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Of Questionable Legality: The Military Use of Cluster Bombs in Iraq in 2003

Published online by Cambridge University Press:  09 March 2016

Karen Hulme
Karen Hulme*
Affiliation:
School of Law, University of Essex, England
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Summary

Over the past century, the laws of armed conflict have limited or prohibited the use of a number of weapons, principally due to their cruel effects or indiscriminate nature. Among the examples are chemical and biological weapons, anti-personnel mines, and blinding laser weapons. In recent years, one of the most controversial armaments used by states has been the cluster bomb. Cluster weapons are inexpensively produced area weapons with a high propensity for failure. The source of constant condemnation since the Vietnam conflict, the legality of cluster weapons remains highly questionable. With such weapons, the question is not so much whether there is a need to create new instruments of limitation, or indeed prohibition, but whether the existing laws of armed conflict are already sufficient to address any human and environmental concerns.

Sommaire

Sommaire

Au cours du siècle dernier, les lois régissant les conflits armés ont limité ou interdit l’utilisation d’un certain nombre d’armes, principalement à cause de leurs effets cruels ou de leur nature indifférenciée. Parmi celles-ci, mentionnons les armes chimiques et biologiques, les mines antipersonnel et les lasers aveuglants. Plus récemment, il y a eu une grande controverse concernant l’utilisation des bombes à dispersion par les États. Ces armes sont produites localement à peu de frais, mais ne sont guère fiables. L’utilisation des armes à dispersion est condamnée depuis le conflit armé au Vietnam, et leur licéité est plutôt douteuse. La question en la matière n’est pas tellement s’il y a lieu de créer des nouveaux instruments de limitation, voire même de prohibition, mais plutôt de déterminer si les lois existantes régissant les conflits armés sont suffisantes pour répondre aux préoccupations concernant la protection des personnes et de l’environnement.

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 42 , 2005 , pp. 143 - 196
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2004

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References

1 The United Nations Commission on Human Rights: Sub-Commission on Prevention of Discrimination and Protection of Minorities, International Peace and Security as an Essential Condition for the Enjoyment of Human Rights, Above All, the Right to Life, Res. 1996/16, UNCHR OR, 34th Mtg, UN Doc. E/CN.4/Sub.2/ 1996/L.1 1/Add.3 [Sub-Commission for the Protection and Promotion of Human Rights]. The sub-commission is now referred to as the UN Sub-Commission for the Protection and Promotion of Human Rights. The recorded vote was fifteen in favour, one against, with eight abstentions.

2 For confirmation in Parliament of the use of cluster weapons, see United Kingdom, H.L., Parliamentary Debates, 5th ser., vol. 650, col. 6 (23 june 2003) (Lord Bach, the Parliamentary Under-Secretary of State, Ministry of Defence) [Parliamentary Debates, Lord Bach]; see also United Kingdom, H.C., Parliamentary Debates, sess. 2002–3, vol. 402, col. 1075 (3 April 2003) (Geoffrey Hoon, Secretary of State for Defence).

3 See Lieutenant General Moseley, T. Michael, U.S. Air Force, Operation Iraqi Freedom — By the Numbers, Assessment and Analysis Division, 30 April 2003 Google Scholar, available online <http://www.globalsecurity.org/ military/library/report/2003/uscentaf_oif_report_3oapr2003.pdf> [Operation Iraqi Freedom].

4 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 17 June 1925, 1930 U.KT.S. 24 (entered into force 8 February 1928).

5 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection ofVictims of International Armed Conflicts, 8June 1977, 1977 16 I.L.M. 1391–441 (entered into force 7 December 1978) [Geneva Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1977 16 I.L.M. 1442–9 (entered into force 7 December 1978) [Geneva Protocol II].

6 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 10 April 1981, 19 I.L.M. 1523–36 (entered into force 2 December 1983) [Conventional Weapons Convention]. The three protocols were adopted at the same time as, and annexed to, the convention, see Protocol on Non-Detectable Fragments [Protocol I]; Protocol on Prohibi-tions or Restrictions on the Use of Mines, Booby-Traps and Other Devices [Protocol II]; and Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons [Protocol III].

