Cluster Munitions

A. Types of Armed Conflict Applicable

The conduct of Colonel Ramsey Potter (“Potter”) took place in the context of and was associated with an International Armed Conflict and Non-international Armed Conflict, both at the same time during the period relevant to all indictments.1 In Prosecutor v. Tadic2, it was held that “It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.”3 In this case, the conflicts were between two states, Stovia and Arkadia. The Stovians Armed Forces (“SAF”) was acting on behalf of Stovia and the Arkadians Armed Forces (“AAF”) was acting on behalf of Arkadia.4

B. Knowledge of Armed Conflict

Potter was aware of factual circumstances that established the existence of an armed conflict during the period relevant to all indictments, but he failed to take reasonable measures to prevent it.5 Potter is an experienced military commander with basic knowledge of International Humanitarian Law (“IHL”) having previously attended an introductory course on IHL.6 The principle of nullum crimen sine lege does not require Potter to know the specific legal definition of a crime he committed.7 Armed conflict is predictable when there is armed violence between States or between the governmental authorities and groups in a state.8

INTENTIONALLY DIRECTING ATTACKS AGAINST THE CIVILIANS POPULATION OR INDIVIDUAL CIVILIANS NOT TAKING DIRECT PART IN HOSTILITIES

INTENTIONALLY LAUNCHING AN ATTACK IN THE KNOWLEDGE THAT SUCH ATTACK WILL CAUSE INCIDENTAL LOST OF LIFE OR INJURY TO CIVILIAN OR DAMAGE TO CIVILIAN OBJECTS

EMPLOYING WEAPONS, PROJECTILES AND MATERIALS AND METHODS OF WARFARE WHICH ARE OF A NATURE TO CAUSE SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING OR WHICH ARE INHERENTLY INDISCRIMINATE IN VIOLATION OF THE INTERNATIONAL LAW OF ARMED CONFLICT

Armament Research Services (ARES) Special Report 4, Munitions Employing Sensor-fuzed Submunitions: Do they Comply with the Convention on Cluster Munitions?, critically evaluates the definition of "cluster munition" established by the Convention on Cluster Munitions (CCM), in order to assess the convention's applicability to cargo munitions carrying sensor-fuzed submunitions. The report explores the operational rationale behind sensor-fuzed submunitions as well as briefly addressing the unexploded ordnance (UXO) hazard posed by such munitions. It then explains the technical characteristics which distinguish sensor-fuzed submunitions from their conventional counterparts.

Drawing on a range of primary sources, confidential interviews with industry and military personnel, secondary literature, and the perspectives of several prominent ordnance experts, Special Report 4 establishes a methodology for assessing weapons which carry sensor-fuzed submunitions. It then applies the nine-step test described in that methodology to five of the most common weapons which employ sensor-fuzed submunitions that remain in inventory or use today. Special Report 4 finds that only two of the five selected munitions are banned under the CCM, and that the factors which determined CCW compliance are not always directly connected to the stated principles of minimising harm to civilians and civilian objects. The report concludes by considering sometimes overlooked hazards of sensor-fuzed submunitions, as well as the potential for unintended consequences which may arise from an outright ban of these weapons.

This article theorises salience – defined as the amount of attention granted to an issue – as an explanatory factor for the emergence and non-emergence of norms, and shows how salience affects existing explanations such as issue adoption by norm entrepreneurs, mobilisation, social pressure, and framing. The relevance of salience is demonstrated by exploring the question of why the norm against incendiary weapons was adopted in the Convention on Certain Conventional Weapons (CCW) in 1980, and why the norm against cluster munitions was not, even though both weapons were deemed particularly inhumane and thus, put on the agenda when the CCW negotiations started in 1978. Drawing on secondary sources and on original data from public and institutional discourses, I study the influence of salience on the emergence of the anti-napalm norm and the non-emergence of the anti-cluster munitions norm in the period of 1945–80. The results demonstrate that and how the discrepancy in salience of the napalm and the cluster munitions issues mattered for the outcomes of the two norm-setting processes.

