▲ A B-1B Lancer unleashes cluster munitions [USAF]

ESSAY / Ana Salas

The aim of this paper is to study the international contracts on cluster bombs. Before going deeper into this issue, it is important to understand the concept of international contract and cluster bomb. “A contract is a voluntary, deliberate, legally binding, and enforceable agreement creating mutual obligations between two or more parties and a contract is international when it has certain links with more than one State.”[1]

A cluster bomb is a free-fall or directed bomb that can be dropped from land, sea, or air. Cluster bombs contain a device that releases many small bombs when opened. These submunitions can cause different damages, they are used against various targets, including people, armored vehicles, and different types of material. It is an explosive charge designed to burst after that separation, in most cases when impacting the ground. But often large numbers of the submunitions fail to function as designed, and instead land on the ground without exploding, where they remain as very dangerous duds.

The main problem with these types of weapons is that they may cause serious collateral damage such as the death of thousands of civilians. Because of that, the legality of this type of weapon is controversial. Out of concern for the civilians affected by artifacts of this type, the Cluster Bomb Convention was held in Dublin, Ireland in 2008. There, a treaty was signed that prohibited the use of these weapons. Not all countries, though, signed the treaty; major arms producers, such as the United States, Russia and China, are not parties in the convention.

Among other things, the Convention proposed a total ban on cluster munitions, the promotion of the destruction of stocks in a period of 8 years, the cleaning of contaminated areas in 10 years, and assistance to the victims of these weapons.   

Convention on Cluster Munitions: geopolitical background  

The antecedents of this convention are in the recognition of the damage produced by the multiple attacks that have been carried out with cluster munitions. The International Handicap Organization has produced a report that offers concrete and documented data on the victims of cluster bombs around the world. In Laos[2], the attacks were designed to prevent enemy convoys make use of dense vegetation to camouflage among the trees. Furthermore, in this way it was not necessary to use ground troops. In Kosovo (1999), the targets were military posts, road vehicles, troop concentrations, armored units, and telecommunications centers. In Iraq cluster bombs have been used several times. During Operation “Desert Storm” in 1991, US forces dropped almost 50,000 bombs with more than 13 million submunitions on Iraq in air operations alone (not taking into account those dropped from the sea or by artillery). Estimates suggest that a third did not explode, and were found on roads, bridges and other civil infrastructure.

Pressure for an international ban on cluster bombs has recently intensified, following Israel's bombardments with these weapons in southern Lebanon in the summer of 2006. Also, in Afghanistan, in 2001 and 2002, during the US offensive, more than 1,200 cluster bombs with almost 250,000 submunitions were dropped against Taliban military bases and positions. These targets were near towns and villages, whose civilian population was affected. UN demining teams estimate that around 40,000 munitions did not explode. These have been the main concern of NGOs. On the one hand, because of the large percentage of civilians who have been affected by the cluster bombs and on the other hand, due to the amount of submunitions that did not explode at the time and that are in the affected areas, being an even greater risk for the security of the civilian population or even for their agriculture in those lands.

Due to the great commotion over the death of thousands of civilians and after several attempts, a convention on such munitions was adopted in Dublin, where more than 100 countries had come together for an international agreement. The Convention on Cluster Munitions was adopted on May 30, 2008, in Dublin and signed on December 3-4, 2008 in Oslo, Norway. The Convention on Cluster Munitions entered into force on August 1, 2010.

One of the major problems addressed in the Convention was the threat posed by submunitions that do not explode as expected, and which remain in the area as a mortal danger, turning the affected area into a large minefield where the civilian population is the most vulnerable. A study indicates that 20-30% of these bombs do not explode either due to manufacturing defects, or to falls in soft areas or in trees, for example.

Articles 3 and 4 of the Convention are of great importance. Article 3 refers to the stockpile, storage, and destruction of cluster bombs. Here all Parties haves the obligation of making sure to destroy their stored cluster bombs no later than 8 years. Article 4, on the cleaning and destroying of cluster munition remnants and education on risk reduction, is intended to protect possible victims from the danger of bombs that have not exploded. Article 5 reinforces the obligation of the signatory parties to assist the victims of cluster bombs.

After the convention there is a double deal on cluster bombs. Since the destruction of the entire arsenal of these ammunitions and submunitions was approved, the affected companies and the countries involved will have a new challenge in hiring companies that carry out the extinction of these reserves.

Producers

The main manufacturers of cluster bombs are the United States, Russia, China, Israel, Pakistan, and India. Approximately 16 states are the largest producers of this ammunition and submunition worldwide, and none of these countries adhered to the convention on cluster munitions. Some of the countries involved are Greece, South Korea, North Korea, Egypt, Iran, Poland, Turkey, Brazil, Singapore, Romania, and Poland. The date on which the cluster munitions were produced is not clear because of the lack of transparency and the data available.

A total of 85 companies have produced, along history, cluster bombs or their essential parts. Many of these companies are headquartered in the United States or Europe, but others are state-owned industries located in developing countries. Cluster munition production involves the manufacturing and integration of a large number of parts, including metal parts, explosives, fuses, and packaging materials. All components are seldom produced by a single company in the same state. This makes difficult to determine the true extent of the international trade in cluster munitions.

