Convention on Cluster Munitions was adopted in Dublin, May 2008, which prohibits the use of cluster bombs. It entered into force on August 1, 2010. Currently the resolution was signed by 108 states: 14 states have joined the signatory, but haven’t ratified it until now. States who are major developers, producers and owners of cluster munitions, such as Brazil, Israel, India, China, Pakistan, Russia and the United States haven’t acceded to the convention.

Based on the Article 2 Paragraph 2 of the Convention on Cluster Munitions, “cluster munition” means a conventional munition, which is designed to disperse or release explosive submunition, each weighing about 20kg and includes smaller explosive submunitions.

According to the Paragraph 1 of the convention, state parties of the convention are obliged “never under any circumstances” to:

a/ use cluster munitions,

b/ develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly cluster munitions.

Participants of the convention are obliged to destroy their stockpiles of cluster munitions within 8 years, and to completely take those munitions out of the country within 10 years.

Paragraph 6 of Article 3 notes: “Notwithstanding the provisions of Article 1 of this convention, the retention and acquisition of a limited number of cluster munitions and explosive submunitions for the development of and training in cluster munition and explosive submunition detection, clearance or destruction techniques, or for the development of cluster munition counter-measures are allowed”.

According to the report of the Russian Foreign Ministry, the prohibition under the convention does not apply to the full use of cluster munitions. In particular, cluster bombs, equipped with ten or less submunitions, if each weighing more than 4 kg, as well as ones designed to engage a single target and equipped with electronic self-deactivation mechanisms, are allowed.

In December 2008, during the signing of the Convention on cluster munitions, the Russian Foreign Ministry announced that Russia cannot abandon the use of cluster munitions, but is ready to contribute to solving the problems associated with the negative consequences of the use of this type of weapon. “We proceed from the fact that cluster munitions are a legal type of weapon, which is not prohibited by international humanitarian law and plays a significant role in the defense interests of Russia”. Russian Foreign Ministry also indicated that despite the declared ban of this type of weapon, the convention however allows the use of the so-called “high-tech” cluster bombs, which are under development or have already been produced in leading countries. “In addition, this is done under the pretext of the potential “lower humanitarian danger” from this ammunition. We think that Moscow’s position on this issue is conditioned by geopolitical and regional conflicts with Washington, which also isn’t a signatory to the convention”.

In fact, a number of states do not accede to this convention, as the value of using the munition prohibited in the hostilities is high. Second, by acceding to the convention, some countries will be deprived of the production and supply of banned munitions. The use of cluster (phosphorus) munitions in various conflicts reaffirms that there actually is a black-market for the banned munitions.

There are no real mechanisms to control the registration of national stockpiles of prohibited munitions both in the acceding and non-acceding countries to the convention. Of course, by acceding to a convention, states are committed to report to the national stockpiles of cluster as well as phosphorus armory, which raises additional legal and political problems.   

Actually, international human rights organizations and institutions on the use of banned munitions are usually limited to only condemnation by statements: evidence of the use of banned munitions remains within the framework of the fact-finding mission.

Cluster munitions have been used in various conflicts, including the last decades of the 20^th century. According to Human Rights Watch, the Air Forces of the United States, Great Britain and France dropped 60-80 thous. cluster bombs, during the Gulf War in 1991.  According to the US Congressional Research Service, the Pentagon dropped 1200 cluster bombs, which contained about 248,000 submunitions in Afghanistan between 2001-2002. During the war in Lebanon in 2006, Israel used over a few thousand cluster munitions. In 2008, Human Rights Watch accused Georgia and Russia of using cluster munitions during the conflict in South Ossetia, however Russia rejected the accusations.

It should be noted that cluster bombs contain hundreds of submunitions, which spread over a large distance during when the main projectile explodes. According to UN experts, about 40 % of submunitions do not explode immediately, thus turning into anti-personnel mines for civilians. In 2014, Russian Defense Ministry published data on the use of cluster and phosphorus munitions by Ukrainian authorities against civilians in the South Eastern regions of the country. In 2016, Human Rights Watch accused Russia of using cluster bombs in Syria.

Besides cluster munitions, the use of phosphorus munitions is also banned, which is again defined by the UN and Geneva Convention. The UN Convention on Cluster Munition, Geneva Conventions restrict the right to choose the methods and means of warfare by prohibiting the use of banned weapons, calling them deadly. These weapons have indiscriminate effect and endanger life and health of the civilian population, cause additional damage and suffering. According to some data, in 2004, the Pentagon used phosphorus munitions during the hostilities in Iraq. This banned munition was used by Israel in Lebanon during the operations against the Hezbollah in 2006.

In 2009, the UN Human Rights Council commissions, human rights organizations Amnesty International and Human Rights Watch accused Israel of using phosphorus munitions in densely populated areas in the Gaza Strip during Operation Cast Lead. The Israeli Foreign Ministry issued a statement that the army had used white phosphorus-containing smoke munitions. According to Tel Aviv, they are permitted under international law when used against military targets. It should also be noted that various types of weapons carry phosphorus munition: missiles, artillery, air force and so on.

On October 7, Switzerland, as the President of the Convention on Cluster Munition, issued a statement about an alleged use of cluster munitions in Nagorno-Karabakh conflict zone. The statement generally noted: “Switzerland, as the President of the Convention on Cluster Munitions (CCM), is deeply concerned about reports on the alleged use of cluster munitions in the conflict in Nagorno-Karabakh. Switzerland calls on parties to fully respect the international humanitarian law and refrain from using cluster munitions, as they are indiscriminate and have a disproportionate impact on civilians and civilian objects. Switzerland regrets that 10 years after the ratification of the Convention, cluster munitions are still used. Concerned by their humanitarian impact, she condemns any use of cluster munitions, by any actor. Switzerland encourages all States, which have not yet done so to join the Convention”.

