The war outlawed yet the Laws of War exist: US Decision to Armour Ukraine with Clusters

cluster bomb

The twentieth century witnessed two world wars (WWs) and the third such war if takes place cannot probably be numbered as there shall be left no reckoner to assess if it happens and write the history of it a posteriori. With this, the diabolical nature of modern warfare can perhaps be desynchronized least to synchronize. The ongoing conflict between Russia and Ukraine is not even heading towards a cease-fire when the whole world has recently carved itself out of one of the worst centurion pandemics. The well-wishers of humanity are not even able to muster the courage to call it a war, over and above, they are levelled with wrongful aspersions of standing in the four corners of Arbatskaya Square, in view of the Russians’ constant harping to call this war as Special Military Operation (SMO) against Ukraine.

It is the enduring reliability and forecasted fear of international law that keeps them awaken to the practice, lest international law prevails with their subjugation or in the withdrawals to already made advances since 2014 in the name of SMO. At the same time battling Ukrainian and Russian soldiers and the covert involvement of NATO States tell an agonizing story in the economic travails which goes beyond the overtly and covertly contesting States. The shared fate of the two is undoubtedly uncertain in the ongoing scrimmage. The trials and tribulations faced by humanity might not end soon as each life on the globe is affected by it in some way or the other to which ‘we the peoples of United Nations’ regulate in the manifestations of United Nations Charter.

The laws of war have paced together with the laws on outlawing of war as such, in the modern world order led by the United Nations organization (UNO). The First and most important law that outlawed war in the twentieth century was agreed in 1928 which is generally addressed in common parlance as Pact of Paris. The world has seen number of wars even after this Pact and more so unforgettable and horrendous WW II and has always remained in the cusp of so-called wars of the third kind after the formation of UNO and the assimilation of Paris principles within it. The development of numerous riding instruments of international law prior to World War II was chequered although international law encompasses them all in its ocean now.

After the implementation of Geneva Conventions of 1949 and their subsequent Protocols, wars have developed a code of conduct that mustn’t least sought and has been rightly observed by all warring States in the international community as of today. So much so that any warring State’s alleged violation of any of the principles contained in them, it stood in defense of them, nonchalantly. There is hardly any independent Treaty that came into existence going beyond the scope of Geneva Conventions and their protocols concerning the code of conduct of hostile powers.

Though numerous other laws and codes exist and some of them known in their local names, yet their informed redundancy is out here as those provisions in some way or the other are contained in the frame and formulations of Geneva Conventions and their Protocols. Amongst the weaponry used in these wars’ chemical, biological and nuclear weapons are the only weapons incapable of distinguishing civilians and armed soldiers. Among them, all of them are regulated by both customary and conventional laws; however, certain other weapons having same traumatic feature in their incapability to discriminate and distinguish are not so regulated as the former. Amongst these come the cluster munitions. To regulate these weapons again, a multilateral Treaty (Convention) came into existence in the first decade of 21st century. This Dublin Convention on Cluster Munitions (CCM) of 2008, has acquired universality too, after having nearly 124 Signatories (112 Parties) to it and inter alia many of the covertly operating NATO States such as Germany, United Kingdom and France are also Party to it.

CCM prohibits all kinds of use including transfer, production, and stockpiling of these weapons. It is seated on different provisions contained in the Geneva Conventions and their Protocols. However, both the United States (US) and Russia are not signatory to it (CCM) but have a customary law obligation which both recognize in their persistence of denial in transfer or use, respectively. It is important to note here that India too is not a signatory to CCM, but it recognizes the humanitarian concerns attached to this Treaty and thus echoing in the customary fervour of the international norm.

It is to note here that cluster munitions experts say foray explosive submunitions or bomblets which possess no capability to discriminate. In the ongoing praxis of war, it is argued by some of the commentators on the war crimes that the weapons supplied by the United States cannot be categorized among the cluster munitions. Nevertheless, the effect of these weapons is same as the cluster munition bombs: to cause insensate destruction without discrimination and incapability to distinguish civilians and armed soldiers. Both the Russian Federation and the US are categorically denying for the use or transfer of such weapons. There is wider circulation of news in different media outlets on OTT that Americans are claiming that the weapons dispatched to Ukraine are not in the category of cluster munitions foreclosed by the CCM. Russian federation too has denied of their use in the SMO in the past.

It is the sense of trepidation of international law in absolute terms that emanates in their denials. International law is the most lethal weapon in the hands of every nation of the world. There is no gainsaying that international law ultimately prevails, and the world has witnessed it after both the World Wars. And in future too, international law shall prevail. It is noteworthy to mention in the end that development of laws on war has never stopped although the war has been outlawed.

Dr. Mohit Kumar Gupta, Sr. Asst. Prof. of Law, UPES, Dehradun

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