For Whom the Little Bells Toll: Recent Judgments by International Tribunals on the Legality of Cluster Munitions

Abstract

"Little bells" refer to cluster bomblets in Serbo-Croatian. Two international tribunals recently have found defendants liable for civilian deaths caused by cluster munitions. These decisions may herald a turning point in the regulation of these weapons. In 2004, the Eritrea-Ethiopia Claims Commission held Eritrea liable for civilians killed in cluster munition strikes on Mekele, Ethiopia. On June 12, 2007, the International Criminal Tribunal for the Former Yugoslavia held the former president of the now defunct Serbian Republic of Krajina criminally liable for deaths and injuries resulting from cluster munition rocket attacks on Zagreb. Cluster bombs came back onto the world stage during the 2006 war between Israel and Hezbollah, with both sides of the conflict deploying the weapon in irresponsible ways. By early 2007, momentum had gathered for a treaty banning cluster bombs. Efforts are also underway at the national level to regulate their use. The two judgments have much to contribute to the current debate over how to eliminate or limit the humanitarian impact of cluster munitions. These cases are the only ones to date to address several humanitarian law issues in the debate over cluster munition regulation. Adjudicators grappled with whether the characteristics of cluster munitions can be used as evidence of intent to attack civilians or of indiscriminate and disproportionate attacks; what precautions users of these weapons must take in advance; and what role does foreknowledge about the wide area nature as well as landmine-like effects of cluster munitions have on culpability. This article analyzes the two judgments in detail and presents lessons to be learned: A. Advance Awareness of Cluster Weapon Characteristics Can Lead to Criminal Liability B. The Use of Unguided Cluster Munitions With Wide Area Effects May Lead to Criminal Liability C. Cluster Munition Use Against Military Targets in Civilian Areas Should Be Presumptively Off-Limits D. Restricting Cluster Munition Use Should Not Be Seen as a Green Light to Use Even More Destructive Weapons Indiscriminately E. Duds Matter: Probable Harm in the Immediate and Longer Term Aftermath Must Be a Part of the Proportionality Equation F. Magic Bullets? Why Trying to Build Better Cluster Bombs Does Not Resolve All the Indiscriminate Effects Associated with Their Use