**ON THE CHOPPING BLOCK:**

**CLUSTER MUNITIONS AND THE LAW OF WAR**

[Major Thomas J. Herthel]{.smallcaps}[^1]

**I. Introduction:**

> *"Well, we did not build those bombers to carry crushed rose
> pedals."*[^2]
>
> *General Thomas S. Power*

Later this year, delegates to the 2001 Review Conference of the United
Nations (UN) Convention on Certain Conventional Weapons[^3]
(Conventional Weapons Treaty) will meet in Geneva to consider, among
other issues, a proposal by the International Committee of the Red Cross
(ICRC) to amend the Conventional Weapons Treaty and regulate "remnants
of war."[^4] The proposed Protocol attempts to address some of the
problems caused by unexploded munitions, including unexploded
submunitions from cluster bombs.[^5]

Until recently, the international community focused primarily on the
issue of anti-personnel landmines---desiring to ban their use in armed
conflict.[^6] Images of injured woman and children, the result of
unintended landmine detonations, took center stage and attracted many
notable celebrities to the cause, including Princess Diana.[^7] The
ICRC's efforts, along with those of hundreds of non-governmental
organizations (NGOs), culminated in 1997 in Ottawa, Canada, when much of
the international community affirmatively banned the use of
anti-personnel landmines.[^8]

With the battle to outlaw landmines under control, many anti-landmine
advocates have turned their focus on another "remnant of war,"
unexploded cluster munitions delivered by cluster bombs.[^9] Described
as a "close relative" of the landmine,[^10] critics of cluster munitions
allege they are indiscriminate and cause superfluous injury.[^11] Many
NGOs are in this camp that criticize cluster munitions. They claim the
North Atlantic Treaty Organization's (NATO) recent air campaign over the
former Yugoslavia illustrates the need for a ban, or at least
regulation, of the use of cluster munitions.[^12] During that conflict,
NATO forces dropped an estimated 1,600 cluster bombs, each containing
between 147 and 202 submunitions, on targets in Serbia and Kosovo.[^13]
Despite these, and other recent criticisms, many governments, including
those of the United States and Britain, view cluster munitions as both
militarily important and lawful when properly employed.[^14]

This article examines whether the use of cluster munitions, when
properly employed, violates international law. More specifically, it
considers the legal basis for regulating anti-personnel weapons, reviews
their legality under current treaty law, and specifically examines
whether cluster munitions are per se indiscriminate or cause unnecessary
suffering and superfluous injury. Part II defines cluster munitions and
looks at their developmental history from World War I to present.[^15]
Part III examines the development of international law, as it pertains
to both landmines and cluster munitions. Finally, Part IV evaluates the
various arguments regarding cluster munition use and examines their
legality under current international law.

## II. Cluster Munitions

Cluster munitions are not, by definition, landmines.[^16] Nonetheless,
those who advocate their ban often rely on the similarities in effect
between landmines and cluster munitions to justify their position.[^17]
Specifically, some argue that undetonated cluster munitions, like
landmines, can hide themselves in the terrain and lay dormant until
disturbed.[^18] In reality, however, properly working cluster munitions
are far more akin to traditional air-dropped munitions as both are
designed to explode at or near impact.[^19] Nonetheless, cluster
submunitions, like other ordinance, can and do malfunction and fail to
detonate as planned.[^20] Until detonated or removed, these
submunitions, like other unexploded ordnance, pose a danger to anyone
who enters the immediate area.[^21] Cluster munition critics argue that,
because unexploded munitions are similar in nature to landmines,
regulation in the same manner is appropriate.[^22] One must understand
both the development and use of landmines and cluster munitions to fully
appreciate the error in this analogy.

**A. Landmines**

By definition, an anti-personnel mine is a "mine primarily designed to
be exploded by the presence, proximity, or contact of a person and that
will incapacitate, injure or kill one or more persons."[^23] Usually,
anti-personnel mines are hand-placed and typically require a degree of
pressure applied to the mine's trigger for detonation.[^24]

Although the use of rudimentary landmines on the battlefield dates back
to as early as 1191, when Richard I used them in his attack on French
fortifications during the battle of Acre, [^25] landmines, as we know
them today, trace their genesis to World War I, where they were employed
to counter early battletanks.[^26] The need for landmines arose when it
became apparent that "tanks were virtually immune to small-arms fire and
could traverse contested land between entrenched armies while providing
cover for advancing infantry troops."[^27] Militaries responded to the
armor threat by developing high explosive anti-tank mines.[^28] The
large anti-tank mines, however, were easily spotted and could be removed
by enemy personnel. The need for anti-personnel mines to protect the
larger anti-tank mines became obvious to military planners.[^29] Thus
were born the first modern anti-personal landmines.

**B. Cluster Munitions**

Cluster munitions, in contrast to landmines (which are designed to lay
dormant until disturbed), are "a group of smaller bombs which are
dropped together" from aircraft,[^30] and they are designed to explode
at or near impact. Cluster munitions, also known as Cluster Bomb Units
or "CBUs"[^31] in the U.S. military, resemble, in size and weight, other
unguided bombs.[^32] Cluster bombs are made up of three main components:
(1) a dispenser, often called a tactical munitions dispenser (TMD); (2)
fuzes to control the weapon; and (3) submunitions, sometimes called
bomblets[^33] or "bombies."[^34] "Once released, CBUs fall for a
specified amount of time or distance before their dispensers open,
allowing the submunitions to effectively cover a wide area target."[^35]

An internal fuse tells each submunition when to detonate---either "above
ground, at impact, or in a delayed mode."[^36] Submunitions generally
have an anti-tank, anti-material, or anti-personnel function.[^37] While
older variants contained only one type of submunition, new generation
cluster bombs, called Combined Effects Munitions, engage an enemy in a
variety of ways.[^38] For example, the US Air Force's BLU 97/B Combined
Effects Bomb combines "anti-armor, incendiary, and fragmentation
effects, making it 'effective' against light armor and personnel."[^39]
To illustrate why cluster munitions are militarily significant, it is
important to understand their history and development.

While landmine warfare against opposing armies began in the
twelfth-century, the British designed cluster munitions during World War
I for the purpose of incendiary attacks against the Germans.[^40] By
World War II, the United States and other nations were using cluster
bombs that delivered fragmentation, chemical, and incendiary
payloads.[^41] Dubbed "wicked little weapons," by Brigadier General
George C. Kenney,[^42] the military extensively employed incendiary
cluster munitions (mostly napalm) during bombing runs on Tokyo.[^43] At
the time, however, military planners did not consider cluster munitions
very successful due to restrictive delivery devices and an inability to
control submunition disbursement patterns.[^44]

Following World War II and the conflict in Korea, the United States Navy
undertook to develop more accurate cluster munitions by utilizing a
newly conceived munitions dispenser.[^45] The new dispenser, which began
development in July 1959,[^46] was known as the "Eye-series."[^47] Among
the most successful in the series was the MK 20 Rockeye. The ordnance,
complete with Mk 7 dispenser, Mk 339 time delay fuze, and 247 M118
anti-tank submunitions,[^48] disbursed and scattered submunitions in "an
elongated, doughnut-shaped pattern whose size \[was\] controlled by the
release height of the bomblets."[^49] The Navy successfully completed
the project by the mid-1960s. The Air Force also adopted it.[^50]

By this time, the United States was deeply involved in the war in
Vietnam[^51] where use of cluster munitions proved particularly
attractive. In Vietnam, US aircrews were especially susceptible to
attack by anti-aircraft artillery (AAA), as well as the newly employed,
Russian designed, surface-to-air missiles (SAM).[^52] Because of the AAA
and SAM threat, aircrews found it difficult to engage and neutralize the
Vietnamese air defenses from altitudes that allowed using single bombs
accurately and effectively.[^53] Cluster munitions provided the
solution; used as a flak-suppression weapon, they could deliver
literally hundreds of bomblets with a singe pass, thereby eliminating
the need for aircrews to fly at lower altitudes or over the same target
more than a single time.[^54]

By the mid-1960s, cluster bomb technology had come a long way. According
to Eric Prokosch, an expert on anti-personnel weapons, "\[t\]here were
three main areas of innovation: techniques for enhanced fragmentation
and other refinements in design of small high explosive munitions;
techniques to disseminate submunitions from aircraft-carried cluster
bombs; and the adaptation of cluster technologies to other weapon
platforms."[^55] Essentially, enhanced fragmentation meant that planners
could design cluster munitions to break into smaller, more controlled,
and more lethal bomblets.[^56] Better dispensers and the addition of
fixed and folded tail fins ensured that the submunitions more accurately
hit their targets.[^57] Additionally, during the Vietnam War, the
military developed new weapons platforms to deliver cluster bombs[^58]
including artillery,[^59] naval guns,[^60] and surface-to-surface
missiles (SSMs).[^61] Advances in cluster technology also led to other
innovations, such as the ability to employ landmines (as opposed to
cluster bombs) by both aircraft[^62] and artillery.[^63] By the
conclusion of the conflict in Southeast Asia, cluster munitions came in
many varieties, were disseminated from various types of dispensers, and
could be used to attack a wide range of targets---including
personnel.[^64]

Proliferation of cluster bomb technology was incremental following the
conflict in Vietnam.[^65] By 1978, only the United States, Britain,
France, and Germany produced or developed cluster munitions.[^66]
However, by 1994, at least fourteen countries were producing or using
cluster bombs.[^67] By 1996, that number had increased by at least
another ten.[^68] This recent growth reflects cluster munitions'
effectiveness on the modern battlefield. As production increased, so too
did cluster bomb usage.[^69] To date, cluster munitions have been used
in at least fourteen armed conflicts around the world,[^70] but
Operations Desert Storm and Allied Force represent two of the more
recent and extensive uses of cluster munitions, and the campaign to ban
or regulate cluster munitions began to develop momentum in light of
their use during Operations Desert Storm and Allied Force. Specifically,
anti-cluster bomb advocates claim that cluster munitions violate the law
of war because they are indiscriminate, cause unnecessary suffering and
superfluous injury, or both.[^71]

*1. Operation Desert Storm*

The 1991 Persian Gulf War saw the most extensive use of cluster
munitions in history.[^72] Of the approximately 250,000 bombs coalition
forces dropped on Iraq and Kuwait, more than 61,000 were cluster
bombs.[^73] According to the statistics, the Air Forces' weapons of
choice were the CBU-52B, CBU-58B, CBU-71A/B, and the CBU-87 (CEM)---all
cluster munitions.[^74] In all, the coalition extensively used cluster
bombs in attacks on Iraqi radars, SAM sites, communications and
transportation infrastructure, as well as dispersed armor, artillery and
personnel carriers.[^75] Like in Vietnam, however, the most significant
problem noted with cluster bombs was a high dud rate.[^76] During
Operation Desert Storm, at least twenty-five US military personnel were
killed by improperly handling submunitions fired by \[coalition\]
forces."[^77] In addition, unexploded submunitions delayed the Marines
from their capture of the Kuwait City Airport.[^78]

*2. Operation Allied Force*

Humanitarian groups paid significant attention to allied cluster
munitions use during Allied Force, despite its being rather limited
compared to Operation Desert Storm.[^79] Like in the Gulf War, US pilots
dropped CBU-87 Combined Effect Munitions, while the British Royal Air
Force relied on RBL-755 cluster bombs.[^80] Combined, NATO forces
dropped 1632[^81] cluster bombs on Kosovo and Serbia. Fewer than 50 of
these were the US military's newer Joint Stand Off Weapon (JSOW)[^82]
and Tomahawk Land Attack Cruise Missiles (TLAM-C).[^83] The Air Force's
newest cluster munitions, the CBU-97 Sensor Fuzed Weapon, was not
deployed during Operation Allied Force.[^84]

Pentagon officials first acknowledged NATO's use of cluster munitions
less than a month later following comments made by Senator Patrick Leahy
on the Senate floor concerning possible aerial mining by NATO
forces.[^85] Later, on May 8, 1999, NATO came under fire when at least
two cluster bombs missed their targets and "landed in two residential
areas of Nis in Serbia, around the market place near the center of town
and near a hospital several blocks away."[^86] Collateral damage was
significant; the error killed fourteen civilians and injured another
thirty.[^87] At the time of the mishap, NATO's targets were Serbian air
defense systems and aircraft located at the Nis airfield.[^88]

Because of the collateral damage at Nis, President Clinton issued a
directive temporarily prohibiting the use of cluster munitions until a
complete reevaluation of procedures.[^89] Military leaders were quick to
point out that the cluster munition use is "totally within the law of
armed conflict, and \[that\] it's legal in the international community
to use that weapon."[^90] Although the US military's eventually resumed
use of cluster bombs, the aerial engagement ended on June 10, 1999.[^91]
Nonetheless, cluster munitions critics alleged potential violations of
the law of armed conflict and began calling for an end to their
use.[^92] Before examining claims that cluster munitions violate the law
of war because they are indiscriminate, cause unnecessary suffering and
superfluous injury, or both, it is important to have an understanding of
the laws governing armed conflict, and more specifically, antipersonnel
weapons.

# III. The Law of Armed Conflict

> *If international law is, in some ways, at the vanishing point of law,
> the law of war is, perhaps even more conspicuously, at the vanishing
> point of international law.*[^93]

*Professor H. Lauterpacht*

International law is generally far more complex than domestic law.[^94]
Unlike in a sovereign state like the United States, where Congress makes
the laws and the President executes them, there are no international
political bodies with the ability to unilaterally create and enforce
legal norms.[^95] Rather, international law primarily derives from
nations waiving sovereignty, in part, and agreeing to abide by a set of
international rules.[^96] As such, "the sources of international law
cannot be equivalent to those in most domestic laws."[^97] There are two
primary sources of international law---treaties and customary law.[^98]

Treaties, by definition, are formal written agreements between sovereign
states.[^99] According to one international legal scholar,
"international agreements are thought to be legally binding because they
have been concluded by sovereign states consenting to be bound."[^100]
While treaties make up much of the law of armed conflict today, they
have not fully supplanted the customary practices of nations and are not
the only source of law in this area.[^101]

The second primary source of international law, with respect to armed
conflict, is customary international law.[^102] Like treaties,
international law recognizes custom as a source of law regarding armed
conflict.[^103] The International Military Tribunal at Nuremberg
succinctly captured this point:

> The law of war is to be found not only in treaties, but also in the
> customs and practices of states which gradually obtained universal
> recognition, and from the general principles of justice applied by
> jurists, and practiced by military courts. This law is not static, but
> by continual adaptation follows the need of a changing world.[^104]

The theory behind customary international law is that "states in and by
their international practice may implicitly consent to the creation and
application of international legal rules."[^105] Customary international
law, however, is not based solely on the historical practices of
nations, as there is a "psychological" element as well.[^106] According
to the *Restatement (Third) of the Foreign Relations Law of the United
States*, customary international law is developed by state practice only
when done out of a "sense of legal obligation."[^107] As such, for
customary international law to be binding, states must act not only in a
consistent manner, but also out of a sense of legal duty.[^108] Hence,
in examining the laws of war as they pertain to cluster munitions, one
must recognize that it is not merely state practice that, in addition to
treaties, dictates acceptable norms in international law, but only those
state practices followed from a sense of legal obligation.

