEEKLY DEFENSE MONITOR, Aug. 5, 1999, available at http://www.cdi.org.weekly/1999/issue30.html (on file with the Air Force Law Review); Human Rights Watch, supra note 19, at http://www.igc.org.hrw/reports/1999/nato2/nato 995-02.htm (on file with the Air Force Law Review).

(76.) US Government Accounting Office (GAO), Operation Desert Storm: Casualties Caused by the Improper Handling of Unexploded United States Submunitions, GAO/NSIAD-93-212 (Aug. 1993). According to the GAO, ground movement was also significantly hampered by unexploded cluster submunitions and other unexploded ordnance. Id.

(77.) Id.

(78.) Cluster bombs represented only 6% of the total munitions dropped on Serb forces. Human Rights Watch, supra note 11.

(79.) Amnesty International, "Collateral Damage" or Unlawful Killings?: Violations of the Laws of War by NATO During Operation Allied Force, n.76, at http://www.web.amnesty.org/ai.nsfl index/EUR700l82000.htm (June 6 2000) (on file with the Air Force Law Review) (citing DOD News Briefing, 22 June 1999). The RBL-755 is a dual-role cluster munition similar to the US CBU-87. It carries 147 soda can sized bomblets, and can successfully attack both hard and soft targets. See Human Rights Watch, supra note 19.

(80.) The US dropped 1100 cluster munitions, while British forces dropped 532 RBL-755 cluster bombs. Amnesty International, supra note 79; see also ANTHONY H. CORDESMAN, THE LESSONS AND NON-LESSONS OF THE AIR AND MISSILE CAMPAIGN IN KOSOVO 249 (2000) [hereinafter KOSOVO LESSONS].

(81.) See William M. Arkin, Fleet Praises JSOW, Lists Potential Improvements, DEFENSE DAILY, Apr. 26, 2000, cited in Wiebe, supra note 10, at n.181. The Joint Stand Off Weapon (JSOW) provides greater safety to aircraft by allowing aircrews to launch the weapon from between fifteen and forty-five nautical miles from the target. The JSOW is equipped with an AGM-154A (Aircraft Guided Missile) dispenser that glides to the target area, carrying 145 BLU-97A/B anti-armor munitions. The first combat deployment of the JSOW occurred in January 1999, during Operation Southern Watch. During Operation Allied Force, the JSOW was used exclusively by the US Navy and launched from F/A-18 aircraft. See Mennonite Central Committee, supra note 5. See also KOSOVO/OPERATION ALLIED FORCE AFTER-ACTION REPORT, supra note 13, at 90.

(82.) Tomahawk Land Attack Cruise Missiles (TLAM-C) are deployable with cluster munitions by the Navy via ship or submarine and by the Air Force via B-52 or F-16. When launched by aircraft, the TLAM-C is equipped with the BLU-106 anti-runway munition. See Carlo Kopp, Analysis-Tomahawks, Submarines and the F-111, at http://www.csse.monash.edu.au/carlo/archive/MILITARY/AA/tomahawk.html (Sept. 14, 2000) (on file with the Air Force Law Review). See generally US Department of the Navy, The United States Navy Fact File, Tomahawk Cruise Missile, at http://www.chinfo.navy.mi1/navpalib/factfile/missiles/weptoma.html (Nov. 28, 2000) (on file with the Air Force Law Review).

(83.) DOD officials denied using Sensor Fuzed Weapons during Operation Allied Force. See Maj Gen Charles Wald, Department of Defense News Briefing, at http://www.defenselink.mil/news/may1999/t05131999-t0513asd.html (May 13, 1999) [hereinafter DOD News Briefing] (on file with the Air Force Law Review).

The CBU-97/B SFW is an anti-armor cluster munition to be employed by fighter/attack and bomber aircraft to provide multiple kills per pass against armored and support vehicle combat formations. The munition will be fielded as an all-up-round requiring minimal maintenance support.... SFW is currently delivered as an unguided, gravity weapon. After release, the TMD opens and dispenses the ten submunitions which are parachute stabilized. At a preset altitude sensed by a radar altimeter, a rocket motor fires to spin the submunition and initiate an ascent. The submunition then releases its four projectiles, which are lofted over the target area. The projectile's sensor detects a vehicle's infrared signature, and an explosively formed penetrator fires at the heat source. If no target is detected, the warhead detonates after a preset time interval.

Fiscal Year 1996 Report, Director, Operational Test and Evaluation, DoD, available at http://www.dote.osd.mil/ reports/FY96/96CBUSFW.html (on file with the Air Force Law Review). In short, the CBU-97, a precision guided cluster bomb, is designed as an anti-tank weapon and to blunt an enemy offensive while US forces regroup to conduct counter-offensive operations. See Weapons Briefing, supra note 13. Further, the US is developing several additional types of cluster munitions, including CBU-103/104/105 Tactical Munitions Dispensers, designed to modify CBUs-87/89. These systems add a Wind Corrections Munition Dispenser (WCMD) to the weapon. See Air Force News, Sensor Fused Weapons Reach Operational Capacity, at http://www.af.mil.news/Feb1997/ n19970225-970217.html (Feb. 25, 1997) (on file with the Air Force Law Review). The WCMD can be retrofitted to older, unguided cluster bombs, making the weapons much more precise.

