Cluster Bombs: Is There a Case for New Law?

William Boothby
Oct 2005

The numerous unexploded bomblets, or submunitions, discarded on the battlefield as a result of cluster munition attacks have attracted widespread criticism, particularly from non‐governmental organizations, prompting suggestions that new international law arrangements should be agreed to address the problem. These ‘dud’ bomblets may pose a post‐conflict risk for troops and civilians alike. The humanitarian concerns raised by this hazard have been recognised for a number of years. An important debate is now under way, however, to try to identify a way of addressing the problem effectively while recognising the essential defense needs of states. Working out which, if any, developments in the law are appropriate to such a problem necessitates an analysis of existing, relevant law. There are numerous general legal principles that limit the weapons which states are permitted to employ in armed conflict. There are also important treaties applicable to particular technologies. There is, then, the legal obligation accepted by many states to review weapons plans to ensure they comply with applicable law. Of particular relevance to the cluster munition debate is the Conventional Weapons Convention (CCW), a framework treaty under which individual protocols have been negotiated to address such diverse technologies as mines and lasers. Following a seminal meeting in Nyon, Switzerland in September 2000, CCW member states started to discuss the problem of unexploded and abandoned explosive ordnance. Having clarified the nature of the problem, they negotiated a Protocol to the Convention. Its focus is the marking, clearance, removal, and destruction of explosive remnants of war.