Today, the law of war, including its historical development and current
practice, is solidly established in treaties and customary international
law. While a certain amount of brutality is inevitable in all armed
conflicts, the idea of regulating the methods of conducting warfare, in
an effort to minimize human suffering, has existed for centuries.[^109]
Clear evidence exists that philosophers, as well as military, political,
and religious leaders sought to "alleviate the sufferings of war."[^110]
These principles guide modern nations today and provide the framework
for codification of the law of war.[^111]

The first *modern* international attempt to codify the laws of war
occurred with the first Geneva Convention in 1864, following the
horrific Battle of Solferino, in northern Italy, in 1849.[^112] In 1864,
Switzerland, along with eleven other nations, signed the Geneva Red
Cross Convention, designed to protect medical personnel on the
battlefield.[^113] Since that time, the nations of the world have
repeatedly attempted to codify the laws of armed conflict.[^114]

One of the first, and still a significant attempt was the St. Petersburg
Declaration of 1868.[^115] Described as "the cornerstone of the laws of
war,"[^116] the St. Petersburg Declaration of 1868 was the first
successful attempt to regulate modern weaponry.[^117] While the purpose
of the Declaration was to renounce the use of exploding bullets weighing
less than 400 grams, the Declaration also made broad statements about
how nations should conduct warfare.[^118] In its Preamble, three
important concepts emerged: the principles of military objective,
distinction and humanity:[^119]

> \[T\]he only legitimate object which states should endeavor to
> accomplish during war is to weaken the military force of the enemy . .
> . for this purpose, it is sufficient to disable the greatest possible
> number of men . . . this object would be exceeded by the employment of
> arms which uselessly aggravate the sufferings of disabled men, or
> render their death inevitable . . . the employment of such arms would,
> therefore, be contrary to the laws of humanity . . . .[^120]

While the international community still recognizes its prohibition
against expanding bullets, the Declaration is now more of historical
than practical significance.[^121] Its rationale is important because it
serves as the guiding principles for the modern law of armed
conflict.[^122]

In practical effect, the current law of armed conflict is found
primarily in the Hague Conventions of 1907,[^123] the Geneva Conventions
of 1949[^124] and its 1977 Protocols,[^125] and the Conventional Weapons
Treaty of 1980[^126] along with its Protocols.[^127] The Geneva
Conventions and its Protocols generally focus on protecting victims and
other noncombatants in war, such as the wounded and sick,[^128] the
shipwrecked,[^129] prisoners of war,[^130] and civilians.[^131] While
the United States has ratified neither of the 1977 Protocols to the
Geneva Convention, it generally considers Protocol I reflective of
customary international law.[^132] On the other hand, the Hague
Conventions, along with the Conventional Weapons Treaty, regulate the
means and methods of warfare; they focus on the weapons of war and their
employment.[^133]

The totality of treaty and customary international law produces four
basic principles to guide military planners---military necessity,
distinction, proportionality, and humanity[^134] Military necessity
holds that armies should not attack targets unless they gain a military
advantage by doing so, and even then, they may attack only military
objectives.[^135] Next, the principle of distinction states that states
should wage wars "against the enemy's military forces, not its civilian
population."[^136] The principle of proportionality recognizes that
there will be civilian casualties and destruction of civilian property
during armed conflict, but calls upon military planners to balance the
needs of the military against likely collateral damage, and to proceed
to attack only when the military necessity outweighs likely collateral
damage.[^137] Finally, the principle of humanity dictates that military
planners should minimize unnecessary suffering.[^138] If a means or
method of warfare is not outlawed it is legal. Accordingly, in analyzing
the legality of cluster munitions, these four principles govern
exclusively, absent any more restrictive international agreements. In
other words, as there are no existing treaties restricting the use of
cluster munitions, their use must violate one or more of these four
guiding principles to be unlawful under the current international legal
regime.

## IV. Law and Analysis

Cluster munitions critics raise several issues and concerns. Their
arguments, however, can be broken down into three distinct
propositions.[^139] First, at least one nation has affirmatively stated
that the use of cluster bombs is a per se violation of current
international law.[^140] A second group of critics argues that the
weapons are illegal because they are inhumane; in other words, they
cause unnecessary suffering and superfluous injury.[^141] Finally, the
argument most often expressed by critics is that cluster munitions are
illegal because they are indiscriminate.[^142] This last argument has
two prongs: (1) cluster munitions are indiscriminate because they cannot
be accurately employed;[^143] and (2) cluster bombs are indiscriminate
because many of their bomblets do not detonate as designed, creating
fields of duds, incapable of distinguishing between combatants and
noncombatants.[^144] The delegates to the 2001 Conventional Weapons
Review Conference, scheduled to take place later this year, may raise
these arguments.[^145] The 2001 Conference, however, will not be the
first time the international community addressed the issue of cluster
munitions.[^146] In the past, States have considered whether to impose
restrictions on cluster bomb usage and opted against imposing such
restrictions.[^147] Accordingly, neither treaty nor customary
international law limits how states might employ cluster munitions
during future armed conflict.

*1. Treaty Law: Landmines and Cluster Munitions*

*Are the Use of Cluster Munitions in Violation of Existing International
Treaties or Agreements?*

*a. Previous Regulation Attempts: Lucerne & Lugano*

As the United States was embroiled in war in Southeast Asia, the
International Committee for the Red Cross Conference of Government
Experts on Weapons that May Cause Unnecessary Suffering or May Have
Indiscriminate Effects (Lucerne Conference) met in 1974 to consider
possible bans or restrictions on certain antipersonnel weapons.[^148]
Sweden, along with six other countries concerned about many of the
antipersonnel weapons used by the United States in Vietnam, initiated
the conference that eventually led to the formulation of the
Conventional Weapons Treaty several years later.[^149] Among the weapons
examined were "cluster warheads with bomblets which act through the
ejection of a great number of small calibered fragments or pellets . . .
."[^150] In addition to cluster munitions, delegates to the Conference
explored possible bans on incendiary weapons, delayed-action
weapons,[^151] small-caliber projectiles,[^152] weapons producing
flechettes,[^153] and fuel-air explosives.[^154]

At Lucerne, as is the case today, proponents of a ban on cluster
munitions alleged that "the weapons under consideration had a wide area
coverage and, hence, could easily affect combatants and civilians
without discrimination; they also caused unnecessary suffering."[^155]
Critics of cluster munitions claimed the weapons caused unnecessary
suffering by inflicting multiple wounds.[^156] On the other hand, other
experts believed cluster munitions were "an improvement from the
humanitarian point of view over weapons with random
fragmentation."[^157] The conference ended with no resolution on this
issue of cluster munitions and did not, in any way, outlaw or regulate
their use.[^158]

The debate over cluster munitions continued two years later in Lugano,
Italy, at the second International Committee for the Red Cross
Conference of Government Experts on Weapons that May Cause Unnecessary
Suffering or May Have Indiscriminate Effects (Lugano Conference).[^159]
Like at Lucerne, little agreement existed on the issue.[^160] Further,
to gain some common ground, the delegates agreed to exclude combined
effects munitions from debate altogether.[^161] While discussions of the
alleged indiscriminate effects of cluster munitions occurred, the focus
of the conference, with regard to cluster bombs, centered on the issue
of unnecessary suffering.[^162] Experts opposed to cluster munition
regulation waged a three-pronged attack.[^163] First, they pointed out
that banning cluster munitions would require the military to use more
high explosive ordnance to accomplish the same results over a wide area,
potentially causing more damage and suffering than typically done by
cluster bombs.[^164] Second, they argued that several types of other
weapons have fragmentation effects, such as artillery shells, aircraft
bombs, landmines, and hand grenades, and that the military needs these
types of weapons, including cluster bombs, for defensive operations to
cover large areas and for attacking anti-aircraft emplacements.[^165]
Finally, the experts pointed out that controlled cluster munitions
caused less suffering than did random fragmentation weapons.[^166] In
the end, the Report of the General Working Group did little more than
inconclusively restate both propositions:

> Such weapons were considered, so it was explained, to cause undue
> suffering because of the multiplicity of the wounds they might inflict
> on individuals; they were also considered to lend themselves to uses
> that could particularly easily be indiscriminate, whether
> intentionally or inadvertently. By way of counter-argument to the
> contention about multiple injuries, reference was made to a
> comprehensive study that had been undertaken of wounds inflicted by
> fragmentation munitions of the controlled or pre-fragmented type and
> of the older uncontrolled type. While it appeared true from this study
> that the former type tended to cause a higher proportion of multiple
> injuries among casualties, than the latter, higher mortality rates
> were found among casualties caused by the latter. Though the degree of
> pain in each case could not be quantified, the comparison thus
> suggested that, on one criterion, the newer types of fragmentation
> munition caused less suffering than the older.[^167]

While thirteen countries supported an outright ban on the use of
antipersonnel cluster munitions, the proposal to outlaw the weapon
failed.[^168] As one expert noted, "\[a\]ll weapons could cause
extremely serious, excruciating injuries. War by its very nature \[is\]
cruel. The most convincing way for governments to observe their
humanitarian obligations therefore \[is\] to pursue a consistent policy
of peace . . . ."[^169]

*b. The Conventional Weapons Treaty and the Ottawa Treaty*[^170]

As with the Lucerne and Lugano Conferences, the Conventional Weapons
Treaty (Protocol II) did nothing to limit the use and employment of
cluster munitions.[^171] While the Lucerne and Lugano Conferences
generated momentum to regulate non-detectable fragments, landmines, and
incendiary weapons that carried over to the formulation of the 1980
Conventional Weapons Treaty, for the most part, the Treaty ignored
cluster munitions.[^172]

As stated earlier, the Land Mine Protocol to the Conventional Weapons
Treaty regulates the use of landmines and booby-traps.[^173] The treaty
also regulates, but does not ban, remotely delivered mines, including
those deployed using cluster technology.[^174] The signatories of the
Land Mine Protocol specifically left out cluster bombs from the
treaty\'s scope.[^175]

In May 1996, at the first review conference of the Conventional Weapons
Treaty, the delegates drafted and approved the Amended Mine
Protocol.[^176] Like its predecessor, the Amended Mine Protocol excludes
cluster bombs from regulation.[^177] Unlike the original Land Mine
Protocol, however, the Amended Mine Protocol includes a definition for
an "anti-personnel mine."[^178] According to Article 2(3),
"'\[a\]nti-personnel mine' means a *mine primarily designed* to be
exploded by the presence, proximity or contact of a person and that will
incapacitate, injure or kill one or more persons" (emphasis
added).[^179] Cluster bombs are not included, however, since they are
designed to be activated not by the target, but rather, by a
self-contained fuze.[^180] In its advice and consent to the treaty, the
United States Senate specifically noted that it is:

> this characteristic . . . that distinguishes a mine from so-called
> unexploded ordnance or UXO. UXO is not covered by the Protocol, either
> the 1980 or the amended version. Unexploded ordinance is a result of a
> malfunction of a munition; UXO is not "designed" in any sense, and, in
> particular, is not designed to be detonated by the presence, proximity
> or contact of \[sic\] person. Although UXO presents a serious problem
> that requires concerted attention, it is a problem outside the scope
> of \[the Amended Mine Protocol\].[^181]

Similarly, the Ottawa Treaty[^182] does not ban or regulate the use of
cluster munitions.[^183] While the International Committee to Ban
Landmines[^184] attempted to include cluster munitions by drafting a
definition of anti-personnel mine based on its effect, rather than its
design, the NGOs' definition was rejected by the Treaty's
signatories.[^185] Rather, "the government experts . . . defined
prohibited weapons by their design, not their effect."[^186]
Nonetheless, the International Campaign to Ban Landmines compromised
their position and *supported* the current definition, which, like the
Land Mine Protocol and the Amended Mine Protocol before it, focuses on
how the weapon detonates.[^187] According to the ICRC, "\[t\]he
definition of an anti-personnel mine laid down in the Ottawa treaty . .
. covers all 'person'-activated mines."[^188] Therefore, the Ottawa
Treaty does not ban or regulate cluster mines.[^189]

As accusations flew that NATO was using illegal weapons during Operation
Allied Force, the British Defense Minister, Mr. John Spellar, clearly
stated that cluster bombs "are not landmines under the international
convention . . . ."[^190] On June 13, 2000, the Committee Established to
Review the NATO Bombing Campaign Against the Federal Republic of
Yugoslavia agreed in its final report.[^191] The Committee affirmatively
stated "\[there is\] no specific treaty provision which prohibits or
restricts the use of cluster bombs although, of course, cluster bombs
must be used in compliance with the general principles applicable to the
use of all weapons."[^192]

*2. Geneva Protocol I and Customary International Law:*

Do Cluster Munitions Cause Unnecessary Suffering and Superfluous Injury,
as Prohibited by the Law of Armed Conflict?

Settled law holds that the means and methods employed by a military
force to injure the enemy is not unlimited.[^193] According to the 1907
Hague Convention (Hague II), "\[i\]t is especially forbidden . . .
\[t\]o employ arms, projectiles, or material calculated to cause
unnecessary suffering."[^194] While earlier versions of the Hague
Convention use the term "superfluous injury" in lieu of "unnecessary
suffering," the two terms are generally considered synonymous.[^195]
More recently, Geneva Protocol I reaffirmed this proposition by adopting
the language of both Hague Conventions.[^196] According to Article 35:
"1. In any armed conflict, the right of the Parties to the conflict to
choose methods or means of warfare is not unlimited. 2. It is prohibited
to employ weapons, projectiles and material and methods of warfare of a
nature to cause superfluous injury or unnecessary suffering."[^197]
Neither phrase, however, has been objectively defined.[^198]

The very phrase "unnecessary suffering," implicitly recognizes that a
degree of legitimate suffering accompanies any armed conflict.[^199] In
other words, some degree of necessary suffering is lawful and,
therefore, a weapon is not unlawful simply because it produces a
significant amount of suffering.[^200] Rather, one must balance the
degree and intensity of suffering against military necessity before a
weapon is deemed to cause unnecessary suffering or superfluous
injury.[^201] Because military necessity is continually changing, there
is no formula that is uniformly applicable to resolve this issue.[^202]
According to one scholar:

> \[A\] balancing test is applied between the force dictated by military
> necessity to achieve a legitimate objective vis-à-vis injury that may
> be considered superfluous to the achievement of the stated or intended
> objective (in other words, whether the suffering caused is out of
> proportion with the military advantage to be gained.)[^203]

As such, necessary suffering is that degree of suffering, not otherwise
prohibited by international law, required to accomplish a lawful
military outcome.[^204] When examining any weapon, one must consider the
military necessity of the weapon; how and why the weapon is used.[^205]
Generally, military necessity is defined as "the necessity for measures
which are essential to attain the goals of war . . . ."[^206] One must
weigh this factor against the suffering caused by cluster
munitions.[^207] However, the effects of cluster munitions cannot be
looked at in isolation.[^208] Rather, one must also consider the effects
of other "comparable weapons."[^209]

Critics charge that cluster bombs cause unnecessary suffering and/or
superfluous injury because they inflict multiple wounds and have a high
lethality rate.[^210] Cluster bombs, however, are not the only lawful
weapons that cause multiple injuries or death to enemy forces.[^211] For
example, high explosive artillery and mortar rounds, fragmentation
grenades, and other air-dropped munitions are no less lethal to the
enemy soldier than are cluster munitions.[^212] In a recent legal
review, one expert noted:

> Wounding by more than one projectile is extremely common on the
> battlefield due to the various lawful fragmentation munitions in use,
> such as antipersonnel landmines, artillery and mortar fragments,
> canister rounds, Claymore mines, and hand or rifle grenades, as well
> as the extensive projection towards an enemy force of automatic and
> semiautomatic small arms fire.[^213]

Each of these lawful weapons possesses the probability of inflicting
multiple wounds, including lethal wounds, on an enemy.[^214] In fact,
arguably, cluster munitions may be more humane than other weapons, as
they disperse pre-cast bomblets rather than fragmented shards of melted
steel.[^215]

Additionally, absent a consensus among nations, as is the case with
poisonous gas, it is impossible to objectively define how much suffering
constitutes unnecessary suffering.[^216] The delegates to Geneva
Protocol I recognized this significant issue, stating:

> From a strictly medical standpoint it seems impossible at the present
> stage of medical knowledge to objectively define suffering or to give
> absolute values permitting comparisons between human individuals.
> Pain, for instance, which is but one of many components of suffering,
> is subject to enormous individual variations. Not only does the pain
> threshold vary between human beings: at different times it varies in
> the same person, depending on the circumstances.[^217]

As the Commentary goes on to explain, "in the eyes of the victim all
suffering is superfluous and any injury is unnecessary."[^218]

While cluster munitions inflict a degree of suffering on its victims,
this does not end the analysis. To be unlawful, the suffering inflicted
by cluster munitions must outweigh the legitimate military necessity
prompting their use. Causing suffering without legitimate military gain
clearly violates international law.[^219] However, the military
necessity for the use of cluster munitions is significant.[^220]
Generally, cluster munitions are excellent area weapons.[^221] In
addition to their usefulness against AAA and SAM sites, cluster bombs
are effective against armor, artillery, vehicles, and troops.[^222] They
minimize the risk and exposure of aircrews to enemy fire because they
facilitate striking a target with a single sortie rather than by flying
multiple aircraft over the same target a number of separate times.[^223]
Further, the use of cluster munitions may actually reduce collateral
damage.[^224] As pointed out at the Lugano Conference, without cluster
bombs, air forces must use more high explosive ordnance to accomplish
the military goal, creating the increased possibility of a weapon
missing its target and causing unintended collateral damage.[^225]
Finally, cluster munitions are perhaps the most effective weapons at
stopping or slowing an enemy assault.[^226] For these reasons, the
military necessity of cluster munitions is considerable; unitary bombs
are not practical alternatives.

While cluster munitions, like many other weapon systems, are lethal and
often cause multiple wounds, there are significant military advantages
to using them. On balance, it is impossible to objectively say that
cluster munitions cause unnecessary suffering or superfluous injury *as
a matter of law*. The delegates to Geneva Protocol I recognized that
"obstacles will be met in applying this principle \[unnecessary
suffering\] to specific weapons . . . ."[^227] Further, as they point
out, "\[t\]he Protocol does not impose a specific prohibition on any
specific weapon. The prohibitions are those of customary law, or are
contained in other international agreements."[^228] As illustrated
earlier, no such international agreements ban the use of cluster
munitions. Additionally, in light of the recent proliferation of cluster
munitions production and use, it can hardly be argued that customary law
bans their current employment. There is no evidence that states are not
refraining from using cluster munitions (state practice) or that they
are doing so out of a sense of legal obligation. Accordingly, whether
cluster munitions cause superfluous injury or unnecessary suffering can
only be determined on a case-by-case basis and in light of current
military necessity.

