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?
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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
For a review of “Abuse of Civilians and Land” during war dating back to 1000 B.C., see Vietnam
Ass'n for Victims of Agent Orange/Dioxin v. Dow Chemical Co. (In re Agent Orange Prod. Liab.
Litig.), 373 F. Supp. 2d 7, 100 (E.D.N.Y. 2005).
2
For an interesting treatment of Sherman’s burning of Atlanta and march to the sea in relation to
concepts of mercy and treatment of civilians during wartime, see, Calley v. Callaway, 382 F.
Supp. 650, 711 (D. Ga. 1974)
3
Joshua 6:21 (King James Version).
4
Id at 6:27.
1
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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
5
See generally the International Red Cross: http://www.icrc.org/.
id at 102.
7
See States Party to the Geneva Conventions, noting over 190 nations have adhered to the Geneva
Conventions, “almost every country in the world.” http://www.genevaconventions.org/; For an
excellent overview and details on the Geneva Conventions, see the following web site published
by the International Committee of the Red Cross:
http://www.icrc.org/Web/Eng/siteeng0.nsf/html/genevaconventions
8
See for example, Major Lisa L. Turner and Major Lynn G. Norton, Civilians at the Tip of the
Spear, noting that in most instances the difference is clear, but the line between the two groups is
blurry. 51 A.F. L. Rev. 1, 25 (2001).
9
See, for example, Major Joshua E. Kastenberg, The Use of Conventional International Law in
Combating Terrorism, 55 A.F. L. Rev. 87, 105 (2004) (“for a number of years the international
community has embraced the principle that the direct targeting of civilians is a clear violation of
the laws of war”).
6
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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
10
See supra note 8 at 23.
See International Campaign To Ban Landmines, http://www.icbl.org/treaty/members.
12
George H. Aldrich, The Laws of War on Land, 94 A.J.I.L. 42, 48 (2000). Judge Aldrich serves
on the Iran-United States Claims Tribunal in The Hague.
13
Major Michael E. Guillory, Civilianizing the Force: Is the United States Crossing the Rubicon
n1?, 51 A.F. L. Rev. 111, 133 (2001).
11
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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
14
Major Karen L. Douglas, Contractors Accompanying The Force: Empowering Commanders
With Emergency Change Authority, 55 A.F. L. Rev. 127 (2004).
15
For a more detailed description of cluster bombs see: Major Thomas J. Herthel, On the
Chopping Block: Cluster Munitions and the Law of War, 51 A.F. L. Rev. 229, 234 (2001).
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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
16
Major Thomas J. Herthel, On the Chopping Block: Cluster Munitions and the Law of War, 51
A.F. L. Rev. 229, 269 (2001).
17
See generally: Virgil Wiebe, Footprints of Death: Cluster Bombs as Indiscriminate Weapons
under International Humanitarian Law, 22 Mich. J. Int'l L. 85 (2000); Carmel Capati, The tragedy
of Cluster Bombs in Laos: an Argument for Inclusion in the Proposed International Ban on
Landmines, 16 Wis. Int'l L.J. 227 (1997). Also see generally Human Rights Watch,
http://www.hrw.org/backgrounder/arms/cluster-bck1031.htm.
18
See generally: Human Rights Watch, http://www.hrw.org/backgrounder/arms/clusterbck1031.htm; The Cluster Munitions Coalition, http://www.cmc-international.org/; The
Mennonite Central Committee reports on cluster bombs, http://www.mcc.org/clusterbomb.
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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
19
For information on the worldwide effort to ban landmines, including which nations have signed
on and which have not, see the International Campaign to Ban Landmines website.
http://www.icbl.org/.
20
Thomas Michael McDonnell, Cluster Bombs over Kosovo: A Violation of International Law?,
44 Ariz. L. Rev. 31, 87-88 (2002); see also Three Bombs a Week: The Story of Nanou Village,
Report by the Mennonite Central Committee,
http://www.mcc.org/clusterbomb/laos-threebombsaweek.html.
21
"Loss of life and damage to property must not be out of proportion to the military advantage to
be gained." U.S. DEP'T OF THE ARMY, FIELD MANUAL NO. 27-10, THE LAW OF LAND
WARFARE P41 (1956), quoted by Vietnam Ass'n for Victims of Agent Orange/Dioxin v. Dow
Chemical Co. (In re Agent Orange Prod. Liab. Litig.), 373 F. Supp. 2d 7, 136 (E.D.N.Y. 2005).
22
For a counter argument, see Major Thomas J. Herthel, On the Chopping Block: Cluster
Munitions and the Law of War, 51 A.F. L. Rev. 229, 259 (2001) (“the use of cluster munitions
may actually reduce collateral damage”).
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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?
23
24
Available at: http://www.un.org/icty/pressreal/nato061300.htm#IVA64d;
The Antelope, 23 U.S. 66, 120-122 (1825).
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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 monarchy28, 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.
25
Black's Law Dictionary (8th ed. 2004).
Gregory C. Sisk, Litigation With The Federal Government, pg 104, Foundation Press, NY
(2000).
27
Marbury v. Madison, 5 U.S. 137, 163 (1803).
28
See generally Kenneth Culp Davis, Sovereign Immunity Must Go, 22 Admin Law Review 383
(1970) for an argument that the doctrine of sovereign immunity “rests on history, and the history
rests on medievalisms about monarchs” that are themselves not necessarily accurate.
29
United States v. Clarke, 33 U.S. 436, 444 (1834); see also U.S. v. Lee 106 U.S. 196, 204 (1882)
(“This proposition rests on the principle that the United States cannot be lawfully sued without its
consent in any case, and that no action can be maintained against any individual without such
consent, where the judgment must depend on the right of the United States to property held by
such persons as officers or agents for the government”).
30
Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907).
31
See for example: Orff v. United States, 125 S. Ct. 2606, 2610 (2005) (sovereign immunity must
be strictly construed in favor of the sovereign); Clinton v. Jones, 520 U.S. 681, 697 (1997) (“we
have adopted”. . .”doctrine of sovereign immunity”); See also Orsay v. United States DOJ, 289
F.3d 1125, 1133 (9th Cir. 2002) “A waiver of the Federal Government's sovereign immunity must
be unequivocally expressed in statutory text. Moreover, any ambiguities in the scope of the
government's waiver must be construed in favor of immunity. (internal quotations and cites
omitted).
26
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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 expressed33 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
32
FTCA 28 U.S.C. § 2674 et al.
28 U.S.C. § 2680
34
Feres v. U.S. 340 U.S. 135, 71 S.Ct. 153 (1950).