Military forces in Syria and Yemen continue to use inter-nationally banned cluster munitions, according to international investigators. Aleppo is “contaminated with significant quantities of unexploded ordnance” from cluster munitions used during the Syrian-Russian joint offensive to retake governmental control of the city in 2016, according to a March 14 report by an investigative body established by the UN Human Rights Council.

The research and report publication funded by the UNDP Bureau of Crisis Prevention and Recovery / UNOPS. Many people gave up valuable time and energy in support of the research and report-writing process. The UNMACC in South Lebanon were extremely helpful in hosting two separate visits to Lebanon, securing travel permission and organising field visits. The author would like to thank two UNMACC staff in particular -Allen Kelly, who coordinated the planning and organisational support during two visits, and Rana Elias, who gave up a lot of time to assist in navigating and understanding the GIS-IMSMA database. Field staff at the Mines Advisory Group, Norwegian Peoples Aid and Handicap International also provided valuable inputs into the research process and hosted several field visits.

Elvira Rosert 2009: Cluster bombs – a taboo in the making? Paper prepared for the International Studies Association Annual Convention 2009, New York, February 15-18, Panel „The Ethics of Disarmament“.

After successful delegitimisations of WMD, similar developments can be observed for conventional arms, with the prohibition of cluster munitions being the second prominent example after the ban on anti‐personnel landmines. This paper begins by arguing that the cluster munitions success is a puzzling case of weapon stigmatisation, because the negotiated outcome exceeded the expectations of all participating parties and because humanitarian concerns obviously outweighed military necessities. Unlike landmines, cluster munitions are weapons of undisputed military effectiveness, mainly employed by the major industrialised powers. To discuss why this success was possible, I utilise the theoretical framework developed by research on evolution and effects of international norms. After illustrating the taboo characteristics of cluster munitions, the empirical focus of this paper lays on the analysis of the process of stigmatisation, which has lead to the adoption of the Oslo Convention on Cluster Munitions. The main theoretical point is that the dynamics of the prohibition of cluster munitions is an evidence for a cascade of norm prohibitions, since it illustrates how norm building itself becomes a normal practice and makes the delegitimisation of additional prohibitionary norms easier to accomplish.

This article discusses the role of civil society's action in International Humanitarian Law, particularly at the monitoring and influence on states to both participate at the formulation and align themselves at the humanitarian challenges of the new sources of Humanitarian International Law, in this regard, the Convention on Cluster Munitions. The issue of this research concerns the questioning about the potential and effective role of the Global Civil Society towards International Law aiming the elimination of weapons that generate unacceptable damage against civilians. In this regard, from the dialectical perspective, we will use critical approaches of International Law that understand the civil society's potential emancipatory character. For this purpose, this paper is developed in two parts. Firstly, it concerns a few security studies and international law approaches. Secondly, it debates the Global Civil Society action in humanitarian disarmament.

Telephone: INT +44 (0)161 236 4311 Facsimile: INT +44 Nine years on, this report shows how we continue to strive to make a difference. The struggle continues: we want to do more, we have to do more, and MAG is determined to face the major challenges that remain as we move into the new millennium.

A large number of states are now committed to conclude in 2008 a treaty prohibition on cluster munitions that cause unacceptable harm to civilians. The process of developing that treaty still faces tough arguments about how cluster munitions are defined and what, if anything, might escape prohibition. This newsletter provides Landmine Action's perspective on some of those difficult questions. Lasamay, 17 years old, injured in 2004 while collecting scrap metal Photo: Alison Locke

Medium-sized wealthy states-middle powers-and global civil society networks are increasingly joining forces to influence the global policy agenda on issues of international law, justice, humanitarianism and development. These middle power-NGO coalitions use the comparative advantages of both state and nonstate actors in synergistic partnerships. States represent the coalitions' interests in international negotiations and conferences, provide donor funding and offer diplomatic support. For their part, NGOs gather on-the-ground research, provide technical expertise, lobby governments, mobilise public opinion and generate media publicity. This article uses the case of the campaign to ban cluster munitions, culminating in the 2008 Convention on Cluster Munitions, to examine the organisation, efforts and impact of such middle power-NGO coalitions.