3\. Are Cluster Munitions Indiscriminate Because They are Incapable of
Being Accurately Deployed or Because Their Bomblets Do Not Always
Detonate as Designed, and Thus Create Minefields Incapable of
Distinguishing Between

Combatants and Noncombatants?

As stated earlier, "the only legitimate object which states should
endeavor to accomplish during war is to weaken the military force of the
enemy."[^229] By implication, if weakening the enemy's army is the only
legitimate military objective, this grants the civilian population some
form of immunity from attack.[^230] While the 1949 Geneva Conventions
reiterate the basic premise that noncombatants should be protected,
Geneva Protocol I actually codifies the current rule of
distinction.[^231] According to Geneva Protocol I, Article 48:

> In order to ensure respect for and protection of the civilian
> population and civilian objects, the Parties to the conflict shall at
> all times distinguish between the civilian population and combatants
> and between civilian objects and military objectives and accordingly
> shall direct their operations only against military objectives.[^232]

Accordingly, before military planners can deem any target legally
susceptible to attack, regardless of the type of weapon system employed,
it must be a proper military objective[^233] and must be distinguished
from the civilian population and civilian objects.[^234]

While Geneva Protocol I permits attacks against military objectives, not
surprisingly it prohibits attacks against civilians and the civilian
population.[^235] More specifically, Article 51 prohibits two types of
attacks against the civilian population, direct attacks and
indiscriminate indirect attacks.[^236] In relevant part, Article 51
states:

> \(2\) The civilian population as such, as well as individual
> civilians, shall not be the object of attack. Acts or threats of
> violence the primary purpose of which is to spread terror among the
> civilian population is prohibited . . . .
>
> \(4\) Indiscriminate attacks are prohibited. Indiscriminate attacks
> are: (a) those which are not directed at a specific military
> objective; (b) those which employ a method or means of combat which
> cannot be directed at a specific military objective; or (c) those
> which employ a method or means of combat the effects of which cannot
> be limited as required by this Protocol; and consequently, in each
> such case, are of a nature to strike military objectives and civilians
> or civilian objects without distinction.
>
> \(5\) Among others, the following types of attacks are to be
> considered as indiscriminate: (a) an attack by bombardment by any
> method or means which treats as a single military objective a number
> of clearly separate and distinct military objectives located in a
> city, town, or village, or other area containing a similar
> concentration of civilians or civilian objects; and (b) an attack
> which may be expected to cause incidental loss of civilian loss of
> life, injury to civilians, damage to civilian objects, or a
> combination thereof, which would be excessive in relation to the
> concrete and direct military advantage anticipated.[^237]

Accordingly, military planners may not target a legitimate military
objective when the means and methods employed are of a nature to strike
military objectives and civilians without distinction.[^238] Article 51
provides two examples of such a situation: attacks whereby the city,
town, or village *are* the target, and attacks which are *expected* to
cause *excessive* collateral damage in relation to the military benefit
anticipated.[^239] Additionally, Geneva Protocol I, Article 57, provides
military planners, for the first time, with enumerated precautionary
measures they must take to avoid unnecessary collateral damage.[^240]
Article 57, in pertinent part, provides:

> In the conduct of military operations,[^241] constant care shall be
> taken to spare the civilian population, civilians and civilian
> objects.[^242]
>
> With respect to attacks, the following precautions shall be taken: (a)
> those who plan or decide upon an attack shall: (i) do everything
> feasible to verify that the objectives to be attacked are neither
> civilian nor civilian objects and are not subject to special
> protection but are military objectives within the meaning of paragraph
> 2 of Article 52 and that it is not prohibited by the provisions of
> this Protocol to attack them; (ii) take all feasible precautions in
> the choice of means and methods of attack[^243] with a view to
> avoiding, and in any event to minimizing, incidental loss of civilian
> life, injury to civilians, and damage to civilian objects; (iii)
> refrain from deciding to launch any attack which may be expected to
> cause incidental loss of civilian life, injury to civilians, damage to
> civilian objects, or a combination thereof, which would be excessive
> in relation to the concrete and direct military advantage anticipated;
> (b) an attack shall be canceled or suspended if it becomes apparent
> that the objective is not a military one or is subject to special
> protection or that the attack may be expected to cause incidental loss
> of civilian life, injury to civilians, damage to civilian objects, or
> a combination thereof, which would be excessive in relation to the
> concrete and direct military advantage anticipated; (c) effective
> advanced warning shall be given of attacks which may affect the
> civilian population, unless circumstances do not permit.[^244]

The culmination of these provisions reasserts several long-standing
customary norms. First, military planners may not directly target
civilians or the civilian population.[^245] Second, attacks which are
incapable of being directed against a military objective are
indiscriminate and, therefore, prohibited.[^246]

Opponents of cluster munitions rely on this second facet in alleging
that cluster bombs are illegal.[^247] Specifically, they argue that
because of the large area covered by the weapon, it is incapable of
being accurately controlled.[^248] They further argue that cluster bombs
"too often miss the target . . . ."[^249] As referenced earlier, its
fuze and the altitude at which the aircraft drops the munitions directly
control the area coverage of cluster munitions, not any inherent error
in the munition itself.[^250] Generally, releasing the bomb at higher
altitudes causes more dispersion of bomblets and, therefore, a wider
area is covered; the converse is true for lower altitude drops.[^251]

When evaluating a weapon's lawfulness based solely on its accuracy, it
is important to remember that all munitions, from a single rifle round
to a 2000 pound bomb, are incapable of being accurate 100% of the
time.[^252] Rather, the accuracy of all weapons depend on a multitude of
factors: target intelligence, planning time, weather, crew experience,
altitude at which the bomb is dropped, enemy defenses, and human factors
such as fear, fatigue, mistake, and the "friction of war."[^253] Despite
the lack of any mandates by either custom or treaty, the US, as a matter
of internal policy, often attempts to compensate for several of these
factors with high-tech weaponry, such as precision-guided
munitions.[^254] In all cases, however, military planners evaluate each
target for its legality, as well as attempt to determine the most
accurate and effective weapon to employ in order to accomplish their
lawful military goals.[^255]

Military planners are capable of directing cluster munitions at lawful
military objectives. Take, for example, the situation of a formation of
tanks in an open field, or aircraft sitting on a runway preparing to
take off.[^256] To suggest that cluster munitions are incapable of
accurately striking these targets is preposterous---history has shown
otherwise.[^257] Rather, the type of weapons contemplated by the
delegates to Geneva Protocol I in drafting this definition of
indiscriminate attacks were "primarily long-range missiles which cannot
be aimed exactly at the objective."[^258] Iraq's launching of
uncontrolled SCUD missiles into Israel and Saudi Arabia, not the
dropping of cluster munitions, were what the delegates
contemplated.[^259] On the other hand, the effective employment of
cluster munitions against legitimate military objectives is possible;
they are not indiscriminate by their very nature.

Nonetheless, improvements in technology are making cluster munitions
even more accurate.[^260] New guiding mechanisms make the CBUs much more
accurate than unguided munitions, significantly reducing the possibility
of unintended collateral damage. Reducing the likelihood that
submunitions will fall outside the intended target area minimizes
collateral damage. Given these factors, in light of the fact that
cluster munitions are an "area weapon" designed to strike targets over a
larger than normal geographic sector, it is impossible to objectively
state that cluster munitions are incapable of being directed at a
military objective. The fact that cluster munitions create a large
battlefield footprint is not, by itself, reason to consider the weapon
indiscriminate. Rather, this factor must be taken into account by
planners during the normal targeting legal analysis.

The final types of indiscriminate attacks prohibited by Article 51 are
those that "employ a method or means of combat . . . \[that is\] of a
nature to strike military objectives or civilian objects without
distinction."[^261] This is where the comparison between antipersonnel
landmines and cluster munitions emerge.[^262] According to many critics
of cluster munitions, if the weapon malfunctions and produces "duds,"
these duds, like landmines, are incapable of distinguishing between
civilians and lawful combatants.[^263] Arguably then, they are
indiscriminate.[^264] This argument, however, is flawed.

The Commentaries to Article 51 describe two ways that a weapon is, by
its character, indiscriminate.[^265] First, there are "methods which by
their very nature have an indiscriminate character, such as poisoning
wells."[^266] The Commentators specifically point to bacteriologic
warfare and poisoning drinking water as the types of means they envision
being indiscriminate.[^267] In accord with international law, the only
way a weapon is determined to be indiscriminate, by its very nature, is
by a consensus of sovereign nations through treaty or customary
law.[^268] With respect to cluster munitions, delegates to the Lucerne
and Lugano Conferences addressed and rejected the very issue of a treaty
to regulate cluster munitions.[^269] Further, the current state practice
of developing and using cluster munitions is contrary to the proposition
of illegality.[^270] Even landmines, *designed* to lay dormant and
detonate later in time, are not considered per se indiscriminate by the
world community, although some suggest that the *trend* is leaning
toward that direction.[^271] Rather, at Ottawa, it took a consensus of
nations to determine that, as a matter of policy and/or domestic law,
they choose to refrain from using landmines in the future. Customary
international law, however, still recognizes their legality.[^272]

Unexploded ordnance is not a new phenomenon unique to cluster munitions,
as Europe was littered with UXOs following World War II.[^273] All
weapon systems malfunction at various times.[^274] While cluster
munitions have a "dud rate" of between 5-7%,[^275] it is important to
remember that the "remnants of war" that critics complain of are the
unintended, unexploded submunitions---not intentionally laid
minefields.[^276] According to Major General Wald:

> Now these cluster bombs . . . there are some duds in there. Very few.
> But when they are, it\'s like any other unexploded ordnance. This is
> not a mine. There\'s no proximity on it where if you walk by or make
> the ground rumble or anything like that it\'s going to go off. So
> they\'re just like any other unexploded ordnance any place in the
> world. But they are not a mine. They have no timers on them whatsoever
> or anything like that. I think it\'s just like a 500-pound bomb,
> except there are several of them in a cluster.[^277]

Accordingly, in light of current customary international law, cluster
munitions are not by their very nature indiscriminate.

The second way weapons can be indiscriminate, "does not depend on the
nature of the weapons concerned, but on the way in which they are
used."[^278] The military can always use an otherwise lawful weapon
unlawfully.[^279] More specifically, when expecting an attack to produce
excessive collateral casualties "in relation to the concrete and direct
military advantage anticipated," it is indiscriminate.[^280] In other
words, collateral damage is disproportionate to military gain. It is
important to note that enemy combatants are never collateral damage that
one must consider. Accordingly, one need not weigh enemy combatant
casualties against the "concrete and direct military advantage" as the
destruction of the combatants themselves provides such advantage.

The principle of proportionality holds that military planners must take
all feasible precautions to ensure that collateral damage to
non-military objectives is proportionate to the potential and expected
military gain and consistent with mission accomplishment.[^281]
According to Protocol I, Article 51(5)(b), "an attack which may be
expected to cause incidental loss of civilian life, injury to civilians,
damage to civilian objects, or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage
anticipated" would be indiscriminate and therefore, in violation of
international law.[^282]

Military planners must evaluate whether the use of cluster munitions
will cause collateral damage on a case-by-case basis.[^283] Like every
other target analysis, technical experts, with input from military
lawyers, should consider, among other things, the lawfulness and
military value of the target, as well as the feasibility, based on
aircraft capabilities and enemy air defenses, to accurately strike the
proposed target.[^284] By doing so, commanders fulfill their legal and
ethical obligations. As it pertained to Operation Allied Force, one
military spokesperson wrote:

> Cluster munitions are governed by the same Law of Armed Conflict
> requirements that apply to the use of any other weapon in the military
> inventory. When considering a strike against a specific target, the
> military advantage is weighed against the collateral effects. If the
> expected collateral damage is judged to be excessive in relation to
> the military advantage, the attack does not take place. The task of
> \"producing targets\" was a laborious process involving lawyers,
> targeteers, and intelligence analysts, who were charged with reworking
> all attack plans for any target where more than 20 civilians might be
> killed.[^285]

Accordingly, planners must balance expected collateral damage against
the concrete and direct (as opposed to speculative) military value
anticipated.[^286] Should cluster munitions be the weapon of choice,
weaponeers should consider all viable alternatives, i.e., dropping at
various altitudes and with various spin rates, in an effort to best
reduce civilian casualties, while placing aircrews at no additional
risk. Mission planners should consider not only the direct and immediate
consequences of a cluster munitions strike with respect to immediate
collateral damage, but in light of the known dud rates, the fact that
additional collateral damage is likely to occur in the future from
UXOs.[^287]

As with the use of any weapon, the likelihood of collateral damage
increases when it is used in areas populated by civilians.[^288]
Magnifying this fact for cluster munitions is the sheer number of
submunitions deployed by each bomb and the resulting large footprint.
Even so, a large footprint, by itself, is not enough to render an
otherwise lawful weapon unlawful. While prohibiting the use of cluster
munitions in populated areas is unwarranted, military planners should
proceed with extreme caution to ensure that a more precise weapon could
not accomplish the desired military aim. Said another way, as a matter
of policy, military planners should avoid the use of cluster munitions
near populated areas unless the direct military benefit *clearly
outweighs* the likely collateral damage, both during and after the
conflict. Nonetheless, when used properly, cluster munitions are lawful
under customary international law.

### V. Conclusion

Cluster munitions are versatile, effective, and lawful weapons, and
current international agreements do not ban their use. Properly
employed, they neither cause unnecessary suffering nor are
indiscriminate. Despite the aspirational view of international law held
by some, customary law does not prohibit the use of cluster munitions,
and absent states refraining from using cluster munitions, out of a
sense of legal obligation (rather than because of national policy), no
such prohibition can exist.

Nonetheless, states are not free to employ weapons any way they choose.
Military planners must strike a balance between military necessity and
humanitarian requirements every time the decision to strike a particular
military objective occurs. By its very nature, the result will be
subjective. One must apply their best judgment, exercising good faith
and common sense, and make a decision about whether a particular attack
will be lawful in light of the principles of international law. Military
commanders are best situated to do just that. They best know their
strategic and tactical objectives, the capabilities and shortcomings of
their available weapons, and the risks involved to the civilian
population. To presume that military leaders will systematically
disregard or dismiss humanitarian concerns is both unfair and
historically inaccurate. Military members, perhaps more than anyone
else, suffer during war. The military recognizes and appreciates
humanitarian concerns. Likewise, military commanders recognize and
appreciate the rule of law.

> *I\'ve spent a lot of time with lawyers in the past on this. When I
> was a planner at the CAOC, we had a lawyer at the CAOC in 1994. In the
> Gulf War they had lawyers. Every target-type set is reviewed for legal
> approval. So it\'s part of the process. And I\'m pretty proud of our
> government, the fact that we do spend a lot of time checking the
> legality of all types of things we do . . . .*

*Major General Charles Wald*[^289]

[^1]: ^\*^ *Major Herthel (B.S., Northern Arizona University; J.D.,
    Cumberland School of Law, Samford University; LL.M., The Judge
    Advocate General's School, United States Army) is an instructor,
    International and Operational Law Division, The Air Force Judge
    Advocate General School, Maxwell AFB, Alabama. He is a member of the
    Alabama State Bar. The author would like to thank Squadron Leader
    Chris Hanna, Royal Australian Air Force, and Major Jeanne Meyer,
    USAF, for their assistance in preparing this article.*

[^2]: [The Military Quotation Book]{.smallcaps} 115 (James Charlton ed,
    1990).

[^3]: Convention on Prohibitions or Restrictions on the Use of Certain
    Conventional Weapons Which May be Deemed to be Excessively Injurious
    or to Have Indiscriminate Effects (and Protocols), Oct. 10, 1980, \_
    stat.\_, 1342 U.N.T.S. 137 \[hereinafter Conventional Weapons
    Treaty\]. *See generally* [The Laws of Armed Conflicts: A Collection
    of Conventions, Resolutions and Other Documents 177-98
    (]{.smallcaps}Dietrich Schindler & Jiri Toman eds. 1988)
    \[hereinafter [The Laws of Armed Conflicts\]]{.smallcaps}.

[^4]: Although what comprises "remnants of war" is the subject of
    debate, it generally includes unexploded ordnance and undetonated
    landmines remaining on the battlefield at the conclusion of an armed
    conflict. The United States Department of Defense (DOD) defines
    explosive ordnance as "all munitions, weapon delivery systems, and
    ordnance that contain explosives, propellants, nuclear materials,
    and chemical agents. Included in this definition are bombs,
    missiles, rockets, artillery rounds, ammunition mines, and any other
    similar item that can cause injury to personnel or damage to
    material." Unexploded ordnance, according to the DOD, consists of
    the above listed items "after they (1) are armed or otherwise
    prepared for action; (2) are launched, placed, fired or released in
    a way that cause hazards; and (3) remain unexploded either through
    malfunction or design." US Government Accounting Office
    (GAO)[,]{.smallcaps} *Unexploded Ordnance: A Coordinated Approach to
    Detection and Clearance Is Needed*, GAO/NSIAD-95-197 (Sept. 20,
    1995).