35
Coffey v. Department of Defense, 518 F.Supp. 726, 727 (D.C.D.C., 1981).
36
Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992) (Military action by U.S. Navy ship
shooting down civilian Iranian airliner during Iraqi-Iran war falls under exception to FTCA).
33
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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
37
In re Agent Orange Product Liability Litigation, 580 F.Supp. 1242, 1255 (E.D.N.Y. 1984); see
also Skeels v. U.S. 72 F.Supp. 372, *374 (W.D.La.1947).
38
. In re Agent Orange Product Liability Litigation, 580 F.Supp. 1242, 1255 (E.D.N.Y. 1984).
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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 Sosa39 the Supreme Court
expressly disfavored this reasoning for the foreign country exception to the FTCA (see
discussion on the next page).
Even if the negligent act or omission occurred within the United States and not
during combatant activities, the “discretionary function” exception will present an almost
insurmountable hurdle. The FTCA, and courts have made it clear that when the
government is acting within its discretionary role, there is no waiver of sovereign
immunity. For example, governmental and military decisions regarding the design of
bombs and other military ordnance falls squarely within the discretionary function, as
does the decision on how best to transport them.40 On the other hand, suits involving
negligence in accidental explosions have met with mixed results, and would be very fact
dependant on whether “discretion,” a somewhat elusive concept, was involved.41
In any event, this opening to tort liability would be only for claims clearly
“arising” within the United States. And as mentioned earlier in the discussion of the
combatant activities exception, a somewhat analogous line of reasoning has been
39
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
Creek Nation Indian Housing Authority v. United States, 905 F.2d 312, 313 (10th Cir. 1990)
citing Boyle v. United Technologies Corp., 487 U.S. 500, 511 (1988) (“appropriate design for
military equipment to be used by our Armed Forces is assuredly a discretionary function”).
41
For example, see McMichael v. United States, 856 F.2d 1026 (8th Cir. 1988) (plaintiff
successfully brought suit against U.S. for negligence in failing to enforce safety standards at plant
where ordnance exploded); but for an opposite result with a similar fact pattern, see Fortney v.
United States, 912 F.2d 722 (4th Cir. 1990).
40
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attempted under the foreign country exception; “(k) Any claim arising in a foreign
country.” Prior to 2004, some courts had developed a line of reasoning that while the
“claim” must not arise in a foreign country, the claim arises where the act or omission
occurred, not where the claim has its “operative effect” – in other words, not necessarily
where the harm occurred. Courts cited the reasoning of the Supreme Court’s decision in
Richards to extend this theory to foreign countries as well. In Richards, a plane crash in
Missouri allegedly occurred due to negligent maintenance in Oklahoma. The Supreme
Court said that Oklahoma law would apply – since that was where the negligence took
place, not where the negligence had its “operative effect.” This holding was then applied
to a plane crash in Paris where the alleged negligence occurred in the United States
though the operative effect took place in France.42
However this approach was expressly overruled as to foreign countries by the
Supreme Court in Sosa v Alvarez-Machain when it held that “the FTCA's foreign country
exception bars all claims based on any injury suffered in a foreign country, regardless of
where the tortious act or omission occurred.” 43 The Sosa Court was unequivocal, this
precise holding was upheld by seven of the justices, and there was no dissent.44 The
Court made very clear that the FTCA was not meant to apply to torts which took place in
42
Richards v. United States, 369 U.S. 1, 10 (1962); see also In re Paris Air Crash, 399 F. Supp.
732, 737 (D. Cal. 1975). See also Sami v. United States, 617 F.2d 755 (D.C. Cir. 1979) (foreign
country exception did not apply to false arrest claim when arrest took place in Germany by
German police at the request of the United States when all alleged negligent acts of U.S. officials
took place in the United States).
43
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
44
This expressed holding was upheld by 7 of the justices. Justice Ginsburg, with whom Justice
Breyer joined, wrote a concurrence wherein she felt a "last significant act or omission" rule should
apply. Justice Ginsburg’s rule may be slightly weaker than the court’s absolute prohibition on any
tort where any injury happened in a foreign country, though would still have precluded Sosa’s
claim since the significant act occurred in Mexico, though the instigation, financing, planning,
decision making and authorization all occurred in the United States. It seems likely that this court
would also disallow the defective hand grenade hypothetical given by the In Re Agent Orange
Litigation court, supra note 34.
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a foreign country, whether some part thereof might have been logically traceable to an act
or omission occurring in the United States. The “exception” would “swallow the rule”
according to the court (and the concurrence), as there would almost always be some
aspect of any tort claim against the United States that was traceable to the United States.
Although the Supreme Court has not been faced with the specific question nor
expressly ruled on the combatant activities exception, it seems almost certain that they
would apply the Sosa v Alvarez-Machain reasoning, not the In Re Paris Air Crash
reasoning. Tort claims arising out of combatant activities would likely fail under both the
foreign country exception and the combatant activities exception, and in many situations,
the discretionary function exception as well. This would include pretty much any use of
weaponry during combatant activities and/or occurring in foreign countries. Thus even
long after the battle had ended, as is the case with landmines, cluster bombs, and other
unexploded remnants of war, if the injury occurs in a foreign country the FTCA does not
waive sovereign immunity and a tort suit against the United States arising out of an injury
from a cluster bomb would probably be dismissed for lack of jurisdiction at the outset.
One incident involving cluster bombs and injuries raises interesting questions of
possible negligence liability against the United States. During the Kosovo conflict,
NATO planes dumped unused cluster bombs in the Adriatic Sea. Unaware (and
unwarned) of the danger, damage to Italian fishing vessels and injuries to fishermen
occurred when cluster bombs were caught in fishing nets. Further harm occurred from a
loss of revenue due to fishing bans placed on some areas.45 Since the pilots were not
45
See for example the International Committee for the Red Cross Report, Cluster Bombs and
Landmines in Kosovo: Explosive Remnants of War, page 14 (2001) available at:
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/p0780. See also Thomas Michael McDonnell,
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actually engaged in combat but were returning from missions, an argument might be
made that this action did not arise in combatant activities, and since the unused bombs
were dumped in international waters, an argument might be made that neither the
combatant nor the foreign country exception would apply. However, these arguments do
not seem promising.
