The use of cluster munitions in the war on terrorism.
Militaries throughout the world value cluster bombs or cluster munitions for their unique and destructive power. (1) But in conflicts where cluster bombs are utilized and when the battles have ended, unexploded cluster bomblets inevitably remain, sometimes wounding and killing innocent people when they return to their homes. (2) When the fighting between Israel and Hezbollah, a militant Shiite Muslim group, ended in August 2006, a conflict known as the 2006 Lebanon War, an estimated one million unexploded cluster bomblets littered the lands of southern Lebanon. (3) The use of cluster bombs is governed by international humanitarian law, which includes Protocol I of the Geneva Conventions. (4) Currently, however, cluster bombs are not explicitly banned under international law. (5) Although controversy often surrounds the use of cluster bombs, the specific facts, methods, and circumstances regarding their use are frequently central to an analysis of their legality under international law. (6)
This Note argues that the United States's use of cluster bombs in the Global War on Terrorism in Afghanistan and Iraq, and Israel's use of cluster bombs in its conflict with Hezbollah in Lebanon demonstrates the need for stronger international laws regulating the use of cluster bombs with more explicit consequences aimed at preventing civilian casualties during and after an armed conflict. (7) Part II of this Note explores the characteristics of cluster bombs that make them controversial and examines the historical development of the laws relating to the use of cluster bombs in war. (8) Part III outlines cluster bomb use in specific conflicts, with particular emphasis on the use of cluster bombs during the conflict between Israel and Hezbollah in the 2006 Lebanon War. (9) Part IV analyzes the current state of international law in relation to the use of cluster bombs in the war on terrorism and whether more explicit laws are necessary to govern their use, with specific emphasis on the use of cluster bombs in the 2006 Lebanon War. (10) Finally, Part V concludes that while a complete ban on cluster bombs is unnecessary and likely impractical, the use of cluster bombs in the broader war on terrorism demonstrates a need for more explicit laws concerning cluster bomb use with harsher consequences for the misuse of cluster bombs in the international arena. (11)
A. Cluster Weapons
Essentially, a cluster bomb is a bomb that contains smaller bombs inside. (12) Cluster bombs are weapons that are designed to disperse numerous smaller explosive submunitions over a wide area. (13) Each cluster bomb contains a canister consisting of smaller submunitions, often referred to as bomblets or grenades, which are designed to explode at or near impact in the targeted area. (14) Military forces are able to dispense cluster bombs using aircraft, surface artillery, or rockets. (15) A single cluster bomb dropped from the air can contain hundreds of smaller bomblets causing damage from the numerous smaller explosions every few feet apart. (16)
The British designed the first cluster munitions during World War I to deliver incendiary attacks. (17) The United States and other countries used cluster bombs in World War II. (18) Military planners consider cluster bombs particularly effective against concentrations of enemy troops, airfields, and air defense units. (19) In the Vietnam War, the United States effectively used cluster bombs to destroy surface-to-air missiles, which were harder to destroy using traditional single bombs. (20)
Given the military success, cluster bombs have been used in numerous conflicts since the Vietnam War. (21) Cluster bombs were used in at least sixteen armed conflicts in recent history. (22) At a minimum, twenty-three different countries have used cluster bombs and approximately thirty-four countries produce these weapons. (23)
Controversy sometimes surrounds the use of cluster bombs, primarily because two to thirty percent of the dispensed submunitions fail to explode. (24) Various factors such as weather, wind, soil conditions, mechanical failures, and human error can influence the rate at which a cluster bomb's submunitions fail to explode. (25) Considering that in a single conflict, thousands of cluster bombs may be used, each containing hundreds of submunitions, even an extremely low failure rate may result in thousands of unexploded submunitions remaining on the ground. (26) As a result, these unexploded submunitions present a plethora of dangers to civilians or advancing friendly soldiers. (27) A report by Handicap International, which studied the effects of cluster bombs in twenty-four different countries and regions, found that civilians account for ninety-eight percent of those killed by cluster bombs and children account for twenty-seven percent of casualties. (28)
Some human rights groups equate the dangers of unexploded cluster bomblets to landmines. (29) These groups argue that unexploded dud cluster bomb submunitions function like antipersonnel mines even though cluster bombs are not covered under the 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Landmines and on their Destruction (Mine Ban Treaty). (30) Others, however, argue that unexploded cluster bomblets are not equivalent to landmines, and unexploded bomblets should simply be treated as unexploded ordinance. (31)
One possible solution to the problem of unexploded dud cluster bomblets is the use of bomblets equipped with self-destruct mechanisms that would destroy the bomblet if it fails to properly detonate upon reaching its target. (32) In January 2001, former U.S. Defense Secretary William Cohen called for cluster bomb dud rates to not exceed one percent by 2005. (33) Further, the U.S. Army has equipped certain cluster bomblets with self-destruct fuses in an effort to eliminate duds. (34)
Another common criticism associated with cluster bombs is their potentially wide, and sometimes indiscriminate area of dispersal, which has the potential to damage unintended civilian infrastructure. (35) The submunitions contained in a single cluster bomb's canister are able to cover areas as large as two or three football fields. (36) Consequently, some human rights groups believe that using cluster bombs in a populated area may violate international humanitarian law because the bomblets' wide dispersal pattern might theoretically make it difficult to avoid civilian casualties if civilians are present near the targeted area. (37) The accuracy of a cluster bomb, however, may depend on a number of factors including: "target intelligence, planning time, weather, crew experience, altitude at which the bomb is dropped, enemy defenses, and human factors." (38)