[^5]: The ICRC proposes a four-pronged approach. First, they would
    require those countries that use cluster munitions to be responsible
    for their clean up after the conflict. Second, to facilitate
    clearance of unexploded munitions, the ICRC would require users of
    cluster munitions to provide the weapons' technical data to NGOs.
    Third, the proposal would require those who use cluster munitions,
    or any ordnance likely to have long-term effects, to warn the
    civilian populations of the dangers of such unexploded ordnance.
    Finally, the ICRC proposes to outlaw the use of cluster munitions
    against military objectives located near the civilian population.
    *See* International Committee of the Red Cross, *Preparatory
    Committee for the 2001 Review Conference of the United Nations
    Convention on Certain Conventional Weapons*, *at* ://www.icrc.org
    (Dec. 14, 2000) (on file with the Air Force Law Review).

[^6]: *See generally* Alert News, *UK Anti-Landmine Group Seeks Ban on
    Cluster Bombs*, *at* http://www.alertnet.org/resources/147016 (Aug.
    8, 2000) (on file with the Air Force Law Review); Mennonite Central
    Committee*, Drop Today, Kill Tomorrow: Cluster Munitions as Inhumane
    and Indiscriminate Weapons, at*
    http://www.mcc.org/clusterbomb/drop_today/

    index.html (last visited Oct. 8, 2001) (on file with the Air Force
    Law Review).

[^7]: Peter Ford, *New Crusade Targets Cluster Bombs*, [Christian Sci.
    Monitor]{.smallcaps} (Sept. 8, 2000) *available at*
    http://www.csmonitor.com/durable/2000/09/08/p1s1.htm (on file with
    the Air Force Law Review).

[^8]: *See* [International Campaign to Ban Landmines, Landmine Monitor
    Report 1999 1-6 (1999).]{.smallcaps} The Convention on the
    Prohibition of the Use, Stockpiling, Production and Transfer of
    Anti-Personnel Mines and On Their Destruction, Sept. 18, 1997, 36
    I.L.M. 1507 \[hereinafter Ottawa Treaty\], took effect on March 1,
    1999. At that time, 135 countries had signed the treaty. *Id.*

[^9]: *See* Ford, *supra* note Error: Reference source not found.
    According to Ford:

    > Once, the world's armies used land mines as an essential weapon in
    > their armories. But a grass-roots campaign, bolstered by the late
    > Diana, Princess of Wales, achieved an international ban. . . . Now
    > another weapon is being targeted. Building on the momentum and
    > moral foundation created by the land-mine effort, humanitarian
    > groups are turning their sights to the cluster bomb, a munition
    > central to the US and NATO military strategy.

    *Id.*

[^10]: Mennonite Central Committee*, supra* note Error: Reference source
    not found.

[^11]: *See* 145 [Cong. Rec.]{.smallcaps} S10070-71 (daily ed. Aug. 3,
    1999) (statement of Sen. Leahy) (arguing that cluster bombs are
    inaccurate and indiscriminate); [Eric Prokosch,]{.smallcaps}
    *Cluster Weapons*, *in* [Papers in the Theory and Practice of Human
    Rights, No. 15,]{.smallcaps} at 10-15 [(1995);]{.smallcaps} Carmel
    Capati, Note and Comment, *The Tragedy of Cluster Bombs in Laos: An
    Argument for Inclusion in the Proposed International Ban on
    Landmines*, 16 [Wis. Int'l L.J.]{.smallcaps} 227, 240-43 (1997);
    Ford, *supra* note Error: Reference source not found; Mennonite
    Central Committee*, supra* note Error: Reference source not found;
    Virgil Wiebe, *Footprints of Death: Cluster Bombs as Indiscriminate
    Weapons Under International Humanitarian Law* (2000) (unpublished
    article) (on file with author). Under current international law,
    weapons are illegal if they are, in fact, indiscriminate and/or
    cause unnecessary suffering or superfluous injury. Generally, the
    term "indiscriminate" means that the weapons *cannot* be directed at
    a lawful military target, even if employed properly. *See generally*
    Protocol Additional to the Geneva Convention of 12 August 1949, and
    Relating to the Protection of Victims of International Armed
    Conflicts (Protocol I), Article 51(4), June 8, 1977, 16 I.L.M. 1391,
    *available at* http://www.icrc.org \[hereinafter Geneva Protocol I\]
    (on file with the Air Force Law Review). For a detailed discussion
    of the principles of discrimination, unnecessary suffering, and
    superfluous injury, see *infra* Parts III - IV.

[^12]: *See* Titus Peachey and Virgil Wiebe, *Cluster Munitions-The
    Bombs That Keep On Killing, at* http://www.
    icbl.org/lm/2000/report/LMWeb-60.php3 (last visited Feb. 3, 2001)
    (on file with the Air Force Law Review); BBC News, *Call for Cluster
    Bomb Ban,* *at*
    http://news.bbc.co.uk/hi/english/uk/newsid_870000/870644.stm (Aug.
    8, 2000) (UK Working Group on Landmines); Human Rights Watch,
    *Cluster Bombs: Memorandum For Convention on Conventional Weapons
    Delegates,* *at*
    http://www.hrw.org/hrw/about/projects/arms/memo-cluster.htm (Dec.
    16, 1999); Mennonite Central Committee, *supra* note Error:
    Reference source not found; *Moratorium on Cluster Bombs Urged*,
    [Wash. Post]{.smallcaps}, Sept. 5, 2000, *available at*
    http://www.iansa.org/news/

    2000/sep_00/mora_clus.htm \[hereinafter *Moratorium*\] (last visited
    Nov. 26, 2001) (on file with the Air Force Law Review).

[^13]: Human Rights Watch, *supra* note Error: Reference source not
    found (stating that during Operation Allied Force, the US military
    dropped 1100 CBU-87 cluster bombs, each containing 202 submunitions,
    while British forces dropped approximately 500 RBL-755 cluster
    bombs, containing 147 submunitions each).

[^14]: *See* US [Department of Defense]{.smallcaps}, *Report to
    Congress: Kosovo/Operation Allied Force After-Action Report* (2000)
    \[hereinafter [*Kosovo/Operation Allied Force After-Action
    Report*\]]{.smallcaps}. According to the Report, combined effects
    cluster munitions are

    > an effective weapon against such targets as air defense radars,
    > armor, artillery, and personnel. However, because the bomblets are
    > dispensed over a relatively large area and a small percentage of
    > them typically fail to detonate, there is an unexploded ordnance
    > hazard associated with this weapon. These submunitions are not
    > mines, are acceptable under the laws of armed conflict, and are
    > not timed to go off as antipersonnel devices.

    *Id*. According to military experts, cluster munitions are
    particularly effective at covering wide areas and dispersed targets,
    such as armor columns in transit. Major John Scotto, Remnants of War
    Conference at The Judge Advocate General's School of the Army (Feb.
    20, 2001) (notes on file with author) \[hereinafter Weapons
    Briefing\]. *See also* Ford, *supra* note Error: Reference source
    not found (quoting Pentagon spokesman Lieutenant Colonel (LT COL)
    Vic Warinsky stating "cluster bombs are a useful munition that serve
    a valuable military purpose").

[^15]: It is important to note that the term "cluster munitions"
    includes not only air delivered cluster bombs, but also artillery
    and missiles that employ cluster technology. This article, although
    occasionally referencing ground-based cluster delivery systems,
    focuses primarily on air-dropped cluster bombs.

[^16]: By definition, cluster bombs are guided or unguided air-delivered
    munitions consisting of a container capable of carrying and
    dispensing various types of submunitions over wide-area targets.
    Mennonite Central Committee*, supra* note Error: Reference source
    not found (on file with the Air Force Law Review) (according to the
    authors, "\[c\]luster weapons and landmines are different in design
    and intended function. Both weapons can be delivered by air, but
    only landmines are intended to rest in the soil indefinitely and
    blow up when disturbed."). While the GATOR mine system is also said
    to be in the CBU family, this paper focuses on those weapons
    designed to detonate on impact or shortly thereafter.

[^17]: *See* Mennonite Central Committee*, supra* note Error: Reference
    source not found*.* "Despite \[the\] differences in technology and
    design, cluster weapons are very similar to landmines in their
    actual effect. The failure rate for cluster munitions has been
    placed between 5 percent and 30 percent, insuring that any use of
    these weapons will result in the reckless and unregulated creation
    of minefields." *Id*. *But see* Weapons Briefing, *supra* note
    Error: Reference source not found (stating that, depending on the
    type of weapon, cluster bomb dud rates range from 1-7%). The term
    "dud" includes not only live unexploded cluster munitions, but also
    those submunitions that have either self-exploded or are incapable
    of detonating because its battery died. Weapons Briefing, *supra*
    note Error: Reference source not found.

[^18]: Mennonite Central Committee*, supra* note Error: Reference source
    not found.

[^19]: If functioning properly, cluster bombs should detonate on impact
    or shortly thereafter. *See* [Department of the Air
    Force,]{.smallcaps} Air University, *Cluster Bombs*, *at*
    http://www.au.af.mil

    /database/projects/ay1996/acsc/96-004/hardware/docs/cluster.htm
    (last visited Nov. 11, 2000) \[hereinafter Air University\] (on file
    with the Air Force Law Review).

[^20]: *See generally* Human Rights Watch, *Ticking Time Bombs-Report
    1999*, *at* ://www.igc.

    org.hrw/reports/1999/nato2/nato995-02.htm (last visited Feb. 3,
    2001) (on file with the Air Force Law Review); Mennonite Central
    Committee*, supra* note Error: Reference source not found.

[^21]: *See* Human Rights Watch, *supra* note Error: Reference source
    not found; Mennonite Central Committee*, supra* note Error:
    Reference source not found.

[^22]: According to the Mennonite Central Committee:

    > \[W\]hile cluster weapons are different in design from landmines,
    > experience demonstrates that their effects are nearly identical.
    > Cluster weapons kill and maim civilian populations, and continue
    > to do so long after hostilities cease. The rationale that led the
    > international community to stand with the survivors of landmine
    > injuries and enact a ban on anti-personnel landmines, also applies
    > to cluster weapons.

    Mennonite Central Committee*, supra* note Error: Reference source
    not found.

[^23]: On Prohibitions or Restrictions on the Use of Mines, Booby-Traps
    and Other Devices as Amended on 3 May 1996 (Protocol II as Amended
    on 3 May 1996) Annexed to the Convention on Prohibitions or
    Restrictions on the Use of Certain Conventional Weapons Which May Be
    Deemed to Be Excessively Injurious or to Have Indiscriminate
    Effects, Article 2(3), *available at*
    http://www.unog.ch/frames/disarm/distreat/mines.htm \[hereinafter
    Amended Mine Protocol\] (on file with the Air Force Law Review).
    Note that the Ottawa Treaty adds the following additional language:
    "Mines designed to be detonated by the presence, proximity or
    contact of a vehicle as opposed to a person, that are equipped with
    anti-handling devices, are not considered anti-personnel mines as a
    result of being so equipped." Ottawa Treaty, *supra* note Error:
    Reference source not found. *See also* Efaw, *supra* note Error:
    Reference source not found, at 90[.]{.smallcaps} For a more detailed
    discussion of these definitions, see *infra* Parts III and IV.

[^24]: *See* Efaw, *supra* note Error: Reference source not found, at
    91-92[.]{.smallcaps} Today, there are many variants of landmines.
    Modern landmines are typically characterized by their mode of
    operation and activation or by their method of deployment.
    Generally, landmines have three primary modes of operation: (1)
    blast, (2) fragmentation, and (3) bounding (a secondary charge lifts
    the mine to a desired height before the main charge detonates).
    While they most often detonate by direct pressure, landmines may
    also activate by a tripwire or proximity fuze (a fuze that detonates
    the mine when something passes within a certain distance of the
    mine). Deployment methods also vary. In addition to hand
    emplacement, the military can deploy mines mechanically or remotely
    via aircraft or artillery. *See* [McGrath,]{.smallcaps} *supra* note
    Error: Reference source not found, at [17-19 (]{.smallcaps}providing
    a detailed discussion of landmine characteristics).

[^25]: [John Hewitt, Ancient Armour & Weapons 1980 (1996);
    CPT]{.smallcaps} Andrew C.S. Efaw, 159 [Mil. L. Rev]{.smallcaps}.
    87, 87-88 (1999)[.]{.smallcaps} Other historians, however, trace the
    origin of landmines to the American Civil War, where primarily the
    Confederate forces employed them. *See* [Rae McGrath, Landmines and
    Unexploded Ordnance, 1-2 (2000);]{.smallcaps} Jack H. McCall, Jr.,
    *Infernal Machines and Hidden Death: International Law and the
    Limits on the Indiscriminate Use of Land Mine Warfare*, 24 [Ga. J.
    Int'l & Comp. L.]{.smallcaps} 229 (1994).

[^26]: [McGrath,]{.smallcaps} *supra* note Error: Reference source not
    found, at [1-2.]{.smallcaps}

[^27]: *Id.* at 1.

[^28]: *Id*. *See also* Efaw, *supra* note Error: Reference source not
    found, at 87-89[.]{.smallcaps}

[^29]: [McGrath,]{.smallcaps} *supra* note Error: Reference source not
    found, at [1.]{.smallcaps} Armies protected their anti-tank mines
    with anti-personnel mines and anti-handling devices so that the
    anti-tank mines were difficult to relocate. Anti-personnel mines
    became stand-alone weapons once military planners recognized their
    utility. *See generally id*.

[^30]: [Eric Prokosch, The Technology of Killing, A Military and
    Political History of Antipersonnel Weapons]{.smallcaps} 82 (1995).

[^31]: [McGrath,]{.smallcaps} *supra* note Error: Reference source not
    found, at [21.]{.smallcaps}

[^32]: *See generally* [Department of the Air Force, Armament Product
    Group Manager]{.smallcaps}, [1999 Weapons File 6-1-13 (1999)
    \[]{.smallcaps}hereinafter [Weapons File\]; Prokosch,]{.smallcaps}
    *supra* note Error: Reference source not found, at 84-85; Air
    University, *supra* note Error: Reference source not found.

[^33]: *See* Air University, *supra* note Error: Reference source not
    found.

[^34]: Capati, *supra* note Error: Reference source not found, at 231.
    One must be clear that cluster bomb is the composite of these three
    parts---it is the submunition, many of which are contained in a
    cluster bomb, that is dispersed and actually detonates. It is
    undetonated or unexploded submunitions that critics attack.

[^35]: *See* Air University, *supra* note Error: Reference source not
    found.

[^36]: *Id*.

[^37]: *Id.*

[^38]: *See* CPT Kelly Leggette, *The Air Force's New Cluster Weapon,
    The Combined Effects Munition*, USAF [Fighter Weapons
    Rev.,]{.smallcaps} Spring [1986,]{.smallcaps} at
    [24-32,]{.smallcaps} *cited in* Mennonite Central Committee, *supra*
    note Error: Reference source not found.

[^39]: Edmond Dantes, *CBU-87 Combined Effects Munition: The Pilots
    Weapon of Choice,* [Asia Defence J.,]{.smallcaps} March 1991, at 82,
    *quoted in* Mennonite Central Committee, *supra* note Error:
    Reference source not found.

[^40]: [Prokosch,]{.smallcaps} *supra* note Error: Reference source not
    found, at 82; Capati, *supra* note Error: Reference source not
    found, at 227. *See also* [Prokosch,]{.smallcaps} *supra* note
    Error: Reference source not found, at [1.]{.smallcaps}

[^41]: [Prokosch,]{.smallcaps} *supra* note Error: Reference source not
    found, at 82; Capati, *supra* note Error: Reference source not
    found, at 231.

[^42]: [Prokosch,]{.smallcaps} *supra* note Error: Reference source not
    found, at [82.]{.smallcaps}

[^43]: *Id.*

[^44]: [Tom Clancy, Fighter Wing: A Guided Tour of an Air Force Combat
    Wing 140]{.smallcaps} (1995).