The research on international norms offers several models of their evolution; however, a convincing model specifically depicting the phase of norm emergence is still lacking. Macro models (e.g. the norm-life cycle) focus on the overall evolution of norms and distinguish the emergence phase as one among others but remain too rough. Meso models focus on a specific phase, but on phases other than norm emergence, such as diffusion (e.g. the signalling model) or enforcement (e.g. the spiral model). If they do focus on emergence, this focus remains case-specific and lacks theorisation. Micro models (e.g. the persuasion model or the funnelling model) focus on specific sequences within a phase. In this article, I develop one model of norm emergence by conceptualising it as the diffusion of a problem through different agendas and the discursive transformation of a problem into a (problem-solving) norm. The model distinguishes four sequences of norm emergence: problem adoption by norm entrepreneurs, issue creation in the public sphere, candidate norm creation in the institutional-deliberative sphere, and norm creation in multilateral negotiations. I illustrate the utility of this model by tracing the emergence of the norm against cluster munitions.

This article offers a novel understanding and theorization of humanitarian disarmament regimes and their related prohibition politics. In doing so, it utilizes a power-analytical framework and puts in use four conceptions of power: productive, structural, institutional, and compulsory. Empirically, two potent humanitarian prohibition regimes that have been formed during the last two decades are examined. The ban of anti-personnel landmines (APLs) in 1997 marked a significant shift in humanitarian disarmament. Consequently, a humanitarian disarmament model emerged, consisting in bypassing permanent arms-control fora (''The Ottawa Pro-cess''). The ascent of the model to the arena traditionally dominated by power interests of major powers and ossified lowest-common denominator consensus was confirmed in 2008 when cluster munitions (CMs) were prohibited in a very similar fashion (''The Oslo Process''). The main contribution to the topic is the application of the power-analytical framework specifically developed to suit an analysis of formation and workings of global prohibition regimes, including heterarchy-of-power discussion of the relationship between states and non-state actors. Then, instead of the usual—and flawed at best—heroic discussions of victories of global civil society in relation to the establishment of regimes, rise of moral International Relations, and supposed progressivist teleology, a more complex picture with many contradictions, artefacts, and their layering inside and about those regimes looms large.

Landmine Action is a company limited by guarantee. Registered in England and Wales no. 3895803. Printed by Calverts 020 7739 1474 "As I have said on previous occasions when that issue has arisen, the use of all weapons involves striking a balance. All weapons are capable of damaging the civilian population as well as those against whom they are targeted. It is necessary to strike a balance between not only the risk to civilians, but equally the protection of coalition forces. In relation to the use of cluster bombs, I am confident that the right balance has been struck." 1 Geoff Hoon MP Former UK Secretary of Defence 7 april 2003 Joan Ruddock MP: "To ask the Secretary of State for Defence what reviews have been undertaken by his Department regarding the

Article 36 is a UK-based not-for-profit organisation working to prevent the unintended, unnecessary or unacceptable harm caused by certain weapons. www.article36.org Article 36 is a member of the International Steering Group of ICAN-the International Campaign to Abolish Nuclear Weapons. www.icanw.org This paper is an extension of the suggestion in the 2014 Article 36/Reaching Critical Will report, "A treaty banning nuclear weapons," p.13, that a ban treaty could articulate the responsibility of States Parties to ensure fulfillment of the rights of victims of nuclear weapons-whether from use, accidental detonation, or from weapons testing-and provide necessary assistance in this regard. 1

By the end of 2008, ninety-five states had signed the Convention on Cluster Munitions, which bans the development, production, acquisition, stockpiling, and transfer of cluster munitions; imposes significant obligations for the clearance of unexploded cluster munition remnants; and elaborates novel requirements for so-called victim assistance. This article examines this agreement and the process that lead up to it in terms of the precedents it sets for future arguments about weapon technologies and the regulation of armed conflict. Particularly noteworthy was the process for determining what counts as a ''cluster munition'' under the convention. The definition structure transformed the argument from considerations of what types should be prohibited to demanding justifications for what should be allowed. In other words, rather than the burden of proof resting with those seeking a ban, the presumption became that exclusions from prohibition had to be argued in by proponents of specific submunition-based weapons. This approach contrasts with the manner in which the burden of proof regarding cluster munitions has been handled in international humanitarian law.

