MASTERS OF INTERNATIONAL CRIMINAL LAW

MODULE: INTERNATIONAL HUMANITARIAN LAW

INDIVIDUAL ASSIGNMENT

THE POSITION OF IHL ABOUT CLUSTER MUNITIONS

Prepared by:
UMUZAYIRE Zulaika
Reg Number: MO 1831/2022

LECTURER: KABANO Jacques

Kigali, April 2023

Table of Contents
I. INTRODUCTION ..........................................................................................................................1
II. Overview of IHL and Cluster munitions ........................................................................................2
III. The position of IHL about the cluster munitions .......................................................................3
Distinction .....................................................................................................................................3
Precautions during an attack ..........................................................................................................3
Indiscriminate attacks are prohibited..............................................................................................4
Assistance and cooperation on a global scale ......................................................................................4
Humanitarian organizations play a role ..............................................................................................5
The significance of prevention ............................................................................................................5
Customary international law's role .....................................................................................................6
Obligation of the state .......................................................................................................................6
BIBLIOGRAPHY...................................................................................................................................9
 I. INTRODUCTION
International Humanitarian Law refers to a set of rules which seek, for humanitarian reasons, to
limit the effects of armed conflict. It protects persons who are not or are no longer participating
in the hostilities and restricts the means and methods of warfare. International humanitarian law
is also known as the law of war or the law of armed conflict 1. These laws regulates the conduct
of both international armed conflicts (IAC) and non- international armed conflicts(NIAC) seeks
to protect those who are no longer taking part in hostilities, including civilians and combatants
who are hors de combat(out of action).

Under the Convention on Cluster Munitions (CCM), “A cluster munition” is defined as a

conventional munition that is designed to disperse or release explosive sub munitions each
weighing less than 20 kilograms; and includes those explosive sub munitions2. These cluster
munitions such as cluster bombs are weapons that scatter large numbers of explosive
submunitions over a wide area have a negative impact on the environment.

These bomb lets can explode on impact or be triggered by a timer or a sensor, posing a
significant threat to civilians, as they can remain unexploded and active for many years after a
conflict has ended, causing harm to unsuspecting individuals.

Therefore cluster munitions were banned by the Convention on Cluster Munitions, an

international treaty that came into force on August 1, 20103. This treaty prohibits the use,
production, transfer, and stockpiling of cluster munitions, recognizing their severe humanitarian
impact.

Cluster munitions have a severe humanitarian impact, causing harm to civilians during and after
conflicts. According to a report by the Cluster Munition Coalition, an international network of
civil society organizations, 98% of cluster bomb victims are civilians, and 40% of victims are
children4. The application of cluster munitions or cluster bombs that pose serious dangers to the
high number of civilian casualties including children and other non-combatants and have the
long term effects physical, psychological and socio-economic harm to the affected communities
even long after a conflict has ended.

1
International Committee of the Red Cross (ICRC), "International Humanitarian Law" (ICRC, 2004) available at
https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf accessed on 13th April 2023.
2
Convention on Cluster Munitions, adopted 30 May 2008 (Dublin) Art 2(2).
3
Convention on Cluster Munitions, 2010, Art 1.
4
Cluster Munition Monitor 2019. Available at https://www.the-monitor.org/en-gb/reports/2019/cluster-
th
munition-monitor-2019.aspx). Accessed on 13 April 2023

1
 II. Overview of IHL and Cluster munitions
According to the International Committee of the Red Cross (ICRC) Customary IHL Database,
the use of cluster munitions is also subject to customary international humanitarian law, which
reflects customary rules of IHL that are binding on all parties to an armed conflict, regardless of
whether they have ratified specific treaties5. Customary international humanitarian law prohibits
the use of weapons that cause excessive harm to civilians, and the use of cluster munitions that
result in indiscriminate effects is considered a violation of this rule6.

The CCM embodies the distinction principle, which requires parties to a conflict to distinguish
between civilian objects and military objectives and to direct attacks only against military
objectives. This reflects the international community's concern regarding the humanitarian
impact of cluster munitions, particularly on civilians7. The use of cluster munitions in armed
conflicts may be subject to customary international humanitarian law, including the principles of
distinction, proportionality, and precautions in attack8.

