Cluster Munitions Under New Scrutiny

Wade Boese

Israeli military forces and Hezbollah militants ceased fighting in southern Lebanon Aug. 14, but unexploded Israeli ordnance there is still wounding and killing people. The casualties have raised questions about Israel’s use of cluster munitions and underscored some long-standing concerns about whether these arms constitute legitimate weapons.

Primarily intended to counter troop and armor concentrations, cluster munitions are bombs, shells, or rockets that can scatter up to hundreds of smaller submunitions over a relatively broad area. As with all bombs, these smaller bomblets can fail to detonate as intended, remaining unexploded and potentially lethal.

Israel used cluster munitions during its month-long invasion of Lebanon to destroy and evict Hezbollah militants based there. Israel launched the offensive in response to the July 12 cross-border raid and capture of two Israeli soldiers by Hezbollah, a radical Shiite organization backed by Syria and Iran. The United States identifies Hezbollah as a terrorist group.

The fierce fighting, which also involved nearly 4,000 Hezbollah rocket attacks against Israel, resulted in at least 1,187 deaths in Lebanon, 43 Israeli civilian deaths, and 117 Israeli military deaths, according to a Sept. 12 report by UN Secretary-General Kofi Annan. The Israel Defense Forces (IDF) estimated a day before the ceasefire took effect that it had killed at least 530 people it identified as “terrorists.” Two days later, the IDF reported that it had conducted some 7,000 aerial strikes and 2,500 naval bombardments against targets in Lebanon.

As of Sept. 13, the UN Mine Action Service (UNMAS) reported that 482 separate cluster bomb sites had been found in Lebanon, including in residential areas. UNMAS estimated that it would take up to 15 months to clear southern Lebanon of residual cluster bomblets, some of which have been identified as being of U.S. origin.

The unexploded ordnance, also referred to as explosive remnants of war (ERW), is exacting a human toll. A Sept. 18 UNMAS report attributed 79 injuries and 14 deaths to ERW. Leftover cluster munitions inflicted all the casualties, except for five of the injuries.

On Aug. 30, UN Undersecretary-General for Humanitarian Affairs Jan Egeland blasted Israel’s use of cluster munitions, which he said “have affected large areas, lots of homes, lots of farmland, lots of commercial businesses and shops.” He condemned as “shocking” and “completely immoral” the fact that an estimated 90 percent of the cluster munitions attacks occurred in the last 72 hours of fighting. “Either a terribly wrong decision was made or…one bombed first and started thinking afterwards,” he said.

Department of State spokesperson Patricia Peterson told Arms Control Today Sept. 14 that the department was “seeking more information on Israel’s alleged improper use” of U.S.-supplied cluster munitions against non-military targets. She said the department takes such allegations “very seriously.” Between 1982 and 1988, Washington suspended cluster bomb exports to Israel because of its possible inappropriate use of such weapons in Lebanon.

The Israeli Ministry of Foreign Affairs repeatedly characterized Israeli military attacks as restrained and seeking to minimize civilian casualties. In an Aug. 15 statement, the ministry further accused Hezbollah of deliberately deploying and stockpiling its weapons in residential areas. “Had [Hezbollah] chosen to set up its arsenal away from populated areas, no civilians would have been hurt when Israel did what it obviously had to do,” the ministry stated.

Israel also argued that there is no prohibition against the use of cluster munitions. U.S. forces, for instance, employed cluster munitions during the Afghanistan and Iraq invasions.

Some U.S. lawmakers are not happy with current U.S. cluster munitions policy and would like to see stricter rules. In September, Senators Dianne Feinstein (D-Calif.) and Patrick Leahy (D-Vt.) proposed an amendment to the fiscal year 2007 defense appropriations bill to bar the acquisition, use, or transfer of cluster munitions unless it was ensured that they “will not be used in or near any concentrated population of civilians.”

Feinstein and Leahy argued that cluster munitions too frequently kill indiscriminately and cause casualties long after conflicts end. “This is particularly and sadly true of children because bomblets are no bigger than a D battery and in some cases resemble a tennis ball,” Feinstein asserted Sept. 5. Leahy noted the following day that because of the “massive numbers of cluster munitions” used by the United States in Iraq, “civilians paid the price and continue to pay the price.”

Senators Ted Stevens (R-Alaska) and Joseph Biden (D-Del.) argued against the measure Sept. 6. Calling the amendment “not acceptable,” Stevens said it “could severely hinder aviation and artillery capabilities and reduce the commander’s capability to wage war successfully.” The amendment was defeated 70-30.

Meanwhile, some governments are seeking to outlaw cluster munitions. Austria, the Holy See, Ireland, Mexico, New Zealand, and Sweden are seeking negotiations to ban cluster munitions as part of the 1981 Convention on Certain Conventional Weapons (CCW). This framework agreement has five protocols that regulate or ban indiscriminate or “excessively injurious” arms.

Several CCW states-parties are already instituting their own measures to limit cluster munitions. Belgium has banned them, Norway has enacted a moratorium on use, and Germany has stopped procurement of new cluster munitions with plans to explore phasing existing systems out by 2015.

Still, prospects for adding a CCW cluster munitions protocol appear slim as decisions by the agreement’s 100 states-parties are made by consensus. A U.S. government official told Arms Control Today Sept. 14 that “none of the major countries are willing to proceed” toward a legally binding cluster munitions instrument. The official said current humanitarian law and an existing ERW protocol are sufficient in Washington’s view.

The CCW adopted its ERW protocol in 2003, and more than 20 countries have ratified the measure, which is set to enter into force Nov. 12. President George W. Bush submitted the protocol in June to the Senate for its advice and consent to ratification, but lawmakers have yet to act. U.S. negotiators of the protocol previously told Arms Control Today that its obligations match existing U.S. practices. (See ACT, January/February 2004. )

The protocol establishes that the country occupying the territory where unexploded ordnance exists after a conflict ends is responsible for its cleanup. However, it calls on countries that leave behind unexploded or abandoned munitions to provide, “where feasible,” technical, financial, and material assistance to mark and clear the ERW. Israel is a CCW state-party, but it has not ratified the ERW protocol.

In his Sept. 12 report, Annan noted that although “IDF has provided some maps to [UN peacekeeping forces] regarding cluster strikes, they are not specific enough to be of use to operators on the ground.” The secretary-general stated that he “expected” Israel to provide more detailed information in the future.

The U.S. government is transferring up to $3.65 million in emergency funding to help mark and clear unexploded ordnance in Lebanon, according to a Sept. 26 update from the State Department’s office of weapons removal and abatement. Pending congressional approval, up to another $7 million might be shifted to this mission. Since 1998, Washington has provided $17 million for ERW and landmine clearance activities in Lebanon.