(84.) Mr. Kenneth Bacon, Pentagon spokesman, responded to questions about NATO's alleged use of GATOR mines during an April 14, 1999 press briefing. In denying such use, Mr. Bacon acknowledged that "[w]e have used CBU-87s, which are combined effects munitions, which are basically cluster bombs with bomblets, but we have not used the Gator." Department of Defense News Briefing, at http://www.defenselink.mil/news/Apr1999/t04141999_t04l4asd.html (Apr. 14, 1999) (on file with the Air Force Law Review). GATOR mines (CBU-89Bs) are a type of cluster munition, designed to channel enemy forces and which deploy seventy-two anti-tank and twenty-two anti-personnel mines, each possessing a 72-hour self-destruct mechanism. WEAPONS FILE, supra note 31, at 6-8.

(85.) Amnesty International, supra note 79. According to a Pentagon spokesperson, "a weapons malfunction" caused the incident at Nis. Id.

(86.) Id.

(87.) Id.

(88.) Mennonite Central Committee, supra note 5. In a letter from Marine Lieutenant General (LT GEN) C.W. Fulford, Jr., Director, Joint Staff, to Congressman Dennis Kucenich, LT GEN Fulford stated:

[A]t an unclassified level, communications between the National Command Authorities (NCA) and the Commander in Chief, US European Command (USINCEUR) [occurred] on the use of cluster munitions. The decision to temporarily halt the United States use of cluster munitions during the NATO air campaign in FRY [Federal Republic of Yugoslavia] was made by the NCA following two incidents of off-target impacts of cluster munitions. The moratorium was verbally imposed during a regularly scheduled teleconference between the NCA and USCINCEUR. The use of cluster munitions later resumed following a review of US procedures.

Id. According to Human Rights Watch, in suspending the use of cluster munitions, "the president [sic] has set a precedent for restricting bomb use." Human Rights Watch, supra note 11. Further, in that the suspension of cluster bomb usage was only temporary, the US was acting as a matter of national policy rather than international legal requirement. Despite Washington's halt, the British continued to use cluster bombs until the conflict ended. See Mennonite Central Committee, supra note 5.

(89.) See DOD News Briefing, supra note 83. According to General (GEN) John Jumper, Commanding General, US Forces Europe:

We always match the weapon with the effect. We take in -- the circular error probable is the calculation you go through, and we use the appropriate weapon for what the target is. It's a calculation we go through for every target, and it's the same for CBUs. And the precision of these things, we're able to put these down in fairly tight clusters. No, they are not guided, but we are also using unguided Mk-82s, also with considerable success, off of conventional airplanes. So I would say that the process is the same. The accuracy is the same. It doesn't mean mistakes don't happen. I have no idea what the events will unfold before us today. I will tell you, though, that there is no weapon we use that we don't put through the same calculated and careful process.

GEN John Jumper, Department of Defense News Briefing, May 14, 1999, at http://www.defenselink.mil/news/ may1999/t05141999-t05l4asd.html (on file with the Air Force Law Review).

(90.) Amnesty International, supra note 79. See also US Department of Defense, Operation Allied Force, at http://www.defenselink.mil/specials/kosovo/index.html (June 21, 1999) (on file with the Air Force Law Review) (stating that the initial attack against Serbia began at 1400 EST on Mar. 24, 1999 and ended at 1000 EST on June 10, 1999).

(91.) Alert News, supra note 5 (UK Working Group on Landmines); Human Rights Watch, supra note 11; Mennonite Central Committee, supra note 5; New Zealand Campaign Against Landmines, The Curse of Cluster Bombs - Statement By The NZ Campaign Against Landmines (CALM), at http://www.protel.co.nzfcalm/cluster-sep.html (last visited Nov. 17, 2001) (on file with the Air Force Law Review); Moratorium, supra note 11.

(92.) H. Lauterpacht, The Problem of the Revision of the Law of War, BRITISH YEARBOOK OF INT'L LAW 382 (1952) quoted in A.P.V. ROGERS, LAW ON THE BATTLEFIELD 2 (1996).

(93.) THE LAWS OF WAR: A COMPREHENSIVE COLLECTION OF PRIMARY DOCUMENTS ON INTERNATIONAL LAWS GOVERNING ARMED CONFLICT xix (W. Michael Reisman & Chris T. Antoniou eds., 1994) [hereinafter THE LAWS OF WAR].

(94.) See id.

(95.) See generally id. at 4-6.

(96.) MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 4 (2d ed. 1993).

(97.) Treaties are also known as international agreements or conventions. Id. at 5; see THE LAWS OF WAR, supra note 93, at xix; US DEP'T OF ARMY, FIELD MANUAL 27-10, THE LAW OF ARMED CONFLICT, para. 4 (1956) [hereinafter FM 27-10].

(98.) THE LAWS OF WAR, supra note 93, at xix.

(99.) Most international legal scholars view treaties as the strongest reflection of international law. For example, the Statute of the International Court of Justice, in deciding the state of the law, first considers "international conventions . . . establishing rules expressly recognized by consenting parties." JANIS, supra note 96, at 10.

(100.) See FM 27-10, supra note 97, at para. 4-6; THE LAWS OF WAR, supra note 93, at xix-xxi.

(101.) THE LAWS OF WAR, supra note 93, at xix.

(102.) Id.

(103.) 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 221 (1947). See also THE LAWS OF WAR, supra note 93, at xix.

(104.) JANIS, supra note 96, at 42.

(105.) Id. at 46.

(106.) RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 102(2) (1987). See JANIS, supra note 96, at 46. According to the United Nations International Court of Justice, "States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not itself enough." North Sea Continental Shelf Cases (F.R.G. v. Denmark), 1969 I.C.J. 3.

