U.S. Policy on Cluster Munitions and Its Susceptibility to Litigation Dustin E. Sewell Abstract: With the increasing likelihood that battlefields of the future will emerge from and around heavily civilian-populated areas, why does the U.S. maintain the belief that indiscriminate cluster munitions are a necessary military utility for waging war? While there is no simple answer, through my research, I show that although the U.S. is taking unilateral action through proposed legislation to tighten restrictions on the failure rate of cluster munitions, any use, manufacture, or sale of such weapons in the future will con- tinue to be a violation of International Humanitarian Law. This will leave the government and the manufacturers susceptible to litigation. n August 12th, 2008, a Dutch journalist 2006, 2008, p. 36-37), Israel’s attack on Lebanon in Owas killed by a Russian cluster bomb attack July and August of 2006 left villages and urban cen- (Barry, 2008). “Stan Storimans, 39, died while film- ters blanketed with Unexploded Ordinance (UXO), ing the fighting in Gori, Georgia, during the con- sometimes referred to as Explosive Remnants of flict over the breakaway province of South Ossetia” War (ERW) (Wiebe & Peachy, 1999, p. 3); UXO (Sterling, 2008, para. 2). AP Journalist Toby Ster- is the result of high failure rates of sub-munitions ling (2008, para. 3) affirms that while both Russian from cluster bombs and rockets. Chris Clark, the and Georgian officials, having denied the use of program manager of the Mine Action Coordination cluster munitions during the conflict, a Dutch gov- Centre South Lebanon (MACC SL), “has projected ernment investigation team turned up evidence con- an average failure rate of 25 percent, with up to 70 trary to the claims. According to the Dutch Foreign percent in some locations” (Flooding South Leba- Affairs Ministry, the investigation team uncovered non: Israel’s Use of Cluster Munitions in Lebanon “forensic evidence” and “eyewitness accounts” in July and August 2006, 2008, p. 44). sufficient to show that “Storimans was killed by a HRW places the number of civilian casualties in munition ‘propelled by a type of rocket that is only south Lebanon, as of January 2008, at 200; 61 of found in Russia’s military arsenal.’” According to these children under the age of 18 (Flooding South reporter Jeroen Akkermans, who was working with Lebanon: Israel’s Use of Cluster Munitions in Leb- Storimans at the time, several Georgian civilians anon in July and August 2006, 2008, p. 49). Of par- also died as a result of the cluster bomb attack. Ster- ticular interest to the United States in this matter is a ling (2008, para. 3) quotes the Dutch Foreign Af- statement by Ambassador Stephen D. Mull, Acting fairs Minister, Maxime Verhagen, when he writes, Assistant Secretary for Political-Military Affairs, in “Cluster munitions must not be used in this way. an on-the-record-briefing in Washington, D.C. when There were no troops present in Gori and innocent he affirms that “Some [of Israel’s cluster munitions civilians were killed.” used in the attacks on Lebanon] were provided by While the deaths of Storimans and the Georgian the U.S.” (U.S. Dept. of State, 2008, para. 46). civilians are both tragic and create awareness as to A more direct tie to U.S. involvement and inter- the indiscriminate nature of such weapons, a tie to est surrounding the use of cluster munitions is illus- U.S. interest, apart from sympathy for the victims trated by the incident of “March 2003 [when] U.S. and their families, is nonexistent. However, the forces dropped cluster bombs in the Iraqi region of 2006 Israeli attack on Lebanon establishes ancillary Hilla, south of Baghdad, killing at least 33 civilians U.S. involvement while the attack in Iraq in 2003 and injuring 109—according to a report by the New establishes direct participation. According to a Hu- York-based Human Rights Watch” (Lima: Taking man Rights Watch (HRW) report published on their Aim at Those Who Finance Cluster Bombs, 2007, website (Flooding South Lebanon: Israel’s Use of para. 11). The civilian casualties of Iraq, South Leb- Cluster Munitions in Lebanon in July and August anon, and South Ossetia are testimony to the fact UW BOTHELL POLICY JOURNAL, FALL 2009 1 Sewell that cluster munitions are still very prevalent in figures, according to Lumpe (2008), estimate the contemporary arsenals. Furthermore, two of these average failure rates to be between 5 and 25 per- cases link to U.S. culpability and thereby demand cent. The Survey of Cluster Munitions Produced some measure of responsibility to the victims and and Stockpiled briefing introduced in Montreux, their families. This paper will examine U.S. policy Switzerland in April of 2007, breaks down the fail- regarding cluster munitions, its actions involving ure rates by type of weapon system: Impact and