First, the clear language of the combatant activities exception includes the term
“time of war” which has been interpreted to mean “periods of significant armed
conflict.”46 Even a single air strike against a military target in a foreign country
occurring outside of any clearly defined “war” has been held to fall under the combatant
activities exception (as well as the foreign country exception).47 Although a district court
allowed a claim arising from an accidental air strike in the Gulf of Mexico during
military training (WW II), the court made clear this was not a combat mission.48 And
combatant activities would also “include not only physical violence, but activities both
necessary to and in direct connection with actual hostilities” such as “supplying
ammunition to fighting vessels in a combat area.”49 A military aircraft jettisoning unused
cluster bombs while on a combat mission during a period of armed conflict is almost
certainly still engaged in combatant activities for purposes of the exception.
Next, although international waters may not be a “foreign country,” they are also
clearly not part of the United States. So the question becomes, does the foreign country
Cluster Bombs over Kosovo: A Violation of International Law? 44 Ariz. L. Rev. 31, 58 (2002).
See also Rachel Stohl, Cluster Bombs Leave a Lasting Legacy available at:
http://www.cdi.org/friendlyversion/printversion.cfm?documentID=523.
46
Koohi v. United States, 976 F.2d 1328, 1334 (9th Cir. 1992).
47
Saltany v. Reagan, 702 F. Supp. 319, 320 (D.D.C. 1988) (suits against United States arising
from air strike against Libya in 1986 dismissed).
48
Skeels v. United States, 72 F. Supp. 372 (D. La. 1947).
49
Johnson v. United States, 170 F.2d 767, 770 (9th Cir. 1948).
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exception apply to non U.S. territory that is also not the territory of any other sovereign
nation? A somewhat analogous question was presented in Smith v. United States, when a
contractor working for the government was killed in Antarctica at a U.S. base when he
fell into a hidden crevice while walking across a snow field. His family brought a
wrongful death action against the United States for a failure to warn (among other
theories). In the end, the suit was dismissed by the Supreme Court, when they held that
Antarctica, a place of no international sovereignty, was included in the foreign country
exception to the FTCA.50 Although the holding expressly applied only to Antarctica, the
Court, in dicta, referred to the foreign country exception as including a “presumption
against extraterritorial application” rather than being narrowly construed to only include
sovereign foreign territory. It seems likely that a U.S. Court would follow the Smith
presumption against waiving sovereign immunity for torts arising out of injuries caused
when fishermen accidentally “catch” jettisoned cluster bombs in their nets in
international waters; but the door may be open a crack.51 If the “catch” and injury
occurred in Italian or other recognized waters under sovereign control, under Sosa, the
exception would no doubt apply.
Finally, the discretionary function exception would almost certainly apply. The
decision to jettison the bombs was made for pilot safety,52 and the dumping site was
50
Smith v. United States, 507 U.S. 197 (1993).
This may also raise issues of maritime law and there is an exception to the FTCA for torts
“relating to claims or suits in admiralty.” Although outside the scope of this paper, an
investigation of maritime law may be useful. 28 USCS § 2680 (d). For example, if the planes
were operating from an aircraft carrier rather than from land bases, the admiralty exception would
likely apply. See Anderson v. United States, 317 F.3d 1235, 1238 (11th Cir. 2003) (claim for
injuries caused by bombing miscue on Vieques Island, Puerto Rico, dismissed under “admiralty”
exception to FTCA.
52
See id. noting that this occurred “when the planes were low on fuel or having mechanical
difficulties.” See also NATO Pledges To Retrieve Jettisoned Bombs, 22 Int'l Env't Rep. (BNA)
51
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deliberately chosen for its seemingly safe location.53 This is exactly the sort of
discretionary weighing that courts tend to include within the government’s discretionary
exception, and as noted earlier, especially as regards military decisions.54 It seems highly
likely that a court would find a military decision to protect pilots’ lives by discarding
ordnance in an apparently safe location during a combat mission within the discretionary
function exception to the FTCA, thus sovereign immunity would apply. Courts are
extremely reluctant to question military decisions in general,55 and especially those made
during combat. As the Supreme Court has noted:
It would be difficult to think of a clearer example of the type of governmental
action that was intended by the Constitution to be left to the political branches
directly responsible -- as the Judicial Branch is not -- to the electoral process.
Moreover, it is difficult to conceive of an area of governmental activity in which
the courts have less competence. The complex, subtle, and professional decisions
as to the composition, training, equipping, and control of a military force are
essentially professional military judgments, subject always to civilian control of
the Legislative and Executive Branches.56
One other avenue under which a plaintiff might bring suit against the United
States for liability falls under what is termed abnormally dangerous or ultra-hazardous
activity. The Restatement defines it as follows: “One who carries on an abnormally
dangerous activity is subject to liability for harm to the person, land or chattels of another
resulting from the activity, although he has exercised the utmost care to prevent the
464 (May 26, 1999) (“The pilots dumped the bombs because they malfunctioned when launched
and could explode when the jets landed.”).
53
See for example the International Campaign to Ban Landmines report at:
http://www.icbl.org/lm/2001/italy/.
54
Minns v. United States, 155 F.3d 445, 451 (4th Cir. 1998) (“when discretionary decisions are
ones of professional military discretion, they are due the courts' highest deference”).
55
Minns v. United States, 155 F.3d 445, 451 (4th Cir. 1998) (“professional military discretion”
decisions “due the courts' highest deference”).
56
Gilligan v. Morgan, 413 U.S. 1, 10 (1973).
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harm.”57 (This theory is discussed in more detail infra under the discussion of a
manufacturer’s potential liability). The Supreme Court has unequivocally held that
theories of strict liability and ultra-hazardous activity are barred by sovereign immunity.58
Thus strict liability or “abnormally dangerous activity” tort claims arising from the
government’s use of cluster bombs and other weapons of war would fail under this
theory, as well as under the military and foreign country exceptions to the FTCA.
There is one other exception to the FTCA waiver of tort liability that should be
mentioned. A service person would most likely not be able to sue under the FTCA for
injuries occurring from a cluster bomb under any theory, whether in combat or not. In
Feres, the Supreme Court held that the “Government is not liable under the Federal Tort
Claims Act for injuries to servicemen where the injuries arise out of or are in the course
of activity incident to service.”59 Courts have consistently and broadly applied what has
become known as the “Feres Doctrine.” Suits by military personnel are barred even if the
action occurred in a non-combat role, during peacetime, and even if the alleged negligent
act was taken by a civilian government employee. Nor can relatives of injured service
personnel bring suit under the FTCA.60 Feres also applies to members of foreign
military.61
In short, one cannot sue the U.S. Government in U.S. courts unless the U.S.
consents to be sued. It seems unlikely, especially in light of the ruling in Sosa regarding
the FTCA Foreign Country exception, that a suit against the U.S. Government based on
57
Restat 2d of Torts, § 519.