7 Protocol IV on Blinding Laser Weapons to the United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 30 January 1996, 35 I.L.M. 1218 (entered into force 30July 1998).

8 1996 Amended Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 3 june 1997, 35 I.L.M. 1206 (entered into force 3 December 1998) [Amended Protocol II on Mines].

9 1997 Ottawa Treaty on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 3 December 1997, 36 I.L.M. 1507 (entered into force 1 March 1999) [Ottawa Treaty].

10 1980 Conventional Weapons Convention, supra note 6, Amendment Article 1 (21 December 2001), available online at <http://www.icrc.org>. The amendment was brought into force on 18 May 2004 following the deposit of the twentieth instrument of ratification. As of July 2005, the 2001 amendment had forty-two ratifications, of the ninety-seven state parties.

11 Protocol V on Explosive Remnants of War to the Conventional Weapons Convention, text available online at <http://untreaty.un.org>. See also online <http:// www.icrc.org> [Protocol V on Explosive Remnants].

12 See also the principle of proportionality.

13 See “Analysis: Why Use Cluster Bombs?” BBC News Online (8 August 2000), available online at <http://news.bbc.co.uk> (BBC quotes US Pentagon estimates).

14 “Cluster Bombs: The Hidden Toll,” The Guardian (8 August 2000), available online at <http://www.guardian.co.uk>.

15 See Norton-Taylor, Richard and Ward, Lucy, “Appeals to Halt Cluster Bombs,” The Guardian (8 November 2001)Google Scholar, available online at <http://www.guardian. co.uk>. The same problem was later encountered in Iraq. See Knight, Will, “Cluster Bomb Use Sparks Fear for Iraqi Civilians,” New Scientist (3 April 2003)Google Scholar, available online at <http://www.newscientist.com>.

16 Any use of chemical weapons would be prohibited by the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 13 January 1993, 32 I.L.M. 800 (entered into force 29 April 1997) [Chemical Weapons Convention]. The Chemical Weapons Convention makes no distinction as to the level of conflict and now prohibits the use of chemical weapons “in all circumstances” even against nonparties, including in attack and defence and situations of internal armed conflict (see Article I (1) (b)).

17 For the range of cluster bomb types and descriptions of each, see Federation of American Scientists, “Cluster Bombs,” available at <http://www.fas.org/man/ dod-101/sys/dumb/cluster.htm> [FAS]. The CBU-75 Sadeye employs 1,800 bomblets only 1 pound each in weight. In each sub-munition are imbedded 600 razor-sharp steel shards. It has an impact radius of approximately twelve meters. Accordingly, a single Sadeye bomb can cover an area more than double that of a standard 2,000 pound bomb. See generally the Global Security organization, available online at <http://www.globalsecurity.org.>

18 Operations in Iraq: First Reflections (London: UK Ministry of Defence, 2003) at 24 [Operations in Iraq].

19 For a detailed analysis of these weapons, see William M. Arkin, Joost R. Hiltermann, and Michael McClintock, “Ticking Time Bombs,” available online at <http://www.hrw.org/hrw/reports/1999/nat02/nat0995-01.htm>.

20 The R variant was a redesigned BL-755, following the 1991 Gulf conflict. The RBL-755 entailed fitting a radar proximity sensor kit to existing BL-755 stocks. The new variant can be dropped from a higher altitude and, thus, reduces the risk of attack of the aircraft during delivery and deployment of the weapons.

21 International Committee of the Red Cross (ICRC) Mines-Arms Unit, Explosive Remnants: Cluster Bombs and Landmines in Kosovo (Geneva: ICRC, 2000) at 7, available online at <http://www.icrc.org/web/eng/siteengo.nsf/htmlall/p0780/$File/ICRC_O02_0780.PDF!Open> [Explosive Remnants].

22 See FAS, supra note 17.

23 See “Fatally Flawed: Cluster Bombs and Their Use by the United States in Afghanistan,” Human Rights Watch Report, December 2002, at 15–6 ["Fatally Flawed"]. See also Operation Iraqi Freedom, supra note 3 at 11.