A few states have given public regulation or strategies that further direct or disallow the
utilization of group weapons, regardless of whether they are not involved with the CCM. For
instance, national legislation has been enacted in some states to restrict the use of cluster
munitions that harm civilians or do not meet CCM standards.

Parties to a conflict are obligated to take all reasonable precautions in the event that cluster
munitions are used to prevent civilians and civilian objects from being harmed, as well as
accidental civilian deaths, injuries, and damage9.

In regard to the principles of International Humanitarian Law (IHL), the use of cluster munitions
is highly disagreed basing on the dangers caused to the civilians10. The basic principle of IHL is
the Principle of distinction between civilians and combatants whereby those explosions don’t
distinguish civilians and combatants and civilian objects.

However, it is essential to keep in mind that not all states have signed the CCM, and the use of
cluster munitions that harm civilians or do not meet the CCM's standards may be considered a
violation of IHL, particularly the distinction principle.

5
ICRC Customary IHL Database, Rule 97
6
Ibid
7
CCM 2008, Art 2
8
ICRC Database, Customary IHL , Definition of Indiscriminate Attacks, available at https://ihl-
databases.icrc.org/en/customary-ihl/v1/rule12 Accessed on 13th April 2023
9
Additional I 1977, art 57(2)(a)
10
ICRC, Cluster Munitions Article 2011, Available at https://www.icrc.org/en/war-and-law/weapons/cluster-
th
munitions. Accessed on 13 April 2023

2
 III. The position of IHL about the cluster munitions
International Humanitarian Law provides various principles and rules that govern the use of
cluster Munitions in Armed conflicts. In this paper I will highlight the position of IHL about
cluster munitions though considering the various obligations on parties to armed conflicts
regarding the use of cluster munitions in order to protect civilians and civilian objects.

Therefore, the obligations imposed by International Humanitarian Law on Parties to Armed

Conflicts are the following;

Distinction
The principle of distinction is a fundamental rule of International Humanitarian Law (IHL),
where parties to a conflict are required under IHL to distinguish between civilian and military
objectives and to take all reasonable steps to avoid injury to civilians and civilian objects 11. The
user of cluster is prohibited once it cause harm to civilians and civilian objectives.

The use of wide-area effect cluster munitions, which may result in a huge number of unexploded
sub munitions, might pose a major risk to civilians and civilian objects, and may breach the
principle of distinction under IHL12. Such use can be considered indiscriminate since it fails to
distinguish between military targets and civilian objects and may inflict undue harm to civilians
in relation to the anticipated military advantage, thereby violating the principle of
Discrimination.

Precautions during an attack

Parties to a war must take all reasonable measures to avoid, or at least limit, injury to civilians
and civilian objects. This involves ensuring that the target is a legitimate military objective,
selecting means and methods of attack that cause the least amount of harm to civilians and
civilian property, and taking into account the presence of civilians near the target.

Parties to a conflict are entitled under IHL to take all possible steps to limit harm to people and
civilian objects, including while using cluster munitions. This includes ensuring that the targets
of cluster munitions attacks are indeed military objectives, avoiding attacks that could cause
excessive harm to civilians or civilian objects, and taking steps to reduce the risk of unexploded
sub munitions posing a threat to civilians after the conflict has ended13.

11
Customary IHL , The Principle of Distinction between Civilians and Combatants, https://ihl-
th
databases.icrc.org/en/customary-ihl/v1/rule1#title-1 accessed on 14 April 2023
12
Id rule 14
13
ICRC Database, Customary IHL , Principle of Precautions in Attack,available at https://ihl-
databases.icrc.org/en/customary-ihl/v1/rule15 accessed on 13th April 2023

3
Indiscriminate attacks are prohibited
Under IHL, indiscriminate attacks are strictly forbidden. It is against the law for parties to a
conflict to use weapons or launch attacks with the intention of striking both civilians and military
targets alike. An indiscriminate attack is one that does not target a specific military objective,
employs methods of warfare that cannot be directed at a specific military objective, or fails to
distinguish between civilian and military targets. Due to their wide area dispersal and high
failure rate, the use of cluster munitions, which are inherently indiscriminate, raises significant
concerns regarding compliance with the prohibition on indiscriminate attacks14.