(107.) JANIS, supra note96, at 46-47. The binding effect of customary international law differs from that of treaties. Generally, treaties are binding only on those who sign and ratify them. Customary law, on the other hand, is binding on all states. See generally CRIMES OF WAR: WHAT THE PUBLIC SHOULD KNOW 113-14, (Roy Gutman & David Rieff eds. 1999) [hereinafter CRIMES OF WAR]; FM 27-10, supra note 97, at para. 6.

(108.) ROGERs, supra note 92, at 1. According to Rogers, the first documented "code of war was that of the Saracens and was based on the Koran." Id. See JANIS, supra note 96, at 162 (stating that legal rules regulating war date back to the ancient civilizations of India, China, Israel, Greece, and Rome). See generally J.H. HUANG, SUN TzU: THE NEW TRANSLATION (1993) (Sun-tzu, in the 4th century B.C., created one of the first known sets of rules governing the conduct of war).

(109.) ROGERS, supra note 92, at 1.

(110.) See generally THE LAWS OF WAR: CONSTRAINTS ON WARFARE IN THE WESTERN WORLD 6 (Michael Howard et. al. eds. 1994) [hereinafter CONSTRAINTS ON WARFARE TN THE WESTERN WORLD]. Interestingly enough, in the Middle Ages, there were attempts to outlaw the crossbow as inhumane and firearms as unfair. See id.

(111.) Id. The first codification of the law regulating land warfare was Dr. Francis Lieber's United States Army General Order No. 100, Instructions for the Government of Armies of the United States in the Field. Id. See also ROGERS, supra note 92, at 1-2. Dr. Lieber's General Order 100 can be found at THE LAWS OF ARMED CONFLICTS, supra note 2, at 3-23.

(112.) JANIS, supra note 96, at 164.

(113.) ROGERS, supra note 92, at 1-3. See also JANIS, supra note 96, at 164-65 (providing a chronological listing of several regulatory treaties).

(114.) The Declaration of St. Petersburg, Nov. 29, 1868, 1 A.J.I.L. (Supp.) 95-96.

(115.) PROKOSCH, supra note 29, at 164 (quoting the Stockholm International Peace Research Institute).

(116.) The Declaration of St. Petersburg, Nov. 29, 1868, 1 A.J.I.L. (Supp.) 95-96. See also THE LAWS OF ARMED CONFLICTS, supra note 2, at 101-03.

(117.) See generally CONSTRAINTS ON WARFARE IN THE WESTERN WORLD, supra note 110, at 119; THE LAWS OF ARMED CONFLICTS, supra note 2, at 101-03; THE LAWS OF WAR, supra note 93, at 35-36.

(118.) See PROKOSCH, supra note 29, at 164-65. See generally ROGERS, supra note 92, at 7.

(119.) The Declaration of St. Petersburg, supra note 116. See also THE LAWS OF WAR, supra note 93, at 35-36.

(120.) Id. at 35. Thirty-one years later, the Hague Declaration Concerning Expanding Bullets of 1899, prohibited, in international armed conflict, the use of "bullets which expand or flatten easily in the human body." See The Hague Declaration Concerning Expanding Bullets, July 29, 1899, 1 A.J.I.J. 157-59 (Supp.); THE LAWS OF WAR, supra note 93, at 49. See also W. Hays Parks, Joint Service Combat Shotgun Program, 1977 ARMY LAW 16, 22-23 (1977).

(121.) THE LAWS OF WAR, supra note 93, at 35.

(122.) Hague Convention No. III Relative to the Opening of Hostilities, Oct. 18, 1907, 36 Stat. 2259, T.S. 598 [hereinafter Hague III]; Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. 539 [hereinafter Hague Convention IV]; Hague Convention No. IX Concerning Bombardment by Naval Forces in Time of War, Oct. 18, 1907, 36 Stat. 2314 [hereinafter Hague Convention IX]. Collectively, I will refer to these as the Hague Conventions. The US is a party to each of these conventions. See FM 27-10, supra note 97, at para. 5.

(123.) The 1949 Geneva Conventions are The Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Sick and Wounded]; The Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Shipwrecked]; The Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva POW]; The Convention Relative to the Treatment of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Civilians]. The US is a party to all of the 1949 Geneva Conventions. See FM 27-10, supra note 97, at para. 5.

(124.) The 1977 Protocols Additional to the Geneva Conventions, December 12, 1977, 16 I.L.M. 1391 [hereinafter Geneva Protocol I and Geneva Protocol II, respectively]; see THE LAWS OF ARMED CONFLICTS, supra note 2, at 605-732.

(125.) Conventional Weapons Treaty, supra note 2. See also THE LAWS OF ARMED CONFLICTS, supra note 2, at 177-98. The US is a party to the Conventional Weapons Treaty because it has signed and ratified two or more of the Protocols. Specifically, the US ratified Protocols I (non-detectable fragments) and II (mines, booby-traps, and other devices) on Mar. 24, 1995, however, it made a reservation with respect to Article 7, para. 4, concerning the application of the treaty to internal armed conflicts. On May 24, 1999, the US ratified Amended Protocol II (Amended Mines Protocol). See Conventional Weapons Treaty, supra note 2 (Amended Mines Protocol); MAJ Michael Lacey, Passage of Amended Protocol II, 2000 ARMY LAW. 7, 7 and n.3 (2000) (providing a detailed description of the Amended Mines Protocol); Efaw, supra note 24, at 116-131.

