Having cluster bombs, or using them in war doesn't violate the Geneva convention.
Whether cluster bombs violate the Geneva Conventions is still under discussion. And this is not the first time their violation of the Conventions has been raised. The same objections were brought up when they were used in Afghanistan. I happen to agree with the argument below:
"Cluster Bombs and International Humanitarian Law
Although there is no treaty that specifically regulates cluster bombs, these weapons raise concerns under existing international humanitarian law (IHL). IHL, also called the law of war, governs the conduct of states and non-state actors during times of armed conflict. The four Geneva Conventions of August 12, 1949, and their two associated Additional Protocols of 1977 (hereinafter Protocol I and Protocol II) represent cornerstones of IHL and offer internationally accepted legal standards for evaluating the problems posed by cluster bombs.31 Both the United States and Afghanistan are parties to the Geneva Conventions, but neither is party to the 1977 Protocols. The provisions discussed below, however, are considered customary law, that is, legal norms deriving from common state practice that bind all nations regardless of specific legal commitments.32 The Convention on Conventional Weapons (CCW), which regulates specific weapons and will be discussed in detail below, is also relevant to cluster bombs.33
The Fourth Geneva Convention and Protocol I lay out the law that protects civilians during war.34 Protocol I, adopted to supplement the original protections, includes most of the articles important for this report.35 The basic principle of this branch of IHL is distinction, which requires all parties engaged in an armed conflict to distinguish between civilians and combatants. Article 48 of Protocol I states, "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."36
Attacks that strike military objects and civilians or civilian objects without distinction are considered indiscriminate and are prohibited.37 While the Protocol recognizes that some civilian deaths are inevitable, it says states cannot legally target civilians or engage in indiscriminate attacks. Article 51(4) and Article 51(5) define the concept of indiscriminate in several ways.38 As discussed below, cluster bombs raise concerns under most of the definitions. While not inherently indiscriminate, cluster bombs are prone to being indiscriminate, particularly when certain methods of attack or older or less sophisticated models are used.
The immediate effects of cluster bombs, i.e., the damage done during strikes, raise concerns under Protocol I's proportionality test, which balances military advantage and civilian impact.39 According to Article 51(5)(b), an attack is disproportionate, and thus indiscriminate, if it "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."40 Some kinds of cluster bomb attacks tend to tip the scale toward being disproportionate. Strikes in or near populated areas are particularly problematic because when combatants and civilians commingle, civilian casualties are difficult to avoid.
An August 2001 U.S. Air Force background paper acknowledges that cluster munitions "must pass [the] proportionality test" and states that there are "[c]learly some areas where CBUs normally couldn't be used (e.g., populated city centers)."41 The definition of a populated area should include not only cities but also villages and their environs.42 The CCW, for example, defines "concentrations of civilians" as "any concentration of civilians, be it permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages . . . ."43 Based on research in Iraq, Yugoslavia, and Afghanistan, Human Rights Watch believes that when cluster bombs are used in any type of populated area, there should be a strong, if rebuttable, presumption under the proportionality test that an attack is indiscriminate.44
Cluster bomb strikes also have the potential to be indiscriminate because the weapons cannot be precisely targeted. Article 51(4)(b) prohibits attacks "which employ a method or means of combat which cannot be directed at a specific military objective."45 Article 51(5)(a), drafted in response to the carpet bombings of World War II, similarly prohibits bombings that treat "separated and distinct" military objectives as one.46 Cluster bombs are area weapons, useful in part for attacking dispersed or moving targets. They cannot, however, be directed at specific soldiers or tanks, a limitation that is particularly troublesome in populated areas. If one analogizes cluster bombing a populated area in order to kill individual soldiers with carpet bombing a city in order to destroy separate military bases, the attack can be interpreted as indiscriminate. The Protocol I principle that multiple targets should not be treated as one supports the argument that cluster bombs should not be used in populated areas.
The aftereffects of cluster bombs also raise concerns under IHL. If the proportionality test is interpreted as encompassing more than immediate loss, the large number of explosive duds may make cluster bomb use disproportionate. As explained above, unexploded bomblets cause greater "loss of civilian life, injury to civilians, and damage to civilian objects" than most types of unexploded ordnance.47 Taking into account both strike and post-strike casualties greatly increases the likelihood that the loss would be excessive in relation to the military advantage, especially if an attack occurred in a populated area or an area to which people might return. The U.S. Air Force has said that the dud rate must be part of the proportionality determination because unexploded bomblets are "reasonably foreseeable."48
Because of their duds, cluster bombs also exemplify weapons that can be indiscriminate in effect. Article 51(4)(c) of Protocol I says that indiscriminate attacks include "those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol."49 Even if a cluster bomb strike is not indiscriminate, its effects may be. The effects become more dangerous if the bomblets litter an area frequented by civilians or the dud rate is high due to poor design, use in inappropriate environments, or delivery from a high altitude. Cluster bomblet duds cannot distinguish between combatants and non-combatants and will likely injure or kill whoever disturbs them. Under either the proportionality test or the effects provision, the high dud rate of cluster bombs combined with the large number of bomblets they release challenges the principle of distinction.
Regardless of whether cluster bombs violate IHL, states are legally bound to minimize civilian harm. Article 57(2)(a)(ii) of Protocol I imposes a duty on states to "take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects."50 "All feasible precautions" implies that the weapons should be used sparingly, if at all, when it is foreseeable that they will cause at least incidental harm to civilians. The availability of alternative weapons should also be considered. Given the potential indiscriminateness discussed above, the United States, and other countries that use cluster bombs, should avoid strikes in or near populated areas and minimize the long-term effects of duds.51"
hrw.org |