Cluster munitions are known to cause harm to civilians and civilian items even after the battle
has ended, as they frequently leave behind unexploded sub munitions that endanger civilians,
including children.

Cluster munitions are generally forbidden in regions with high concentrations of civilians
because they represent a high danger of indiscriminate harm to civilians. Parties to a war must
take all reasonable steps to avoid and limit harm to civilians and civilian objects, and they must
not deploy weapons that cannot differentiate between combatants and civilians.

Assistance and cooperation on a global scale

Global assistance and cooperation are essential components of IHL, particularly when dealing
with the humanitarian effects of cluster munitions. Gatherings to a contention are committed to
go to all possible lengths to give help to the casualties of furnished clashes and to help out global
philanthropic associations in the arrangement of such help. In addition, states are obligated to
cooperate in the removal of explosive war debris, such as unexploded cluster sub munitions, in
order to guarantee the safety of civilians and make post-conflict recovery easier15.

States are encouraged to work together and assist one another in carrying out their
responsibilities under IHL, including addressing the humanitarian effects of cluster munitions.
Supporting efforts to clear unexploded sub munitions and assist victims, sharing technical
expertise, and providing financial and material assistance are all examples of this.

International efforts to address the humanitarian consequences of using cluster munitions have
resulted from the issue's global scope. The Convention on Cluster Munitions, adopted in 2008,
includes provisions for assistance to victims, clearance of contaminated areas, and international
cooperation and assistance in meeting treaty obligations.

14
Customary IHL , The Principle of Distinction between Civilian Objects and Military Objectives, https://ihl-
th
databases.icrc.org/en/customary-ihl/v1/rule7 accessed on 13 April 2023
15
Customary IHL Assistance to the Victims of Armed Conflicts, https://ihl-databases.icrc.org/en/customary-
th
ihl/v1/rule135 accessed on 14 April 2023

4
Humanitarian organizations play a role

Humanitarian organizations have a key role in resolving the humanitarian impacts of cluster
munitions in conformity with IHL. Several organizations, such as the International Committee of
the Red Cross (ICRC), give aid to victims of armed conflicts; particularly those affected by
cluster munitions, and work to ensure that parties to the conflict respect and execute IHL.

The International Committee of the Red Cross (ICRC) is one of the humanitarian organizations
that play a role in advocating for the prohibition and eradication of cluster munitions, spreading
awareness about the humanitarian effects of these weapons, and assisting affected communities.
Additionally, they advocate for the ratification and implementation of relevant international
treaties, such as the Convention on Cluster Munitions, as well as awareness-raising campaigns,
the provision of medical care and rehabilitation, support for risk education and clearance
operations, and advocacy for the protection of civilians from the harmful effects of cluster
munitions16.

In addition, humanitarian organizations offer medical care, psychological support, and

rehabilitation assistance to victims of cluster munitions. They also work with states, international
organizations, and other stakeholders to clear environmental contamination of unexploded
cluster submunitions, reduce the risks associated with cluster munitions, and assist affected
communities through risk education, livelihood support, and socioeconomic development
initiatives17.

The significance of prevention

The International Humanitarian Law (IHL) emphasizes the significance of preventing harm to
civilians and civilian property through responsible weapon use, precise targeting, and taking the
necessary precautions. States have an obligation to evaluate the possible dangers and outcomes
of utilizing bunch weapons and go to lengths to limit damage to regular folks and non military
personnel objects.

Prevention is a key aspect of international humanitarian law, and it is critical in the context of
cluster weapons. Cluster munitions use can have serious humanitarian effects, especially given
the high rate of unexploded submunitions that can linger on the ground and offer long-term
threats to civilians, including children, farmers, and other civilians going about their regular
routines.

Furthermore, prevention initiatives include deterring states and entities from producing,
transferring, and stockpiling cluster munitions, thereby lowering the availability and spread of
16
Ibid
17
Cluster Munition Coalition, "The Role of Humanitarian Actors," available at
https://www.stopclustermunitions.org/en-gb/the-weapon/cluster-munitions-and-humanitarian-
th
consequences/the-role-of-humanitarian-actors.aspx accessed on 14 April 2023

5
these dangerous weapons. Article 1 of the Convention on Cluster Munitions outlaws the
production and transfer of cluster munitions, and Article 3 requires governments to destroy
stockpiles within eight years of becoming a party to the agreement, emphasizing the preventive
approach even further.