24 See Dickey, C., “Seeds of Carnage,” Newsweek (2 August 1999), at 29 ["Seeds of Carnage"]. Google Scholar

25 See Operation Iraqi Freedom, supra note 3.

26 For a thorough account, see McGrath, Rae, Cluster Bombs: The Military Effectiveness and Impact on Civilians of Cluster Munitions (London: UK Working Group on Landmines, in association with Landmine Action, 2000) at 21.Google Scholar

27 Explosive Remnants, supra note 21 at 7.

28 See McGrath, supra note 26 at 25–7. These are viewed as being among the more common reasons for failure of cluster weapons as listed by the non-governmental organization.

29 For further information, see <http://www.globalsecurity.org>.

30 Although this figure no longer appears to be included on websites of the various manufacturers, it has been noted by a number of sources including Human Rights Watch, “NATO’s Use of Cluster Munitions in Yugoslavia” (11 May 1999), available online at <http://www.hrw.org/backgrounder/arms/cluso511.htm> [“Cluster Munitions in Yugoslavia”].

31 Ibid.

32 See Parliamentary Debates, Lord Bach, supra note 2.

33 part of the increased failure rate of cluster weapons is due to the weapon’s design — of using a large volume of mini-bombs as opposed to fewer, but larger tonnage, bombs to achieve the same area coverage.

34 “Cluster Munitions in Yugoslavia,” supra note 30.

35 Ibid.

36 Generally the weight of a single person would not cause anti-tank mines to detonate, however, a civilian vehicle may, and, therefore, even anti-tank mines are not without civilian casualties.

37 See the Preparatory Committee for the 2001 Review Conference of the United Nations Convention on Certain Conventional Weapons, Statement of the International Committee of the Red Cross, Geneva (14 December 2000), available online at <http://www.icrc.org>.

38 This is the figure given by the North Atlantic Treaty Organization (NATO) in July 2000 to a number of UK Members of Parliament. See All-Party Parliamentary Landmine Eradication Group, “UK House of Commons Cluster Munitions: Note of Meeting with NATO,” reprinted in Virgil Wiebe, “Footprints of Death” (2000) 22 Mich. J. Int’l L. 85 at 153.

39 Explosive Remnants, supra note 21 at 10.

40 “Cluster Munitions in Yugoslavia,” supra note 30.

41 See Dynes, Michael, “Mines Will Pose Threat as Water Recedes” (4 March 2000)Google Scholar, available online at <http://www.times-archive.co.uk/news/pages/tim/2000/03/04/timfgnafro3004.html>.

42 Hague Convention II with Respect to the Laws and Customs of War on Land, see Regulations Concerning the Laws and Customs of War on Land, Annex, 29 July 1899, 26 Martens Nouveau Recueil (ser. 2) 949 (entered into force 4 September 1900).

43 Project of an International Declaration Concerning the Laws and Customs of War, 27 August 1874, AJ.I.L. Supplement 1 (1907) (has not entered into force).

44 Regulations Respecting the Laws and Customs of War on Land, annexed to the 1907 Convention IV Respecting the Laws and Customs of War on Land, Hague, 18 October 1907, (1910) U.K.T.S. 9, Cd. 5030 (entered into force 26 January 1910) [Hague Convention IV]. The convention is generally taken to be customary law. See Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, Vol. XXII, I.M.T. Secretariat 497.

45 Prosecutor v. Dusko Tadic (1996), Case No. IT-94-1 (International Criminal Tribunal for the Former Yugoslavia), 35 I.L.M. 32 at para. 119, available online at <http://www.un.org/icty/judgement.htm>.

46 Ibid.

47 Although originally adopted with only international armed conflict in mind, the convention and its protocols were extended in 2001 to include applicability in situations of non-international armed conflict. The extension was achieved by way of amendment to Article 1 of the convention and is subject to state consent in the normal way. See Conventional Weapons Convention, supra note 6.

48 See International Committee of the Red Cross, Conference of Government Experts on the Use of Certain Conventional Weapons, Official Statement (Lucerne, 1975) at 54.