B. The Laws of War Relating to the Use of Cluster Bombs
1. International Humanitarian Law
To date, no specific treaty exists to explicitly govern the use of cluster bombs in combat. (39) Nonetheless, countries that use cluster bombs are required to abide by the norms established by existing international humanitarian law, which is also referred to as the laws of war. (40) In an armed conflict, international humanitarian law applies. (41)
International humanitarian law comes from two sources: customary law and treaty law. (42) Customary international law consists of "customs of States in the international arena that are applied in a consistent fashion" and include international law's settled rules as recognized through the general acquiescence of civilized nations. (43) Even states that are not parties to a particular treaty or non-state-actors, such as Al-Qaeda terrorists, who cannot legally ratify treaties, are bound by customary international law. (44) Hence, if a treaty contains core provisions of customary international law, a state that has not ratified the treaty, or a terrorist organization, is still theoretically bound to the treaty's applicable provisions involving customary international law. (45) Moreover, customary international law is part of U.S. law to the limited degree that "where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations." (46)
2. The Geneva Conventions and Protocol I
Modern international humanitarian law has evolved, in part, through a series of treaties--most notably the four Geneva Conventions of 1949 and the two 1977 Additional Protocols to the Conventions. (47) In times of war, the Geneva Conventions and its two Protocols protect victims and noncombatants, including the wounded, prisoners of war, and civilians. (48) The Geneva Conventions of 1949 are binding on almost all countries in the world, including the United States. (49)
Protocol I is particularly pertinent to the laws of war relating to the use of cluster bombs in armed conflicts. (50) Protocol I offers "internationally accepted legal standards" in the evaluation of the problems that cluster bombs, modern weaponry, and modern aircraft pose to civilian populations. (51) Moreover, Protocol I protects civilians during times of war and prohibits states from legally targeting civilians or engaging in indiscriminate attacks. (52) The principle of distinction, which is found within Protocol I, requires all parties to distinguish between civilians and combatants. (53) The principle of proportionality, which is also found within Protocol I, balances the countervailing weights of military advantage with civilian impact. (54) Although the United States has declined to ratify either of the Geneva Protocols, Protocol I is considered indicative of customary international law based on the legal norms that are derived from common state practices that bind all nations despite any specific legal commitments. (55)
3. Conventional Weapons Treaty
The Conventional Weapons Treaty (CCW) also provides insights into the legality of cluster bomb use under international law. (56) The International Committee of the Red Cross and other countries initiated the process that led to the creation of the CCW out of concerns for the damage done by new weapons used in war. (57) The CCW, however, does not explicitly prohibit cluster bombs. (58) Originally, the CCW was created to protect both civilians and military personnel from certain conventional weapons which are considered to cause excessive injuries or have indiscriminate effects, such as weapons fragments that cannot be readily found by x-rays. (59) The CCW includes various protocols that govern the use of landmines, incendiary weapons, and blinding laser weapons. (60) Furthermore, CCW Protocol V on the Explosive Remnants of War, agreed to on November 28, 2003, is relevant to cluster bombs because it requires parties to clear unexploded ordinances in their territory and facilitates clearance in territory not under their control. (61)
A. Cluster Bomb Use in Past Wars
During the Vietnam War, the United States used cluster bombs extensively in air strikes within Laos. (62) As a result, between nine and twenty-seven million unexploded bombles still litter Laos from the U.S. bombing campaigns during the 1960s and 1970s. (63) These bomblets continue to kill and injure civilians. (64)
The United States and its allies also used cluster bombs throughout Iraq during the Persian Gulf War in 1991. (65) From January 17, 1991 to February 28, 1991, the United States and the allied coalition used 61,000 cluster munitions containing twenty million submunitions. (66) In addition, some estimate that a total of over thirty million submunitions were dispersed through surface-launched artillery and rockets. (67) Dud cluster bomblets remaining after the war led to at least eighty U.S. casualties and over 4000 civilian deaths or injuries. (68) After the war ended in 1991 until December 2002, 108 metric tons of dud cluster munitions were discovered and cleared by explosive ordinance disposal teams in Kuwait. (69)
In 1999 North Atlantic Treaty Organization (NATO) forces also used cluster bombs in Yugoslavia to stop Slobodan Milosevic's ethnic cleansing campaign. (70) NATO used nearly 1800 cluster bombs in Yugoslavia--resulting in over 330,000 bomblets--which led to the creation of tens of thousands of unexploded bomblets that posed a danger to civilians. (71) When the fighting ended, the International Criminal Tribunal for the Farmer Yugoslavia (ICTY) refused to initiate an investigation into alleged cluster bomb misuse by NATO in civilian areas and did not indict any NATO leaders or military personnel. (72) In a final report to the ICTY Prosecutor, the report acknowledged that no specific treaty provision "prohibits or restricts the use of cluster bombs ... although, of course, cluster bombs must be used in compliance with the general principles applicable to the use of all weapons." (73) The report to the ICTY Prosecutor also concluded that no general legal consensus exists that holds cluster bombs as the legal equivalent to landmines. (74)
In a separate proceeding, Serbian officer Milan Martic was investigated for allegedly misusing cluster bombs by deliberately attacking civilian areas. (75) Martic was indicted for allegedly ordering the firing of Orkan rockets with cluster bomb warheads into a civilian area in the Croatian city of Zagreb, with no military objective nearby, which led to at least seven civilian deaths and nearly two hundred civilian injuries. (76) In a hearing related to the Martic case the Chamber noted that "there exists no formal provision forbidding the use of cluster bombs in armed conflicts." (77)
