Human Rights Watch is reporting evidence that Russia used cluster munitions in populated areas of Georgia, and has traced at least 11 civilian deaths to the weapons, which are considered indiscriminate under international law.

“Russian aircraft dropped RBK-250 cluster bombs, each containing 30 PTAB 2.5M submunitions, on the town of Ruisi in the Kareli district of Georgia on August 12, 2008. Three civilians were killed and five wounded in the attack. On the same day, a cluster strike in the center of the town of Gori killed at least eight civilians and injured dozens, Human Rights Watch said. Dutch journalist Stan Storimans was among the dead. Israeli journalist Zadok Yehezkeli was seriously wounded and evacuated to Israel for treatment after surgery in Tbilisi. An armored vehicle from the Reuters news agency was perforated with shrapnel from the attack.

What interests me about this press release is that HRW’s condemnation of Russia focuses not on the Geneva Conventions, but on the emerging ban on cluster munitions. This is a puzzle since Russia is in violation of the former but not the latter.

Let me explain:

Russia’s is not in violation of said Convention on Cluster Munitions, because

a) the treaty is not yet in force and won’t be until six months after the 30th nation ratifies it (it doesn’t officially open for signature until later this year) and

b) even if it were in force, Russia is not and does not intend to become a party to the treaty.

Nonetheless, Russia’s use of cluster munitions is in violation of the 1977 Additional protocol to the 1949 Geneva Conventions, to which Russia is a party. These treaties prohibit indiscriminate force (that is, the failure to distinguish between combatants and civilians); but more importantly, they prohibit the use of any weapons that by their nature cannot be used discriminately or controlled. It is the last part that pertains to cluster munitions and accounts for the increasing opprobrium attached to them: once launched, unexploded bomblets remain deadly even after deployment and, much like anti-personnel mines, pose an ongoing risk to civilians. This alone makes their use inconsistent with humanitairan law. This is not the same, though, as using them indiscriminately (cluster munitions can be deployed against military objectives) and it is not the same as using them to intentionally attack civilians.

Governments increasingly acknowledge that cluster munitions are indiscriminate because they can’t be controlled, and over 100 of them drafted the afore-mentioned treaty banning cluster munitions entirely in Dublin this year. Like other treaties, this only binds states who sign on. However, as with other weapons bans, human rights groups hope that the existence of the treaty itself will promote a more general norm against the use of these weapons that, irrespective of states’ legal obligations, will curtail their use in the future. The “stigmatizing” effects of multilateral treaties even on non-signatories is thought to be especially important since the United States, China and Israel have also refused to sign on to this new agreement but might conceivably be influenced by the fact that others have.

In short, HRW’s press release does not address Russia’s actual obligations under international law, but rather aims to promote an emerging norm against cluster munitions more generally. If they wanted to shame Russia, or to contribute to legal cases being developed against Russia in various international courts, they would refer to the Geneva Conventions (the term never appears in the press release).

Instead, this press release can be interpreted as a norm-building exercise – an effort to invoke the new treaty as an international norm binding all “civilized” countries. In so doing, HRW’s aim is as much to embarrass and persuade the United States, Georgia and other non-signatories as it is to condemn Russia.