49 These states were Algeria, Austria, Egypt, Lebanon, Mali, Mauritania, Mexico, Norway, Sudan, Sweden, Switzerland, Venezuela, and Yugoslavia.

50 Proposal CDDH/IV/201 (II), O.R. Vol.XVI, 615.

51 See Wiebe, supra note 38 at 154–6.

52 See the working paper submitted by Y.K.J. Yeung Sik Yuen to the Sub-Commission on the Promotion and Protection of Human Rights, UN ESCOR, Human Rights and Weapons of Mass Destruction, or with Indiscriminate Effect, or of a Nature to Cause Superfluous Injury or Unnecessary Suffering, UN Doc. E/CN.4/Sub.2/2002/38 (27 June 2002) at para. 116 [Human Rights and Weapons].

53 The first is Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 10 October 1980, 19 I.L.M. 1529 (formed part of the original convention), supra note 6 [Protocol II on Mines]; the second is the Amended Protocol II on Mines, supra note 8.

54 Ottawa Treaty, supra note 9.

55 In July 2005, the number of ratifications stood at 144. A number of important states are, however, missing from the list including the United States, Russia, China, India, Pakistan, and Israel.

56 There are other variations that have been designed to include anti-personnel mines and, as such, the use, manufacture, or stockpiling of these by state parties will also contravene the 1997 Ottawa Treaty. According to Landmine Action, other examples of minelaying cluster weapons include Chile’s CB-770 cluster bomb; China’s Type 84 Minelaying Rocket System; Germany’s MW-1 Multipurpose Weapon containing MUSPA mines; Russia’s PROSAB-250 cluster bomb with PFM-1 mines; and the US CBU-89/B bomb containing BLU-92/B mines. See Lloyd, Richard, “Civilians Face Persistent Threat from Cluster Rombs” Jane’s Defence Weekly (13 December 2000).Google Scholar

57 See Ottawa Treaty, supra note 9 at Article 1.

58 Amended Protocol II on Mines, supra note 8 at Article 2(1) [emphasis added]. For the definition of “mines” in the original Protocol II, see Protocol II on Mines, supra note 53 at Article 2 (1), which refers to “any” munition and adds the words “detonated or” before “exploded.”

59 Amended Protocol II on Mines, supra note 8 at Article 2(5) [emphasis added]. The definition contained in the original protocol was similar in containing reference to manually emplaced devices. See Protocol II on Mines, supra note 53 at Article 2(3).

60 “Seeds of Carnage,” supra note 24 at 30.

61 Ibid.

62 Ultimately, the United States refused to ratify the Ottawa Treaty, supra note 9.

63 Ottawa Treaty, supra note 9 at Articles 1 (2), 4, and 5.

64 1868 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, 11 December 1868, (1907) 1 AJ.I.L. Supplement 95–6 (entered into force 11 December 1868) [St. Petersburg Declaration].

65 The original French text of the Hague Convention IV, supra note 44, used the phrase “superfluous injury,” while the English text referred instead to “unnecessary suffering.” To avoid doubt, the English text now refers to both.

66 In regard to the applicability of the prohibition on causing unnecessary suffering in situations of non-international armed conflict, first, it might fall within the Tadic principle in being the reason for a particular weapons prohibition at the level of international armed conflict, and, second, the prevention of unnec-essary suffering would appear to fall within the general principle of humanity incorporated in the preamble to the 1977 Geneva Protocol II and at paragraph 1 of Common Article 3 to the 1949 Geneva Conventions.

67 Bothe, M., Partsch, Partsc, and Solf, Waldemar A., New Rules for the Victims of Armed Conflicts: Commentary on the Two 1977 Additional Protocols to the Geneva Conventions of 1949 (The Hague: Martinus Nijhoff Publishers, 1982) at 196 Google Scholar; reprinted in UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004) at 103.