Laird v. Nelms, 406 U.S. 797, 802 (1972); see also Dalehite v. United States, 346 U.S. 15, 45
(1953) (“liability does not arise by virtue either of United States ownership of an "inherently
dangerous commodity" or property, or of engaging in an "extra-hazardous" activity”).
59
Feres v. U.S. 340 U.S. 135, 146 (1950).
60
U.S. v. Johnson, 481 U.S. 681 (1987).
61
Whitley v. United States, 170 F.3d 1061, 1075 (11th Cir. 1999).
58
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injury caused by cluster bombs used in military action would be successful, even if the
harm occurred long after the battle.
Part Three: Suits Against Manufacturers – Product Liability and
the Government Contractor Defense.
Cluster bombs are products made in factories by companies – and companies can
be sued under several tort theories of product liability. Although product liability claims
will normally rest on state tort law, and state law may vary, the fundamental principles
are similar. Generally, product liability lawsuits fall into three categories, manufacturing
defects, design defects, and failure to warn.62 A related theory of strict liability for
abnormally dangerous or ultra-hazardous activity/products also exists. Product liability
law is wide ranging, can be extremely complex, and an exhaustive discussion of it is
outside the scope of this paper. Further, product liability law is in flux, and the recent
and continuing trend seems to be toward limiting liability under tort law in general, and
for manufacturers in particular.63 With that caveat in mind, a brief overview of the three
categories will be helpful in understanding how a manufacturer of a cluster bomb might
be subject to liability under current product liability law.
Manufacturing defects are defects in the fabrication of the product – that is,
during the manufacturing process, the product is built with some defect that was not
intended. If this unintended defect can be proved to be the cause of injury, the
manufacturer may be held strictly liable; no wrongful act of bad faith on the part of the
manufacturer is needed – simply putting a defective product into the hands of users can
62
Restatement 3d of Torts: Products Liability, § 2 Categories of Product Defect
For a discussion of the general trend toward limiting liability under tort law, see generally Jay
M. Feinman, Unmaking and Remaking Tort Law, 5 J. High Tech. L. 61; See also David G. Owen,
Inherent Product Hazards, 93 Ky. L.J. 377 (2005).
63
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be enough – as long as there is injury caused by the manufacturing defect.64 For
example, if a cluster bomb came off of the assembly line with a fabrication flaw, such as
a crack the casing or a defective fuse, and an accidental explosion harmed a soldier or
civilian, that person might have a claim against that manufacturer. Apparently there is at
least some evidence that manufacturing defects account for at least some of the “duds.”65
Evidentiary problems of proving that a given cluster bomb had a specific manufacturing
defect would be considerable. Since some dud rate is considered “acceptable” under
government design specifications, and some failures to explode will have other causes
such as soft soil or incorrect deliver by the military, it would be very difficult to trace a
given manufacturing defect to a given injury.66 Still, evidentiary problems are not a “bar”
to suit. Thus a theory based on an identifiable manufacturing defect could give rise to
jurisdiction allowing a suit to go forward.
Design defects are defects in the design of the product – that is, the product was
fabricated correctly, but designed poorly. The restatement puts it this way: “A product is
defective in design when the foreseeable risks of harm posed by the product could have
been reduced or avoided by the adoption of a reasonable alternative design. . . and the
omission of the alternative design renders the product not reasonably safe.”67 In the case
of a cluster bomb, it might be argued that they are designed unsafe – that their design
64
Greene v. B.F. Goodrich Avionics Sys., 409 F.3d 784, 788 (6th Cir. 2005).
See for example Carmel Capati, The Tragedy of Cluster Bombs in Laos; An Argument for
Inclusion in the Proposed International Ban on Landmines, noting that “Military studies report
that defects in manufacturing, damage during delivery, or the failure of a fuse to function on
impact with certain surfaces account for the major reasons why so many cluster bombs did not
explode.” 16 Wis. Int'l L.J. 227, 245 (1997).
66
See for example Thomas Michael McDonnell, Cluster Bombs over Kosovo: A Violation of
International Law? 44 Ariz. L. Rev. 31, 53 (2002) noting a 5% dud rate claimed by the
manufacturer.
67
Restat 3d of Torts: Products Liability, § 2.
65
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causes an unusually high “dud” rate, which leads to numerous civilian injuries, and
further that they have a “toy like” appearance to the unwary.68 Furthermore, there are
clearly “reasonable alternative designs” as evidenced by government efforts to improve
the reliability of cluster bombs to decrease the number of duds, for example including
self destruct and self deactivating mechanisms.69 Thus a claim might be made that the
design of cluster bombs is inherently defective due to the predictably high dud rate
leading to foreseeable injuries to civilians, that they do not “look dangerous” and indeed
may look inviting to child, and that the manufacturer knew that there was a safer
alternative design. (However, see the section infra concerning the government contractor
defense which may well defeat this line of reasoning).
Failure to warn liability rests on the theory that there is a duty to warn reasonably
foreseeable users of all "latent dangers inherent in the product's use."70 But there is no
duty to warn of open and obvious dangers. "There is no duty to warn that 'a knife or an ax
will cut, a match will take fire, dynamite will explode, or a hammer may mash a
finger."71 In the case of cluster bombs, one might raise an argument that there is a duty to
warn civilians of the inherent dangers. (However, again, see the section infra concerning
the government contractor defense which may defeat this argument). However, a cluster
bomb that fails to explode when it should is not the same as a knife that cuts or dynamite
that explodes. Manufacturers surely know their product is dangerous and that duds
occur. Arguably then, a failure to warn civilians of the foreseeable likelihood of “duds”
being live and dangerous might give rise to liability under a failure to warn theory.
68
See McDonnell supra note 63, at 82.
See id. at 124
70
First Nat'l Bank & Trust Corp. v. Am. Eurocopter Corp., 378 F.3d 682, 690 (7th Cir. 2004).
71
Id. Quoting Prosser, Handbook of the Law of Torts 649 (4th ed. 1971).
69
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Finally, abnormally dangerous or ultra-hazardous activity liability concerns
products which are so dangerous that their introduction into the marketplace and their use
in the world create liability even if the manufacturer or actor take all foreseeable
precautions. The restatement puts it this way:
(1) One who carries on an abnormally dangerous activity is subject to liability for
harm to the person, land or chattels of another resulting from the activity,
although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which
makes the activity abnormally dangerous.
Restat 2d of Torts, § 519
By way of illustration, courts have long held that the storage of highly explosive
materials such as dynamite in densely populated areas puts those engaging in this practice
under risk of strict liability.72 On the other hand, the storage of explosives in uninhabited
areas where the risk of harm is considerably lower would probably not create strict
liability.73 With regard to guns, in a number of lawsuits, plaintiffs have attempted to
argue that gun manufacturers should be held strictly liable under a theory that the sale of
guns is an abnormally dangerous activity. Courts have almost universally rejected this
theory (see discussion below).
