India has never been documented of using cluster munitions before and nor has Pakistan. But that does not stop the latter from spreading misinformation in a bid to internationalise the Kashmir issue and embarrass India internationally.
Pakistan Armed Forces, on 3rd August 2019, published a press release accusing Indian Army of using cluster ammunition, or bombs, through artillery along LOC deliberately targeting civilian population including women and children on the night of 30th/31st July. It further stated that it is a violation of the Geneva Convention and International Humanitarian Law (IHL). India rejected these allegations and reverted by stating it as a lie.
Use of cluster munitions is common despite its absolute ban and is used in several countries such as- Libya, Sudan, Syria, Ukraine, and Yemen, etc. and by almost twenty-three governments as per the report of 2015.
This article is limited to analyze the legality of the argument of alleged use of cluster munitions in international law and will not look into the truthfulness of it.
Prohibition on Cluster Bombs
International Humanitarian Law (IHL) is a branch of International Law that aims to limit the effect of armed conflict, which can be international or non-international in nature. The usages of certain weapons are prohibited under IHL due to its nature to cause superfluous injury or unnecessary suffering. Cluster munitions are one such weapon whose use has been prohibited expressly under the 2008 Convention on Cluster Munitions (CCM).
Along with this, the Convention also provides for its complete disarmament by prohibiting the Member States from developing, producing, otherwise acquiring, stockpiling, retaining or transferring to anyone, directly or indirectly, the cluster munitions.
Both India and Pakistan have not ratified or signed the CCM. The status of both the countries is quite the same in present time also as both have abstained from voting on the UN general assembly resolution 73/54 on Implementation of the Convention on Cluster Munitions in 2018.
It becomes impossible for Pakistan to make India liable for its alleged use of cluster munitions under this specific Convention.
‘Additional Protocol 1’ Applies to Both India and Pakistan
Certain principles of IHL have attained the status of customary principles of international law. Member States can’t deviate from it in any circumstances and even the countries who are not parties of any international treaties have to respect them.
Examples of such principles present under ‘Additional Protocol 1’ are- the rule of distinction, the rule prohibiting indiscriminate attacks, the rule of proportionality, and the rule of precautions. The use of cluster bombs is considered to be violative of these principles of IHL, as stated in the Preamble of CCM.
Neither India nor Pakistan is a party to Additional Protocol I to Geneva Convention, but since these principles have attained the status of customary international law, it will apply in these countries also.
However, the prohibition of the use of cluster munitions has not attained the status of customary international law yet which is reiterated by countries at several times. Countries can be held accountable for using cluster munitions through these principles of IHL indirectly as has been done earlier by several courts such as- Eritrea–Ethiopia Claims Commission in 2004 which held Eritrea liable for civilian deaths caused by cluster bombs.
‘Protocol V’ Does Not Establish Responsibility
Another way of preventing the use of cluster bombs is through Protocol on Explosive Remnants of War 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 (Protocol V).
This 2003 Protocol which came before the CCM, deals with unexploded and abandoned ordnance left over after fighting ends—so-called explosive remnants of war (ERW) which includes cluster bombs.
Both India and Pakistan consented to be bound by this Protocol. However, the Protocol doesn’t establish the responsibility of user State, but it does provide for state parties to clear, remove, and destroy ERW in areas under their jurisdiction and to assist other states in the same, if they wish to do so.
It also requires state parties to take steps to prevent the creation of ERW and protect civilians from existing ERW. The protocol don’t provide much for the immediate response against the use of cluster munitions but it does impose an obligation on Member State to repair the long-term impact of cluster munitions.
This becomes important especially for those which are not a party to CCM but have consented to be bound by this Protocol.
Even if India Used Cluster Bombs, No Legal Remedy Available to Pakistan Yet
However, these two alternate ways for approaching countries for the use of prohibited cluster bombs cannot be made applicable to India and Pakistan. Neither country is a party to Rome Statute of 1998 which provides jurisdiction for war crimes committed by its member States. Since none of them is a party, no case can be brought before International Criminal Court, and it becomes difficult rather almost impossible to prosecute any Country without having the court’s jurisdiction over it.
Even if it turns out to be true that India has used cluster munitions and the act is prohibited under IHL, particularly CCM, India may probably escape from any responsibilities.
To reiterate, the rule of prohibition on use of cluster bombs has not yet achieved the status of customary international law which makes it impossible to be applicable on India.
(Nidhi Singh holds a Masters degree in International Law from South Asian University, New Delhi. This is an opinion piece and the views expressed above are the author’s own. The Quintneither endorses nor is responsible for the same.)
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