B. Use of Cluster Bombs in the War on Terrorism
1. Cluster Bomb Use in Afghanistan and Iraq
In response to the terrorist attacks on September 11, 2001, the United States launched the war in Afghanistan, a known safe-haven for Al-Qaeda terrorists, on October 7, 2001. (78) Cluster bombs were used extensively in the air war throughout Afghanistan. (79) The United States used at least six hundred cluster bombs in the air strikes on terrorist targets in Afghanistan. (80) Consequently, a total of at least 70,700 BLU-97 bomblets were dispersed from cluster bombs over Afghanistan. (81) This type of bomblet has an estimated failure rate of seven percent, and some human rights groups have calculated that 4949 cluster bomblets may have failed to detonate and remained on the ground in Afghanistan as duds. (82)
Since Al-Qaeda's attacks on September 11, 2001, some have urged caution and respect for the law in combating terrorists, who sometimes hide among civilian populations. (83) The unexploded cluster bomblets dropped by the United States and scattered throughout Afghanistan posed perilous problems for civilians in Afghanistan. (84) This problem was further compounded when some Afghan civilians began to mistake humanitarian food rations for unexploded cluster bomblets, which are similar in color, and also dropped from the air by the United States. (85)
Furthermore, during the invasion of Iraq in 2003, the United States and Britain used 10,782 and 2170 cluster weapons, respectively, to attack Iraqi troop formations and destroy Iraqi artillery. (86) Although U.S. forces sought to limit collateral damage, thousands of unexploded bomblets that remained on the ground have killed at least 372 Iraqi civilians. (87) Reportedly, the United States fired hundreds of cluster weapons into "urban areas" from late March to early April in 2003, which led to civilian casualties. (88)
The United States military claims cluster munitions are necessary weapons and has taken steps to improve the failure rate of unexploded bomblets. (89) In recognition of the threat that cluster bombs pose to civilians, Colonel Lyle Cayce, a U.S. Army judge advocate general, led a team of fourteen lawyers on the battlefield to provide advice to the 3rd Infantry Division on the use of certain weapons during the 450 mile push from Kuwait to Baghdad. (90) Their goal was to make sure that U.S. forces complied with international humanitarian law that is enshrined in the Geneva Conventions. (91)
2. Cluster Bomb Use in 2006 Lebanon War
During the summer of 2006, an armed conflict erupted between Israeli soldiers and Hezbollah terrorists on the border between Israel and Lebanon. (92) On July 12, 2006, Hezbollah attacked an Israeli army patrol along the border, capturing two Israeli soldiers and killing three others. (93) Israeli ground troops launched attacks into southern Lebanon, and casualties began to mount on both sides. (94) In response, Israel attacked targets throughout Lebanon, in an attempt to rid southern Lebanon of Hezbollah fighters. (95) Hezbollah fighters responded by firing Katyusha rockets into Israel in an effort to target Israeli cities. (96) The fighting continued until a cease fire agreement was eventually reached on August 14, 2006, and the thirty-four day conflict came to an end. (97)
During its conflict with Hezbollah, Israel fired cluster munitions throughout southern Lebanon. (98) Reportedly, Hezbollah also fired a limited number of cluster munitions into Israel. (99) Israel fired as many as four million submunitions during the conflict targeting at least 841 different locations throughout southern Lebanon. (100) According to the United Nations, ninety percent of all Israeli cluster bomb strikes, delivered primarily by artillery or ground rockets, were fired during the last seventy-two hours of the conflict. (101) Initially, Israel maintained that its use of cluster bombs in its conflict with Lebanon was within the legal bounds of international law. (102)
Some human rights groups have decried the extensive use of cluster munitions in the conflict between Israel and Hezbollah. (103) It is estimated that as many as one million unexploded submunitions remain in southern Lebanon. (104) More than thirty people have been killed by unexploded cluster bomblets in Lebanon since the end of the 2006 Lebanon War. (105)
Even though U.S. military forces were not involved in the 2006 Lebanon War, controversy still surrounds the fact that Israel fired three types of American-made cluster bombs into Lebanon. (106)
According to a report produced by the United Nations Mine Action Coordination Center, which searched for unexploded ordinance after the fighting ended, hundreds of American cluster bombs in 249 different locations were found south of the Litani River in Lebanon. (107) Further, Israel may have violated agreements with the United States when it fired American-supplied cluster munitions into populated areas in Lebanon, and it is possible that the United States could take action against Israel as a result. (108)
While the conflict was ongoing, Israel asked the United States to expedite the delivery of M-26 artillery rockets armed with cluster munitions because it wanted to strike Hezbollah missile sites in Lebanon and suppress Hezbollah's Katyusha rocket attacks. (109) Each M-26 rocket contains 644 submunitions, and the rockets are particularly effective in attacks on enemy artillery sites because they can be quickly targeted at a specific geographic area. (110) The sale of M-26 rockets to Israel was approved before the conflict erupted, and originally Israel maintained that it needed the M-26 rockets to guard against invasion by conventional armies. (111) Israel later admitted that it intended to use an expedited shipment of the rockets for use against Hezbollah's missile sites. (112) Fearing both civilian casualties and diplomatic repercussions if the M-26s were used in populated areas, U.S. State Department officials sought to delay the approval of this expedited delivery, and ultimately, the United States denied Israel's request for this type of cluster weapon. (113)
The issues surrounding Israel's request for an expedited shipment of M-26 rockets during the conflict was further complicated by Israel's past record regarding the use of cluster munitions in past conflicts. (114) In 1982, President Ronald Regan's administration found that Israel violated a 1976 agreement with the United States in which Israel agreed that cluster munitions would only be used against "Arab armies and against clearly defined military targets." (115) After Israel's 1982 invasion of Lebanon, a U.S. congressional investigation concluded that Israel used U.S. supplied cluster munitions against civilian areas in violation of its agreement with the United States. (116) Delivery of cluster munitions to Israel was suspended for six years, but the Reagan administration subsequently rescinded the suspension. (117)