(126.) 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 Protocols), Oct. 10, 1980, 1342 U.N.T.S. 137, 19 I.L.M. 1523. The Protocols include: Protocol on Non-Detectable Fragments (Protocol I), Oct. 10, 1980 [hereinafter Non-Detectable Fragments Protocol]; Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), Oct. 10, 1980 [hereinafter Landmine Protocol]; Protocol on the Prohibitions or Restrictions on the Use of Incendiary Weapons, Oct. 10, 1980 [hereinafter Incendiary Weapons Protocol]; Protocol on Blinding Laser Weapons, Oct. 13, 1995 [hereinafter Blinding Lasers Protocol]; Amended Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, May 3, 1996 [hereinafter Amended Mines Protocol]. For a detailed description of the Amended Mines Protocol, see Lacey, supra note 125.

(127.) Geneva Sick and Wounded, supra note 123; see also THE LAWS OF ARMED CONFLICTS, supra note 2, at 373-99.

(128.) Geneva Shipwrecked, supra note 123; see also THE LAWS OF ARMED CONFLICTS, supra note 2, at 401-22.

(129.) Geneva POW, supra note 123; see also THE LAWS OF ARMED CONFLICTS, supra note 2, at 423-93.

(130.) Geneva Civilians, supra note 123; see also THE LAWS OF ARMED CONFLICTS, supra note 2, at 495-556.

(131.) See Michael J. Matheson, The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT'L L. & POL'Y 419 (1987).

(132.) See ROGERS, supra note 92, at 4-5.

(133.) See id. at 1-26 (providing a detailed analysis of each principle of the law of war).

(134.) See Geneva Protocol I, supra note 124, Art. 52. In other words, there must be some military necessity in attacking a particular target. ROGERS, supra note 92, at 6. FM 27-10 defines military necessity as "that principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible." FM 27-10, supra note 97, at para. 3a (emphasis added). According to Rogers, however, "the reference to the complete submission of the enemy ... is probably now obsolete, since war can have a limited purpose...." ROGERS, supra note 92, at 5. Rather, "in every case destruction must be imperatively demanded by the necessities of war, and must not merely be the outcome of a spirit of plunder or revenge." Id. at 6 quoting L. OPPENHEIM, INTERNATIONAL LAW, Vol. 2, 414 (7th ed. 1952).

(135.) See Geneva Protocol I, supra note 124, Art. 48-51. See also ROGERS, supra note 92, at 7. According to Rogers, "Attacking civilians is not normally a military requirement, because it does not weaken the military forces of the enemy ... [s]ince military operations are to be conducted against the enemy's armed forces, there must be a clear distinction between the armed forces and civilians, or between combatants and non-combatants, and between things that may legitimately be attacked and things protected from attack." ROGERS, supra note 92, at 6-7.

(136.) Id. See also ROGERS, supra note 92, at 7.

(137.) See ROGERS, supra note 92, at 6-7.

(138.) See generally Amnesty International, supra note 79; Human Rights Watch, supra note 19; International Committee of the Red Cross, supra note 4; Mennonite Central Committee, supra note 5.

(139.) See Federal Republic of Yugoslavia, supra note 70 (alleging that NATO used weapons banned by international law, such as cluster bombs and depleted uranium). Interestingly enough, the Former Yugoslavia is a current producer of cluster munitions. Specifically, they produce two models, the KB-1 and KB-2, each delivered by either rocket or artillery. Further, the Former Yugoslavia possesses air-dropped cluster bombs purchased from the United Kingdom. See Hughes Briefing, supra note 67.

(140.) See e.g., Mennonite Central Committee, supra note 5.

(141.) See e.g., 145 CONG. REC. S10070-71, supra note 10 (statement of Sen. Leahy); Mennonite Central Committee, supra note 5. Many, such as the ICRC, want to enforce their belief that cluster munitions are illegal weapons through an additional Protocol to the Conventional Weapons Treaty or other international agreement.

(142.) See 145 CONG. REC. S10070-71, supra note 10 (statement of Sen. Leahy) (alleging that cluster bombs are often dropped from high altitudes and miss their intended targets).

(143.) Id. According to Sen. Leahy, "cluster bombs do not discriminate. NATO peacekeepers are not immune. Children are not immune. Approximately 5 Kosovars each day are killed by unexploded ordnance, mostly U.S. cluster bombs." Id.

(144.) See International Committee of the Red Cross, supra note 4, at http://www.icrc.org(on file with the Air Force Law Review).

(145.) See PROKOSCH, supra note 29, at 148-63.

(146.) See id. at 163.

(147.) Id. at 148.

(148.) Egypt, Mexico, Norway, Sudan, Switzerland, and Yugoslavia. A number of doctors, as well as Departments of Defense and State personnel, represented the United States. Id. at 149.

(149.) INTERNATIONAL COMMITTEE OF THE RED CROSS, CONFERENCE OF GOVERNMENT EXPERTS ON THE USE OF CERTAIN CONVENTIONAL WEAPONS (SECOND SESSION-LUGANO) 1999 (1976) [hereinafter LUGANO CONFERENCE] (summarizing the previous conference at Lucerne); see also PROKOSCH, supra note 29, at 149.

(150.) Generally, delayed-action weapons included landmines and booby-taps. See LUGANO CONFERENCE, supra note 149, at 12-13.

(151.) At Lucerne, "small-caliber projectiles [were] those having a substantially smaller calibre than the 7.62 mm rounds which had been in common use since the turn of the century." This included the US military's new 5.56 mm round used in the M-16 rifle. Critics of the 5.56 mm round claimed that the bullet "tumbled very early in the wound track, causing three times as many large wounds than did the 7. 62 mm ones." Id. at 13-15.

(152.) Flechette is French for "dart." Generally, they are needle-like weapons with fins on the tail. PROKOSCH, supra note 29, at 4. For a detailed discussion of flechettes, see id. at 44-47.