The Government Contractor Defense
It appears that there is no per se bar against product liability suits against
manufacturers of weapons – cluster bombs for example - used by the military. Indeed, as
mentioned above, litigation involving the use of “Agent Orange” during the Vietnam War
has been ongoing with high profile cases in court since at least 1985 and with decisions
coming as recently as 2005. If one could prove that the weapon was defective under one
72
73
Exner v. Sherman Power Const. Co., 54 F.2d 510 (2d Cir. 1931).
Henderson v. Sullivan, 159 F. 46 (6th Cir. 1908).
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of the above product liability theories, one could probably proceed to bring a claim in a
United States Federal Court. Even so, liability for government contractors will not be
treated quite the same as liability for products in general. When products are procured by
the government, the Government Contractor Defense, sometimes known as the Military
Contractor Defense may apply.74
The Government Contractor Defense presents a significant hurdle. For example,
in this most recent “Agent Orange” decision involving a suit by a group of Vietnamese
citizens, et al, the defendants Dow Chemical, et al, successfully used the government
contractor defense to have state law claims against them dismissed.75 Another recent suit
by U.S. Veterans failed on similar grounds.76
The government contractor defense established by the Supreme Court in Boyle
relies on a number of policy and legal foundations, but essentially it rests on the notion
that it is unfair for the government to order a contractor to make a given product in a
given way and then later allow lawsuits against that contractor for doing exactly what the
government told it to do. Boyle established a three part test to determine if the
government contractor defense is applicable:
Liability for design defects in military equipment cannot be imposed, pursuant to
state law, when (1) the United States approved reasonably precise specifications;
(2) the equipment conformed to those specifications; and (3) the supplier warned
the United States about the dangers in the use of the equipment that were known
to the supplier but not to the United States.77
74
Snell v. Bell Helicopter Textron, 107 F.3d 744, 746 (9th Cir. 1997).
75
Vietnam Ass'n for Victims of Agent Orange/Dioxin v. Dow Chemical Co. (In re Agent Orange
Prod. Liab. Litig.), 373 F. Supp. 2d 7, 17 (E.D.N.Y. 2005).
76
Isaacson v. Dow Chem. Co. (In re "Agent Orange" Prod. Liab. Litig.), 344 F. Supp. 2d 873
(E.D.N.Y. 2004)
77
Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988).
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With respect to manufacturing defects, in theory, the government contractor
defense may seem inapplicable. This is because an unintended defect coming out of the
fabrication of the product, by its nature, is very unlikely to have been “approved” by the
government. As one court put it, “[a] manufacturer's miscue in the manufacturing
process -- failure to conform to government design specifications -- cannot be insulated
from tort liability.”78
For example, if the government contracts for mortar shells, the government
approved the design of those mortar shells, and the manufacturer produces the mortar
shells according to that design, but some of those shells come out of the manufacturing
process with “cracks in the projectile body of the mortar shell and voids in the shell's
explosive filler,” the government contractor defense might not apply. 79 On the other
hand, this reasoning was implicitly rejected by a different court that decided that as long
as the government was involved in the decision making, “the government may direct that
certain time or cost-saving procedures be employed in the manufacturing of a missile,
making decisions in a tradeoff between risk and costs.”80 Thus it would seem that some
level of manufacturing miscue would be deemed acceptable, if the government was
aware of the tradeoff and the government, not the manufacturer, made the cost-saving
decision.
Courts have also noted that in times of combat, or for highly sophisticated
weaponry whose design and manufacturing process themselves are secret, manufacturing
defect claims will also be barred under the “preemptive effect of the government
78
Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242, 246 (5th Cir. 1990).
Mitchel, at 248.
80
Id at 31.
79
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contractor defense.”81 Thus a manufacturing defect would never come to light as
“discovery would be barred, thereby discovery and trial impossible.”82 The exemption
will apply whether the suit is against the government or against a government contractor.
“Permitting "second-guessing" of these judgments through state tort suits against
contractors would produce the same effect sought to be avoided by the FTCA
[government discretionary] exemption.”83 The court also stated plainly that the
government contractor defense is applicable to manufacturing defects.84
Sometimes the distinction between a manufacturing and a design defect seems
unclear. The defendants in the mortar shell case tried to argue that the government
design created the system under which the product defects were likely to occur.
However, the court rejected this tenuous connection, calling the cracks in the shell
casings clearly manufacturing defects which the government did not approve of and
would not have approved of had they been known. In another case when plaintiffs
asserted that a defect in the transmission of a military helicopter caused its crash, the
defendant manufacturer successfully asserted that the Army knew of the transmission
problems and had made “a military judgment” to go ahead with the manufacturing of the
helicopters. The defect was a design defect, the Army was aware of it, and the
manufacturer was shielded from liability.85
Whether the Government Contractor Defense applies to manufacturing defects, or
whether the court finds some other theory, it is clear from Boyle that it applies to design
81
Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486, 1489 (D. Cal. 1993).
Kasza v. Browner, 133 F.3d 1159, 1162-1163 (9th Cir. 1998).
83
Snell v. Bell Helicopter Textron, 107 F.3d 744, 746 (9th Cir. 1997).
84
Id. at 749.
85
In re Air Crash Disaster at Mannheim, 769 F.2d 115, 125 (3d Cir. 1985).
82
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defects when the government was involved in the design. And the government need not
be directly involved in the actual design, as long they are clearly aware and approve of
the design. On the other hand, a mere rubber stamp of a design totally out of the
government’s hands may not protect a manufacturer from a design defect liability. But
even when the manufacturer participates in the design, as long as the government
knowingly approves the design, the government contractor defense will apply.86
Design/Manufacturing Defect re Cluster Bombs
As regards cluster bombs, the same analysis would have to apply. It seems fairly
clear that when a cluster bomb is used against a military target and functions as it is
supposed to, the government contractor defense would shield the manufacturer from
liability. And although some civilian harm may occur during the actual combat activity,
that too is unlikely to create liability on the part of the manufacturer.
On the other hand, if there was clearly a manufacturing defect that the
government was unaware of, the manufacturer might be liable. For example, if a cluster
bomb exploded when being handled by a serviceman during shipment or loading, and
subsequent investigation of that particular lot of cluster bombs showed cracks or broken
fuses in the product, under these facts a lawsuit against the manufacturer might withstand
the government contractor defense. Further, as noted earlier, a major portion of the harm
done to civilians by cluster bombs, sometimes many years after the combat has ended,
occurs due to the high number of duds left behind – duds that remain explosive and
deadly, to civilians as well as soldiers engaged in cleanup or other military operations.87
86
Id. at 122.