After the 2006 Lebanon War ended, Israel Defense Forces (IDF) acknowledged that there were "irregularities" in its use of cluster munitions and admitted that indeed some civilian areas in Lebanon were targeted with cluster munitions after the IDF took steps to warn the civilian population. (118) MK Ran Cohen (Meretz), a reservist colonel in the IDF and a former artillery battalion leader, called Israel's use of cluster munitions "very unusual" and a "serious matter" because "[if] cluster bombs were used in populated areas, this constitutes an indescribable crime ... [and] [t]he massive use by the IDF of cluster bombs during the war suggests an absolute loss of control and hysteria." (119) Additionally, Lieutenant General Dan Halutz, then head of the Israeli armed forces, later discovered that Israeli soldiers ignored his instructions that restricted cluster bomb use to only drops from the air against specific targets. (120) Instead, large numbers of cluster bombs were dispersed by Israeli artillery. (121) Some Israeli reserve soldiers were surprised to receive orders to blanket areas with cluster munitions because during their regular army service, they were told that Multiple Launch Rocket System rockets were "judgment day weapons" and "intended for use in a full-scale war." (122) Moreover, a United Nations Human Rights Council (UNHRC) report, in which Israel's use of cluster bombs was specifically examined, found that the IDF committed potentially serious violations of the laws of war. (123)
Nonetheless, the IDF perhaps had a safer alternative to American-made cluster bomblets. (124) The IDF chose not to use safer Israeli-made cluster bomblets, which each contain a self-destruct mechanism, during its conflict with Lebanon. (125) Even though Israel Military Industries Ltd., an Israeli company, manufactures cluster bomblets with self-destruct fuses, the IDF instead used U.S. manufactured cluster bomblets that were purchased with the three billion dollars Israel receives annually from the U.S. government for military aid. (126)
The IDF has concluded that it will not take legal action against senior officers involved in the firing of cluster bombs into populated areas in southern Lebanon during the 2006 Lebanon War. (127) Israel's Military Advocate General (MAG), Brigadier General Avihai Mandelblit, found that the firing of cluster bombs into these populated areas was part of the effort to stop the launch of Katyusha rockets against Israeli civilians. (128) Moreover, the IDF's own investigation concluded that the air force did not violate instructions regarding cluster bombs, but artillery and rocket batteries on the ground did indeed fire into populated areas of southern Lebanon. (129) In the end, the MAG concluded that the IDF's use of cluster munitions was not in violation of international humanitarian law. (130)
3. U.S. Senate Legislation to Limit the Sale and Use of Cluster Bombs
On September 6, 2006, the U.S. Senate considered an amendment to the 2007 defense appropriations bill that would have restricted the sale and use of cluster bombs until the Pentagon adopted specific guidelines for their use in civilian areas. (131) Senator Dianne Feinstein and Senator Patrick Leahy proposed this amendment, partially in response to Israel's purported use of cluster bombs throughout southern Lebanon. (132) The amendment, however, was met with stiff opposition because it had the potential to unreasonably limit the options of American commanders on the ground. (133)
The U.S. Department of Defense opposed the amendment because it would be impossible to enforce any restrictions on the actual use of the cluster bombs once the weapons have been transferred to another country through a permitted sale. (134) Moreover, Senator Ted Stevens argued that some casualties caused by unexploded cluster bomblets from past wars were perhaps attributed to civilian populations moving into areas that were previously unoccupied. (135) Further, Senator Stevens stated that it is "not the province of the Senate to enact rules of engagement" and an alternative solution would be to replace cluster munitions with a high failure rate with improved munitions. (136) In the end, the Senate rejected the amendment to the 2007 defense appropriations bill by a vote of 70-30. (137)
Almost a year later, on September 6, 2007, the U.S. Senate passed the Fiscal Year 2008 State-Foreign Operations Appropriations Bill (H.R. 2764) in an effort to restrict the sale or transfer of U.S. cluster bombs. (138) The Senate voted 81-12 to prohibit military funds from being used for the sale or transfer of U.S. manufactured cluster bombs unless they had a failure rate of one percent or less. (139) Further, any sale or transfer agreement must specify that the cluster bombs would only be used against clearly defined military targets and would not be used where civilians are known to be present. (140) The U.S. military's arsenal currently contains 5.5 million cluster bombs consisting of 728 million bomblets, and numerous bomblets in this stockpile have a failure rate of one percent or more. (141) The White House previously stated that it objected to the language in the bill restricting cluster bomb use and transfer and argued that safeguards relating to the sales of cluster bombs are already in place. (142) Nevertheless, on December 26, 2007, President George W. Bush signed H.R. 2764, which contained restrictions on the sale or transfer of cluster munitions or cluster munitions technology. (143)
4. International Efforts to Regulate Cluster Bombs
In May 2007, delegates from sixty-eight countries met in Lima, Peru and pledged support for an international ban on cluster bombs by 2008. (144) Yet, the world's largest suppliers of cluster munitions, the United States, China, and Russia were not represented at this meeting. (145) Some countries at the meeting, such as the United Kingdom, Japan, Finland, France, Germany, and Australia, favored a treaty that contained certain exemptions for particular types of cluster bombs. (146) For instance, some European countries that also produce cluster bombs favor a treaty that exempts cluster munitions that have self-destruct mechanisms or sufficient reliability rates. (147) Other countries, however, favored a treaty that would categorically ban all cluster bombs. (148) Meanwhile, at least one legal commentator has called for the international community to begin negotiating a legally binding cluster munitions instrument while the opportunity for success still exists. (149)