[^45]: *Id.* The dispenser, called the Mk 7, served as the vehicle to
    carry a load of submunitions. The dispenser had a fuze that would,
    at a preplanned altitude, detonate and cause the dispenser to break
    apart and release its payload of submunitions. A second charge then
    ignited, forcing the submunitions into the desired pattern and onto
    their target. *Id.*

[^46]: [Prokosch,]{.smallcaps} *supra* note Error: Reference source not
    found, at 115 (citing a 1982 US Naval Weapons Center fact sheet on
    the development of the Eye-series bombs). Because the Navy feared
    more modern aircraft could not successfully employ outdated World
    War II style bombs, the Bureau of Ordnance requested the development
    of "new free-fall bombs and bombing systems that would improve the
    Navy's air-attack capability against a wide variety of tactical
    targets." *Id.*

[^47]: *Id.* According to Prokosch, the Eye-series bombs consisted of,
    in part, the "Bigeye" (nerve gas dispenser), the "Gladeye"
    (fragmentation dispenser), the "Rockeye" (antitank cluster bomb),
    the "Deneye" (aerial mine dispenser), the "Weteye" (chemical bomb),
    the "Fireye" (fire bomb), and the "Briteye" (flare system). *Id.*

[^48]: [Clancy,]{.smallcaps} *supra* note Error: Reference source not
    found, at 140. According to Clancy, the M118 submunition looked much
    like "hypodermic syringes." *Id.*

[^49]: *Id.*

[^50]: *Id.*

[^51]: *See generally* [George C. Herring, America's Longest War: The
    United States and Vietnam 108-31 (2]{.smallcaps}d ed. 1986). In
    February 1965, the US military began striking targets over North
    Vietnam. Originally, bombing began as a reprisal (Operation Flaming
    Dart) for a Vietcong attack on the US Army barracks in Pleiku.
    However, within two days, President Johnson decided to escalate the
    bombing, and Operation Rolling Thunder was underway. *Id*. at
    129-30.

[^52]: [Tom Clancy and General Chuck Horner, Every Man A Tiger: The Gulf
    War Air Campaign]{.smallcaps} 89-95 (2000).

[^53]: *See* *id*. at 89-91. In addition, many of the aircraft used by
    both the Air Force and Navy were poorly equipped to bomb in bad
    weather. Both services relied on cluster bombs to "compensate for
    the lack of all weather capability." MAJ Gregory C. Kane, *Air Power
    and its Role in the Battles of Khe Sanh and Dien Bien Phu* (1997)
    (unpublished Research Paper, Air Command and Staff College) (on file
    at Air University Library, AU/ACSC/0344/97-03).

[^54]: *See* [Prokosch,]{.smallcaps} *supra* note Error: Reference
    source not found, at 83-84. Major General Evans, Air Force Director
    of Development and Special Assistant for Counterinsurgency, stated
    in 1968 that "\[f\]or flak suppression we developed a weapon which
    could be delivered in a dive mode and released above the zone of
    intense ground fire. . . . Although this was developed as a flak
    suppression weapon, its area target applications \[are\] obvious."
    *Id*. *See generally* [Clancy,]{.smallcaps} *supra* note Error:
    Reference source not found, at 140.

[^55]: [Prokosch,]{.smallcaps} *supra* note Error: Reference source not
    found, at 3.

[^56]: *Id*.

[^57]: *Id*. at 5. Additionally, according to Prokosch, Vietnam-era
    cluster munitions compared to those used in World War II with an
    equivalent payload, "produced two to three times as many effective
    fragments . . . ." *Id*.

[^58]: *Id*. at 6.

[^59]: The military designed bomblet-filled artillery shells for 105mm
    and 155mm howitzers, as well as for 8-inch guns. *Id*.

[^60]: The Navy designed cluster munitions for its 16-inch coastal guns.
    *Id.*

[^61]: The Army fitted a cluster warhead on its Lance SSM. *Id.*

[^62]: The US employed three aerial-delivered anti-personnel mines
    during the Vietnam War. They included the "gravel mine," delivered
    from helicopters or airplanes, and tactical jets delivered the
    Dragontooth and Wide Area Antipersonnel Mine (WAAPM). *Id*.

[^63]: Artillery-delivered cluster munitions, the Area Denial Artillery
    Munitions (ADAM), contain 155mm shells with 36 anti-personnel
    grenades each. *See* [Prokosch,]{.smallcaps} *supra* note Error:
    Reference source not found, at 108, 123 n.83.

[^64]: *Id*. at 82-83. One of the most extensive uses of cluster
    munitions occurred during the bombing efforts over Laos. In an
    effort to interdict Vietnamese supply lines, the US Air Force
    dropped more than two million tons of bombs on Laos.
    [Herring,]{.smallcaps} *supra* note Error: Reference source not
    found, at 240-41, 269. According to Congressman Dennis J. Kucinich
    (Ohio), many of the twenty-three million tons of bombs dropped on
    Laos were cluster bombs. He estimates that four million unexploded
    bomblets remain in Vietnam, Laos, and Cambodia. *See* \_\_\_ [Cong.
    Rec]{.smallcaps}. H6293 (daily ed. July 22, 1999) (statement of Rep.
    Kucinich) (House Amendment 341 to the 2000 Department of Defense
    Appropriations Act attempted to prohibit further funding for the
    procurement of cluster bombs). *See also* Capati[,]{.smallcaps}
    *supra* note Error: Reference source not found, at 229-30.

[^65]: [Prokosch,]{.smallcaps} *supra* note Error: Reference source not
    found, at 177-78.

[^66]: *Id*. According to Prokosch, Britain, France and Germany produced
    a combined five models of high explosive cluster bombs, compared to
    thirty-two models the US produced. *Id*. at 177.

[^67]: Chile, China, France, Germany, Iraq, Israel, Italy, Poland,
    Russia, South Africa, Spain, UK, US, and the former Yugoslavia.
    *Id*. at 178.

[^68]: Belgium, Brazil, China, the Czech Republic, Egypt, India, North
    Korea, South Korea, Sweden, and Turkey. [Jane's International
    Defence Directory]{.smallcaps} 961 (1996) *cited in* Wiebe, *supra*
    note Error: Reference source not found, at n.34. The US DOD
    currently believes that sixteen countries, in addition to the United
    States, actively produce cluster munitions. They include Chile,
    China, France, Germany, Greece, Israel, Poland, Russia, Singapore,
    Slovak Republic, South Africa, Spain, United Arab Emirates, United
    Kingdom, and Former Yugoslavia. COL Paul Hughes, Cluster Munitions
    Briefing at the Judge Advocate General's School of the Army (Feb.
    20, 2001) (handout on file with author) \[hereinafter Hughes
    Briefing\].

[^69]: *See generally* [Prokosch,]{.smallcaps} *supra* note Error:
    Reference source not found, at 177-79.

[^70]: *See generally* Mennonite Central Committee*, supra* note Error:
    Reference source not found. The Soviets used cluster bombs in
    Afghanistan, as did Israel in 1973 during their conflict with Egypt
    and Syria. *See* [Prokosch,]{.smallcaps} *supra* note Error:
    Reference source not found, at 178-79. Additionally, the Mennonite
    Central Committee alleges that cluster munitions were also used in
    Angola, Azerbaijan, Bosnia (by Serbian forces), Chechnya (by
    Russia), Ethiopia, Georgia, Lebanon (by Israel), Nicaragua, Sierra
    Leone (by Nigeria), and Turkey (against Kurdish rebels). Mennonite
    Central Committee*, supra* note Error: Reference source not found.
    In 1999, India reportedly dropped cluster bombs on Pakistani targets
    in the Kashmir region. Surinder Oberoi*, India Accepts Peace Talks
    with Pakistan but Continues Offensive*, [Agence France
    Press]{.smallcaps}, June 8, 1999, *cited in* Wiebe, *supra* note
    Error: Reference source not found, at n.36.

[^71]: *See, e.g*., Mennonite Central Committee*, supra* note Error:
    Reference source not found. *See also* Federal Republic of
    Yugoslavia, Federal Ministry of Foreign Affairs, *Aide Memoire on
    the Use of Inhumane Weapons in the Aggression of the North Atlantic
    Treaty Organization Against the Federal Republic of Yugoslavia*, May
    15, 1999 (on file with author) (alleging cluster bombs are a "banned
    military means").

[^72]: Human Rights Watch, *supra* note Error: Reference source not
    found. In all, the United States dropped 57,421 cluster bombs on
    Iraq and Kuwait. [Thomas A. Keaney & Eliot A. Cohen, Revolution in
    Warfare? Air Power in the Persian Gulf 280 (1995).]{.smallcaps}

[^73]: Department of the Air Force, *Gulf War Air Power Survey (GWAPS),*
    Vol. III, 235, *cited in* Human Rights Watch, *supra* note Error:
    Reference source not found (includes US and British-dropped CBUs,
    but excludes French and Saudi Arabian CBU usage during the
    operation).

[^74]: *Id.* Generally, CBU-52/58/71s are Vietnam-style cluster bombs
    carrying a payload of between 217 and 650 bomblets. *See* Air
    University, *supra* note Error: Reference source not found. The
    CBU-52B dispenses 220 BLU-61/B (Bomb Live Units) bomblets in the
    shape of a donut. Military planners designed the weapon for
    employment against soft skin targets and troop concentrations. The
    CBU-58B dispenses 650 BLU-63/B bomblets, each weighing approximately
    one pound. Like the CBU-52B, the weapon disperses the bomblets in a
    donut-shaped pattern, with a hole in the center. The CBU-58B is
    effective on personnel and light armor. The CBU-71B is an
    anti-personnel and anti-material weapon that possesses an additional
    incendiary capability. It dispenses 650 BLU-86/B anti-personnel and
    anti-material bomblets with a time delay fuze. The CBU-87 CEM
    dispenses 202 BLU-97 shaped charge, fragmentary, and incendiary
    submunitions in a rectangular pattern. W[eapons File]{.smallcaps},
    *supra* note Error: Reference source not found, at 6-2 to
    6-7[.]{.smallcaps} *See* [Clancy,]{.smallcaps} *supra* note Error:
    Reference source not found, at 141-42. The CBU-87 is a Combined
    Effects Munition that dispenses 202 bomblets over an 800 by 400 foot
    area. Air University, *supra* note Error: Reference source not
    found. During the operation, the Air Force successfully employed the
    CBU-87 as an anti-armor and anti-personnel munition. *Id*.

[^75]: Human Rights Watch, *supra* note Error: Reference source not
    found.

[^76]: *See* 145 [Cong. Rec.]{.smallcaps} S10070-71, *supra* note Error:
    Reference source not found (statement of Sen. Leahy) (dud rates
    during the Gulf War were as high as 20%); Rachel Stohl, *Cluster
    Bombs Leave Lasting Legacy*, [Weekly Defense Monitor]{.smallcaps},
    Aug. 5, 1999, *available at* http://www.cdi.org.weekly/1999/

    issue30.html (on file with the Air Force Law Review); Human Rights
    Watch, *supra* note Error: Reference source not found, *at*
    http://www. igc.org.hrw/reports/1999/nato2/nato 995-02.htm (on file
    with the Air Force Law Review).

[^77]: US Government Accounting Office (GAO)[,]{.smallcaps} *Operation
    Desert Storm: Casualties Caused by the Improper Handling of
    Unexploded United States Submunitions*, GAO/NSIAD-93-212 (Aug.
    1993). According to the GAO, ground movement was also significantly
    hampered by unexploded cluster submunitions and other unexploded
    ordnance. *Id*.

[^78]: *Id*.

[^79]: Cluster bombs represented only 6% of the total munitions dropped
    on Serb forces. Human Rights Watch, *supra* note Error: Reference
    source not found.

[^80]: Amnesty International, *"Collateral Damage" or Unlawful
    Killings?: Violations of the Laws of War by NATO During Operation
    Allied Force*, n.76, *at* http://www.web.amnesty.org/ai.nsf/

    index/EUR700182000.htm (June 6 2000) (on file with the Air Force Law
    Review) (citing DOD News Briefing, 22 June 1999). The RBL-755 is a
    dual-role cluster munition similar to the US CBU-87. It carries 147
    soda can sized bomblets, and can successfully attack both hard and
    soft targets. *See* Human Rights Watch, *supra* note Error:
    Reference source not found.

[^81]: The US dropped 1100 cluster munitions, while British forces
    dropped 532 RBL-755 cluster bombs. Amnesty International, *supra*
    note Error: Reference source not found; *see also* [Anthony H.
    Cordesman, The Lessons and Non-Lessons of the Air and Missile
    Campaign in Kosovo]{.smallcaps} 249 (2000) \[hereinafter [Kosovo
    Lessons\]]{.smallcaps}.

[^82]: *See* William M. Arkin, *Fleet Praises JSOW, Lists Potential
    Improvements*, [Defense Daily]{.smallcaps}, Apr. 26, 2000, *cited
    in* Wiebe, *supra* note Error: Reference source not found, at n.181.
    The Joint Stand Off Weapon (JSOW) provides greater safety to
    aircraft by allowing aircrews to launch the weapon from between
    fifteen and forty-five nautical miles from the target. The JSOW is
    equipped with an AGM-154A (Aircraft Guided Missile) dispenser that
    glides to the target area, carrying 145 BLU-97A/B anti-armor
    munitions. The first combat deployment of the JSOW occurred in
    January 1999, during Operation Southern Watch. During Operation
    Allied Force, the JSOW was used exclusively by the US Navy and
    launched from F/A-18 aircraft. *See* Mennonite Central Committee,
    *supra* note Error: Reference source not found. *See also*
    [Kosovo/Operation Allied Force After-Action Report,]{.smallcaps}
    *supra* note Error: Reference source not found, at [90.]{.smallcaps}

[^83]: Tomahawk Land Attack Cruise Missiles (TLAM-C) are deployable with
    cluster munitions by the Navy via ship or submarine and by the Air
    Force via B-52 or F-16. When launched by aircraft, the TLAM-C is
    equipped with the BLU-106 anti-runway munition. *See* Carlo Kopp,
    *Analysis-Tomahawks, Submarines and the F-111*, *at*
    http://www.csse.monash.edu.au/carlo/

    archive/MILITARY/AA/tomahawk.html (Sept. 14, 2000) (on file with the
    Air Force Law Review). *See generally* US Department of the Navy*,*
    The United States Navy Fact File, *Tomahawk Cruise Missile*, *at*
    http://www.chinfo.navy.mil/navpalib/factfile/missiles/wep-toma.html
    (Nov. 28, 2000) (on file with the Air Force Law Review).

[^84]: DOD officials denied using Sensor Fuzed Weapons during Operation
    Allied Force. *See* Maj Gen Charles Wald, *Department of Defense
    News Briefing*, *at* http://www.defenselink.mil

    /news/may1999/t05131999-t0513asd.html (May 13, 1999) \[hereinafter
    DOD News Briefing\] (on file with the Air Force Law Review).

    > The CBU-97/B SFW is an anti-armor cluster munition to be employed
    > by fighter/attack and bomber aircraft to provide multiple kills
    > per pass against armored and support vehicle combat formations.
    > The munition will be fielded as an all-up-round requiring minimal
    > maintenance support. . . . SFW is currently delivered as an
    > unguided, gravity weapon. After release, the TMD opens and
    > dispenses the ten submunitions which are parachute stabilized. At
    > a preset altitude sensed by a radar altimeter, a rocket motor
    > fires to spin the submunition and initiate an ascent. The
    > submunition then releases its four projectiles, which are lofted
    > over the target area. The projectile\'s sensor detects a
    > vehicle\'s infrared signature, and an explosively formed
    > penetrator fires at the heat source. If no target is detected, the
    > warhead detonates after a preset time interval.

    Fiscal Year 1996 Report, Director, Operational Test and Evaluation,
    DoD, available *at* http://www.dote.osd.mil/
    reports/FY96/96CBUSFW.html (on file with the Air Force Law Review).
    In short, the CBU-97, a precision guided cluster bomb, is designed
    as an anti-tank weapon and to blunt an enemy offensive while US
    forces regroup to conduct counter-offensive operations. *See*
    Weapons Briefing, *supra* note Error: Reference source not found.
    Further, the US is developing several additional types of cluster
    munitions, including CBU-103/104/105 Tactical Munitions Dispensers,
    designed to modify CBUs-87/89. These systems add a Wind Corrections
    Munition Dispenser (WCMD) to the weapon. *See* Air Force News,
    *Sensor Fused Weapons Reach Operational Capacity*, *at*
    http://www.af.mil.news/Feb1997/ n19970225-970217.html (Feb. 25,
    1997) (on file with the Air Force Law Review). The WCMD can be
    retrofitted to older, unguided cluster bombs, making the weapons
    much more precise.

[^85]: Mr. Kenneth Bacon, Pentagon spokesman, responded to questions
    about NATO's *alleged* use of GATOR mines during an April 14, 1999
    press briefing. In denying such use, Mr. Bacon acknowledged that
    "\[w\]e have used CBU-87s, which are combined effects munitions,
    which are basically cluster bombs with bomblets, but we have not
    used the Gator." *Department of Defense News Briefing*, *at*
    http://www.defenselink.mil/news/Apr1999/

    t04141999_t0414asd.html (Apr. 14, 1999) (on file with the Air Force
    Law Review).

    GATOR mines (CBU-89Bs) are a type of cluster munition, designed to
    channel enemy forces and which deploy seventy-two anti-tank and
    twenty-two anti-personnel mines, each possessing a 72-hour
    self-destruct mechanism. [Weapons File,]{.smallcaps} *supra* note
    Error: Reference source not found, at 6-8.

[^86]: Amnesty International, *supra* note Error: Reference source not
    found. According to a Pentagon spokesperson, "a weapons malfunction"
    caused the incident at Nis. *Id*.