Major Thomas J. Herthel, On the Chopping Block: Cluster Munitions and the Law of War, 51
A.F. L. Rev. 229, 240 (2001).
87
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Thus an approach that has met with mixed success in somewhat analogous cases
might be to argue that the cluster bomb had a defect. The most likely avenue probably
implicates a high dud rate - that in fact the dud rate is much higher than government
specifications, and much higher than the manufacturer claims. A claim that was based on
evidence that a cluster bomb was defective in design might be possible if the government
created the specifications and the manufacturer did the real design work, and the
government merely signed off on the design under the assurances from the manufacturer
that the specifications would be met. One can imagine such a fact situation, for example,
if it could be shown that the government specification was, say a maximum 5-7% dud
rate88 and the manufacturer assured the government that the dud rate specification had
been met, while the actual battlefield dud rate was higher, say 30%. Indeed, this type of
discrepancy between claimed dud rate and actual dud rate has been pointed out in
numerous papers,89 though not in any court cases to date.
Failure to Warn Product Liability re Cluster Bombs
The last theory of product liability involves a failure to warn. The duty to warn
arises when there are latent (i.e. hidden) dangers that make the product unreasonably
hazardous. As noted earlier, there is no duty to warn that a match can make fire. And
even with deadly weapons such as handguns, courts have routinely found no duty on the
part of manufacturers to “warn consumers that its firearms and ammunition were
unreasonably dangerous in the hands of foreseeable users, including children.” 90 In the
88
Id. At 266.
Thomas Michael McDonnell, Higher Cluster Bombs over Kosovo: A Violation of International
Law? 44Ariz. L. Rev. 31, 51 (2002). McDonnell references a number of studies and reports
noting high dud rates, some as high as 60%.
90
Keene v. Sturm, Ruger & Co., 121 F. Supp. 2d 1063, 1070 (D. Tex. 2000).
89
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case of deadly weapons where the product is designed to be deadly, courts have typically
not found liability for a failure to warn that the product will do exactly what it was
intended to do if used as it was intended.91 And though occasionally courts have found
gun makers liable for the harm caused by their products under one theory or another,
many states have moved to statutorily preempt gun maker liability.92
However, unlike non-governmental contractor cases, “a government contractor is
only responsible for warning the government of dangers about which it has actual
knowledge.”93 A manufacturer does not have to look into the future to try to second
guess what the government might do with that weapon, and warn everyone down the
chain. The manufacturer is only responsible for warning the government of latent
dangers it has actual knowledge of that the government does not have.94 It is up to the
government to warn or not warn subsequent parties.95
With respect to cluster bombs, there are no court cases on point. However, it
seems that the standard duty to warn government contractor defense would apply. As
long as the manufacturer warned the government of whatever actual knowledge it had of
any latent dangers in the cluster bomb, the manufacturer’s duty is most likely satisfied. If
the manufacturer, based on its best knowledge and belief, warned the government that
there was a 5% dud rate, their duty was fulfilled. If the government later misused the
91
Moore v. R.G. Industries, Inc., 789 F.2d 1326, 1327 (9th Cir. 1986).
David G. Owen, Inherent Product Hazards, 93 Ky. L.J. 377, 406 (2005); see also Nicholas J.
Johnson, Testing the States' Rights Second Amendment for Content: A Showdown Between
Federal Environmental Closure of Firing Ranges and Protective State Legislation, 38 Ind. L. Rev.
689 (2005).
93
Miller v. Diamond Shamrock Co., 275 F.3d 414, 422 (5th Cir. 2001).
94
Densberger v. United Techs. Corp., 297 F.3d 66, 75 (2d Cir. 2002).
95
Emory v. McDonnell Douglas Corp., 148 F.3d 347, 353 (4th Cir. 1998) (Navy's intimate
participatory role negates the existence of a duty to warn).
92
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weapon, e.g. dropping it from too high an altitude and this caused a higher dud rate,96
unless the manufacturer had previous knowledge that this would cause the higher dud
rate, no duty to warn would arise. On the other hand, if the manufacture knew that its
weapon had a higher dud rate if used in, say, warmer weather or when dropped onto soft
sand surfaces and it did not warn the government, then they may have breached a duty to
warn.
Abnormally Dangerous or Ultra-Hazardous Theories re Cluster Bombs.
With regard to weapons in general, in a number of lawsuits, plaintiffs have
attempted to argue that gun manufacturers should be held strictly liable under a theory
that the sale of guns is an abnormally dangerous activity. Although this argument met
with some initial success,97 in general it has failed, and in many states has been statutorily
preempted.98 For the most part, courts have almost universally rejected these claims,
stating essentially that it is the misuse of the guns, not their mere existence that causes the
injury.99 When a gun fires a bullet that seriously injures or kills someone, it is doing
what it was manufactured to do, and what it is expected to do by the consumer. For
example, one court called it a “delightfully nonsensical claim” that a “nondefective
handgun will be defective and unreasonably dangerous.”100 Unless a handgun can be
shown to be defective in design or manufacture, if a handgun works as intended, claims
that they are “abnormally dangerous” will almost certainly fail.
96
Olivera Medenica, Protocol I and Operation Allied Force: Did NATO Abide by Principles of
Proportionality?, 23 Loy. L.A. Int'l & Comp. L. Rev. 329, 426 (2001).
97
See for example Kelley v. R.G. Industries, Inc., 304 Md. 124 (Md. 1985).
98
Kelley, id, was superseded by legislation, see Md. Ann. Code art. 27 § 36- I(h),
99
David G. Owen, Inherent Product Hazards, 93 Ky. L.J. 377, 406 (2005) (“such as no duty to the
victims, no defect (the guns only did what they were designed to do), and the intervening event of
criminals putting them to improper use (the abuse of the guns by people, not the guns themselves,
are the proximate cause of harm”).
100
Patterson v. Gesellschaft, 608 F. Supp. 1206, 1210 (D. Tex. 1985).
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With respect to cluster bombs, it should first be noted that it would not be the
manufacturers who would likely be liable under a theory of ultra hazardous activity.
Under theories of ultra hazardous activity, it is generally the user, not the manufacturer
who is liable.101 It is not the manufacturer’s misuse of the product that creates the
danger. Instead it is the government’s intended use which creates the danger.