68 Ibid.

69 In trying to set universal measuring tools for the principle, the ICRC has created criteria for “unnecessary suffering.” Cluster weapons might in the future therefore be shown to breach Criterion 1: specific disease, specific abnormal physiological state, specific and permanent disability, or specific disfigurement. The criteria are not binding however. See Coupland, Robin M., “The SIrUS Project: Towards a Determination of Which Weapons Cause ’Superfluous Injury or Unnecessary Suffering,’” in Durham, Helen and McCormack, Timothy L. H., eds., The Changing Face of Conflict and the Efficacy of International Humanitarian Law (London: Martinus Nijhoff Publishers, 1999) at 99 Google Scholar. The ICRC also appears to have taken the decision to stop using the test.

70 See ICRC, Weapons That May Cause Unnecessary Suffering or Have Indiscriminate Effects: Report on the Work of Experts (Geneva, 1973), 13.

71 United Kingdom, H.C., Kosovo: Interim Report, Minutes of Evidence, House of Commons Foreign Affairs Committee, 7th Report, vol. 329 (1998–99) at question 156 (speaker: Rt. Hon. Robin Cook, Secretary of State for Foreign Affairs), available online at <http://www.publications.parliament.uk/pa/cm199899/ cmselect/cmfaff/188/9041404.htm>.

72 UK Ministry of Defence, Kosovo: Lessons from the Crisis, presented to Parliament by the Secretary of State for Defence by Command of Her Majesty, June 2000, Cm 4724, June 2000, available online at <http://www.mod.uk/publications/kosovo_lessons/contents. htm>.

73 See United Kingdom, H.C., Fourteenth Report of the House of Commons Select Committee on Defence, Lessons of Kosovo, 23 October 2000, available online at <http://www.parliament.the-stationery-office.co.uk/pa/cm 199900/cmselect/cmdfence/347/34714.htm#n340> Hyperlink reference not valid.

74 See Burns, B. D. and Zuckerman, S., The Wounding Power of Small Bomb and Shell Fragments, R.C. no. 350 of the Research and Experiments Department of the Ministry of Home Security (London: 1943)Google Scholar. When under discussion at the Lucerne conference, for the 1977 Geneva Protocols, experts were of contradictory opinions — some experts expressed the opinion that multiple injuries were not necessarily a very serious factor. Reprinted in O.R. Vol. XVI, Doc. CDDH/’IV/SR.12, 26 February 1975, paras. 24–28.

75 According to the ICRC in a 1973 report “the risk of death rose with the number of organs affected.” See ICRC, Weapons That May Cause Unnecessary Suffering or Have Indiscriminate Effects (Geneva: ICRC, 1973) at para. 146, reprinted in O.R. Vol. XVI, Doc. CDDH/IV/SR.12, 26 February 1975 at para. 27.

76 The Federal Republic of Yugoslavia (FRY) also argued in its original application that the use of cluster weapons amounted to genocide. The ten cases listed were: Legality of the Use of Force, (Yugoslavia v. Belgium), (Yugoslavia v. Canada), (Yugoslavia v. France), (Yugoslavia v. Germany), (Yugoslavia v. Italy), (Yugoslavia v. Netherlands), (Yugoslavia v. Portugal), (Yugoslavia v. United Kingdom), (Yugoslavia v. Spain), (Yugoslavia v. United States of America), 1999, nos. 104–14, (1999) 38 I.L.M. 950, available online at <http://www.icj-cij.org/icjwww/idecisions.htm>. The cases against the United States and Spain were dismissed earlier due to lack of jurisdiction. In December 2004, the remaining cases were unanimously dismissed due to lack of jurisdiction. See the judgment of 15 December 2004, on the International Court of Justice’s (ICJ) Internet site. The lack of jurisdiction flowed from the Security Council’s decision in 1992 that the FRY should not be taken to continue the obligations of the former Socialist Federal Republic of Yugoslavia. See SC Res. 777, UN SCOR, 47th Sess., UN Doc. S/RES/777. From that point, the FRY that emerged from the break-up of the larger country was not a member of the United Nations. As such, the FRY was also not a member of the Statute of the International Court of Justice and, hence, could not lodge cases with the ICJ in that way. On 27 October 2000, the new president, Mr. Kostunica, sent a letter to the secretary-general of the United Nations requesting admission of the FRY to membership of the United Nations based on Security Council Resolution 777.

