The Legality of Cluster Munitions in International Humanitarian Law and an Assessment of the Need for the New Treaty

Abstract

On the 30th of May 2008, a large number of states adopted a treaty on the prohibition of cluster munitions (Dublin Treaty). This article examines whether the pre-existing international humanitarian law regime was relevant to the use of these weapons. The law of the Hague did not contain any relevant stipulations, apart from Protocol V 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, to the extent that cluster munitions leave unexploded ordnance and, possibly, to the Conventions which regulate antipersonnel mines. The law of Geneva and its basic three principles (distinction, proportionality and precautionary measures) are certainly instrumental in the regulation of every weapon use but it is doubtful whether they could effectively minimize the risks for protected civilians and property. In view of the differences in interpretation of Geneva law and our past experience of cluster weapons use the writer opines that the conclusion of the new treaty was necessary.