Likewise
it seems implausible that a manufacturer of cluster bombs would be liable for having
created a product that is “abnormally dangerous.” Indeed, following closely the non
sequitor label used by courts in failing to find manufacturers liable for downstream use of
guns that “do what they’re intended to do,” and also coming under the government
contractor defense, if the cluster bomb manufacturer fabricates the cluster bomb
according to design and without structural flaw, and then the government later uses that
cluster bomb in military action, as intended, and indeed death and destruction result, the
product is doing what it was intended, designed and manufactured to do. It is unlikely
that cluster bomb manufacturers could be held liable under theories of strict product
liability.
101
See generally the Restatement 2d of Torts, § 519, 520. See also; Jansen v. Packaging Corp. of
Am., 123 F.3d 490, 521 (7th Cir. 1997) (“For example, under the common law of many
jurisdictions, a party engaged in "abnormally dangerous" or "ultrahazardous" activity that results
in harm (such as engaging in blasting with dynamite in a residential area) may be held strictly
liable, even though the party engaged in the activity exercised due care to prevent the harm”).
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Who may sue whom for what? – Jurisdictional Issues
If a theory of tort liability arising out of the use of cluster bombs seemed to have
some promise of raising a claim that a court might recognize, there is still the question of
which defendant might be liable to which plaintiff – that is, who may sue whom?
Jurisdiction for Product Liability/Negligence Tort Suits
Ordinary product liability/negligence lawsuits against corporate defendants would
fall under ordinary rules of standing, jurisdiction and venue. Essentially, a plaintiff who
was injured by a product could bring suit in a state court under state laws, either where
the tort occurred, or where the company is incorporated or does a substantial business. In
practical terms, a civilian injured overseas by a cluster bomb would have to bring suit
based on the location of the manufacturer. A foreign plaintiff might also bring suit in
federal court if they are making claims under federal law, treaties or the U.S.
Constitution,102 or under diversity of citizenship103 rules. It seems likely that a foreign
citizen injured overseas by a cluster bomb bringing suit against a U.S. manufacturer
would have diversity of citizenship.
Standing Under the FTCA
Suits against the United States are generally governed by the FTCA (with some
other expressed statutory avenues as well). Under the FTCA, plaintiffs may bring suit
against the United States for torts “. . .under circumstances where the United States, if a
private person, would be liable to the claimant . . .”104 As noted above, however, military
102
28 U.S.C. § 1331
28 U.S.C. § 1332
104
28 U.S.C. § 1346 (b)(1).
103
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personnel, including foreign soldiers, will not be able to sue for injuries incident to
military service, even outside of combat.105
Thus under the FTCA, any plaintiff may bring a tort action in a United States
District Court against the United States as the defendant, with the important and farreaching exceptions noted above (combatant, foreign, discretionary) as well as several
others not directly pertinent to this discussion. It should be noted that the United States is
the proper and exclusive defendant, and one may not bring suit directly against the
government employee who is “acting within the scope of his office or employment”106
As one court noted, the FTCA “grants federal employees absolute immunity from
common law tort actions by providing for the substitution of the United States as the sole
defendant in such actions.”107 With respect to cluster bombs, injuries arising out of their
use by the U.S. military during hostilities would be precluded by the combatant activities
exception. Further, any injury that occurred in a foreign country would also be
precluded. However if a cluster bomb injured a civilian within the United States, not
incident to combat, a claim may well be viable under the FTCA.
Standing Under the ATCA (also Known as the ATS)108
Under the ATCA, it seems an alien may bring suit against almost anyone for
actions occurring almost anywhere. But the type of claims allowed is statutorily defined,
and judicially narrowed, in scope. The ATCA, also known as the ATS, is a brief statute:
105
See Feres note infra.
28 U.S.C. § 2679 (a) and (b).
107
Dardar v. Potter, 2004 U.S. Dist. LEXIS 3512 (D. La. 2004).
108
For a discussion on whether to call the statute the ATS or the ATCA, see: Abdullahi v. Pfizer,
Inc., 2005 U.S. Dist. LEXIS 16126 (S.D.N.Y. 2005).
106
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The district courts shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of the
United States. 28 U.S.C. § 1350
For example, a citizen of a foreign country may bring suit in a U.S. Federal Court
against another citizen of that foreign country for actions which occurred in that foreign
country. In other words, if all parties are citizens of another country, and all acts of
substance in the lawsuit occurred outside the United States, the ATCA may grant
jurisdiction.109 Further, it seems clear that, although controversial, suits may be brought
against corporations under the ATCA.110
However, the claims allowed under the ATCA are limited to those claims
“committed in violation of the law of nations.” And the Supreme Court has made it clear
that this is a very short list. It includes those crimes which were clearly seen as violations
of “the law of nations” when the ATCA was passed in 1795: “violation of safe conduct,
infringement of the rights of ambassadors, and piracy.”111 Interestingly, at that time the
“law of nations” would not have included slavery.112 Exactly what magnitude of human
degradation, death and destruction is required before wrongful acts become a “violation
of the law of nations” is not clear. But slavery would not have violated “well-established,
universally recognized norms of international law”113 at the time.114 It seems possible
109
See, for example Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980).
Vietnam Ass'n for Victims of Agent Orange/Dioxin v. Dow Chemical Co. (In re Agent Orange
Prod. Liab. Litig.), 373 F. Supp. 2d 7, 58 (E.D.N.Y. 2005) (noting that “the Supreme Court
acknowledged that corporations can be sued under the ATS” in Sosa v. Alvarez-Machain, 124 S.
Ct. at 2766, n.20).
111
Id. at 46.
112
See for example In re African-American Slave Descendants Litig., 375 F. Supp. 2d 721, 728
(D. Ill. 2005) (noting that the “violent and oppressive system” of slavery was “an established legal
institution” and dismissing numerous state law and tort claims against corporations whose
predecessors allegedly were involved in the slave trade).
113
Arndt v. UBS AG, 342 F. Supp. 2d 132, 139 (E.D.N.Y. 2004).
110
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that some courts would expand this list today to include “torture,115 genocide, crimes
against humanity, and war crimes.”116 However, it is clear that under Sosa the ATCA
will not provide a remedy for ordinary torts no matter how awful or destructive, but only
for “violations of the law of nations.” Nevertheless, as one commentator has pointed out,
the door is not completely closed: “. . . the civil liability mechanism is nonetheless there-in a limited fashion--to deter the more egregious cases where corporations are actively
engaged in human rights abuses.”117
In the most recent In Re Agent Orange case, plaintiffs’ state law claims against
the manufacturers of Agent Orange, including product liability, were barred by the
government contractor defense. However, the court noted that the government contractor
defense does not apply to violations of international law.118 Nevertheless, the court
dismissed plaintiffs’ human rights claims as not rising to the level of violations of human
rights law. They noted that the military use of herbicide, whatever its horrible side
effects to the civilian population, simply did not rise to a violation of customary
international law, especially at the time of the Vietnam War. The court noted that other
nations, including Great Britain, had used such herbicides in military actions in other
conflicts.119
Though calling slavery “contrary to the law of nature” the Supreme Court, in 1825, noted that it
was hardly a violation of the law of nations, since many nations practiced it. The Antelope, 23
U.S. 66, 120 (1825).