77 See the Internet site of the UK Royal Air Force, which is available at <http://www.raf.mod.uk/andwww.globalsecurity.org>.

78 There is also an enhanced version of the Paveway, which uses global positioning satellite technology (GPS) and can be guided in bad weather from the weapon’s own on-board system or from the ground. See ibid.

79 Ibid.

80 See Letter from John Spellar, MP, Minister of State to Harry Cohen, MP (28 May 2000), MoD Ref. Doc. D/Min(AF)/JS PQ1886K/00/M, in McGrath, supra note 26 at 28 (the 10 per cent figure is not given, but the minister admits that 106–7 bombs were used and some 1,492 unexploded sub-munitions were removed from the Falklands following the conflict).

81 Ibid, at 29.

82 St. Petersburg Declaration, supra note 64 at para. 3 [emphasis added].

83 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135.

84 Geneva Protocol I, supra note 5 at Article 50(1).

85 Geneva Protocol II, supra note 5 at Article 4(1). See also ibid, at Article 13, which directs in more basic terms only that civilians shall not be the object of attack. The concept can also be discerned from Common Article 3 of the 1949 Geneva Conventions.

86 This is known as the rule of proportionality in attack and can be found at Geneva Protocol I, supra note 5 at Article 51 (5) (b), such that “an attack which 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.” The rule is also part of customary law and as such should be equally applicable to internal armed conflict, however, it will not be considered further.

87 Ibid, at Artide 52(2). The listing approach can be found in Hague Convention IX of 1907 Concerning Bombardment by Naval Forces in Time of War, 18 October 1907, 2 AJ.I.L. Supplement 146 (entered into force 26 January 1910) at Article 2, which includes “military works, military or naval establishments, depots of arms or war matériel, workshops or plant which could be utilized for the needs of the hostile fleet or army, and the ships of war in the harbour.”

88 Bothe, Partsch, and Solf, supra note 67 at 305.

89 Note there is a specific treaty regime prohibiting such weapons, the 1972 Convention on the Prohibition and Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction (London, Washington, Moscow), 10 April 1971, 11 I.L.M. 309 (entered into force 28 March 1975).

90 Wiseman, Paul, “Cluster Bombs Kill in Iraq, Even after Shooting Ends,” USA Today (10 December 2003).Google Scholar

91 See Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq (New York: Human Rights Watch, 2003) at 56 [Off Target].

92 Operations in Iraq, supra note 18 at 24. Human Rights Watch use the figure of 2,100 shells, but the source for this figure is unclear.

93 Off Target, supra note 91 at 83.

94 Report submitted to the US Congress by the Office of the Under Secretary of Defense for Acquisition, Technology and Logistics, in ibid, at 84.

95 Pictet, Jean S., ed., The Geneva Conventions of 1949: Commentary, IV Geneva Convention Relative to the Protection of the Civilian Persons in Time of War (Geneva: ICRC, 1958) at 621.Google Scholar

96 See Bothe, Partsch, and Solf, supra note 67 at 305.

97 Manual of the Law or Armed Conflict, supra note 67 at 104 [emphasis added].

98 See generally the Federation of American Scientists, which is available online at <http://www.fas.org/man/dod-101/sys/dumb/cbu-g7.htm>.

99 Bothe, Partsch, and Solf, supra note 67 at 308.

100 UNICEF, News Release/Communiqué, “In Iraq Unexploded Munitions become Child’s Play,” 17 July 2003, available online at <http://www.unicef.org/media/media_12056.html>.

101 Sloboda, John and Dardagan, Hamit, “How Many Civilians were Killed by Cluster Bombs?” 6 May 2003 Google Scholar, available online at <http://www.iraqbodycount.net>.

102 UNICEF, supra note 100. The calculation includes deaths by other types of unexploded ordnance.

103 Cluster Munitions: A Foreseeable Hazard in Iraq, Human Rights Watch Briefing Paper, March 2003, available online at <http://www.hrw.org> [Cluster Munitions a Foreseeable Hazard].

