Michigan Journal of International Law Volume 22 Issue 1 2000 Footprints of Death: Cluster Bombs as Indiscriminate Weapons Under International Humanitarian Law Virgil Wiebe Georgetown University Law Center Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the International Humanitarian Law Commons, International Law Commons, and the Military, War, and Peace Commons Recommended Citation Virgil Wiebe, Footprints of Death: Cluster Bombs as Indiscriminate Weapons Under International Humanitarian Law, 22 MICH. J. INT'L L. 85 (2000). Available at: https://repository.law.umich.edu/mjil/vol22/iss1/2 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. FOOTPRINTS OF DEATH: CLUSTER BOMBS AS INDISCRIMINATE WEAPONS UNDER INTERNATIONAL HUMANITARIAN LAW Virgil Wiebe* INTRODUCTION .................................................................................... 87 I. WHAT ARE CLUSTER BOMBS AND WHY Do MILITARIES WANT THEM IN THEIR ARSENALS 9 ................... .. .. .. .. .. .. 89 II. WHERE HAVE CLUSTER BOMBS BEEN PRODUCED AND USED? ...... 91 III. CLUSTER BOMBS AND THE PRINCIPLE OF DISCRIMINATION IN INTERNATIONAL LAW ............................................................ 96 A. Basic Principles of Discrimination................................... 96 1. The Principle of Distinction .......................................... 100 2. The Principle of Proportionality & Limiting Collateral D am age ......................................................... 101 B. Indiscriminate Use Prohibitionsin PopulatedAreas: GeographicalAspects of ClusterBombs ............................. 104 1. Missed Targeting: The Imprecision of Current Cluster W eapons .............................................. 104 2. "Footprint" Size: Godzilla Can't Be Too Careful ......... 109 3. Massive Numbers of Multi-Purpose Munitions: M ore Bang for the Buck ................................................ 111 4. Targeting + Footprint + Populated Area + Multi-Purpose = Indiscriminate Use ............................. 112 C. Landmines Super: Unexploded Cluster Bombs as Temporally Indiscriminate & Inhumane Weapons.............. 113 IV. CASE STUDIES: CROATIA, Kosovo AND CHECHNYA .................... 119 A. Ethnic Cleansing ClusterBombs: The Prosecutor v. Martic before the InternationalCriminal Tribunal for the Former Yugoslavia ................................................... 120 1. Rocket Attacks on Zagreb Lead to an Indictment ........ 121 * Advocacy Fellow, Center for Applied Legal Studies, Georgetown University Law Center; B.A:, Kansas State University; J.D., New York University; M.Phil., Oxford Univer- sity (England). I would like to acknowledge the helpful insights of David Koplow, Phil Schrag, and Titus Peachey. Marjorie Kirkwood and Rebecca Rich provided invaluable pre- liminary research assistance. I owe a particular debt to Titus Peachey, as his years of research on the issue and commitment to the victims of cluster bombs have contributed much to this article. I, of course, take full responsibility for any errors of fact, analysis, or omis- sion. Michigan Journal of InternationalLaw [Vol. 22:85 2. Orkan Rockets: Lethal Footprints + Poor Targeting + High Dud Rate + Civilian Targets = War Crime .......... 122 3. Shrapnel in the City: Cluster Munitions as Disproportionate Weapons in Urban Environments ..... 125 B. HumanitarianCluster Bombs: Operation Allied Force in Kosovo/Serbia................................................................. 126 1. Dumb & Dumber: The Mix of Precision Guided and Unguided Cluster Munitions in Operation A llied Force ................................................................... 127 2. Death on Contact: Immediate Civilian Casualties During the Air Campaign .............................................. 130 3. Death from Duds: Collateral Damage from U nexploded Ordnance ................................................... 137 4. Errant Footprints: The Cluster Bombing of Nis ........... 140 C. Anti-Terror Cluster Bombs: Russian Use in the Chechen Wars ............................................................ 142 1. Battling Terrorists: Indiscriminate Cluster Bomb Use During the Chechen W ars ...................................... 143 2. The Case of Grozny: A Cluster Warhead G oes to M arket .............................................................. 148 V. A PROPOSAL TO BAN CLUSTER BOMBS ......................................... 151 A. A Look Back: Past Efforts to Ban Cluster Bombs ............... 151 1. Footprints to Nowhere in the 1970s: The Conventional Weapons Treaty (CCW) Process ............ 