A. The Legality of Cluster Bomb Use in Past Wars and in the War on Terrorism
Cluster bombs are not a categorically banned class of weapons even under the broadest interpretations of existing international laws. (150) Moreover, when cluster bombs are properly employed some legal commentators believe they do not cause unnecessary suffering and are not indiscriminate weapons. (151) Thus, the focus of any legal analysis regarding the use of cluster bombs in a particular conflict is largely dependent on the specific facts and circumstances surrounding the exact method in which they are used. (152) Military planners are forced to achieve a balance between military necessity and humanitarian considerations each time they make an inherently subjective decision to use cluster bombs. (153)
Nonetheless, where a concentration of civilians exists in the target's neighborhood, the use of cluster bombs may violate Protocol I because cluster bombs inherently effect large areas of land. (154) Where civilians are present, cluster bombs may be unable to target a single military objective because they release numerous bomblets over a wide area. (155) Also, some countries that possess cluster bombs in their arsenal have alternative weapons to choose from, such as laser or satellite guided smart bombs that are more capable of accurately destroying certain targets. (156)
Some of the problems commonly associated with cluster bombs, such as wide dispersal areas and dud bomblets, present hazards to civilian populations and require careful consideration as countries engage in military strikes against terrorists. (157) After all, dud cluster bombs could pose a danger to the civilian population for decades, perpetually wounding and killing those forced to live in lands littered by the remnants of past wars. (158) As such, hazardous cluster bomb duds have the potential to scar the minds of future generations of people affected by them and plant the seeds of terrorism for decades to come. (159) In combating terrorism, countries have to be mindful of the limits of the law and not resort to terrorism themselves. (160)
The United States has probably not violated any existing international laws regarding the use of cluster bombs in the war on terrorism in Afghanistan and in Iraq. (161) Although hundreds were killed or wounded by the dud cluster bomblets leftover by the United States's efforts to defeat Al-Qaeda terrorists and oust former Iraqi dictator Saddam Hussein, the United States took sufficient precautions to avoid civilian casualties. (162) Some of these precautions included: embedding military lawyers with troops using cluster bombs, warning Afghan civilians not to mistake dud bomblets for humanitarian food rations, and replacing its older model cluster bomblets with newer versions that contained self-destructing fuses to prevent dud munitions. (163) The United States's use of cluster bombs thus far in the war on terrorism stands in stark contrast to Milan Martic's reckless use of cluster munitions against civilian areas in Croatia that lacked a military objective. (164) Even so, all countries must learn from the perils that result from misusing cluster bombs--as demonstrated by the conflict between Israel and Hezbollah terrorists in 2006. (165)
B. The Legality of Israel's Use of Cluster Bombs Against Hezbollah in Lebanon in 2006
1. The Commission's Report
The thirty-three day international armed conflict between Israel and Hezbollah in 2006, which drew worldwide attention, resulted in thousands of casualties and forced over 900,000 people in Lebanon to flee their homes. (166) On August 11, 2006, the UNHRC, at a second special session, convened to address the conflict between Israel and Hezbollah, and adopted resolution S-2/1, which immediately created a high-level commission of inquiry (Commission). (167) Resolution S-2/1 gave the Commission the power to evaluate the types of weapons Israel used and its compliance with international law. (168) The Commission, however, did not examine the legality and consequences of Hezbollah's actions during the conflict because such an investigation was beyond the scope of the Commission's powers. (169)
The Commission's report to the UNHRC concluded that the conflict in Lebanon "had a devastating impact" particularly in southern Lebanon and "exacted a heavy human toll." (170) Further, the Commission's report found that both conventional and customary international humanitarian law was applicable throughout the conflict. (171) Nonetheless, the Commission found "a significant pattern of excessive, indiscriminate and disproportionate use of force by IDF against Lebanese civilians and civilian objects" and a failure by the IDF to distinguish civilians from combatants. (172)
In its report, the Commission specifically evaluated the legality of Israel's extensive use of cluster bombs during its conflict with Hezbollah. (173) The Commission's report concluded that "[n]one of the weapons known to have been used by IDF are illegal per se under international humanitarian law ... [h]owever, the way in which the weapons were used in some cases transgresses the law." (174) Specifically, the Commission found that the IDF decision to fire ninety percent of the cluster bombs used in the conflict during the last seventy-two hours of fighting was "not justified by any reason of military necessity." (175) Instead, the Commission found that the cluster bombs were deliberately used "to turn large areas of fertile agricultural land into 'no go' areas for the civilian population." (176) These cluster bombs, which Israel used in an indiscriminate manner, had a predictably high dud rate according to the Commission and their use amounted to a de facto scattering of landmines mines across wide tracts of Lebanese land. (177) The Commission, however, also recognized that cluster bombs provide militaries "with a very effective weapon" against troops in the open or in defensive positions, artillery batteries, and concentrations of tanks or vehicles. (178)