115
For an affirmative opinion that American soldiers may be liable under the ATS for torture, see:
2005 B.Y.U.L. Rev. 371, 414 (also noting that foreign soldiers would also likely be liable).
116
Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2783 (2004) (Justice Breyer, concurring).
117
Kyle Rex Jacobson, Doing Business with the Devil: The Challenges of Prosecuting Corporate
Officials Whose Business Transactions Facilitate War Crimes and Crimes Against Humanity 56
A.F. L. Rev. 167, 215 (2005).
118
Vietnam Ass'n for Victims of Agent Orange/Dioxin v. Dow Chemical Co. (In re Agent Orange
Prod. Liab. Litig.), 373 F. Supp. 2d 7, 91 (E.D.N.Y. 2005).
119
Id. at 119.
114
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Similarly, it is possible that a case could be brought concerning violations of
human rights with regard to the use of cluster bombs. However, an initial hurdle would
be that the use of cluster bombs, per se, is unlikely to be seen as a violation of the law of
nations – cluster bombs are in fact considered acceptable military weapons by many
nations. As the Supreme Court noted in 1825 when discussing whether slavery was a
violation of the international law, “Whatever might be the answer of a moralist to this
question, a jurist must search for its legal solution.”120 That court noted that slavery,
though repugnant to natural law, was allowed under the positive law of many nations,
including their own, and thereby could not possibly be a violation of international law
since, by definition, principles of international law are only those consented to and
applied by the many nations. The same is currently true for military use of cluster bombs
– they are considered legitimate weapons by many nations.121 Nevertheless, deliberate,
intentional targeting of civilians with cluster combs might raise such claim. For example,
in one non-U.S. case, a Serbian leader was indicted by the International Criminal
Tribunal for the Former Yugoslavia for a deliberate cluster bomb attack on civilians.
Although noting that there is no international consensus against the use of cluster bombs,
the tribunal nonetheless found the deliberate targeting of civilians might rise to the level
of a violation of international law.122 There seems to be nothing on the face of it that
120
The Antelope, 23 U.S. 66, 120-122 (1825).
See the U.N Final Report to the Prosecutor by the Committee Established to Review the NATO
Bombing Campaign Against the Federal Republic of Yugoslavia determination that there is no
international treaty or consensus concerning cluster bomb. Available at:
http://www.un.org/icty/pressreal/nato061300.htm#IVA3.
122
For further information about the Martic case, see Thomas Michael McDonnell, Cluster Bombs
over Kosovo: A Violation of International Law?, 44 Ariz. L. Rev. 31, 116 (2002); see also Virgil
Wiebe, Footprints of Death: Cluster Bombs as Indiscriminate Weapons Under International
Humanitarian Law, 22 Mich. J. Int'l L. 85, 120 (2000); The case itself, still ongoing at the time of
121
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would have precluded this case from being brought in a U.S. court under the ATCA by,
say a Croatian civilian harmed by this cluster bomb attack. On the other hand, it should
be noted that this would not likely state a claim against a manufacturer of that cluster
bomb, which apparently worked as intended in a heinous crime by a third party actor.
In any event, barring very convincing evidence of an intentional cluster bomb
strike deliberately targetting civilians, a second hurdle would be that U.S. Courts are
simply unlikely to question the U.S. military’s discretionary use of military weapons in
wartime.123 Considering all of this, it would be unlikely that a cause of action against a
manufacturer whose blameworthiness lies in making a product that the government told
them to make would survive, no matter how much death and destruction that product
caused in military action.
In conclusion, especially following the recent Sosa decision, the ATCA, while
allowing suits against corporations, is an unlikely vehicle for a plaintiff to redress any
alleged liability arising from government authorized military use of cluster bombs. On
the other hand, a fact specific situation where civilians were the targets, rather than the
unintentional victims might give rise to an ATCA claim. But given Sosa, the “violation
of international law” would have to be well defined, well established, and well accepted
by the nations of the world.124
this writing, is Prosecutor v. Martic, PP 5-6 (I.C.T.Y. 1996) (No. IT 95-11-R61), see the ICTY
website at, http://www.un.org/icty.
123
For a discussion of U.S. Courts’ inclination to reject international law claims, arguing this
stems from the tendency of U.S. Courts to frame the discourse in American Constitutional and
separation of powers reasoning, see Andrea Bianchi, International Law and US Courts: The Myth
of Lohengrin Revisited, European Journal of International Law 15(4) (2004).
124
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
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Conclusion
A suit against a sovereign nation in that sovereign’s courts will only survive if the
sovereign has waived immunity from suit. A suit against the United States for the
military use of cluster bombs is highly unlikely to meet jurisdictional hurdles in U.S.
courts under traditional theories of tort liability, no matter how many civilians are injured
or killed in the action. Considering the FTCA’s discretionary, foreign country, and
combatant activities exceptions, courts are very unlikely to find sovereign immunity has
been waived in such a case. However, a cluster bomb strike in clear violation of the “law
of nations” could give rise to a valid claim in a U.S. Court. But this too presents a high
hurdle, as the Supreme Court has made it clear that the list of crimes violating the law of
nations is short, and does not include “ordinary torts” no matter how heinous.
Product liability suits also face difficult, but not necessarily insurmountable
hurdles. The Government Contractor Defense will very likely stand in the way of a
product liability suit where the manufacturer has correctly fabricated a cluster bomb
according to government specifications. The government contractor will generally not
have a duty to warn “down stream” third parties as that duty falls to the U.S., unless the
contractor knew of a danger or design defect that the government was not aware of. For
example, if it could be shown that the contractor knew that its product had a much higher
dud rate than it admitted to the government, liability might ensue. Finally, manufacturing
miscues could also open the door to liability, though even here liability might be
impossible if the government contractor defense prevents investigation into the
manufacturing process.
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In sum, suits against the U.S. are probably doomed barring a clear violation of
international law, and suits against U.S. military contractors face significant hurdles, but
given the right factual situation, a door may be open for tort liability.
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