104 Explosive Remnants, supra note 21 at 10.

105 “Cluster Munitions in Yugoslavia,” supra note 30.

106 Ibid.

107 See Off Target, supra note 91 at 106–7.

108 Ibid, at 81. See also Kink, Laura, “Baghdad’s Death Toll Assessed,” Los Angeles Times (18 May 2003)Google Scholar.

109 Goose, Steve, “Cluster Munitions: Towards a Global Solution,” in Human Rights Watch World Report 2004 (New York: Human Rights Watch, 2004).Google Scholar

110 Proposal CDDH/IV/201 (II), O.R. Vol.XVI, 615. These thirteen sponsoring states were Algeria, Austria, Egypt, Lebanon, Mali, Mauritania, Mexico, Norway, Sudan, Sweden, Switzerland, Venezuela, and Yugoslavia.

111 Sub-Commission on the Protection and Promotion of Human Rights, supra note. 1. The sub-commission also includes within this designation nuclear weapons, chemical weapons, fuel-air bombs, napalm, biological weaponry, and cluster bombs.

112 See Human Rights and Weapons, supra note 52 at paras. 107–18.

113 See the working paper submitted by Y.K.J. Yeung Sik Yuen to the Sub-Commission on the Promotion and Protection of Human Rights, UN ESCOR, Human Rights and Weapons of Mass Destruction, or with Indiscriminate Effect, or of a Nature to Cause Superfluous Injury or Unnecessary Suffering, UN Doc. E/CN.4/Sub.2/2003/35 (2 June 2003).

114 See Australia, Commonwealth, Senate, Parliamentary Debates (20 March 2003), No. 3 at 9873.

115 See Canadian Department of National Defence, Backgrounder, “Disposal of Rockeye Cluster Bombs at CFAD Dundurn” (27 July 2004), available online at <http://www.forces.gc.ca/site/newsroom/view_news_e.asp?id=1439>.

116 Ibid.

117 Ibid.

118 Ibid.

119 See respectively Amended Protocol II on Mines, supra note 8 at Article 3(9) and Protocol III to the 1980 Conventional Weapons Convention, supra note 6 at Article 2(3).

120 Off Target, supra note 91 at 91.

121 See the interview with Lieutenant Colonel Eric Wesley, in ibid, at 92. In particular, note Articles 52 and 53 of Geneva Protocol I, supra note 5, which form part of customary international law.

122 Off Target, supra note 91 at 94.

123 Ibid, at 97

124 Wiseman, supra note 90.

125 Sloboda and Dardagan, supra note 101.

126 Off Target, supra note 91 at 121.

127 “Gulf War 2: The Bombs That Devastated Ordinary Homes: In Your Name,” The Mirror (24 March 2003); and Burkeman, Oliver, “Battle for Key City Leads to ’Massacre of Children’ Claim,” The Guardian (24 March 2003).Google Scholar

128 Meek, James, “War in the Gulf: Marines Losing the Battle for Hearts and Minds,” The Guardian (25 March 2003).Google Scholar

129 Off target, supra note 91, Appendix C at 132.

130 Ibid, at 105–7; “US Launches Probe after Reports of Missile Hitting Civilian Target in Baghdad,” Evening Times (Glasgow) (29 March 2003) at 6.

131 Off Target, supra note 91, Appendix Β at 130.

132 “Children Killed and Maimed in Bomb Attack on Town,” Belfast Telegraph (2 April 2003); and Off Target, supra note 91 at 105–7.

133 Off Target, supra note 91, Appendix A at 129.

134 Fisk, Robert, “Wailing Children, the Wounded, the Dead: Victims of the Day Cluster Bombs Rained on Babylon,” The Independent (3 April 2003).Google Scholar

135 “Iraqis – and U.S. Troops – Stumble across Bomblets,” USA Today (12 November 2003). According to USA Today, a mine-clearance team that works for the US State Department took a look at the field of waist-high stalks and decided it was too dangerous to clear.