[^87]: *Id*.

[^88]: *Id*.

[^89]: Mennonite Central Committee, *supra* note Error: Reference source
    not found. In a letter from Marine Lieutenant General (LT GEN) C.W.
    Fulford, Jr., Director, Joint Staff, to Congressman Dennis Kucenich,
    LT GEN Fulford stated:

    > \[A\]t an unclassified level, communications between the National
    > Command Authorities (NCA) and the Commander in Chief, US European
    > Command (USINCEUR) \[occurred\] on the use of cluster munitions.
    > The decision to temporarily halt the United States use of cluster
    > munitions during the NATO air campaign in FRY \[Federal Republic
    > of Yugoslavia\] was made by the NCA following two incidents of
    > off-target impacts of cluster munitions. The moratorium was
    > verbally imposed during a regularly scheduled teleconference
    > between the NCA and USCINCEUR. The use of cluster munitions later
    > resumed following a review of US procedures.

    *Id*. According to Human Rights Watch, in suspending the use of
    cluster munitions, "the president \[sic\] has set a precedent for
    restricting bomb use." Human Rights Watch, *supra* note Error:
    Reference source not found. Further, in that the suspension of
    cluster bomb usage was only temporary, the US was acting as a matter
    of national policy rather than international legal requirement.
    Despite Washington's halt, the British continued to use cluster
    bombs until the conflict ended. *See* Mennonite Central Committee,
    *supra* note Error: Reference source not found.

[^90]: *See* DOD News Briefing, *supra* note Error: Reference source not
    found. According to General (GEN) John Jumper, Commanding General,
    US Forces Europe:

    > We always match the weapon with the effect. We take in \-- the
    > circular error probable is the calculation you go through, and we
    > use the appropriate weapon for what the target is. It\'s a
    > calculation we go through for every target, and it\'s the same for
    > CBUs. And the precision of these things, we\'re able to put these
    > down in fairly tight clusters. No, they are not guided, but we are
    > also using unguided Mk-82s, also with considerable success, off of
    > conventional airplanes. So I would say that the process is the
    > same. The accuracy is the same. It doesn\'t mean mistakes don\'t
    > happen. I have no idea what the events will unfold before us
    > today. I will tell you, though, that there is no weapon we use
    > that we don\'t put through the same calculated and careful
    > process.

[^91]: GEN John Jumper, *Department of Defense News Briefing*, May 14,
    1999, *at* http://www.defenselink.mil/news/
    may1999/t05141999-t0514asd.html (on file with the Air Force Law
    Review).

    ^?^ Amnesty International, *supra* note Error: Reference source not
    found. *See also* US Department of Defense, Operation Allied Force,
    *at* http://www.defenselink.mil/specials/kosovo/index.html (June 21,
    1999) (on file with the Air Force Law Review) (stating that the
    initial attack against Serbia began at 1400 EST on Mar. 24, 1999 and
    ended at 1000 EST on June 10, 1999).

[^92]: Alert News, *supra* note Error: Reference source not found (UK
    Working Group on Landmines); Human Rights Watch, *supra* note Error:
    Reference source not found; Mennonite Central Committee, *supra*
    note Error: Reference source not found; New Zealand Campaign Against
    Landmines, *The Curse of Cluster Bombs - Statement By The NZ
    Campaign Against Landmines (CALM), at*
    http://www.protel.co.nz/calm/cluster-sep.html (last visited Nov. 17,
    2001) (on file with the Air Force Law Review); *Moratorium*, *supra*
    note Error: Reference source not found.

[^93]: H. Lauterpacht, *The Problem of the Revision of the Law of War*,
    [British Yearbook of Int'l Law]{.smallcaps} 382 (1952) *quoted in*
    [A.P.V. Rogers, Law on the Battlefield]{.smallcaps} 2 (1996).

[^94]: [The Laws of War: A Comprehensive Collection of Primary Documents
    on International Laws Governing Armed Conflict]{.smallcaps} xix (W.
    Michael Reisman & Chris T. Antoniou eds., 1994) \[hereinafter [The
    Laws of War\].]{.smallcaps}

[^95]: *See id*.

[^96]: *See generally id*. at 4-6.

[^97]: [Mark W. Janis, An Introduction to International Law 4
    (]{.smallcaps}2d ed. 1993).

[^98]: Treaties are also known as international agreements or
    conventions. *Id.* at [5]{.smallcaps}; *see* [The Laws of
    War]{.smallcaps}, *supra* note Error: Reference source not found, at
    xix; US [Dep't of Army, Field Manual 27-10, The Law of Armed
    Conflict,]{.smallcaps} para. 4 (1956) \[hereinafter FM 27-10\].

[^99]: [The Laws of War]{.smallcaps}, *supra* note Error: Reference
    source not found, at xix.

[^100]: Most international legal scholars view treaties as the strongest
    reflection of international law. For example, the Statute of the
    International Court of Justice, in deciding the state of the law,
    first considers "international conventions . . . establishing rules
    expressly recognized by consenting parties." [Janis,]{.smallcaps}
    *supra* note Error: Reference source not found, at 10.

[^101]: *See* FM 27-10, *supra* note Error: Reference source not found,
    at para. 4-6; [The Laws of War]{.smallcaps}, *supra* note Error:
    Reference source not found, at xix-xxi.

[^102]: [The Laws of War]{.smallcaps}, *supra* note Error: Reference
    source not found, at xix.

[^103]: *Id*.

[^104]: 1 [Trial of the Major War Criminals Before the International
    Military Tribunal 221 (1947).]{.smallcaps} *See also* [The Laws of
    War]{.smallcaps}, *supra* note Error: Reference source not found, at
    xix*.*

[^105]: [Janis,]{.smallcaps} *supra* note Error: Reference source not
    found, at 42.

[^106]: *Id*. at 46.

[^107]: [Restatement (Third) of the Foreign Relations Law of the United
    States]{.smallcaps} § 102(2) (1987). *See* [Janis,]{.smallcaps}
    *supra* note Error: Reference source not found, at 46. According to
    the United Nations International Court of Justice, "States concerned
    must therefore feel that they are conforming to what amounts to a
    legal obligation. The frequency, or even habitual character of the
    acts is not itself enough." North Sea Continental Shelf Cases
    (F.R.G. v. Denmark), 1969 I.C.J. 3.

[^108]: [Janis,]{.smallcaps} *supra* noteError: Reference source not
    found, at 46-47. The binding effect of customary international law
    differs from that of treaties. Generally, treaties are binding only
    on those who sign and ratify them. Customary law, on the other hand,
    is binding on all states. *See generally* [Crimes of War: What the
    Public Should Know 113-14,]{.smallcaps} (Roy Gutman & David Rieff
    eds. 1999) \[hereinafter [Crimes of War\]]{.smallcaps}; FM 27-10,
    *supra* note Error: Reference source not found, at para. 6.

[^109]: [Rogers,]{.smallcaps} *supra* note Error: Reference source not
    found, at 1. According to Rogers, the first documented "code of war
    was that of the Saracens and was based on the Koran." *Id*. *See*
    [Janis,]{.smallcaps} *supra* note Error: Reference source not found,
    at 162 (stating that legal rules regulating war date back to the
    ancient civilizations of India, China, Israel, Greece, and Rome).
    *See generally* [J.H. Huang, Sun Tzu: The New
    Translation]{.smallcaps} (1993) (Sun-tzu, in the 4th century B.C.,
    created one of the first known sets of rules governing the conduct
    of war).

[^110]: [Rogers,]{.smallcaps} *supra* note Error: Reference source not
    found, at 1.

[^111]: *See generally* [The Laws of War: Constraints on Warfare in the
    Western World 6 (]{.smallcaps}Michael Howard et. al. eds. 1994)
    \[hereinafter [Constraints on Warfare in the Western
    World\]]{.smallcaps}. Interestingly enough, in the Middle Ages,
    there were attempts to outlaw the crossbow as inhumane and firearms
    as unfair. *See id*.

[^112]: *Id.* The first codification of the law regulating land warfare
    was Dr. Francis Lieber's United States Army General Order No. 100,
    *Instructions for the Government of Armies of the United States in
    the Field*. *Id.* *See also* [Rogers,]{.smallcaps} *supra* note
    Error: Reference source not found, at 1-2. Dr. Lieber's General
    Order 100 can be found at [The Laws of Armed Conflicts]{.smallcaps},
    *supra* note Error: Reference source not found, at 3-23.

[^113]: [Janis,]{.smallcaps} *supra* note Error: Reference source not
    found, at 164.

[^114]: [Rogers,]{.smallcaps} *supra* note Error: Reference source not
    found, at 1-3. *See also* [Janis,]{.smallcaps} *supra* note Error:
    Reference source not found, at 164-65 (providing a chronological
    listing of several regulatory treaties).

[^115]: The Declaration of St. Petersburg, Nov. 29, 1868, 1 A.J.I.L.
    (Supp.) 95-96.

[^116]: [Prokosch,]{.smallcaps} *supra* note Error: Reference source not
    found, at 164 (quoting the Stockholm International Peace Research
    Institute).

[^117]: The Declaration of St. Petersburg, Nov. 29, 1868, 1 A.J.I.L.
    (Supp.) 95-96. *See also* [The Laws of Armed Conflicts]{.smallcaps},
    *supra* note Error: Reference source not found, at 101-03.

[^118]: *See generally* [Constraints on Warfare in the Western
    World]{.smallcaps}, *supra* note Error: Reference source not found,
    at 119; [The Laws of Armed Conflicts]{.smallcaps}, *supra* note
    Error: Reference source not found, at 101-03; [The Laws of
    War]{.smallcaps}, *supra* note Error: Reference source not found, at
    35-36.

[^119]: *See* [Prokosch,]{.smallcaps} *supra* note Error: Reference
    source not found, at 164-65. *See generally* [Rogers,]{.smallcaps}
    *supra* note Error: Reference source not found, at 7.

[^120]: The Declaration of St. Petersburg[,]{.smallcaps} *supra* note
    Error: Reference source not found. *See also* [The Laws of
    War]{.smallcaps}, *supra* note Error: Reference source not found, at
    35-36.

[^121]: *Id.* at 35. Thirty-one years later, the Hague Declaration
    Concerning Expanding Bullets of 1899, prohibited, in international
    armed conflict, the use of "bullets which expand or flatten easily
    in the human body." *See* The Hague Declaration Concerning Expanding
    Bullets, July 29, 1899, 1 A.J.I.J. 157-59 (Supp.); [The Laws of
    War]{.smallcaps}, *supra* note Error: Reference source not found, at
    49. *See also* W. Hays Parks, *Joint Service Combat Shotgun
    Program*, 1977 [Army Law]{.smallcaps} 16, 22-23 (1977).

[^122]: [The Laws of War]{.smallcaps}, *supra* note Error: Reference
    source not found, at 35.

[^123]: Hague Convention No. III Relative to the Opening of Hostilities,
    Oct. 18, 1907, 36 Stat. 2259, T.S. 598 \[hereinafter Hague III\];
    Hague Convention No. IV Respecting the Laws and Customs of War on
    Land, Oct. 18, 1907, 36 Stat. 2277, T.S. 539 \[hereinafter Hague
    Convention IV\]; Hague Convention No. IX Concerning Bombardment by
    Naval Forces in Time of War, Oct. 18, 1907, 36 Stat. 2314
    \[hereinafter Hague Convention IX\]. Collectively, I will refer to
    these as the Hague Conventions. The US is a party to each of these
    conventions. *See* FM 27-10, *supra* note Error: Reference source
    not found, at para. 5.

[^124]: The 1949 Geneva Conventions are The Convention for the
    Amelioration of the Condition of the Wounded and Sick in Armed
    Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31
    \[hereinafter Geneva Sick and Wounded\]; The Convention for the
    Amelioration of the Condition of Wounded, Sick, and Shipwrecked
    Members, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 \[hereinafter
    Geneva Shipwrecked\]; The Convention Relative to the Treatment of
    Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287
    \[hereinafter Geneva POW\]; The Convention Relative to the Treatment
    of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3217, 75
    U.N.T.S. 85 \[hereinafter Geneva Civilians\]. The US is a party to
    all of the 1949 Geneva Conventions. *See* FM 27-10, *supra* note
    Error: Reference source not found, at para. 5.

[^125]: The 1977 Protocols Additional to the Geneva Conventions,
    December 12, 1977, 16 I.L.M. 1391 \[hereinafter Geneva Protocol I
    and Geneva Protocol II, respectively\]; *see* [The Laws of Armed
    Conflicts]{.smallcaps}, *supra* note Error: Reference source not
    found, at 605-732.

[^126]: Conventional Weapons Treaty, *supra* note Error: Reference
    source not found. *See also* [The Laws of Armed
    Conflicts]{.smallcaps}, *supra* note Error: Reference source not
    found, at 177-98. The US is a party to the Conventional Weapons
    Treaty because it has signed and ratified two or more of the
    Protocols. Specifically, the US ratified Protocols I (non-detectable
    fragments) and II (mines, booby-traps, and other devices) on Mar.
    24, 1995, however, it made a reservation with respect to Article 7,
    para. 4, concerning the application of the treaty to internal armed
    conflicts. On May 24, 1999, the US ratified Amended Protocol II
    (Amended Mines Protocol). *See* Conventional Weapons Treaty, *supra*
    note Error: Reference source not found (Amended Mines Protocol); MAJ
    Michael Lacey, *Passage of Amended Protocol II*, 2000 [Army
    Law]{.smallcaps}. 7, 7 and n.3 (2000) (providing a detailed
    description of the Amended Mines Protocol); Efaw, *supra* note
    Error: Reference source not found, at 116-131.

[^127]: Convention on Prohibitions or Restrictions on the Use of Certain
    Conventional Weapons Which May be Deemed to be Excessively Injurious
    or to Have Indiscriminate Effects (and Protocols), Oct. 10, 1980,
    1342 U.N.T.S. 137, 19 I.L.M. 1523. The Protocols include: Protocol
    on Non-Detectable Fragments (Protocol I), Oct. 10, 1980
    \[hereinafter Non-Detectable Fragments Protocol\]; Protocol on
    Prohibitions or Restrictions on the Use of Mines, Booby-Traps and
    Other Devices (Protocol II), Oct. 10, 1980 \[hereinafter Landmine
    Protocol\]; Protocol on the Prohibitions or Restrictions on the Use
    of Incendiary Weapons, Oct. 10, 1980 \[hereinafter Incendiary
    Weapons Protocol\]; Protocol on Blinding Laser Weapons, Oct. 13,
    1995 \[hereinafter Blinding Lasers Protocol\]; Amended Protocol II
    on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and
    Other Devices, May 3, 1996 \[hereinafter Amended Mines Protocol\].
    For a detailed description of the Amended Mines Protocol, see Lacey,
    *supra* note Error: Reference source not found.

[^128]: Geneva Sick and Wounded, *supra* note Error: Reference source
    not found; s*ee also* [The Laws of Armed Conflicts]{.smallcaps},
    *supra* note Error: Reference source not found, at 373-99.

[^129]: Geneva Shipwrecked, *supra* note Error: Reference source not
    found; s*ee also* [The Laws of Armed Conflicts]{.smallcaps}, *supra*
    note Error: Reference source not found, at 401-22.

[^130]: Geneva POW, *supra* note Error: Reference source not found; s*ee
    also* [The Laws of Armed Conflicts]{.smallcaps}, *supra* note Error:
    Reference source not found, at 423-93.

[^131]: Geneva Civilians, *supra* note Error: Reference source not
    found; s*ee also* [The Laws of Armed Conflicts]{.smallcaps}, *supra*
    note Error: Reference source not found, at 495-556.

[^132]: *See* Michael J. Matheson, *The United States Position on the
    Relation of Customary International Law to the 1977 Protocols
    Additional to the 1949 Geneva Conventions*, 2 [Am. U. J. Int'l L. &
    Pol'y]{.smallcaps} 419 (1987).

[^133]: *See* [Rogers,]{.smallcaps} *supra* note Error: Reference source
    not found, at 4-5.

[^134]: *See id.* at 1-26 (providing a detailed analysis of each
    principle of the law of war).

[^135]: *See* Geneva Protocol I, *supra* note Error: Reference source
    not found, Art. 52. In other words, there must be some military
    necessity in attacking a particular target. [Rogers,]{.smallcaps}
    *supra* note Error: Reference source not found, at 6. FM 27-10
    defines military necessity as "that principle which justifies those
    measures not forbidden by international law which are *indispensable
    for securing the complete submission of the enemy* as soon as
    possible." FM 27-10, *supra* note Error: Reference source not found,
    at para. 3a (emphasis added). According to Rogers, however, "the
    reference to the complete submission of the enemy . . . is probably
    now obsolete, since war can have a limited purpose . . . ."
    [Rogers,]{.smallcaps} *supra* note Error: Reference source not
    found, at 5. Rather, "in every case destruction must be
    *imperatively* demanded by the necessities of war, and must not
    merely be the outcome of a spirit of plunder or revenge." *Id*. at 6
    *quoting* [L. Oppenheim, International Law]{.smallcaps}, Vol. 2, 414
    (7th ed. 1952).

