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Again, It's the US vs. the World

The Cluster Bomb Treaty

by SCOTT STEDJAN And LAURA WEIS

On March 6, 2007, the U.S. Department of State released its Country Reports on Human Rights Practices for 2006. This annual report to Congress details the human rights practices of foreign governments, from restrictions on free press in Iran, to extrajudicial killings in Pakistan, to spiraling violence in the Darfur region of Sudan. The Country Reports do not, however, "purport to assess any human rights implications of actions by the United States Government or its representatives." If they did, the reports would expose the grave consequences of U.S. policies in a world where the use and sale of inaccurate and unreliable weapons tends to trump humanitarian concerns.

Consider last summer’s conflict between Israel and Hezbollah in southern Lebanon. Israel’s irresponsible use of cluster bombs in and around civilian areas in southern Lebanon has been widely documented and condemned. Israel bought the majority of these weapons from the United States. Demining groups estimate that they contained some 2.6 million to 4 million bomblets, around 90 percent of which were fired during the last 72 hours of the conflict. As of February 14, 2007, the UN Mine Action Coordination Center (UNMACC) in South Lebanon had identified 847 cluster bomb strike locations, contaminating a total of 34 million square meters of land. Since a UN-brokered ceasefire went into effect on August 14, UNMACC has reported 216 civilian and demining casualties in southern Lebanon ­30 deaths and 186 injuries.

The disproportionate number of civilian casualties resulting from cluster bombs used during Israel’s war with Hezbollah prompted the State Department to investigate the use of U.S.-made weapons in the conflict. Subsequently, in January 2007 the State Department notified Congress in a classified report that Israel may have violated end use agreements when it used the U.S.-made cluster bombs in Lebanon. Yet while the State Department’s Country Report on Lebanon acknowledges the aftermath of Israeli cluster bomb strikes, any mention in the report of the U.S. role in providing Israel with these weapons is glaringly absent.

Article 51 of the UN Charter acknowledges the right of all states to individual or collective self-defense and to raise armies and procure armaments to that end. Thus, it is not surprising that the U.S. and Israel use weapons that they see as militarily useful to defeat an enemy in the shortest time possible. However, Article 51 is not absolute; international humanitarian law calls for a balance to be struck between the military utility of a particular weapon and its humanitarian consequences. In the recent history of warfare, the use of certain weapons, such as antipersonnel landmines, incendiary weapons, and biological weapons, were limited or banned because a judgment was made that the humanitarian consequences outweighed the military utility of the weapon. Cluster bombs should be added to the list of unacceptable weapons.

A cluster bomb consists of a canister designed to open in mid-air and disperse smaller submunitions, often referred to as bomblets. Cluster bombs are area weapons, meaning they are not designed to attack a precise target, but rather to destroy all potential targets in a target area. Depending on the type of munition and the delivery system, the footprint of one cluster bomb can be as large as one square kilometer (about 250 acres). Cluster bombs were originally designed to attack enemy forces lined up on a battlefield. Instead of sending a sortie of fighters to drop dozens of unitary bombs, a fighter pilot could limit his or her exposure to anti-aircraft fire by dropping one cluster bomb.

The humanitarian suffering that continues in Lebanon and numerous other countries plagued by the lasting effects of cluster munitions should compel governments to examine the military utility of cluster bombs. Trends in warfare show a shift from war-fighting against symmetrical forces on open terrain to asymmetrical fighting in civilian areas. The wide dispersal pattern of bomblets makes avoiding civilian casualties when the weapons are fired on populated areas nearly impossible. A 2003 "lessons learned" report by a U.S. Army Infantry Division labeled its cluster munitions as "losers" and suggested they were "a Cold War relic." This report also noted that cluster munitions were "not for use in urban areas."

The long-term effects of a weapon on populations must also be part of the equation when governments consider military utility. While designed to explode on impact, cluster bomblets typically fail to detonate as intended approximately 5 percent to 30 percent of the time, leaving behind large numbers of hazardous explosive "duds" that are akin to landmines, injuring and killing civilians and contaminating the land long after conflicts. The United Nations Mine Action Coordination Center in South Lebanon estimates that as many as 40 percent of Israeli cluster munitions used during the conflict failed to explode, leaving anywhere from 563,200 to 1,126,400 unexploded bomblets in the southern part of the country. If Lebanon’s future mirrors that of other countries affected by cluster bombs, civilians will be impacted by these weapons for years to come. The last cluster bomb was dropped on Laos in 1973, and people in that country are still affected by their use. In the past 30 years, 12,000 Laotian civilians, many of whom were not born when the bombs were dropped, have died from contact with an unexploded cluster dud.

Thankfully, the international community is taking action. In an historic step forward, Norway hosted the Oslo Conference on Cluster Munitions in late February 2007, where 49 countries met to discuss how to address the indiscriminate and lasting effects of cluster munitions on civilians. At the conference, 46 countries agreed to a landmark declaration detailing their goal to conclude by 2008 a legally binding treaty prohibiting the use, production, transfer, and stockpiling of cluster munitions that cause unacceptable harm to civilians. Half of the world’s 34 producer countries, one-third of the world’s stockpiling countries, six users or former users, and six affected states signed the Oslo declaration. Countries will meet again to determine the details of the treaty in Lima, Vienna, and Dublin over the next two years. The Bush administration did not send a representative to the Oslo meeting and, absent a policy change, is unlikely to participate in subsequent meetings.

While administration officials dawdle, some policymakers are beginning to pay attention. On February 14, 2007, Senators Dianne Feinstein (CA), Patrick Leahy (VT), Barbara Mikulski (MD), and Bernie Sanders (VT) introduced the Cluster Munitions Civilian Protection Act of 2007 (S. 594). This far-reaching legislation would ban the use of cluster munitions in or near civilian populated areas, and prohibit funds for the use, sale, and transfer of cluster munitions with a failure rate of more than 1 percent. While all newly procured U.S. cluster munitions must have a failure rate of less than 1 percent, the Pentagon has yet to produce any of these new weapons. Instead, the U.S. uses and transfers from its stockpile of about 1 billion old cluster bomblets that fail to detonate as designed 2 percent to as high as 23 percent of the time. Were the U.S. ever to use these unreliable, indiscriminate bomblets in or near civilian populations, or transfer them to a country that would use them in such a way, the humanitarian impact both during and after the conflict would likely dwarf the humanitarian threat posed to populations by antipersonnel mines. At least 74 other countries also have similar unreliable and inaccurate cluster munitions stockpiles. Unlike landmines where populations are currently experiencing their deadly effects, the billions of cluster bomblets in the stockpiles of the world have yet to be used. By adopting S. 594 and supporting the Oslo Process, the U.S. can prevent the next large-scale humanitarian catastrophe before more countless innocent people are injured or killed.

The introduction of the Department of State’s Country Reports on Human Rights states: "Our democratic system of government is not infallible, but it is accountable–our robust civil society, our vibrant free media, our independent branches of government, and a well-established rule of law work as correctives." Let’s hope this description proves true, as the momentum builds among humanitarian, advocacy, and arms control groups, an emerging grassroots movement, and courageous members of Congress calling for responsible U.S. policy on cluster munitions.

Scott Stedjan is the National Coordinator of the United States Campaign to Ban Landmines and works on arms control and conflict prevention for the Friends Committee on National Legislation (FCNL).

Laura Weis is a Legislative Program Assistant for FCNL.