Context:

The recent decision of the United States to provide cluster munitions to Ukraine has sparked a controversy.

More about the news:

• Human Rights Watch, a civil society organization, reported that Russia has already used cluster bombs in cities like Kharkiv, resulting in civilian casualties and damage to homes, hospitals, and schools. 
• The use of these weapons by Ukraine is expected to exacerbate the situation further.

About ClusterBombs/Munitions:

• Background: Cluster bombs were employed during World War II. Since then, they have been utilized in various instances, including by the U.S. in conflicts such as Vietnam, Afghanistan, and Iraq.
• Release of dangerous Explosives: Cluster munitions release multiple explosive submunitions, or bomblets, which can cause harm to people in the area. 
• Threat for civilians: These bomblets can remain inactive for a long time, acting as dangerous threats to civilians, including women and children.

Convention on Cluster Munitions (CCM):

• International treaty to Curb use of cluster bombs: The efforts to curb the use of cluster bombs led to the creation of an international treaty known as the Convention on Cluster Munitions (CCM) in May 2008. 
• Mandate: The first article of the CCM prohibits the production, use, transfer, and stockpiling of cluster bombs. Additionally, nations are required to eliminate their current stockpiles of these weapons. 
• Legal Obligation: Countries are also under a legal obligation to establish victim assistance initiatives that offer aid and rehabilitation to individuals affected by cluster bombs within their borders.
• Membership not universal: Major countries such as the U.S., Russia, China, Israel, and India have not signed it. Ukraine is also not a member of the treaty.

Cluster bombs and International Customary law :

• Armed conflicts under international law: It maintains a clear distinction between combatants and civilians, as well as between civilian and military targets.
  • This means that the use of force must be precise, directed at specific military targets rather than civilians.
• Prohibition of indiscriminate attacks: This norm is reflected in Article 51(4) of Additional Protocol I to the 1949 Geneva Conventions, which both Russia and Ukraine have ratified. 
• Principle of proportionality: The principle is enshrined in Article 51(5) of the Additional Protocol I to the 1949 Geneva Conventions.
  • It forbids the excessive use of force that results in unintended harm to civilian populations or civilian objects when weighed against the anticipated military advantages.
• Cluster bombs causing indiscriminate harm: The use of cluster bombs serves as a classic example of indiscriminate force, as they fail to differentiate between combatants and civilians or between military and civilian sites.
  • Thus, their utilization would be considered as a disproportionate application of force, violating international law. 

Applicability of CCM to Russia and Ukraine:

• Non-membership in the treaty: Regardless of whether Russia and Ukraine are signatories to the Cluster Munition Convention, their deployment of cluster bombs contravenes established international legal norms.
• Irresponsible Act: Supplying cluster bombs to Ukraine, even though the U.S. is not a party to the Cluster Munition Convention, might not necessarily violate international law. 
  • However, the act of providing cluster bombs to any nation is considered irresponsible. 

Way Forward:

• Universal Prohibition of Cluster Bombs: Possession, transfer, or supply of cluster bombs should be universally prohibited, as outlined in the Cluster Munition Convention’s vision. 
• Elimination of Cluster Bombs: Achieving this would require all United Nations member countries to join the convention and eliminate cluster bombs worldwide.

News Source: The Hindu