[^136]: *See* Geneva Protocol I, *supra* note Error: Reference source
    not found, Art. 48-51. *See also* [Rogers,]{.smallcaps} *supra* note
    Error: Reference source not found, at 7. According to Rogers,
    "Attacking civilians is not normally a military requirement, because
    it does not weaken the military forces of the enemy . . . \[s\]ince
    military operations are to be conducted against the enemy's armed
    forces, there must be a clear distinction between the armed forces
    and civilians, or between combatants and non-combatants, and between
    things that may legitimately be attacked and things protected from
    attack." [Rogers,]{.smallcaps} *supra* note Error: Reference source
    not found, at 6-7.

[^137]: *Id. See also* [Rogers,]{.smallcaps} *supra* note Error:
    Reference source not found, at 7.

[^138]: *See* [Rogers,]{.smallcaps} *supra* note Error: Reference source
    not found, at 6-7.

[^139]: *See generally* Amnesty International, *supra* note Error:
    Reference source not found; Human Rights Watch, *supra* note Error:
    Reference source not found; International Committee of the Red
    Cross*, supra* note Error: Reference source not found; Mennonite
    Central Committee*, supra* note Error: Reference source not found.

[^140]: *See* Federal Republic of Yugoslavia, *supra* note Error:
    Reference source not found (alleging that NATO used weapons banned
    by international law, such as cluster bombs and depleted uranium).
    Interestingly enough, the Former Yugoslavia is a current producer of
    cluster munitions. Specifically, they produce two models, the KB-1
    and KB-2, each delivered by either rocket or artillery. Further, the
    Former Yugoslavia possesses air-dropped cluster bombs purchased from
    the United Kingdom. *See* Hughes Briefing, *supra* note Error:
    Reference source not found.

[^141]: *See e.g*., Mennonite Central Committee*, supra* note Error:
    Reference source not found.

[^142]: *See e.g.,* 145 [Cong. Rec.]{.smallcaps} S10070-71, *supra* note
    Error: Reference source not found (statement of Sen. Leahy);
    Mennonite Central Committee, *supra* note Error: Reference source
    not found. Many, such as the ICRC, want to enforce their belief that
    cluster munitions are illegal weapons through an additional Protocol
    to the Conventional Weapons Treaty or other international agreement.

[^143]: *See* 145 [Cong. Rec.]{.smallcaps} S10070-71, *supra* note
    Error: Reference source not found (statement of Sen. Leahy)
    (alleging that cluster bombs are often dropped from high altitudes
    and miss their intended targets).

[^144]: *Id.* According to Sen. Leahy, "cluster bombs do not
    discriminate. NATO peacekeepers are not immune. Children are not
    immune. Approximately 5 Kosovars each day are killed by unexploded
    ordnance, mostly U.S. cluster bombs." *Id*.

[^145]: *See* International Committee of the Red Cross*, supra* note
    Error: Reference source not found, *at* http://www.icrc.org(on file
    with the Air Force Law Review).

[^146]: *See* [Prokosch,]{.smallcaps} *supra* note Error: Reference
    source not found, at 148-63.

[^147]: *See id*. at 163.

[^148]: *Id.* at 148.

[^149]: Egypt, Mexico, Norway, Sudan, Switzerland, and Yugoslavia. A
    number of doctors, as well as Departments of Defense and State
    personnel, represented the United States. *Id*. at 149.

[^150]: [International Committee of the Red Cross, Conference of
    Government Experts on the Use of Certain Conventional Weapons
    (Second Session-Lugano)]{.smallcaps} 1999 (1976) \[hereinafter
    [Lugano Conference]{.smallcaps}\] (summarizing the previous
    conference at Lucerne); *see also* [Prokosch,]{.smallcaps} *supra*
    note Error: Reference source not found, at 149.

[^151]: Generally, delayed-action weapons included landmines and
    booby-traps. *See* [Lugano Conference]{.smallcaps}, *supra* note
    Error: Reference source not found, at 12-13.

[^152]: At Lucerne, "small-caliber projectiles \[were\] those having a
    substantially smaller calibre than the 7.62 mm rounds which had been
    in common use since the turn of the century." This included the US
    military's new 5.56 mm round used in the M-16 rifle. Critics of the
    5.56 mm round claimed that the bullet "tumbled very early in the
    wound track, causing three times as many large wounds than did the
    7. 62 mm ones." *Id*. at 13-15.

[^153]: Flechette is French for "dart." Generally, they are needle-like
    weapons with fins on the tail. [Prokosch,]{.smallcaps} *supra* note
    Error: Reference source not found, at 4. For a detailed discussion
    of flechettes, see *id*. at 44-47.

[^154]: The Committee focused on the use of napalm. *Id.* at 151.

[^155]: [Lugano Conference]{.smallcaps}, *supra* note Error: Reference
    source not found, at 17.

[^156]: *Id.*

[^157]: *Id.*

[^158]: [Prokosch,]{.smallcaps} *supra* note Error: Reference source not
    found, at 155. According to Prokosch, who was a conference observer,
    "there was no meeting of the minds at Lucerne. Summing up the
    results, the president of the conference was able to say only that
    it had 'contributed to an increase in knowledge and understanding of
    the subject' and that a second conference could usefully be
    convened." It is interesting to note that despite the extensive use
    of cluster bombs by the US in Vietnam, the head of the North
    Vietnamese delegation opposed banning cluster munitions, stating
    "\[i\]n the hands of a liberation fighter, it is a sacred tool."
    *Id.*

[^159]: The conference met from January 28 through February 26, 1976.
    *See* [Lugano Conference]{.smallcaps}, *supra* note Error: Reference
    source not found, at 1.

[^160]: *See id*. at 120. *See generally* [Prokosch,]{.smallcaps}
    *supra* note Error: Reference source not found, at 155-60.

[^161]: *See* [Lugano Conference]{.smallcaps}, *supra* note Error:
    Reference source not found, at 119-20.

[^162]: *See generally id*. at 120-21.

[^163]: *See generally id*. at 69-80.

[^164]: *Id.* at 72.

[^165]: *Id.* at 73.

[^166]: *Id.* at 71-72.

[^167]: *Id*. at 120.

[^168]: The thirteen countries supporting CDDH/IV/201 (the proposal)
    were Algeria, Austria, Egypt, Lebanon, Mali, Mauritania, Mexico,
    Norway, Sudan, Sweden, Switzerland, Venezuela, and Yugoslavia. *Id.*
    at 198-99.

[^169]: *Id.* at 25.

[^170]: Ottawa Treaty, *supra* note Error: Reference source not found.

[^171]: [Prokosch,]{.smallcaps} *supra* note Error: Reference source not
    found, at 163.

[^172]: *Id*. at 160-63. The Non-Detectable Fragments Protocol prohibits
    the employment of any weapon "the primary effect of which is to
    injure by fragments which in the human body escape detection by
    x-rays." Non-Detectable Fragments Protocol, *supra* note Error:
    Reference source not found. To the extent that cluster munitions
    might have used non-detectable fragments, the Non-Detectable
    Fragments Protocol regulates them. However, according to one expert,
    "Protocol I, in fact, bans a weapon which does not exist and is not
    even likely to be developed." [Prokosch,]{.smallcaps} *supra* note
    Error: Reference source not found, at 161. The Incendiary Weapons
    Protocol also failed to include cluster munitions, as the Protocol
    [specifically excluded]{.underline}:

    > Munitions designed to combine penetration, blast or fragmentation
    > effects with an additional incendiary effect, such as
    > armour-piercing projectiles, *fragmentation shells, explosive
    > bombs and similar combined-effects munition in which the
    > incendiary effect is not specifically designed to cause burn
    > injury to persons*, but to be used against military objectives,
    > such as armoured vehicles, aircraft and installations or
    > facilities.

[^173]: Incendiary Weapons Protocol, *supra* note Error: Reference
    source not found, at Art. 1(b)(ii) (emphasis added). As stated
    earlier, the US ratified the Non-Detectable Fragments Protocol and
    the Land Mine Protocol, but has not agreed to the Incendiary Weapons
    Protocol. Later, in 1995, the Conventional Weapons Treaty delegates
    adopted the Blinding Laser Protocol. For a detailed analysis of the
    Blinding Laser Protocol, *see* W. Hays Parks, *Trauvaux
    Preparatoires and Legal Analysis of Blinding Laser Weapons
    Protocol*, 1997 [Army Law.]{.smallcaps} 33 (1997).

    ^?^ *See* Land Mine Protocol, *supra* note Error: Reference source
    not found. Generally, the Land Mine Protocol prohibited directing
    landmines against civilians or the civilian population or using
    landmines indiscriminately. The Land Mine Protocol adopted Geneva
    Protocol I, Art. 51(3)'s definition of "indiscriminate," discussed
    in detail *infra* Part IV.B.3. Further, the Land Mine Protocol
    mandated recording the location of minefields. *See* Land Mine
    Protocol, *supra* note Error: Reference source not found, at Art. 7;
    [Prokosch,]{.smallcaps} *supra* note Error: Reference source not
    found, at 161-62.

[^174]: Land Mine Protocol, *supra* note Error: Reference source not
    found, Art. 5. Remotely delivered landmines, as defined by the
    Protocol, are mines "delivered by artillery, rocket, mortar or
    similar means or dropped from and aircraft." *Id*. at Art. 2(1).
    They are prohibited [unless]{.underline}: (1) their location is
    accurately recorded; (2) they possess an effective self-neutralizing
    or self-destructing mechanism or a remote control to detonate or
    deactivate the mine; and (3) effective advanced warning is given to
    any affected civilian area, unless the circumstances do not permit.
    *Id*. at Art. 5. For a more detailed analysis of remotely delivered
    landmines, *see* Peter J. Ekberg*, Remotely Delivered Landmines and
    International Law*, 33 [Colum. J. Transnat'l L. 149
    (1995).]{.smallcaps}

[^175]: *See* [Prokosch,]{.smallcaps} *supra* note Error: Reference
    source not found, at 163. The Land Mine Protocol defined "mine" as
    "any munition placed under, on or near the ground or other surface
    area and *designed* to be detonated or exploded by the presence,
    proximity or contact of a person or vehicle." Land Mine Protocol,
    *supra* note Error: Reference source not found, at Art. 2(1)
    (emphasis added). The signatories effectively excluded cluster
    munitions because they are not *designed* to be detonated by a
    person or vehicle. According to Prokosch, "Protocol II gives the
    impression of having been written to satisfy the needs of military
    forces, which may later have to occupy a mined area, rather than to
    protect civilians . . . \[while cluster bombs\] remained untouched
    by any specific ban." [Prokosch,]{.smallcaps} *supra* note Error:
    Reference source not found, at 162-63. For a detailed discussion of
    the Land Mine Protocol, *see* Lt Col Burris M. Carnahan*, The Law of
    Land Mine Warfare: Protocol II to the United Nations Convention on
    Certain Conventional Weapons*, 105 [Mil. L. Rev]{.smallcaps}. 73
    (1984); Efaw, *supra* note Error: Reference source not found, at
    107-117.

[^176]: Efaw, *supra* note Error: Reference source not found, at 116.
    The primary differences between the original Land Mine Protocol and
    the Amended Mine Protocol are that the latter applies to internal
    armed conflicts and "requires that all landmines be rendered
    detectable." *Id.* at 119. Further, the Amended Mine Protocol
    mandates that "at least ninety percent of unmarked anti-personnel
    mines must self-destruct within thirty days of emplacement. As an
    added precaution, if a mine is flawed and does not self-destruct,
    each mine must also be programmed to deactivate within 120 days of
    emplacement." *Id*. at 122.

[^177]: *See generally* Amended Mine Protocol, *supra* note Error:
    Reference source not found, Art. 2-6; Efaw, *supra* note Error:
    Reference source not found, at 107-17; Lacey, *supra* note Error:
    Reference source not found, at 7-10.

[^178]: *See* Amended Mine Protocol, *supra* note Error: Reference
    source not found, Art. 2(3).

[^179]: *Id.*

[^180]: *See* Air University, *supra* note Error: Reference source not
    found.

[^181]: [S. Exec. Doc. No.]{.smallcaps} 106-2, at 36-37 (1999). As
    noted, the US ratified the Amended Mine Treaty on May 24, 1999.
    *See* Lacey, *supra* note Error: Reference source not found, at 7.

[^182]: Ottawa Treaty, *supra* note Error: Reference source not found.

[^183]: *See* Rae McGrath, *Clearing the Clusters: Why Activists Earlier
    Failed to Ban These Bombs---And What Must be Done to Stop Their Use
    Now, at* http://newsweekinteractive.org/

    nw-srv/issue/05_99b/printed/int/eur/ov1905_1 (1999) (on file with
    the Air Force Law Review). For detailed information on the Ottawa
    Treaty, see Efaw, *supra* note Error: Reference source not found, at
    131-51.

[^184]: The International Campaign to Ban Land Mines is a coalition of
    over 1,300 NGOsthat received the Nobel Peace Prize in 1997 for their
    work in the area of disarmament. *See* [Landmine Monitor Report
    2000,]{.smallcaps} *supra* note Error: Reference source not found,
    at back cover.

[^185]: *See* McGrath, *supra* note Error: Reference source not found.

[^186]: *Id*.

[^187]: *Id*.

[^188]: International Committee for the Red Cross, *Banning
    Anti-Personnel Mines: The Ottawa Treaty Explained,* *at*
    http://www.ircr.org (Feb. 1, 1998) (on file with the Air Force Law
    Review) (describing the treaty in detail).

[^189]: Nonetheless, the US is not a party to the treaty and, therefore,
    not bound by its terms. As of Jan. 30, 2001, 139 countries have
    signed or ratified the Mine Ban Treaty. Among the dozens of
    countries that have not signed the Mine Ban Treaty are China, Egypt,
    Finland, India, Israel, Pakistan, Saudi Arabia, Russia, Turkey, the
    United States, and Vietnam. Updated numbers are available on the
    International Committee to Ban Landmines' webpage *at*
    http://www.icbl.org (on file with the Air Force Law Review).

[^190]: BBC News, *supra* note Error: Reference source not found.

[^191]: *See* International Criminal Tribunal for the Former Yugoslavia
    (ICTY): Final Report to the Prosecutor by the Committee Established
    to Review the NATO Bombing Campaign Against the Federal Republic of
    Yugoslavia, 39 I.L.M. 1257, 1264-65 (2000) \[hereinafter ICTY
    Report\].

[^192]: *Id*. at 1264.

[^193]: *See* Hague II, *supra* note Error: Reference source not found,
    at Art. 22; FM 27-10, *supra* note Error: Reference source not
    found, at para. 33.

[^194]: Hague II, *supra* note Error: Reference source not found, at
    Art. 23(e).

[^195]: Parks, *supra* note Error: Reference source not found, at 18.

[^196]: [Commentary on the Additional Protocols of 8 June 1977 to the
    Geneva Conventions of 12 August 1949 \[]{.smallcaps}hereinafter ICRC
    [Commentary to Geneva Protocol I\]]{.smallcaps} 409 (Yves Sandoz et.
    al. eds., 1987). The ICRC [Commentary to Geneva Protocol
    I]{.smallcaps} is available on-line *at* www.icrc.org.

[^197]: Geneva Protocol I, *supra* note Error: Reference source not
    found, Art. 35.

[^198]: Parks, *supra* note Error: Reference source not found, at 18.

[^199]: *Id.*

[^200]: *See generally* ICRC [Commentary to Geneva Protocol
    I,]{.smallcaps} *supra* note Error: Reference source not found, at
    407-09; [Crimes of War,]{.smallcaps} *supra* note Error: Reference
    source not found, at 379-80; Parks, *supra* note Error: Reference
    source not found, at 19.

[^201]: *See* ICRC [Commentary to Geneva Protocol I,]{.smallcaps}
    *supra* note Error: Reference source not found, at 408. *See
    generally* Parks, *supra* note Error: Reference source not found, at
    18-19.

[^202]: *See generally* ICRC [Commentary to Geneva Protocol
    I,]{.smallcaps} *supra* note Error: Reference source not found, at
    407-09.

[^203]: Parks, *supra* note Error: Reference source not found, at 18.

[^204]: *See generally id. at* 18-19*.*

[^205]: ICRC [Commentary to Geneva Protocol I,]{.smallcaps} *supra* note
    Error: Reference source not found, at 392-96.

[^206]: *Id*. at 393.

[^207]: *See generally id*. at 392-96; Parks, *supra* note Error:
    Reference source not found, at 18-19.

[^208]: Parks, *supra* note Error: Reference source not found, at 19.

[^209]: *Id*.

[^210]: *See* Mennonite Central Committee, *supra* note Error: Reference
    source not found.