(153.) The Committee focused on the use of napalm. Id. at 151.

(154.) LUGANO CONFERENCE, supra note 149, at 17.

(155.) Id.

(156.) Id.

(157.) PROKOSCH, supra note 29, at 155. According to Prokosch, who was a conference observer, "there was no meeting of the minds at Lucerne. Summing up the results, the president of the conference was able to say only that it had 'contributed to an increase in knowledge and understanding of the subject' and that a second conference could usefully be convened." It is interesting to note that despite the extensive use of cluster bombs by the US in Vietnam, the head of the North Vietnamese delegation opposed banning cluster munitions, stating "[i]n the hands of a liberation fighter, it is a sacred tool." Id.

(158.) The conference met from January 28 through February 26, 1976. See LUGANO CONFERENCE, supra note 149, at 1.

(159.) See id. at 120. See generally PROKOSCH, supra note 29, at 155-60.

(160.) See LUGANO CONFERENCE, supra note 149, at 119-20.

(161.) See generally id. at 120-21.

(162.) See generally id. at 69-80.

(163.) Id. at 72.

(164.) Id. at 73.

(165.) Id. at 71-72.

(166.) Id. at 120.

(167.) The thirteen countries supporting CDDH/IV/201 (the proposal) were Algeria, Austria, Egypt, Lebanon, Mali, Mauritania, Mexico, Norway, Sudan, Sweden, Switzerland, Venezuela, and Yugoslavia. Id. at 198-99.

(168.) Id. at 25.

(169.) Ottawa Treaty, supra note 6.

(170.) PROKOSCH, supra note 29, at 163.

(171.) Id. at 160-63. The Non-Detectable Fragments Protocol prohibits the employment of any weapon "the primary effect of which is to injure by fragments which in the human body escape detection by x-rays." Non-Detectable Fragments Protocol, supra note 126. To the extent that cluster munitions might have used non-detectable fragments, the Non-Detectable Fragments Protocol regulates them. However, according to one expert, "Protocol I, in fact, bans a weapon which does not exist and is not even likely to be developed." PROKOSCH, supra note 29, at 161. The Incendiary Weapons Protocol also failed to include cluster munitions, as the Protocol specifically excluded:

Munitions designed to combine penetration, blast or fragmentation effects with an additional incendiary effect, such as armour-piercing projectiles, fragmentation shells, explosive bombs and similar combined-effects munition in which the incendiary effect is not specifically designed to cause burn injury to persons, but to be used against military objectives, such as armoured vehicles, aircraft and installations or facilities.

Incendiary Weapons Protocol, supra note 126, at Art. 1(b)(ii) (emphasis added). As stated earlier, the US ratified the Non-Detectable Fragments Protocol and the Land Mine Protocol, but has not agreed to the Incendiary Weapons Protocol. Later, in 1995, the Conventional Weapons Treaty delegates adopted the Blinding Laser Protocol. For a detailed analysis of the Blinding Laser Protocol, see W. Hays Parks, Trauvaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, 1997 ARMY LAW. 33 (1997).

(172.) See Land Mine Protocol, supra note 126. Generally, the Land Mine Protocol prohibited directing landmines against civilians or the civilian population or using landmines indiscriminately. The Land Mine Protocol adopted Geneva Protocol I, Art. 51(3)'s definition of "indiscriminate," discussed in detail infra Part IV.B.3. Further, the Land Mine Protocol mandated recording the location of minefields. See Land Mine Protocol, supra note 126, at Art. 7; PROKOSCH, supra note 29, at 161-62.

(173.) Land Mine Protocol, supra note 126, Art. 5. Remotely delivered landmines, as defined by the Protocol, are mines "delivered by artillery, rocket, mortar or similar means or dropped from and aircraft." Id. at Art. 2(1). They are prohibited unless: (1) their location is accurately recorded; (2) they possess an effective self-neutralizing or self-destructing mechanism or a remote control to detonate or deactivate the mine; and (3) effective advanced warning is given to any affected civilian area, unless the circumstances do not permit. Id. at Art. 5. For a more detailed analysis of remotely delivered landmines, see Peter J. Ekberg, Remotely Delivered Landmines and International Law, 33 COLUM. J. TRANSNAT'LL. 149 (1995).

(174.) See PROKOSCH, supra note 29, at 163. The Land Mine Protocol defined "mine" as "any munition placed under, on or near the ground or other surface area and designed to be detonated or exploded by the presence, proximity or contact of a person or vehicle." Land Mine Protocol, supra note 126, at Art. 2(1) (emphasis added). The signatories effectively excluded cluster munitions because they are not designed to be detonated by a person or vehicle. According to Prokosch, "Protocol II gives the impression of having been written to satisfy the needs of military forces, which may later have to occupy a mined area, rather than to protect civilians ... [while cluster bombs] remained untouched by any specific ban." PROKOSCH, supra note 29, at 162-63. For a detailed discussion of the Land Mine Protocol, see Lt Col Burris M. Carnahan, The Law of Land Mine Warfare: Protocol II to the United Nations Convention on Certain Conventional Weapons, 105 MIL. L. REV. 73 (1984); Efaw, supra note 24, at 107-117.

(175.) Efaw, supra note 24, at 116. The primary differences between the original Land Mine Protocol and the Amended Mine Protocol are that the latter applies to internal armed conflicts and "requires that all landmines be rendered detectable." Id. at 119. Further,, the Amended Mine Protocol mandates that "at least ninety percent of unmarked anti-personnel mines must self-destruct within thirty days of emplacement. As an added precaution, if a mine is flawed and does not self-destruct, each mine must also be programmed to deactivate within 120 days of emplacement." Id. at 122.