them, and its susceptibility to litigation in greater Time Delay Fuzed Bomblets (ITDFB): 10 to 30 detail. percent as reported by explosive ordinance person- nel in areas like Southeast Asia, Kuwait, Kosovo, Background and Lebanon; Dual Purpose Improved Convention- al Munitions (DPICM) without Self-Destruct (SD): Cluster munitions are bombs or rockets that are 3 to 23 percent based on testing done by the U.S.; launched from the air or surface and release hun- DPICM with SD: 1.3 to 2.3 percent based on testing dreds of smaller explosives or submunitions — done by Norwegian and UK officials; and no fail- sometimes referred to as bomblets or grenades. ure rate numbers for Sensor Fuzed Weapons (SFW) The submunitions are “designed to explode on are available at this time. During Operation Desert impact, just before impact or a short time after im- Storm, a report presented by the Government Ac- pact” (Wiebe, 1999, p. 2). The explosives used in counting Office (GAO) maintains that “over half of submunitions typically have a higher charge than the Army’s multiple-launch rocket system (MLRS) those found in anti-personnel landmines. Cluster cluster weapon lots” exceeded their goal of a less- munitions also result in “more upper body injuries than 5 percent dud rate with some lots reaching dud and deaths” than comparably found with landmine rates as high as 23 percent (Wiebe, 1999, p. 3). incidents; this is attributed to the higher explosive To put the subject of submunition failure rates charge coupled with the fragmentation of a heavy into another perspective, one should consider that of metallic outer shell (Wiebe & Peachy, 1999, p. the roughly 30 million submunitions dropped over 2). According to the Cluster Munition Coalition Iraq and Kuwait during Operations Desert Shield (CMC), the intended purpose of these weapon sys- and Desert Storm, according to the U.S. Office of tems is “to destroy dispersed, moving and unseen Munitions, and even with an “optimistically low targets” (Technical Analysis of Cluster Munitions, dud rate of 5 percent,” the net result is 1.5 million para. 1). They are considered “area weapons,” unexploded submunitions dispersed across the 2 meaning that their effects, or “footprint,” are not countries (Wiebe & Peachy, 1999, p. 3). The CMC limited to a single target. According to Lora Lum- offers their perspective on the problem: pe (2008), of the Friends Committee on National The numbers of unexploded submunitions Legislation (FCNL), one cluster munition rocket left behind after conflicts ranges from the can saturate an area with explosives equivalent thousands (20,000 were cleared in Kosovo in size to three football fields. Consequently, the in 18 months after the NATO bombing in widespread delivery and blanketing dispersal of 1999) to the hundreds of thousands (the such weapons means that targets are hit indiscrimi- UN estimates up to 1 million submuni- nately; this results in a potential danger to both tions were left unexploded after the con- military and civilian personnel/infrastructure. flict between Hezbollah and Israel in July Aside from the indiscriminate danger of “area and August 2006) (Technical Analysis of targeting” that comes with the use of cluster muni- Cluster Munitions, n.d., para. 3). tions, another problem is the high rate of submuni- While estimates of failure rates and exact num- tions that fail to detonate as they are designed to bers of UXO may vary based on the Non-Govern- do. While precise numbers denoting global cluster ment Organizations (NGOs) or government that is munition failure rates, or dud rates, are impossible collecting the data, variations also exist because to ascertain, there is no argument that the cluster of the number of different categories of submuni- bombs currently in service have, “as with all mu- tions and delivery systems (currently exceeding a nitions, a certain number of submunitions in each dozen of the more popular types); the consensus is canister [that] fail to explode on impact” (Techni- that high failure rates exist. The reality is that these cal Analysis of Cluster Munitions, para. 2). FCNL incidents of UXO result in the injury or death of 2 UW BOTHELL POLICY JOURNAL, FALL 2009 U.S. Policy on Cluster Munitions and Its Susceptibility to Ligitation innocent people long after a conflict has ended. Ac- International and International Action Network on cording to the CMC, “incidents involving submuni- Small Arms Involved in Campaign, 2006, para. 5). tion duds are much more likely to cause death than The one-stop-shop IKEA analogy, selling every- injury” (The Problem: What’s the Problem With thing and anything arms-related to anyone looking This Weapon?, n.d., para. 4). Furthermore, recent to purchase, may not be far off target when com- estimates show that 98 percent of cluster bomb ca- pared with the information that, as of 1997, “U.S.