States and the international community can work to eliminate the use, production, transfer, and
stockpiling of cluster munitions by placing prevention first. This will reduce the harm done to
civilian populations and help them fulfill their legal obligations under international humanitarian
law.

Customary international law's role

The importance of customary international law in the context of cluster munitions cannot be
overstated. Customary international law refers to legal norms that have developed as a result of
persistent and widespread state behavior, accompanied by the conviction that such practice is
legally obligatory (opinio juris).

Customary international law prohibits the use of indiscriminate weapons, including cluster
munitions, and requires states to take all necessary precautions to avoid causing harm to civilians
and civilian objects during armed conflicts18. This customary rule reflects the general consensus
among states that the use of cluster munitions, which can cause indiscriminate harm to civilians
and civilian objects, is incompatible with the principles of humanity and the dictates of public
conscience.

Furthermore, states have a duty to respect and ensure the respect of IHL rules, including the
prohibition on the use of indiscriminate weapons. Governments that employ cluster munitions in
violation of customary international law may be held accountable and face legal repercussions,
including diplomatic, economic, and legal sanctions.

Obligation of the state

The legal obligation of governments to comply with their international legal duties, especially
those linked to the use of cluster munitions, is referred to as state responsibility. States are
accountable for their own actions as well as the actions of individuals and organizations acting
on their behalf.

States can be held accountable for violations of international humanitarian law (IHL), including
the use of cluster munitions, under customary international law through a variety of mechanisms,
including state-to-state disputes, international criminal tribunals, and other judicial or quasi-
judicial processes19.

18
Customary International Humanitarian Law, Rule 12, International Committee of the Red Cross (ICRC)
19
Id Rule 2

6
It is the duty of states that are parties to armed conflicts to ensure that their own actions and
those of individuals or groups under their control adhere to the principles and rules of
International Humanitarian Law (IHL), including those pertaining to cluster munitions.

Evidence of state action or omission that violates an international legal obligation, such as the
prohibition on the use of indiscriminate weapons, such as cluster munitions, can be used to
establish state responsibility. States may be held accountable for the consequences of their
wrongful actions, which may include harm to civilians and civilian property caused by the
deployment of cluster munitions.

The rule of state responsibility is a vital part of worldwide regulation that highlights the
significance of states' consistence with their global lawful commitments, including those
connected with bunch weapons, and the requirement for responsibility for infringement.

7
CONCLUSION
In conclusion, the position of International Humanitarian Law (IHL) on cluster munitions is
unambiguous. The use of cluster munitions that cause excessive harm to civilians or civilian
objects in comparison to the anticipated military advantage is prohibited. Parties to a conflict
must distinguish between civilian and military objectives and take all reasonable precautions to
protect civilians and civilian objects. IHL also prohibits indiscriminate attacks, including the use
of cluster munitions.

Customary international law strengthens the prohibition on the use of cluster munitions, and
governments have responsibility for adhering to their international legal commitments and being
held accountable for any transgressions. Humanitarian groups play an important role in
encouraging IHL compliance and assisting affected communities. The necessity of prevention,
cooperation, and accountability in ensuring civilian protection and compliance with IHL in the
context of cluster munitions cannot be emphasized.

8
BIBLIOGRAPHY

International Committee of the Red Cross (ICRC), "International Humanitarian Law" (ICRC,
2004) available at https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf

Convention on Cluster Munitions, 30 May 2008

Cluster Munition Monitor 2019. Available at https://www.the-monitor.org/en-

gb/reports/2019/cluster-munition-monitor-2019.aspx).

Convention on Cluster Munitions, 2010

ICRC Customary IHL Database

ICRC, Cluster Munitions Article 2011, Available at https://www.icrc.org/en/war-and-

law/weapons/cluster-munitions.

ICRC Database, Customary IHL , Customary IHL - IHL Databases - ICRC, https://ihl-
databases.icrc.org/en/customary-ihl