(176.) See generally Amended Mine Protocol, supra note 126, Art. 2-6; Efaw, supra note 24, at 107-17; Lacey, supra note 125, at 7-10.

(177.) See Amended Mine Protocol, supra note 126, Art. 2(3).

(178.) Id.

(179.) See Air University, supra note 18.

(180.) S. EXEC. DOC. NO. 106-2, at 36-37 (1999). As noted, the US ratified the Amended Mine Treaty on May 24, 1999. See Lacey, supra note 125, at 7.

(181.) Ottawa Treaty, supra note 7.

(182.) See Rae McGrath, Clearing the Clusters: Why Activists Earlier Failed to Ban These Bombs--And What Must be Done to Stop Their Use Now, at http://newsweekinteractive.org/nw-srv/issue/05_99b/printed/int/eur/ov 1905_1 (1999) (on file with the Air Force Law Review). For detailed information on the Ottawa Treaty, see Efaw, supra note 24, at 131-51.

(183.) The International Campaign to Ban Land Mines is a coalition of over 1,300 NGOsthat received the Nobel Peace Prize in 1997 for their work in the area of disarmament. See LANDMINE MONITOR REPORT 2000, supra note 7, at back cover.

(184.) See McGrath, supra note 182.

(185.) Id.

(186.) Id.

(187.) International Committee for the Red Cross, Banning Anti-Personnel Mines: The Ottawa Treaty Explained, at http://www.ircr.org (Feb. 1, 1998) (on file with the Air Force Law Review) (describing the treaty in detail).

(188.) Nonetheless, the US is not a party to the treaty and, therefore, not bound by its terms. As of Jan. 30, 2001, 139 countries have signed or ratified the Mine Ban Treaty. Among the dozens of countries that have not signed the Mine Ban Treaty are China, Egypt, Finland, India, Israel, Pakistan, Saudi Arabia, Russia, Turkey, the United States, and Vietnam. Updated numbers are available on the International Committee to Ban Landmines' webpage at http://www.icbl.org (on file with the Air Force Law Review).

(189.) BBC News, supra note 11.

(190.) See International Criminal Tribunal for the Former Yugoslavia (ICTY): Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 39 I.L.M. 1257, 1264-65 (2000) [hereinafter ICTY Report].

(191.) Id. at 1264.

(192.) See Hague II, supra note 122, at Art. 22; FM 27-10, supra note 97, at para. 33.

(193.) Hague II, supra note 122, at Art. 23(e).

(194.) Parks, supra note 120, at 18.

(195.) COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 [hereinafter ICRC COMMENTARY TO GENEVA PROTOCOL I] 409 (Yves Sandoz et. al. eds., 1987). The ICRC COMMENTARY TO GENEVA PROTOCOL I is available on-line at www.icrc.org.

(196.) Geneva Protocol I, supra note 124, Art. 35.

(197.) Parks, supra note 120, at 18.

(198.) Id.

(199.) See generally ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, at 407-09; CRIMES OF WAR, supra note 107, at 379-80; Parks, supra note 120, at 19.

(200.) See ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, at 408. See generally Parks, supra note 120, at 18-19.

(201.) See generally ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, at 407-09.

(202.) Parks supra note 120, at 18.

(203.) See generally id. at 18-19.

(204.) ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, at 392-96.

(205.) Id. at 393.

(206.) See generally id. at 392-96; Parks, supra note 120, at 18-19.

(207.) Parks, supra note 120, at 19.

(208.) Id.

(209.) See Mennonite Central Committee, supra note 5.

(210.) See generally Parks, supra note 120, at 19-22.

(211.) Id.

(212.) Id. (reviewing the legality of shotguns on the battlefields).

(213.) See id.

(214.) See generally LUGANO CONFERENCE, supra note 149, at 71-72. See also infra p. 30.

(215.) See generally ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, at 408.

(216.) Id.

(217.) Id. at 407.

(218.) See CRIMES OF WAR, supra note 107, at 379-80. An example of the type of weapon that causes unnecessary suffering is an explosive round filled with clear glass fragments. When the round detonates and glass penetrates the body, it is difficult for doctors to treat the wounded soldier because they cannot easily locate the clear glass. There is no military necessity in making the injuries more difficult to treat. Other weapons considered to cause unnecessary suffering include fragments undetectable by x-ray, poisoned bullets, and barbed bayonets. Id.

(219.) See infra. pp. 29-30.

(220.) LUGANO CONFERENCE, supra note 149, at 72-73. For example, one 500 lb. unitary bomb covers a 50-foot diameter, while a sensor fuzed cluster munition, delivered via a JSOW, will cover an area 500 feet by 1400 feet. See Weapons Briefing, supra note 13.

(221.) Id; Weapons Briefing, supra note 13. See also Richard Norton-Taylor, A Million Tiny Fragments With Each Impact, THE GUARDIAN (June 23, 1999). According to a British Defense Minister, George Roberts, cluster bombs are "particularly effective against Serb forces deployed in the field in Kosovo, against tanks, armored personnel carriers, artillery, and 'troop concentrations.'" Id.

(222.) See infra. p. 29.

(223.) See LUGANO CONFERENCE, supra note 149, at 72. One study estimates that without cluster munitions, the Air Force would have had to use 10% more unitary bombs during Operation Allied Force. See Weapons Briefing, supra note 13.

(224.) Id.; see infra. p. 29-30. To accomplish what cluster munitions can, the Air Force would have to use significantly more unitary bombs per target. The use of additional bombs also requires additional sorties per target, thus increasing the risk to both aircraft and aircrews. See Weapons Briefing, supra note 13.

