Originally published on the CGS blog on May 11, 2015.
The Saudi-led aggression on Yemen has on at least two separate occasions used cluster bombs to attack villages in Yemen’s northern Saada Province, according to Human Rights Watch. Cluster munitions are imprecise weapons which often fail to detonate on impact, leaving the unexploded bomb on the ground, ready to kill or maim when disturbed or handled.
The failure rate of cluster munitions is high, ranging from 30 to 80 percent. But “failure” may be the wrong word. They may, in fact, be designed to kill later. Reports from humanitarian organizations and mine-clearing groups have shown that civilians make up the vast majority of the victims of cluster bombs, especially children attracted by their small size and often bright colors.
Cluster weapons had been largely used by US forces during the Vietnam War, especially along the Ho Chi Minh Trail in Laos, Cambodia, and Vietnam. The impact is still being felt, and much land is unfit for cultivation.
The revulsion at the consequences and long-lasting impact led to the start of negotiations in Geneva leading to the Convention on Prohibition on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects − called by its friends “the 1980 Inhumane Weapons Convention.”
My NGO text presented during the negotiations in August 1979 for the Citizens of the World on “Anti-Personnel Fragmentation Weapons” called for a ban based on the 1868 St Petersburg Declaration—at the time the only law of war standard which seemed to apply.
As I have been concerned with investigation and judgment on violations of the laws of war, I recommended that
permanent verification and dispute-settlement procedures be established which may investigate all charges of the use of prohibited weapons whether in inter-State or internal conflicts and that such a permanent body include a consultative committee of experts who could begin their work without a prior resolution of the UN Security Council.
The procedures I proposed were drawn from the 1976 negotiations on the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques.
The 1980 Inhumane Weapons Convention was to be a “framework” convention, and prohibitions on specific inhumane and indiscriminate weapons were to be negotiated separately, with potential investigation procedures determined for each weapon. Thus the cluster bomb issue was set aside as memories of the Vietnam War faded from the disarmament agenda.
Unfortunately, governments—like public opinion—react only when faced by a crisis. Thus cluster bombs returned to the world agenda as a justified reaction to the wide use by Israel in south Lebanon during July-August 2006.
It is estimated by the UN Mine Action Coordination Centre (UNMACC) that one million cluster bombs were fired on south Lebanon during the 34 days of war, many during the last two days when a ceasefire was a real possibility. The Hezbollah militia also shot off rockets with cluster bombs into northern Israel. It was this indiscriminate use of cluster bombs against Lebanon in a particularly senseless and inconclusive war that finally led to a sustained effort for a ban on cluster weapons.
In a remarkable combination of civil society pressure and leadership from a small number of progressive States, a strong 2008 Convention on Cluster Munitions was drafted. It prohibits production, transfer, stockpiling and use of cluster munitions. The Convention also reacquires the destruction of stockpiles, clearance of areas contaminated by remnants, and victim assistance.
The inspection, investigation, and dispute settlement aspects of the convention are weak. It was hoped that the treaty’s unequivocal language would be so strong that even non-signatory countries would be reluctant to use the weapons. Saudi Arabia, Yemen and the US have all refused to sign the Convention. Thus, the use by Saudi Arabia of cluster bombs in Yemen and the sale of cluster weapons to Saudi Arabia by the US is legal.
Some 90 States have ratified the convention, and 26 have signed but not yet ratified. I would argue that these numbers and the general framework of humanitarian law make the use and sale of cluster munitions a violation of world law. For global citizens, “world law” is the law and values of the world community which go beyond “international law” (treaties between two or more States).
Because the situations that lead to disarmament agreements keep changing, and governments’ understanding of “world law” keeps evolving, a five-year-interval Review Conference was included in the cluster-weapon ban convention. The first Review Conference will be held in September 2015 in Dubrovnik, Croatia.
The Preparatory Commission for the Review Conference will start meeting on 24 June at the United Nations in Geneva. Between now and then, governments will be preparing their positions. Thus I would recommend that representatives of non-governmental organizations and all persons of good will contact their government to see what forms of investigation and dispute settlement procedures they favor and what steps they plan to take concerning the allegations of Saudi Arabian use.