136 Off Target, supra note 91 at 59. The report indicates that the US forces used at least one CBU-103, but Landmine Action, a UK-based NGO, has stated that pictures from al-Hilla show unexploded BLU-97. “Iraq Civilians under Fire,” Amnesty International (8 April 2003).

137 ICRC Annual Report 2003 (Geneva: ICRC, 2004) at 266.

138 Off Target, supra note 91 at 105.

139 See “Fatally Flawed,” supra note 23 at 21–3.

140 See Off Target, supra note 91 at 48 and 80.

141 Ibid, at 90.

142 See Norton-Taylor, Richard, “Basra Troops used Cluster Bombs,” The Guardian (30 May 2003).Google Scholar

143 See Off Target, supra note 91 at 112–13.

144 Chorzów Factory Case (Germany v. Poland) (1928) P.C.I.J., Ser.A, No. 17 at 29.

145 In particular, see Geneva Protocol I, supra note 5 at Article 85(3) (b); and 1998 Rome Statute of the International Criminal Court, 17 July 1998, 37 I.L.M. 999 (entered into force 1 July 2002) at Article 8. For example, the United Kingdom ratified the Rome Statute on 4 October 2001.

146 See Protocol II on Mines, supra note 53 (and Amended Protocol II on Mines, supra note 8) and Protocol III, supra note 6 to the 1980 Conventional Weapons Convention.

147 To date, Protocol V on Explosive Remnants, supra note 11, has received only eight ratifications, that of Sweden, Lithuania, Sierra Leone, Croatia, Germany, Finland, Ukraine, and India.

148 Amended Protocol II on Mines, supra note 8 at Article 3(3): “It is prohibited in all circumstance to use any mine, booby-trap or other device which is designed or of a nature to cause superfluous injury or unnecessary suffering.”

149 Ibid, at Article 3(2).

150 Ibid, at Article 3 (11). This obligation is, however, qualified by the phrase, “unless circumstances do not permit.”

151 Ibid, at Article 10(1).

152 Protocol V on Explosive Remnants, supra note 11 at Article 9, regarding the generic preventive measures.

153 Ibid, at Part 1 (a) and 3 of the Technical Annex.

154 Ibid, at Article 4 regarding recording, retaining, and transmission of information on the location of ERW.

155 Ibid, at Articles 3, 5, 6, 7, and Part 1 of the Technical Annex.

156 Ibid, at Article 4 and Part 2 of the Technical Annex.

157 ibid, at Article 2(1).

158 Ibid, at Article 3(1).

159 Ibid, at Article 5.

160 Ibid.

161 Ibid, at Article 3(1).

162 Amended Protocol II on Mines, supra note 8 at Article 10(2)(3), where the state “shall provide … technical and material assistance necessary to fulfil such responsibilities.”

163 Protocol V on Explosive Remnants, supra note 11 at Article 3 (1).

164 Ibid, at Article 4(3).

165 See ibid., Part l.a and b of the Technical Annex.

166 Ibid., Part l.a of the Technical Annex.

167 Ibid., Part 1.c of the Technical Annex.

168 Ibid., Part 1.c.iv of the Technical Annex.

169 Human Rights Watch, “Iraq: Clusters Info Needed from U.S.,” press release (29 April 2003).

170 Amended Protocol II on Mines, supra note 8 at Article 9(1).

171 Protocol V on Explosive Remnants, supra note 11 at Article 4(3).

172 Ibid, at Part 3 of the Technical Annex.

173 See ibid., Part 3.a. of the Technical Annex.

174 See Cluster Munitions a Foreseeable Hazard, supra note 103, and Secretary of Defense Cohen, William, “Memorandum for the Secretaries of the Military Departments, Subject: Department of Defense Policy on Submunition Reliability (U),” 10 January 2001.Google Scholar

175 The cluster weapons are delivered by means of a wind-corrected munition dispenser (WCMD) and the individual sub-munitions are hockey-puck shaped. The United States used six such weapons in Iraq.

176 See Off Target, supra note 91 at 60.

177 See generally Federation of American Scientists, supra note 98.