(225.) LUGANO CONFERENCE, supra note 149, at 73. See also Weapons Briefing, supra note 13 (CBU-97s are a key weapon during the halt or hold phase of the battle).

(226.) ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, at 409.

(227.) Id at 399.

(228.) Preamble to the St. Petersburg Declaration. See THE LAWS OF ARMED CONFLICTS, supra note 2, at 102; THE LAWS OF WAR, supra note 93, at 35.

(229.) See ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, at 598.

(230.) See ROGERS, supra note 92, at 31-33. Once again, it is important to note that, while the US recognizes the following provisions of Geneva Protocol I to be generally reflective of customary international law, it is not a party to the Protocol. As such, its provisions are not binding. See generally Matheson, supra note 131, Janet E. Lord, Legal Restraints in the Use of Landmines: Humanitarian and Environmental Crisis, 25 CAL. W. INT'L L.J. 311, 322-25 (1995).

(231.) Geneva Protocol I, supra note 124, Art. 48.

(232.) According to Geneva Protocol I, supra note 124, at Art. 52, "military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage."

(233.) See generally ROGERS, supra note 92, at 6-7. The term "civilian population" consists of all civilian persons. Geneva Protocol I, supra note 124, Art. 50. It is important to note, however, that while the US concurs with Geneva Protocol I's definition of a civilian, it disagrees with the circumstances under which immunity from attack is lost. Geneva Protocol I, Art. 51(3), states that a civilian loses protected status if he takes a "direct" part in the hostilities. The US, on the other hand, equates the loss of civilian immunity to situations when a civilian takes an "active" part in hostilities. While this might seem immaterial at first, consider the nonmilitary truck driver who hauls ammunition from the factory to the military on the front line. Under Geneva Protocol I's definition, the truck driver might still be immune from attack. This is not true, however, when applying the US's interpretation to civilian immunity. See W. Hays Parks, Air War and the Law of War, 32 A.F. L. REV. 1 (1990). See generally ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, Art. 51.

(234.) Id. at 36-37.

(235.) See Geneva Protocol I, supra note 124, Art. 51.

(236.) Id.

(237.) See ROGERS, supra note 92, at 21.

(238.) Id.

(239.) Id. at 56.

(240.) ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, at 680 (defining military operations as "any movements, maneuvers, and other activities whatsoever carried out by the armed forces with a view toward combat").

(241.) Geneva Protocol I, supra note 124, Art. 57(1).

(242.) ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, at 682. Its important to note that, according to the Commentary, "this rule does not imply any prohibition of specific weapons." It specifically discusses an unsuccessful attempt to regulate mines and minefields, but choosing instead to leave those issues to the Conventional Weapons Treaty. See id.

(243.) Geneva Protocol I, supra note 124, Art. 57(2).

(244.) Id. at Art. 51(2); see ROGERS, supra note 92, at 7-14.

(245.) Geneva Protocol I, supra note 124, Art. 51(4)(b); see ROGERS, supra note 92, at 19-24. According to Rogers, whether customary international law ever prohibited indiscriminate attacks is unsettled. ROGERS, supra note 92, at 19-20.

(246.) Mennonite Central Committee, supra note 5.

(247.) Id.

(248.) 145 CONG. REC. S10070-71, supra note 10 (Sen. Leahy).

(249.) See infra p. 8-9 and note 35.

(250.) See Weapons Briefing, supra note 13. Some suggest, however, that the angle of the Tactical Munitions Dispenser, rather than the height of the drop, has more impact on bomblet dispersion pattern.

(251.) See generally Parks, supra note 233, at 188-89.

(252.) Id. at 182-202. Karl Von Clausewitz used the term "friction of war" to describe the uncertainties of combat. According to Clausewitz:

If one has never personally experienced war, one cannot understand in what the difficulties mentioned really exist, nor why the commander should need any brilliance and exceptional ability. Everything looks simple; the knowledge required does not look remarkable, the strategic options are so obvious that by comparison the simplest problem of higher mathematics has an impressive scientific dignity. Once war has actually been seen the difficulties become clear; but it is extremely hard to describe the unseen, the all-pervading element that brings about this change of perspective.

CLAUSEWITZ, ON WAR 119 (M. Howard & P. Paret trans. 1976) quoted in Parks, supra note 233, at 182 n.540.

(253.) See generally Parks, supra note 233, at 113.

(254.) See generally US DEPARTMENT OF THE AIR FORCE, AIR FORCE PAMPHLET 14-210, USAF INTELLIGENCE TARGETING GUIDE (Feb. 1, 1998) [hereinafter TARGETING GUIDE].

(255.) See generally ROGERS, supra note 92, at 21-22.

(256.) The destruction of Iraqi armor columns on the "highway of death" in Kuwait is an example. See generally CLANCY, supra note 51, at 423.

(257.) ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, at 621.

(258.) See Id.; ROGERS, supra note 92, at 20-21. But see Michael N. Schmitt, The Principle of Discrimination in 21st Century Warfare, 2 YALE H.R. & DEV. L.J. 143, 148 (1999). See generally RICK ATKINSON, CRUSADE: THE UNTOLD STORY OF THE PERSIAN GULF WAR 80-85 (1993).

(259.) See Wind Corrected Munition Dispenser (WCMD), FAS Military Analysis Network [hereinafter FAS] at http://www.fas.org/man/dod-l01/sys/smart/wcmd.htm (on file with the Air Force Law Review); What's New with Smart Weapons, FAS, at http://www.fas.org/man/dod-101/sys/smart/new.htm (on file with the Air Force Law Review).

