On August 1, 2010, the Convention on Cluster Munitions came into effect as binding international law among its signatories. Even for non-signatory states like the United States, the Convention’s requirements will have a significant impact on the use of cluster munitions and the strategic context for their use.
The treaty was adopted at the end of a ten-day conference in Dublin on May 30, 2008. At a subsequent ceremony in Oslo on December 3, the Convention was opened for signatures. Over 100 countries immediately signed in 2008, but it took until 2010 for 30 of those countries to ratify the Convention. Ratifying countries include Japan, the United Kingdom, France, and Germany. Signatories include a majority of the European Union states, Iraq, and Afghanistan. Notable countries among those that have neither ratified nor signed the treaty include the US, Russia, China, India, Israel, and Pakistan.
Generally, states that are parties to the Convention agree never to use cluster munitions, stockpile cluster munitions, or transfer cluster munitions to others. State Parties also agree to a host of other obligations within their respective jurisdictions, most notably destroying all existing stockpiles of cluster munitions, disposing of all unexploded cluster munition remnants, and providing assistance to victims of cluster munitions. For determining what is precisely prohibited, the treaty defines cluster munitions as “a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms.” However, the Convention allows for some exceptions. In addition to munitions that dispense only flares, smoke, or electronic effects, the treaty also allows for munitions that satisfy all five of the following criteria:
- Each munition contains fewer than ten explosive submunitions;
- Each explosive submunition weighs more than four kilograms;
- Each explosive submunition is designed to detect and engage a single target object;
- Each explosive submunition is equipped with an electronic self-destruction mechanism;
- Each explosive submunition is equipped with an electronic self-deactivating feature
According to Article 2.2 of the Convention, munitions that satisfy those five criteria are allowable, because they “avoid indiscriminate area effects and the risks posed by unexploded submunitions.”
The key question, particularly for the US, is what effect the Convention will have among non-party states. The New York Times predicts that “the treaty’s unequivocal language” could be “so strong that even countries refusing to sign it will be reluctant to deploy the weapons or trade them in.” That prediction already has some support: the UK has stated that it will ask the US to remove any of its cluster munitions in UK territory. This request already begins extending the Convention’s effects beyond State Parties. Furthermore, Article 21.2 of the Convention requires that “each State Party…shall promote the norms [the Convention] establishes and shall make its best efforts to discourage States not party to this Convention from using cluster munitions.” If the ratifying countries wholeheartedly follow this obligation, then traditional military allies of the US, such as the UK, may soon be strongly discouraging the US from employing cluster munitions in joint operations.
Such pressure could, in effect, require the Department of Defense to reconsider its current policy on cluster munitions. Even after the Convention was drafted, the Department of Defense maintained that cluster munitions have “clear military utility in combat” that saves the lives of U.S. soldiers. Still, the Department has also agreed that, by the end of 2018, “DoD will no longer use cluster munitions which, after arming, result in more than one percent unexploded ordnance….” If the effects of the Convention force the US to reconsider cluster munition use sooner than anticipated, however, the effect on U.S. military readiness could be substantial. In 2008, Richard Kidd, then the Director of the State Department’s Office of Weapons Removal and Abatement, stated in response to the Convention: “Cluster munitions are available for use by every combat aircraft in the U.S. inventory; they are integral to every Army or Marine maneuver element and in some cases constitute up to 50% of tactical indirect fire support. U.S. forces simply cannot fight by design or by doctrine without holding out at least the possibility of using cluster munitions.”
Pressure from allies, however, may be the least of the United States’ worries regarding future use of cluster munitions. The permissibility of cluster munitions under International Humanitarian Law is still a heated debate, because it is unclear whether cluster munitions are weapons that are by nature indiscriminate. The International Committee of the Red Cross has expressed strong support for the Convention, stating that it “will work globally in the years to come to promote [the Convention’s] implementation. The ICRC has called on all States to sign and ratify the Convention.” Given this support from the ICRC, a key player in humanitarian law, it is possible that the Convention could ultimately lead to clarification on the permissibility of cluster munitions under international law.
Image courtesy of Military Suppliers & News.