International trade on cluster bomb has slackened. As the cluster munition monitor of 2017 states, the US company Textron Systems Corporation, for example, has slowed production of the CBU-105[3] weapon due to “reduced orders, and claimed that the current political environment has made it difficult to obtain sales approvals from the executive branch.”

Manufactures are also adapting their production to international regulations. Following a study by Pax[4] on “Worlwide Investments in cluster munitions,” Avibras (Brazil), Bharat Dynamics Limited (India), China Aerospace Science and Industry (China) or Hanwha (South Korea) are some of the companies that develop or produce cluster bombs according to the definition given by the Dublin Convention in 2008.

It is important to warn about the existing sensitivity regarding the production of cluster bombs. Undoubtedly, they pose a serious problem from the point of view of civil protection, but many companies engaged in the production and the funders of this kind of weapons have a high interest in keeping them legal.

There are very controversial weapons. Many countries insist on that cluster munitions are legal weapons, that, although not essential, have great military use. Some states believe that submunitions can be accurately targeted to reduce damage to civilians, meaning that military purposes can be isolated in densely populated areas. On the other hand, others believe that the ability of cluster munitions to destroy targets just as effectively throughout the attack area can cause those using them to neglect the target, thus increasing the risk of civilian casualties.

The future of International contracting on cluster bombs

As Jorge Heine defines the "New Diplomacy", it requires the negotiation of a wide range of relationships with the state, NGOs and commercial actors. “As middle powers have demonstrated, through joining forces with NGOs, they have actually succeeded in augmenting their power to project their interests into the international arena.”[5] Cluster munition is an example of this case.

Because of this, parties forming international contracts for the purchase and financing of cluster bombs are forced to change the object of the cluster bomb business. As mentioned earlier, the new business will be the destruction of these weapons, rather than their production. Especially munitions with high submunition failure rates. For this reason, countries such as Argentina, Canada, France, UK, Denmark, Norway, Spain and more have promoted a new business on the destruction of the storage of cluster bombs. As a result, cluster munitions move away from their useful life and have more chances of being destroyed than of being sold for profit.

By financing companies that produce cluster munitions, financial institutions (in many cases states themselves) help these companies to produce the weapon. But to achieve an effective elimination of cluster bombs, more than a convention is needed. The effort requires national legislation that reflects that purpose. Domestic governments must provide clear guidelines by introducing and enforcing legislation that prohibits investment in cluster munitions producers.  

Conclusion

As a military tactic, the use of cluster bombs provides a high percentage of success. A good number of states and armies defend that they are effective weapons, sometimes even decisive ones, depending on the circumstances and the context. It is often argued that using another type of weapon to achieve the same objective would require more firepower and use more explosives, and that this would cause even greater collateral damage. At the same time, and to avoid the low reliability of these weapons, some armies have begun to modernize their arsenals and to replace older weapons with more modern and precise versions that incorporate, for example, guidance or self-destruct systems. Their main objective in developing cluster bombs is to compensate for precision failures with more munitions and, on the other hand, to allow a greater number of targets to be hit in less time.

Advances in technology can certainly reduce some of the humanitarian problems generated by the less advanced types of cluster bombs but a good number of military operations are currently peace operations, where the risk generated by these products also becomes a military concern, not just humanitarian. For example, to address the issue of unexploded ordnance, weapons are being developed that have self-destruction or, at least, self-neutralization mechanisms[6].

There is great uncertainty about how the norms of International Humanitarian Law (IHL) are interpreted and whether they are applied rigorously in the case of cluster munitions, given the lack of precision and reliability of these weapons. The Convention on Cluster Munitions gives hope, but we must consider the different current situations and how they can change. We also have to take into account that this agreement leaves open many possibilities of circumventing what has been signed. For example, guided or self-destructive cluster bombs do not fall under the umbrella of this pact.

Despite the provisions of International Humanitarian Law, existing cluster munitions have caused large numbers of civilian casualties in various conflicts. A better implementation of the IHL, including the Protocol on Explosive Remnants of War, will not be able to fully address the problems caused by these weapons. There is a need for specific rules on these munitions as outlined above.

[1] Renzo Cavalieri and Vincenzo Salvatore, An introduction to international contract law, Torino: Giappichelli, 2018.

[2] During the years 1964 to 1973, Laos was bombed by the United States. The attacks were intended to cut off North Vietnamese supply lines and support Laotian government forces in their fight against communist rebels.

[3] CBU-105 is a free fall cluster bomb unit of the United States Air Force.

[4] Pax is a peace organization with the aim of “bringing peace, reconciliation and justice in the world”.

[5] Matthew Bolton and Thomas Nash, “The Role of Middle Powe-NGO Coalitions in Global Policy: The Case of the Cluster Munitions Ban”, Global Policy, Vol. 1, No. 2 (May 2010), pp 172-184.

[6] Some essential component for the operation of the bomb is deactivated.