Accordingly, the Commission made a number of recommendations to the UNHRC, some of them specifically aimed at cluster bombs. (179) The Commission suggested that the UNHRC "should take the initiative to promote urgent action to include cluster munitions to the list of weapons banned under international law." (180) Further, the Commission suggested that the UNHRC should strongly urge Israel to turn over "full and detailed information" regarding the coordinates of cluster munitions fired into Lebanon "to enable timely clearance of unexploded ordinance" so that further injuries and deaths might be averted and displaced civilians could resume a normal life, socially and economically. (181) The Commission also recommended that the UNHRC should promote initiatives to provide humanitarian and reconstruction assistance to the people of Lebanon with specific attention to the child victims of this armed conflict. (182) Also, the UNHRC "should promote and monitor the obligation to 'respect and ensure respect' of the international humanitarian law by all parties in the conflict including non-State actors." (183)
2. Analysis Under Protocol I
The reckless manner in which Israel used cluster bombs against Hezbollah in this conflict probably violated the principles of distinction and proportionality that are required under international humanitarian law. (184) Under the principle of distinction, which requires all parties to distinguish between civilians and combatants, as found in Additional Protocol I of the Geneva Conventions:
Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) Those which are not directed at a specific military objective;
(b) Those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. (185)
Further, an example of an indiscriminate attack is, "[an] attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects." (186) Israeli and Hezbollah attack planners were required to "[t]ake all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects" and "[r]efrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." (187)
Whether the use of cluster bombs to target specific areas violates Protocol I, however, depends largely on the circumstances. (188) While Israel warned the civilian population in southern Lebanon of impending attacks, and maintains that its use of cluster bombs was in self-defense, the facts suggest that IDF forces blanketed parts of southern Lebanon with cluster bombs without much consideration for the civilians that remained amidst the fighting. (189) Israel argues that its use of cluster bombs was in compliance with international law and its operations were only directed against legitimate military targets including: "the terrorists themselves, the places from which they launch attacks against Israel, facilities serving the terrorists, and objectives that directly contribute to the enemy's war effort." (190) Further complicating matters, some commentators also question the true intentions of some "civilians" and how to legally define a "civilian" in an age of terrorism where militants do not wear uniforms and blend easily into the civilian population. (191)
In this conflict, however, Israel likely failed to comply with the principles of distinction and proportionality as required by Protocol I when it decided to bombard southern Lebanon with hundreds of cluster bombs and millions of cluster bomblets, many of which remained on the ground as hazardous duds, in an effort to end Hezbollah's own indiscriminate rocket attacks on Israeli cities. (192) Israel's decision to use cluster bombs in such an intense and widespread manner in this conflict even astounded some of its own soldiers and people. (193) Moreover, Israel's decision to fire nearly all of the cluster bombs it used during the last seventy-two hours of the conflict was excessive in relation to the concrete and direct military advantage it would have anticipated. (194) Perhaps Israel, knowing that its cluster bombs had a high dud rate, intended to turn large swaths of land into de facto minefields in an attempt to prevent Hezbollah from launching further rocket attacks on Israeli cities. (195) Such a strategy, however, seems disproportionate in relation to the direct military advantage that Israel would realize as a result. (196) In the end, Israel lacked any substantial incentive to abstain from using cluster bombs in its chosen manner because existing international law fails to provide meaningful consequences for the misuse of cluster bombs in war. (197)
C. Solving the Problems Related to Cluster Bombs in Armed Conflicts and Preventing Humanitarian Disasters through Law
The current state of international law, including Protocol I, is generally sufficient in regulating the method by which militaries may legally use cluster bombs in armed conflicts. (198) The consequences of violating these laws, however, must be more significant in order to more effectively deter countries from potentially misusing cluster bombs. (199) For example, countries that use cluster bombs with reckless abandon must face meaningful consequences, perhaps through criminal prosecutions or economic sanctions. (200) While CCW Protocol V on the Explosive Remnants of War is a helpful starting point in requiring countries to clear explosive ordinances, a country may be willing to endure the costs associated with removing dud cluster bomblets in exchange for improperly using cluster bombs. (201)
An international instrument that completely bans all cluster bombs, however, would be impractical and unnecessary. (202) Thus far, the United States still insists on stockpiling landmines for strategic purposes, and the United States would probably not officially sign onto any ban that explicitly prohibits all cluster bombs. (203) Since the United States is a major player throughout the world in military operations, an international agreement to ban cluster bombs would probably not end their use on the battlefield. (204) The use of cluster bombs in some instances might actually be preferable, for example, in the desert where civilian populations are not present. (205) Instead, a treaty that restricts the use of certain cluster bombs, such as those with high failure rates or explicitly restricts cluster bomb use in areas where civilians are present, is more practical. (206)
Through the language in H.R. 2764, the United States sent an important message to the rest of the world, particularly in countries where terrorist groups seek to influence the population, that the United States intends to sell or transfer cluster bombs in a responsible manner and that the United States recognizes the dangers posed by the misuse of cluster bombs. (207) Moreover, the language in the bill is not overly restrictive and does not compromise the means by which the U.S. military uses cluster bombs. (208) Yet, even though the United States passed its own legislation regulating the sale of cluster bombs to other countries, countries that produce their own cluster bombs may simply choose not to purchase these weapons from the United States. (209) H.R. 2764, however, provides a preliminary foundation that the international community might use to promote an international agreement that restricts the use of cluster bombs. (210) Nonetheless, the language in H.R. 2764 lacked concrete consequences for countries that misuse U.S. manufactured cluster bombs, and any preexisting deterrents contained in other separate agreements regarding cluster bomb misuse might not be sufficient. (211) While in theory, a potential violator would be using cluster bombs with lower dud rates, the hazards associated with post-war unexploded bomblets could still pose a threat to civilians. (212) Therefore, concrete consequences must be explicitly articulated to deter such misuse and ensure that violators are properly punished. (213)
