Cluster Munitions As a Source of Legal Liability: Theories of Liability Under American Law

Cluster Munitions As a Source of Legal Liability: Theories of Liability Under American Law

By Terry Dunst

Goals and Organizational Framework

The goal of this paper is to review what, if any, legal redress a victim of a cluster bomb may have under the United States legal system. Its primarily focus is on civilians who are injured incidental to combat, often long after the battle has ended. There are several avenues one might consider, from traditional common law tort remedies to modern theories of product liability to “war crimes” under International Human Rights Law. And there are several possible categories of plaintiffs and defendants – that is, who gets sued by whom? An injured victim might pursue action against the active belligerents (individuals, soldiers or officers) who used the weapons that caused the injury, the government that authorized such use, and/or the corporation/contractor that manufactured the weapon.

Part One provides background into the nature of the problem of civilians injured by weapons of war, which is the motivational basis for this paper. Part Two will explore the doctrine of sovereign immunity and the concept of suing governments (and individuals acting on behalf of governments) under the U.S. legal and political systems. Part Three will explore the concept of suing the government contractors who manufacture weapons under traditional tort and product liability theories. And Part Four will explore the questions of jurisdiction mentioned above – who may sue whom, and where?

Part One: Background and Motivational Framework

The use of deadly weapons in warfare, obviously, has a long history. And the record of deliberately targeting and terrorizing civilian populations in order to hasten victory or punish the opposing side - and sometimes for no apparent reason at all - is similarly long.[1] It didn’t start with Genghis Khan’s “Mongol hoards” ruthless sweep across Europe and Asia, and it didn’t end with General Sherman’s March to the Sea during the American Civil War. When General Sherman burnt Atlanta, he justified his brand of all out warfare by answering his critics bluntly; “War is cruelty, and you cannot refine it.” “War is hell.”[2] And so it is. Even the Bible has accounts seeming to justify the intentional killing of civilians during warfare – Joshua not only fought the battle of Jericho, he killed everyone in the city, man, woman and child.

And they utterly destroyed all that was in the city, both man and woman, young and old . . . with the edge of the sword."[3]

"So the Lord was with Joshua; and his fame was noised throughout all the country.”[4]

Still, rationalizations for the harsh treatment of the entire opposing side, civilians as well as combatants, schools as well as factories, have often been met with concerns for humanity. And today, this rationalization of the killing of civilians, especially in its extreme manifestations, is not widely accepted, at least in theory, by legitimate governments nor, I suspect, by people in general. Whatever sympathy might have existed for the Chechen independence movement, the world was aghast when Chechen rebels assaulted a school. Florence Nightingales have arisen in the worst of conditions. The Red Cross has worked hard to stay decidedly neutral in conflicts and bring aid to all injured parties regardless of how or why they become victims of the warfare.[5] It seems attempts to bar or mitigate harm to civilians during war have a history as old as attempts to harm civilians.[6] Though originating in the western world, today most established nations worldwide recognize the Geneva Conventions on War as applicable to themselves, even if the actual horrors on the battlefield don’t always give reality to the “rules of war” found in the Geneva Conventions.[7]

One of the key concepts in all of this is respect for the safety of civilians. Although great debates may exist on exactly who is truly a non-combatant, the generally accepted injunction is that at a minimum, military decisions may not, deliberately with that specific purpose in mind, target civilian populations.[8] Despite the continuing arguments over the legitimacy of Sherman’s Burning of Atlanta or the carpet bombings of Dresden, the principle that civilians are not legitimate targets of war has been widely accepted, at least in theory, by almost every nation on Earth.[9] And the trend has been toward greater and greater protection of civilians. As Majors Turner and Norton noted, “The political pressure to protect civilians is growing rather than diminishing. . .”[10]

For example, many nations have joined the Ottawa Convention to ban landmines, a weapon that has a devastating impact on civilian populations compared to its (at least strongly argued) limited military usefulness.[11] On the other hand, the statistics of the horrors of modern war reflect an appalling upward trend in the number of civilian deaths during warfare. As Judge George Aldrich has noted, “At the end of the nineteenth century, the overwhelming percentage of those killed or wounded in war were military personnel. Toward the end of the twentieth century, the great majority of persons killed or injured in most international armed conflicts have been civilian non-combatants.”[12] A primary reason for this increase is advancing technology and with it, “resulting military advances” making weapons more dangerous and less discriminating.[13] When one had to kill with a sword, unintentional “collateral damage” was much less likely. When one’s target is miles away and one’s weapon has great potency, unintentional “collateral damage” is almost unavoidable.