[^211]: *See generally* Parks, *supra* note Error: Reference source not
    found, at 19-22.

[^212]: *Id*.

[^213]: *Id*. (reviewing the legality of shotguns on the battlefields).

[^214]: *See id.*

[^215]: *See generally* [Lugano Conference]{.smallcaps}, *supra* note
    Error: Reference source not found, at 71-72. *See also infra* p. 30.

[^216]: *See generally* ICRC [Commentary to Geneva Protocol
    I,]{.smallcaps} *supra* note Error: Reference source not found, at
    408.

[^217]: *Id.*

[^218]: *Id*. at 407.

[^219]: *See* [Crimes of War,]{.smallcaps} *supra* note Error: Reference
    source not found, at 379-80. An example of the type of weapon that
    causes unnecessary suffering is an explosive round filled with clear
    glass fragments. When the round detonates and glass penetrates the
    body, it is difficult for doctors to treat the wounded soldier
    because they cannot easily locate the clear glass. There is no
    military necessity in making the injuries more difficult to treat.
    Other weapons considered to cause unnecessary suffering include
    fragments undetectable by x-ray, poisoned bullets, and barbed
    bayonets. *Id*.

[^220]: *See infra*. pp. 29-30.

[^221]: [Lugano Conference]{.smallcaps}, *supra* note Error: Reference
    source not found, at 72-73. For example, one 500 lb. unitary bomb
    covers a 50-foot diameter, while a sensor fuzed cluster munition,
    delivered via a JSOW, will cover an area 500 feet by 1400 feet.
    *See* Weapons Briefing, *supra* note Error: Reference source not
    found.

[^222]: *Id;* Weapons Briefing*, supra* note Error: Reference source not
    found*.* *See also* Richard Norton-Taylor, *A Million Tiny Fragments
    With Each Impact*, [The Guardian]{.smallcaps} (June 23, 1999).
    According to a British Defense Minister, George Roberts, cluster
    bombs are "particularly effective against Serb forces deployed in
    the field in Kosovo, against tanks, armored personnel carriers,
    artillery, and 'troop concentrations.'" *Id*.

[^223]: *See infra*. p. 29.

[^224]: *See* [Lugano Conference]{.smallcaps}, *supra* note Error:
    Reference source not found, at 72. One study estimates that without
    cluster munitions, the Air Force would have had to use 10% more
    unitary bombs during Operation Allied Force. *See* Weapons Briefing,
    *supra* note Error: Reference source not found.

[^225]: *Id.; see infra*. p. 29-30. To accomplish what cluster munitions
    can, the Air Force would have to use significantly more unitary
    bombs per target. The use of additional bombs also requires
    additional sorties per target, thus increasing the risk to both
    aircraft and aircrews. *See* Weapons Briefing, *supra* note Error:
    Reference source not found.

[^226]: [Lugano Conference]{.smallcaps}, *supra* note Error: Reference
    source not found, at 73. *See also* Weapons Briefing, *supra* note
    Error: Reference source not found (CBU-97s are a key weapon during
    the halt or hold phase of the battle).

[^227]: ICRC [Commentary to Geneva Protocol I,]{.smallcaps} *supra* note
    Error: Reference source not found, at 409.

[^228]: *Id*. at 399.

[^229]: Preamble to the St. Petersburg Declaration. *See* [The Laws of
    Armed Conflicts]{.smallcaps}, *supra* note Error: Reference source
    not found, at 102; [The Laws of War]{.smallcaps}, *supra* note
    Error: Reference source not found, at 35.

[^230]: *See* ICRC [Commentary to Geneva Protocol I,]{.smallcaps}
    *supra* note Error: Reference source not found, at
    598[.]{.smallcaps}

[^231]: *See* [Rogers,]{.smallcaps} *supra* note Error: Reference source
    not found, at 31-33. Once again, it is important to note that, while
    the US recognizes the following provisions of Geneva Protocol I to
    be generally reflective of customary international law, it is not a
    party to the Protocol. As such, its provisions are not binding. *See
    generally* Matheson, *supra* note Error: Reference source not found,
    Janet E. Lord, *Legal Restraints in the Use of Landmines:
    Humanitarian and Environmental Crisis*, 25 [Cal. W. Int'l
    L.J.]{.smallcaps} 311, 322-25 (1995).

[^232]: Geneva Protocol I, *supra* note Error: Reference source not
    found, Art. 48.

[^233]: According to Geneva Protocol I, *supra* note Error: Reference
    source not found, at Art. 52, "military objectives are limited to
    those objects which by their nature, location, purpose or use make
    an effective contribution to military action and whose total or
    partial destruction, capture, or neutralization, in the
    circumstances ruling at the time, offers a definite military
    advantage."

[^234]: *See generally* [Rogers,]{.smallcaps} *supra* note Error:
    Reference source not found, at 6-7. The term "civilian population"
    consists of all civilian persons. Geneva Protocol I, *supra* note
    Error: Reference source not found, Art. 50. It is important to note,
    however, that while the US concurs with Geneva Protocol I's
    definition of a civilian, it disagrees with the circumstances under
    which immunity from attack is lost. Geneva Protocol I, Art. 51(3),
    states that a civilian loses protected status if he takes a
    "*direct"* part in the hostilities. The US, on the other hand,
    equates the loss of civilian immunity to situations when a civilian
    takes an "*active*" part in hostilities. While this might seem
    immaterial at first, consider the nonmilitary truck driver who hauls
    ammunition from the factory to the military on the front line. Under
    Geneva Protocol I's definition, the truck driver might still be
    immune from attack. This is not true, however, when applying the
    US's interpretation to civilian immunity. *See* W. Hays Parks, *Air
    War and the Law of War*, 32 [A.F. L. Rev]{.smallcaps}. 1 (1990).
    *See generally* ICRC [Commentary to Geneva Protocol I,]{.smallcaps}
    *supra* note Error: Reference source not found, Art. 51.

[^235]: *Id*. at 36-37.

[^236]: *See* Geneva Protocol I, *supra* note Error: Reference source
    not found, Art. 51.

[^237]: *Id.*

[^238]: *See* [Rogers,]{.smallcaps} *supra* note Error: Reference source
    not found, at 21.

[^239]: *Id.*

[^240]: *Id.* at 56.

[^241]: ICRC [Commentary to Geneva Protocol I,]{.smallcaps} *supra* note
    Error: Reference source not found, at 680 (defining military
    operations as "any movements, maneuvers, and other activities
    whatsoever carried out by the armed forces with a view toward
    combat").

[^242]: Geneva Protocol I, *supra* note Error: Reference source not
    found, Art. 57(1).

[^243]: ICRC [Commentary to Geneva Protocol I,]{.smallcaps} *supra* note
    Error: Reference source not found, at 682. Its important to note
    that, according to the Commentary, "this rule does not imply any
    prohibition of specific weapons." It specifically discusses an
    unsuccessful attempt to regulate mines and minefields, but choosing
    instead to leave those issues to the Conventional Weapons Treaty.
    *See* *id.*

[^244]: Geneva Protocol I, *supra* note Error: Reference source not
    found, Art. 57(2).

[^245]: *Id.* at Art. 51(2); *see* [Rogers]{.smallcaps}, *supra* note
    Error: Reference source not found, at 7-14.

[^246]: Geneva Protocol I, *supra* note Error: Reference source not
    found, Art. 51(4)(b); *see* [Rogers]{.smallcaps}, *supra* note
    Error: Reference source not found, at 19-24. According to Rogers,
    whether customary international law ever prohibited indiscriminate
    attacks is unsettled. [Rogers]{.smallcaps}, *supra* note Error:
    Reference source not found, at 19-20.

[^247]: *See* Mennonite Central Committee, *supra* note Error: Reference
    source not found.

[^248]: *Id*.

[^249]: 145 [Cong. Rec.]{.smallcaps} S10070-71, *supra* note Error:
    Reference source not found (Sen. Leahy).

[^250]: *See infra* p. 8-9 and note Error: Reference source not found.

[^251]: *See* Weapons Briefing, *supra* note Error: Reference source not
    found. Some suggest, however, that the angle of the Tactical
    Munitions Dispenser, rather than the height of the drop, has more
    impact on bomblet dispersion pattern.

[^252]: *See generally* Parks, *supra* note Error: Reference source not
    found, at 188-89.

[^253]: *Id.* at 182-202. Karl Von Clausewitz used the term \"friction
    of war\" to describe the uncertainties of combat. According to
    Clausewitz:

    > If one has never personally experienced war, one cannot understand
    > in what the difficulties mentioned really exist, nor why the
    > commander should need any brilliance and exceptional ability.
    > Everything looks simple; the knowledge required does not look
    > remarkable, the strategic options are so obvious that by
    > comparison the simplest problem of higher mathematics has an
    > impressive scientific dignity. Once war has actually been seen the
    > difficulties become clear; but it is extremely hard to describe
    > the unseen, the all-pervading element that brings about this
    > change of perspective.

[^254]: [Clausewitz, On War 119 (]{.smallcaps}M. Howard & P. Paret
    trans. 1976) *quoted in* Parks, *supra* note Error: Reference source
    not found, at 182 n.540.

    ^?^ *See generally* Parks, *supra* note Error: Reference source not
    found, at 113.

[^255]: *See generally* [US Department of the Air Force, Air Force
    Pamphlet 14-210, USAF Intelligence Targeting Guide]{.smallcaps}
    (Feb. 1, 1998) \[hereinafter [Targeting Guide\]]{.smallcaps}.

[^256]: *See generally* [Rogers]{.smallcaps}, *supra* note Error:
    Reference source not found, at 21-22.

[^257]: The destruction of Iraqi armor columns on the "highway of death"
    in Kuwait is an example. *See generally* [Clancy]{.smallcaps},
    *supra* note Error: Reference source not found, at 423.

[^258]: ICRC [Commentary to Geneva Protocol I,]{.smallcaps} *supra* note
    Error: Reference source not found, at 621.

[^259]: *See* *Id*.; [Rogers]{.smallcaps}, *supra* note Error: Reference
    source not found, at 20-21. *But see* Michael N. Schmitt, *The
    Principle of Discrimination in 21^st^ Century Warfare*, 2 [Yale H.R.
    & Dev. L.J]{.smallcaps}. 143, 148 (1999). *See* *generally* [Rick
    Atkinson, Crusade: The Untold Story of the Persian Gulf
    War]{.smallcaps} 80-85 (1993).

[^260]: *See* Wind Corrected Munition Dispenser (WCMD), FAS Military
    Analysis Network \[hereinafter FAS\] *at*
    http://www.fas.org/man/dod-101/sys/smart/wcmd.htm (on file with the
    Air Force Law Review); What's New with Smart Weapons, FAS, at
    http://www.fas.org/man/

    dod-101/sys/smart/new.htm (on file with the Air Force Law Review).

[^261]: *See* Geneva Protocol I, *supra* note Error: Reference source
    not found, Art. 51(5)(b).

[^262]: *See* Mennonite Central Committee, *supra* note Error: Reference
    source not found.

[^263]: According to the Mennonite Central Committee, cluster bombs are
    indiscriminate "because their high dud rates guarantee the creation
    of de facto landmine fields, they go on killing for decades after
    the battle is over." *See* Mennonite Central Committee, *supra* note
    Error: Reference source not found.

[^264]: *Id.*

[^265]: ICRC [Commentary to Geneva Protocol I,]{.smallcaps} *supra* note
    Error: Reference source not found, at 622-23.

[^266]: *Id*. at 623.

[^267]: *See id*.

[^268]: This goes back to the principle of state sovereignty. For a
    legal norm to exist, states either must expressly agree on the norm,
    through a treaty for example, or it must rise to the level of
    customary law. To be customary law, however, states must recognize
    the principle and believe they must abide by the norm out of a sense
    of legal obligation. *See infra* pp. 20-21.

[^269]: *See infra* pp. 27-31.

[^270]: *See infra* p. 13 and note Error: Reference source not found.

[^271]: ICTY Report, *supra* note Error: Reference source not found, at
    1264.

[^272]: *Id.*

[^273]: *See* [US Government Accounting Office, Unexploded Ordnance: A
    Coordinated Approach to Detection and Clearance Is
    Needed]{.smallcaps}, GAO/NSISD-95-197 (1995). According to the GAO,
    in France, millions of UXOs from World War I must still be located
    and cleared. Further, both Germany and Britain have UXO problems
    resulting from World War II. *Id*. *See also* MAJ Vaughn A. Ary,
    *Concluding Hostilities: Humanitarian Provisions in Cease-Fire
    Agreements*, 148 [Mil. L. Rev. 186 (1995)]{.smallcaps} (stating that
    since 1946, France has collected and destroyed more than
    eighteen-million artillery shells, ten-million grenades,
    six-hundred-thousand aerial bombs, and six-hundred-thousand
    underwater mines left over from WWI and WWII).

[^274]: *See* Parks, *supra* note Error: Reference source not found, at
    189. According to Parks:

[^275]:
    > One may always hope for a 'zero defect' environment . . . .
    > Nonetheless, there will be occasions where bombs or other
    > munitions are dropped or launched with honest expectation that
    > they are directed at the intended target, only to find that they
    > miss their target due to a malfunction in the aircraft, its
    > bomb-aiming equipment or the munitions.

    *Id.*

    ^?^ Ron Laurenzo, *Cluster Bomb Dud Rates Cut, Army Says*, [Defense
    Week,]{.smallcaps} June 1, 1999 at 3 (citing Francis Kosakowski, an
    Ogden Air Logistics Center spokesperson, commenting on the CBU-87).

[^276]: *See* Mennonite Central Committee, *supra* note Error: Reference
    source not found.

[^277]: DOD News Briefing, *supra* note Error: Reference source not
    found.

[^278]: ICRC [Commentary to Geneva Protocol I,]{.smallcaps} *supra* note
    Error: Reference source not found, at 623.

[^279]: *See generally id.*

[^280]: *Id. See generally* [Rogers]{.smallcaps}, *supra* note Error:
    Reference source not found, at 14-19.

[^281]: [Rogers]{.smallcaps}, *supra* note Error: Reference source not
    found, at 16.

[^282]: Geneva Protocol I, *supra* note Error: Reference source not
    found, Art. 51(5)(b).

[^283]: *See* [Rogers]{.smallcaps}, *supra* note Error: Reference source
    not found, at 16-21.

[^284]: *See* [Targeting Guide,]{.smallcaps} *supra* note Error:
    Reference source not found; *see generally* [Rogers]{.smallcaps},
    *supra* note Error: Reference source not found, at 19.

    Rogers lists several factors that military planners should consider.
    Among them are:

    > the military importance of the target or objective, the density of
    > the civilian population in the target area, the likely incidental
    > effects of the attack, including the possible release of hazardous
    > substances, the types of weapons available to attack the target
    > and their accuracy, whether the defenders are deliberately
    > exposing civilians or civilian objects to risk, the mode of the
    > attack and the timing of the attack, especially in the case of a
    > mixed target.

[^285]: *Id.*

    ^?^ Mennonite Central Committee, *supra* note Error: Reference
    source not found (quoting LT GEN Fulford's letter to Rep. Dennis
    Kucenich). *See also* [Kosovo/Operation Allied Force After-Action
    Report,]{.smallcaps} *supra* note Error: Reference source not found,
    at 90 (stating that "Combined effects munitions remain and
    appropriate and militarily effective weapon when properly targeted
    and employed. However, the risk of collateral damage, as with any
    weapon, must be considered when employing these weapons.").

[^286]: *See* Parks, *supra* note Error: Reference source not found, at
    171-72.

[^287]: This is not to suggest that military leaders consider the "long
    term" effects of UXOs on the battlefield or be called on to
    speculate about when and how many civilians might enter an area
    targeted with cluster bombs or how much demining activities might
    take place before those civilians might be exposed the affected
    area. Further, commanders cannot possibly know the exact reliability
    rates of every weapons system they employ in all circumstances. The
    consideration of known dud rates is more appropriate during the
    legal review of new weapons (required by Geneva Protocol I, Article
    36). Rather, commanders should recognize that deployed cluster
    munitions will leave *some* unexploded ordnance on the battlefield.
    Any proportionality analysis should calculate this factor. I'm not
    suggesting commanders *quantify* the amount of collateral damage
    likely to be caused, as this would be extremely speculative, but
    rather, only that they recognize the potential for additional
    collateral damage from UXOs. Some military experts have criticized
    the US for failing to complete such an analysis in the past. For
    example, according to Anthony Cordesman, "\[s\]aying that such
    weapons cause collateral damage but ignoring them in the assessment
    of collateral damage is just one more way in which NATO and the US
    failed to address the issue of collateral damage in realistic terms
    and with analytic integrity." [Kosovo Lessons,]{.smallcaps} *supra*
    note Error: Reference source not found, at 250.

[^288]: *See generally* [Rogers]{.smallcaps}, *supra* note Error:
    Reference source not found, at 14-19.

[^289]: DOD News Briefing, *supra* note Error: Reference source not
    found.