A potential future international agreement regarding cluster bombs should explicitly mandate the following: specifically prohibit the reckless and unnecessary use of cluster bombs in civilian areas; outline specific and serious consequences for their misuse; and focus on lowering cluster bomb failure rates and requiring reliable self-destruct fuses for all bomblets contained within any cluster bombs that are used. (214) Focusing on lowering the rate of unexploded bomblets not only benefits the civilian population that may return to the area, but would also protect friendly troops that may encounter unexploded bomblets as they move into previously targeted areas. (215) Nonetheless, even this requirement would probably not completely solve the problems associated with unexploded bomblets because if for example, millions of cluster bomblets were used at a failure rate of one percent, thousands of deadly duds would still remain. (216)
The prolific use of cluster bombs in the war on terrorism highlights the important need for the world's attention regarding the aforementioned legal aspects associated with their use. (217) This Note has argued that the use of cluster bombs in the war on terrorism, particularly in Afghanistan, Iraq, and Lebanon, demonstrates the need for stronger international laws regulating cluster bombs with concrete consequences for their misuse and more practical solutions aimed at preventing civilian casualties during an armed conflict and after the fighting has ended. (218) Moreover, Israel's use of cluster bombs against Hezbollah terrorists in 2006 probably violated international humanitarian law and illustrates the need for harsher legal deterrents to prevent cluster bomb misuse. (219)
While cluster bombs are legal under existing international law and should not be categorically banned, existing international law should be reevaluated and refined to explicitly state that cluster bombs must not be used in areas containing civilian populations. (220) With inherently wide dispersal areas and the potential to create hazardous areas of land littered with dud bomblets that fail to explode, the ramifications of cluster bomb use must not be ignored. (221) Ultimately, the trauma and devastation unexploded cluster bomblets produce may infuriate local civilians, thereby creating future generations of new terrorists--harming everyone in the long run.
(1.) See infra Part II.A (describing use of cluster bombs in war).
(2.) See generally HUMAN RIGHTS WATCH, FATALLY FLAWED: CLUSTER BOMBS AND THEIR USE BY THE UNITED STATES IN AFGHANISTAN (2002), available at http://hrw.org/reports/2002/us-afghanistan/Afghan1202.pdf (outlining humanitarian concerns over use of cluster bombs).
(3.) Anthony Shadid, In Lebanon, a War's Lethal Harvest, WASH. POST, Sept. 26, 2006, at A1.
(4.) Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I].
(5.) See Virgil Wiebe, Footprints of Death: Cluster Bombs as Indiscriminate Weapons Under International Humanitarian Law, 22 MICH. J. INT'L L. 85, 87 (2000) (recognizing no explicit ban of cluster bombs under international law); see infra note 150 and accompanying text (noting cluster bombs not specifically prohibited under any international law).
(6.) See infra Part IV (evaluating use of cluster bombs in war on terror).
(7.) See infra Part IV (evaluating use of cluster bombs in war on terror). See generally The Coalition Information Centers, THE GLOBAL WAR ON TERRORISM: THE FIRST 100 DAYS (Dec. 20, 2001), available at http://www.whitehouse.gov/news/releases/2001/12/100dayreport.pdf (describing the United States's global war on terror).
(8.) See infra Part II (discussing cluster bomb characteristics and applicable laws of war).
(9.) See infra Part III (outlining use of cluster bombs in Laos, Yugoslavia, Afghanistan, Iraq, and Lebanon).
(10.) See infra Part IV (analyzing influence of international laws in governing use of cluster bombs in war on terror).
(11.) See infra Part V (outlining necessity of further laws or legislation governing cluster bomb use or sale).
(12.) See Thomas Michael McDonnell, Cluster Bombs Over Kosovo: A Violation of International Law?, 44 ARIZ. L. REV. 31, 44 (2002) (describing nature of cluster bombs); see also BBC News, Fact File: Cluster Bombs--Introduction, http://news.bbc.co.uk/1/hi/world/americas/2788569.stm (last visited Oct. 18, 2007) (discussing components and activation of cluster bombs and bomblets). See generally Federation of American Scientists, Cluster Bombs, http://www.fas.org/man/dod-101/sys/dumb/cluster.htm (last visited Oct. 18, 2007) (providing detailed description of cluster bombs).
(13.) See Wiebe, supra note 5, at 89-91 (defining cluster bombs and explaining why militaries value cluster munitions). Single warhead bombs are designed to destroy a single point or particular target. See id. at 89 (contrasting cluster bombs with single warhead bombs). In contrast, cluster bombs are designed to destroy targets over a wide area of terrain. See id. A cluster bomb might be compared to a "shotgun blast" that disperses hundreds of exploding bomblets over a wide area. Id. Depending on the specific type of cluster bomb, bomblets can be dispersed over an area the size of several football fields. HUMAN RIGHTS WATCH, CLUSTER BOMBS IN AFGHANISTAN: HUMAN RIGHTS WATCH BACKGROUNDER (Oct. 2001), available at http://www.hrw.org/backgrounder/arms/cluster-bck1031.pdf [hereinafter HRW BACKGROUNDER] (explaining typical air attack using cluster bombs can cover area of roughly 100 x 50 meters).
(14.) See Major Thomas J. Herthel, On the Chopping Block: Cluster Munitions and the Law of War, 51 A.F. L. REV. 229, 234-35 (2001) (describing functions of cluster munitions). Cluster bombs consist of three main components: a dispenser, which contains the bomblets, fuzes, and smaller submunitions or bomblets. Id. The U.S. military refers to cluster munitions as Cluster Bomb Units or "CBUs". Id.
(15.) See Wiebe, supra note 5, at 89 (noting various types of delivery systems applicable to cluster bombs); HRW BACKGROUNDER, supra note 13, at 6 (recognizing cluster bombs may be delivered by air, surface artillery, or rockets).