So, in increasing numbers, civilians are maimed and killed in warfare. Sometimes this is deliberate, but most often it is a by product of a military action which has, at least arguably, some military objective. The harsh reality, put bluntly by U.S. Air Force Judge Advocate Major Karen L. Douglas, is that “The Law of Armed Conflict (LOAC) protects non-combatant civilians from being targeted as objects of attack (though they can be lawfully killed as "collateral damage").” [14]

Cluster Bombs

One weapon in the military arsenals of the world, and indeed in current use by major military powers, is commonly referred to as a “cluster bomb.” These are sometimes referred to as “cluster munitions,” and cluster munitions can vary quite a bit in their technical design and in their potential for the damage they can do.[15] Nevertheless, a generic description that applies fairly accurately to all munitions commonly called cluster bombs can be given. A cluster bomb differs from the more common notion of a “traditional” or unitary bomb in one very important way. The unitary bomb, no matter its potency, has a single point of impact and explosion. A cluster bomb, on the other hand, is essentially a bomb delivery system that spreads a number of smaller “bomblets” over a broad range. Cluster bombs are typically delivered either by being dropped from an airplane or by means of a ground based field weapon (e.g. a cannon).

When cluster bombs do what they are designed to do, it is argued by governments and military strategists that they are a legitimate weapon of high military utility, and are in fact less likely to cause civilian harm than other unitary bombs and explosives.

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.[16]

Whether or not cluster bombs have legitimate military utility, they present a somewhat unique problem that arises outside of their immediate use in actual combat in that their deadly and destructive effect remains long after their military usefulness has ended. Cluster bombs can have a high dud rate. This means that when hundreds or thousands of bomblets are scattered over a military target, many of them do not explode as intended, but remain intact where they land. However the word “dud” may be somewhat misleading. These unexploded cluster bombs are usually not complete duds in that they are not disarmed, but instead remain highly explosive. Thus when later disturbed they may well detonate and cause unintended harm well after and outside the scope of their initial combat objective.[17]

Although military strategists argue hard that cluster bombs have important, legitimate military uses, a growing number of countries, commentators and humanitarian organizations have begun to seriously question their utility, especially when balanced against the “collateral damage” they do to civilian populations.[18] The problems are many, but might be summed up under the same sort of rationale that led to calls for a worldwide ban on the use on land mines (which has had support from the majority of the world’s nations with some notable exceptions such as the United States, Russia and China).[19] First they are indiscriminate – they kill whoever happens to get in their way, often long after the battle is over. Indeed often long after the war is over the carnage from cluster bombs continues. More than 30 years after they were used as weapons of war, civilians in Laos are still at risk from cluster bombs left over from the Viet Nam War.[20] Second, it is argued, they are disproportionately dangerous to civilian populations balanced against whatever, if any, military utility they may have.[21] This is perhaps especially true when they are used in cities and towns where the civilian population is more dense, thus there is more occasion for “collateral damage.” Finally, it is sometimes argued that their effectiveness in achieving a given military objective is less than that of other available weapons that are less dangerous to the civilian population, such as unitary bombs.[22]

The problem can be summed up thus: though a scattering of enemy soldiers may be the target, cluster bombs dropped on populated and even less populated areas have an indiscriminate effect, killing civilians and soldiers alike – indeed the soldiers are likely to be better protected against the attack. This has a disproportionate effect on the civilian population compared to any actual military advantage that might be gained. And the harmful effect on the civilian population will continue for many years after any military gains of attacking that village have been forgotten.

On the other hand, it is argued that this is an easy principle to state in the abstract, but harder to carry out in the heat of battle. It may be easy in hindsight to find examples from war where there seems no question that the harm done to civilians by this or that act seems out of proportion to a legitimate use of military force. This difficulty was pointed out in the United Nations International Criminal Tribunal for the Former Yugoslavia in its final report, where it found no grounds for commencing an investigation into (much less taking any action against) NATO’s use of cluster bombs in its bombing campaign of Serbian forces in 1999.