This book analyses the politics of the humanitarian disarmament community—a loose coalition of activist and advocacy groups, humanitarian agencies and diplomats—who have successfully achieved international treaties banning landmines, cluster munitions and nuclear weapons, as well as restricting the global arms trade. Two campaigns have won Nobel Peace Prizes. Disarmament has long been a dirty word in the international relations lexicon. But the success of the humanitarian disarmament agenda shows that people often choose to prohibit or limit certain violent technologies, for reasons of security, honour, ethics or humanitarianism. This edited volume showcases interdisciplinary research by scholars and practitioners seeking to understand the dynamics and impact of the new global activism on weapons. While some raise concerns that humanitarian disarmament may be piecemeal and depoliticizing, others see opportunities to breathe new life into moribund arms control policymaking. Foreword ...

Thousands of people around the world are maimed and killed by landmines and unexploded ammunition every year. In this travelogue through Iraq, Laos, Cambodia, Bosnia, Afghanistan, Sudan, South Sudan and New York City, the author searches for solutions to the landmine crisis and emerging autonomous weapons. He tells stories of the deminers, paramilitaries, journalists, mercenaries, diplomats, aid workers, and campaigners in and among the minefields. It is a must-read for those working to alleviate the devastation of war. Foreword by 1997 Nobel Peace Prize Co-Laureate Jody Williams.

In this issue t issue 12 | summer 2006 Endrit and Labinot Rexhaj, cluster munitions survivors, Korishe, Kosovo 2 Cluster munitions: A certain obligation 3 Cluster munitions: Finding new uses for old weapons is not the answer 4 Cluster munitions: Failure rates and the protection of civilians 6 Anti-vehicle mines: Humanitarian costs and mine action innovation in Angola 8 Cluster munitions: Progress towards a ban. Photo: Alison Locke/Landmine Action landmine action campaign issue 12 • summer 2006

Nach acht Jahren George W. Bush war es schlecht bestellt um Rüstungskontrolle und Abrüstung. Präsident Obama ist es mit einer wesentlich rüstungskontrollfreundlicheren Politik gelungen, das Schiff vor dem Kentern zu bewahren und sogar eine Reihe neuer Akzente zu setzen. Dieser Beitrag beleuchtet den Stand von Rüstungskontrolle und Abrüstung in den Bereichen Massenvernichtungswaffen, konventionelle Rüstung (KSE, ATT und Streubomben) und thematisiert bislang ungeregelte Felder (Weltraum, Cyber, Drohnen) zu Beginn der zweiten Amtszeit Obamas. Er formuliert den Anspruch an die deutsche Außenpolitik, in allen Bereichen proaktive Positionen einzunehmen, den amerikanischen Präsidenten dort zu unterstützen, wo rüstungskontrollpolitische Ideen konvergieren, und stärkere eigene Akzente zu setzen, wo sich in den vergangenen Jahren zu wenig getan hat.

In acknowledgment of the demands of studying state secrecy, this chapter asks how novel possibilities for knowing can be fashioned. It does so in relation to the place of secrecy within international diplomatic and security negotiations associated with humanitarian disarmament. A conversational account is given regarding how ''cluster bombs'' become subject to a major international ban in 2008. Tensions, uncertainties, and contradictions associated with knowing and conveying matters that cannot be wholly known or conveyed are worked through. With these moves, a form of writing is sought that sensitizes readers to how absences figure within debates about social problems and the study of those debates, as well as how ignorance born out of secrecy helps secure an understanding of the world. Uncertainties, no-go areas, and blind spots are looked to as analytical and practical resources.