It should be noted that Azerbaijan and Armenia haven’t acceded to the Convention on the Cluster Munitions. However, not acceding to the convention does not apply that a state can use cluster munitions. The use of it is banned in all cases.

Early in October, the UN High Commissioner for Human Rights Michelle Bachelet called on both sides of the Nagorno-Karabakh conflict to uphold humanitarian law and refrain from harming civilians and infrastructures. She expressed a deep concern over reports of the use of cluster munitions during the hostilities in Nagorno-Karabakh: “The use of such munitions must be stopped immediately”. The UN High Commissioner called on Armenia and Azerbaijan to join more than 100 states, which ratified the Convention on cluster munitions.

Early in October, Amnesty International Organization affirmed that Israeli-made cluster munitions were found near the city of Stepanakert, which fell in residential areas and was used by Azerbaijani forces. According to Denis Krivosheev, Amnesty International’s acting Head of Eastern Europe and Central Asia, “The use of cluster bombs in any circumstances is banned under international humanitarian law, so the use to attack civilian areas is particularly dangerous and will only lead to further deaths and injuries”.

On October 22, Israeli Haaretz referred to the issue, according to which Israel used cluster bombs still during the 1973 Yom Kippur War and during the first Lebanese war in 1982. In a publication the two main military-industrial companies, Israel military Industries and Rafael advanced defense systems are engaged in the production of Israeli cluster munitions. Based on a number of reports, Israel has previously provided cluster munitions to the United States, Germany, India, Romania, Switzerland, Turkey, Great Britain, Denmark, Norway and others. According to some reports, however, the biggest addressee of the foreign market for the sale of cluster munitions produced by Israel military Industries is Azerbaijan. In addition, the majority of that supplies, if not all, were implemented before the Convention on Cluster Munitions’ entry into force.

On October 23, Human Rights Watch published a report, according to which Azerbaijan continually used widely banned cluster munitions in residential areas of Nagorno-Karabakh during the hostilities. During an on-site investigation in Nagorno-Karabakh in October 2020, Human Rights Watch documented four incidents in which Azerbaijan used cluster munitions: “The continued use of cluster munitions, particularly in populated areas, shows flagrant disregard for the safety of civilians. Cluster munitions should never be used by anyone under any circumstance, due to the foreseeable and unacceptable harm to civilians”.

Throughout October, HRW specialists in Nagorno-Karabakh studied the effects of attacks by cluster munitions and bombings against Stepanakert and Hadrut, the remains of exploded weapons, photos and videos. The organization also observed the remnants of LAR-160 rockets, scores of the distinctive impacts of the M095 submunitions, its pink-colored stabilization ribbons and submunition fragments. Numerous buildings, private business and markets had varying degrees of damage from the attack.

Source: https://www.hrw.org/hy/news/2020/10/23/37683
Stepanakert․ Mo95 dual-purpose submunition impact on the ground along with its pink-colored ribbon

Recently Azerbaijan announced that the Armenian side used cluster munitions in the city of Barda, Azerbaijan. The Chairman of the Standing Committee on State and Legal Affairs of the National Assembly Valdimir Vardanyan noted that “Armenia has never been considered a country that has accumulated cluster munitions. Turkey has a primary role in the production of cluster munitions in our region, from where Azerbaijan receives its weapons”. 

According to the report of the Human Rights Defender’s Office of Armenia, on October 2 “Azerbaijan twice fired rockets at the city of Hadrut in Artsakh with the Smerch volley fire jet system. The civilian population was injured as a result of the rocket-propelled grenade launcher. Such attacks are an inadmissible military aggression against the civilian population of Artsakh. Both the Geneva Conventions and the UN Convention on Cluster Munitions clearly limit the right to choose the methods and means of warfare by not allowing the use of such dangerous weapons. International legal instruments and customary international humanitarian law prohibits the use of cluster munitions as inhuman. The mentioned munitions have an indiscriminate effect and endanger the lives and health of civilians, causing damages and suffering. The Human Rights Defender appeals to the interested international organizations, to all international human rights organizations to respond, to make clear, unequivocal calls for an end to such aggressive and inhumane behavior by the Azerbaijani side. The use of such weapons already crosses all red lines and can lead to unpredictable consequences. The use of cluster munitions is not only unacceptable in terms of immediate damage, but also seriously dangerous for the health of future generations”.

According to the Artsakh Human Rights Defender’s Office, on October 2, Azerbaijani Armed Forces deliberately targeted the civilian facilities and infrastructures of Stepanakert. Prior to the incident, Azerbaijan had used Smerch rocket launchers on civilian targets in the town of Hadrut, as a result of which 3 people were injured. This wasn’t the first case of the use of cluster munitions against civilian objects, which is also a gross violation of international humanitarian law.

In recent days, Azerbaijani Armed Forces have repeatedly used phosphorus munitions, which is supported by solid evidence. Ministry of Defense of Artsakh reported that in the Nagorno-Karabakh conflict zone, the enemy forces used phosphorus weapons containing elements of chemical weapons, which is another gross violation of international humanitarian law, norms and principles of customary law, violations of the Geneva Conventions, as well as the provisions of relevant UN conventions and documents. In pursuit of its goal, it also has the task of causing massive forest fires and creating real dangers of environmental disaster in the area.

On November 2, Human Rights Defender’s Office of Armenia announced that “Azerbaijani Armed Forces used weapons of mass destruction containing chemical elements in Artsakh. Data about phosphorus-containing arms was published. It was noted in a number of publications with the following been noted:

1) a weapon of mass destruction is used,

2) it contains chemical elements,

3) the weapon is used in the forests and is causing massive fires and devastations.

Such weapon use and in such conditions is prohibited by international law”.