152 2. Banning Some Hidden Killers, Forgetting Others: The March to the 1997 Ottawa Mines Ban Treaty ........ 157 B. Another Opportunity: The 2001 CCW Review Conference..................................................... 160 1. Technical Fixes, Use Restrictions and Post Conflict Accountability Measures: Too Little, Too Late? .......... 163 2. Ban the Bomblets: A Call for a Comprehensive Ban on Explosive Cluster Submunitions .............................. 166 C ON CLU SIO N.......................................................................................... 167 Fall 20001 Footprintsof Death In October 1999, ten-year-old Burim Jashari lost his left leg and may lose his right one, as a result of an exploding cluster bomblet in his village of Babushi Muhaxhereve, Kosovo. "Momma, can you give me one of your legs?" he reportedly asked his mother after the accident. Four other boys with whom he was tending animals were also injured. Burim identified a picture of a U.S. dropped cluster bomblet as the culprit.' INTRODUCTION Cluster bombs are indiscriminate weapons. The inherent nature of cluster bombs as wide-area munitions, at a minimum, should make their use illegal in civilian areas, as the risk of civilian casualties is prohibi- tively high. Unexploded bomblets act as de facto landmines after initial use, making them indiscriminate killers for decades to come. In light of these characteristics, a moratorium on the use, production, trade, and stockpiling of cluster bombs should be implemented immediately. This moratorium should lead to banning their use, production, transfer and stockpiling through international treaty. While cluster bombs have not been banned explicitly under interna- tional law,3 close scrutiny of their historical use through the lens of established international humanitarian law supports the argument that they should be. Principles of discrimination (those norms which call on mili- tary forces to distinguish between civilian and military targets and to limit damage to civilians) have been firmly enshrined in international humani- tarian law. Cluster bombs can be shown to be geographically indiscriminate in nature, when used in areas of civilian concentration. Cluster munitions have large "footprints" (the surface area where bomblets are dispersed), and most versions are difficult to accurately tar- get, making their use especially problematic in civilian areas. Cluster 1. Thane Burnett, Burim's Story: Young Victim of Deadly Dregs of War, TORONTO SUN, Dec. 5, 1999, at 62. 2. Unexploded bomblets and submunitions are often referred to as "duds." This termi- nology is somewhat misleading, as the word "dud" suggests that such a bomblet not only has not but will not explode. Duds which fail to explode on initial contact often do explode when disturbed at a later time. 3. The Ottawa Mines Ban Treaty, with its design-focused definition of landmines (as opposed to a definition focused on the actual effects of particular weapons), most likely excludes cluster bombs from its coverage. Convention on the Prohibition of the Use, Stock- piling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Dec. 3, 1997, 36 I.L.M. 1507 [hereinafter Mines Ban Treaty, or MBT]. The MBT defines an anti- personnel landmine as "a mine designed to be exploded by the presence or contact of a per- son and that will incapacitate, injure, or kill one or more persons." Id. at Art. 2, 1. For discussion of this issue, see infra Parts III.D & V.A.2. Michigan Journal of InternationalLaw [Vol. 22:85 munitions can also be shown to be temporally indiscriminate, as their high initial misfire rates combined with their small size convert them into de facto landmines. These cumulative characteristics of cluster bombs make them inherently indiscriminate and outweigh their military utility. Militaries see cluster bombs as more effective against personnel, ar- mored vehicles, and lightly protected buildings than unitary bombs because of their wide area coverage. When access to precision guided munitions fitted with unitary warheads is limited, militaries of both the powerful and less powerful states wish not to restrict their weaponry op- tions. Thus far, these "military utility" arguments in favor of using cluster munitions have trumped humanitarian concerns. This Article applies these principles of discrimination to the real, rather than idealized, use and characteristics of cluster bombs. Briefly stated, these principles call upon parties to an armed conflict to distin- guish between civilians and combatants and to weigh the military advantages of a particular weapon or