It is relatively simple to state that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral effects. For example, bombing a refugee camp is obviously prohibited if its only military significance is that people in the camp are knitting socks for soldiers. Conversely, an air strike on an ammunition dump should not be prohibited merely because a farmer is plowing a field in the area. Unfortunately, most applications of the principle of proportionality are not quite so clear cut. It is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values. One cannot easily assess the value of innocent human lives as opposed to capturing a particular military objective.[23]

“[F]rom the earliest times war has existed, and war confers rights in which all have acquiesced.”[24] So faced with the fact of war, and the fact that the nations of the world, for better or for worse, accept the legitimacy of warfare’s “collateral damage” causing grave injuries and death to civilians and property, what, if any redress exists for those civilian victims?

Part Two: Suits Against the Government - Sovereign Immunity

Sovereign immunity is a “government's immunity from being sued in its own courts without its consent.”[25] This doctrine apparently stems from the concept that the “King can do no wrong.”[26] Whether or not a king can do no wrong, it is clear that even a king may consent to suit. “In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.”[27] Although at least arguably applicable in a monarchy[28], sovereign immunity has long applied just as forcefully in the United States.[29] As Justice Holmes put it, “A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.”[30] Though the wisdom of Sovereign Immunity’s applicability in a republic can be debated, the doctrine is alive and well in the United States.[31] So the question becomes, has the government consented to be sued? The answer is a clear sometimes.

Sovereign Immunity Under U.S. Law

The United States Congress passed the Federal Tort Claims Act in 1948 making the United States liable “to tort claims.”[32] However, this consent to be sued was a limited waiver of sovereign immunity, and has a number of expressed[33] and judicially created exceptions.[34] For the purposes of tort liability with regard to the use of cluster bombs in times of war, three of these expressed exceptions are particularly pertinent:

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. . .
(j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.

(k) Any claim arising in a foreign country.

28 U.S.C. § 2680

These exceptions are often commonly referred to as the “discretionary function” exception, the “combatant activities” exception and the “foreign country” exception.

The combatant exception appears fatal to almost all claims that might be made against the United States for any sort of military action during time of war. The war does not have to be an officially declared war, just a “period of military combat.”[35] And the United States does not need to be a belligerent in the conflict.[36] However, this exception may be narrower than it first appears. “Combatant activities” may be limited to actual engagement in combat, battlefield hostilities, actual fighting.[37] For example, if a cluster bomb is “delivered” during a military action, explodes as expected, and kills a number of civilians, the FTCA combatant activity exception would no doubt apply and the United States would thus not have consented to liability.

However, if the cluster bomb exploded unexpectedly because of faulty design or manufacture, it may not fall under the Combatant Activities exception, even if it happens during battle. At least one court has apparently approved of this distinction, at least in theory:

Thus, for example, if a civilian was injured on a battlefield by a grenade that exploded prematurely because the government's specifications for the grenade were improper, that civilian should not be barred by the combatant activities exception from suing. On the other hand, if a soldier was aiming a handgrenade at the enemy and, as a result of his negligence, a civilian was injured, the combatant activities exception would apply.[38]

The court’s analysis relied on the language of the FTCA exception – that the “claim” itself cannot arise out of combatant activities – that is, if the wrongful act that the claim relies on occurs during combat, the claim is precluded. On the other hand, if the wrongful act or omission occurs in the United States outside of combatant activities, (even though the injury occurs during combatant activities) that might seem to leave the door open to liability. In other words, it is quite possible that the negligence itself could arise from the design or manufacture of the weapon prior to and outside the scope of the battlefield where the injury occurred. If the claim arises out of negligence which occurred off of the battlefield and did “not arise out of combatant activities,” even though the injury occurred later, on the battlefield, this court seems to accept the potential validity of that claim. Although the litigation of In re Agent Orange has a long and interesting history, this particular interpretation of the FTCA’s combatant activities exception does not seem to have been expressly overruled. On the other hand, no clearly on point case has been resolved using this theory, and in Sosa[39] the Supreme Court expressly disfavored this reasoning for the foreign country exception to the FTCA (see discussion on the next page).