(260.) See Geneva Protocol I, supra note 124, Art. 51(5)(b).

(261.) See Mennonite Central Committee, supra note 5.

(262.) According to the Mennonite Central Committee, cluster bombs are indiscriminate "because their high dud rates guarantee the creation of de facto landmine fields, they go on killing for decades after the battle is over." See Mennonite Central Committee, supra note 5.

(263.) Id.

(264.) ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, at 622-23.

(265.) Id. at 623.

(266.) See id.

(267.) This goes back to the principle of state sovereignty. For a legal norm to exist, states either must expressly agree on the norm, through a treaty for example, or it must rise to the level of customary law. To be customary law, however, states must recognize the principle and believe they must abide by the norm out of a sense of legal obligation. See infra pp. 20-21.

(268.) See infra pp. 27-31.

(269.) See infra p. 13 and note 69.

(270.) ICTY Report, supra note 190, at 1264.

(271.) Id.

(272.) See US GOVERNMENT ACCOUNTING OFFICE, UNEXPLODED ORDNANCE: A COORDINATED APPROACH TO DETECTION AND CLEARANCE IS NEEDED, GAO/NSISD-95-197 (1995). According to the GAO, in France, millions of UXOs from World War I must still be located and cleared. Further, both Germany and Britain have UXO problems resulting from World War II. Id. See also MAJ Vaughn A. Ary, Concluding Hostilities: Humanitarian Provisions in Cease-Fire Agreements, 148 MIL. L. REV. 186 (1995) (stating that since 1946, France has collected and destroyed more than eighteen-million artillery shells, ten-million grenades, six-hundred-thousand aerial bombs, and six-hundred-thousand underwater mines left over from WWI and WWII).

(273.) See Parks, supra note 233, at 189. According to Parks:

One may always hope for a 'zero defect' environment .... Nonetheless, there will be occasions where bombs or other munitions are dropped or launched with honest expectation that they are directed at the intended target, only to find that they miss their target due to a malfunction in the aircraft, its bomb-aiming equipment or the munitions.

Id.

(274.) Ron Laurenzo, Cluster Bomb Dud Rates Cut, Army Says, DEFENSE WEEK, June 1, 1999 at 3 (citing Francis Kosakowski, an Ogden Air Logistics Center spokesperson, commenting on the CBU-87).

(275.) See Mennonite Central Committee, supra note 5.

(276.) DOD News Briefing, supra note 83.

(277.) ICRC COMMENTARY TO GENEVA PROTOCOL I, supra note 195, at 623.

(278.) See generally id.

(279.) Id. See generally ROGERS, supra note 92, at 14-19.

(280.) ROGERS, supra note 92, at 16.

(281.) Geneva Protocol I, supra note 124, Art. 51(5)(b).

(282.) See ROGERS, supra note 92, at 16-21.

(283.) See TARGETING GUIDE, supra note 255; see generally ROGERS, supra note 92, at 19. Rogers lists several factors that military planners should consider. Among them are:

the military importance of the target or objective, the density of the civilian population in the target area, the likely incidental effects of the attack, including the possible release of hazardous substances, the types of weapons available to attack the target and their accuracy, whether the defenders are deliberately exposing civilians or civilian objects to risk, the mode of the attack and the timing of the attack, especially in the case of a mixed target.

Id.

(284.) Mennonite Central Committee, supra note 5 (quoting LT GEN Fulford's letter to Rep. Dennis Kucenich). See also KOSOVO/OPERATION ALLIED FORCE AFTER-ACTION REPORT, supra note 13, at 90 (stating that "Combined effects munitions remain and appropriate and militarily effective weapon when properly targeted and employed. However, the risk of collateral damage, as with any weapon, must be considered when employing these weapons.").

(285.) See Parks, supra note 233, at 17 1-72.

(286.) This is not to suggest that military leaders consider the "long term" effects of UXOs on the battlefield or be called on to speculate about when and how many civilians might enter an area targeted with cluster bombs or how much demining activities might take place before those civilians might be exposed the affected area. Further, commanders cannot possibly know the exact reliability rates of every weapons system they employ in all circumstances. The consideration of known dud rates is more appropriate during the legal review of new weapons (required by Geneva Protocol I, Article 36). Rather, commanders should recognize that deployed cluster munitions will leave some unexploded ordnance on the battlefield. Any proportionality analysis should calculate this factor. I'm not suggesting commanders quantify the amount of collateral damage likely to be caused, as this would be extremely speculative, but rather, only that they recognize the potential for additional collateral damage from UXOs. Some military e xperts have criticized the US for failing to complete such an analysis in the past. For example, according to Anthony Cordesman, "[s]aying that such weapons cause collateral damage but ignoring them in the assessment of collateral damage is just one more way in which NATO and the US failed to address the issue of collateral damage in realistic terms and with analytic integrity." KOSOVO LESSONS, supra note 80, at 250.

(287.) See generally ROGERS, supra note 92, at 14-19.

(288.) DOD News Briefing, supra note 83.

* Major Herthel (B.S., Northern Arizona University; J.D., Cumberland School of Law, Samford University; LL.M, The Judge Advocate General's School, United States Army) is an instructor, International and Operational Law Division, The Air Force Judge Advocate General School, Maxwell AFB, Alabama. He is a member of the Alabama State Bar. The author would like to thank Squadron Leader Chris Hanna, Royal Australian Air Force, and Major Jeanne Meyer, USAF, for their assistance in preparing this article.

COPYRIGHT 2001 U.S. Air Force, Academy Department of Law
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