(16.) See Wiebe, supra note 5, at 89-90 (describing characteristics and number of bomblets usually contained within cluster bombs).
(17.) See Herthel, supra note 14, at 235-36 (outlining history of cluster weapon development).
(18.) See Herthel, supra note 14, at 235-36 (discussing United States's early cluster bomb usage).
(19.) See HRW BACKGROUNDER, supra note 13, at 7 (noting typical targets of cluster bombs). A cluster bomb's effectiveness against particular types of targets can be dictated by its submunitions or bomblets. See Herthel, supra note 14, at 235 (explaining purposes of various submunitions). Generally, the submunitions contained within cluster bombs have an "anti-tank, anti-material, or anti-personnel function." Id. Older types of cluster bombs contained only one type of bomblet and were used against one type of target. Id. Newer cluster bomblets called Combined Effects Munitions are able to "engage an enemy in a variety of ways." Id. For instance, the U.S. Air Force's BLU 97/B Combined Effects Bomb merges fragmentation effects that are useful against light armor and personnel. See id. (describing increased functionality of more recently developed bomblets); see also GlobalSecurity.org, BLU-97/B Combined Effects Bomb (CEB), http://www.globalsecurity.org/military/systems/munitions/blu-97.htm (last visited Oct. 18, 2007) (detailing characteristics of BLU 97/B).
(20.) See Herthel, supra note 14, at 236-37 (outlining history of use of cluster bombs).
(21.) See Herthel, supra note 14, at 238-39 (explaining incremental proliferation of cluster bomb technology since Vietnam War); Wiebe, supra note 5, at 91 (recognizing U.S. military's extensive use of cluster bombs in major conflicts since Vietnam War); see also infra Part III (outlining armed conflicts where cluster bombs were used).
(22.) See Herthel, supra note 14, at 238-39 (discussing recent usage of cluster bombs).
(23.) John R. Crook, U.S. Policy Regarding Cluster Munitions, 101 AM. J. INT'L L. 501, 501 (2007).
(24.) See Herthel, supra note 14, at 269, n. 16 (noting failure rate between five and thirty percent); McDonnell, supra note 12, at 51-60 (analyzing dud rate of cluster bomb submunitions); HRW BACKGROUNDER, supra note 13 (estimating failure rate between two and thirty percent or more of advanced U.S. cluster munitions); see also Human Rights Watch, Cluster Munition Information Chart, http://hrw.org/arms/pdfs/munitionChart0806.pdf (last updated Aug. 28, 2006) (examining reported submunition failure rates of twelve commonly used submunitions). The manufacturer of one particular type of submunition, the CBU87B, estimates that five percent will fail to explode. McDonnell, supra note 12, at 51. In actual combat conditions, however, dud rates of up to twenty-three to thirty percent have been reported for the CBU-87B. Id. Sometimes, soft ground conditions, such as sand, may prevent a cluster bomb's submunitions from detonating. See id. (examining causes of submunitions' failure to detonate).
(25.) Frida Berrigan, What We Leave Behind; From Kosovo to Lebanon, Cluster Bomb Casualties Continue to Mount, IN THESE TIMES, Dec. 11, 2006, available at http://www.inthesetimes.com/article/2934/.
(26.) See infra Part III (noting number of cluster bombs used in various conflicts throughout world).
(27.) See, e.g., Paul Wiseman, Cluster Bombs Kill in Iraq, Even After Shooting Ends, USA TODAY, Dec. 11, 2003, at A1 (examining danger unexploded cluster bombs pose to Iraqi civilians and U.S. troops advancing on Baghdad); Judging the War in Iraq: Could Try Harder, ECONOMIST, Dec. 13, 2003, at 60 (recognizing dangers posed by unexploded bomblets in Iraq); Lebanon After the War: Hizbullah's New Offensive, ECONOMIST, Sept. 16, 2006, at 59 (noting danger posed by unexploded cluster bomblets resulting in hampered reconstruction in Lebanon).
(28.) Press Release, Patrick Leahy, U.S. Senator, Vermont, Senate-Passed FY 2008 State-Foreign Operations Appropriations Bill Includes Leahy-Feinstein Reforms To Restrict The Sale Or Transfer of Cluster Bombs (Sept. 7, 2007) available at http://leahy.senate.gov/press/200709/090707.html.
(29.) See HRW BACKGROUNDER, supra note 13, at 7 (equating danger of dud cluster bomblets to landmines); see also Mennonite Central Committee, Titus Peachey, Cluster Bombs: The Case for a Ban (Dec. 2003) http://www.mcc.org/clusterbombs/ban/ (arguing cluster munitions almost always create effect of a mine field). Human Rights Watch argues that the "indiscriminate dangers" cluster bomb duds pose to civilians are no different than the hazards posed by landmines. HRW BACKGROUNDER, supra note 13, at 7.
(30.) See HRW BACKGROUNDER, supra note 13. Under the 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Landmines and on their Destruction, an anti-personnel mine is defined as a mine "designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons." Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 36 I.L.M. 1507 (1997) [hereinafter Mine Ban Treaty].
(31.) See Herthel, supra note 14, at 232-39 (arguing cluster munitions and landmines are not equivalent and require different types of regulation).
(32.) See Wiseman, supra note 27, at A1 (explaining possible U.S. solutions to problem of dud cluster bombs); see also Lesley Wexler, Limiting the Precautionary Principle: Weapons Regulation in the Face of Scientific Uncertainty, 39 U.C. DAVIS L. REV. 459, at n.219 (2006) (recognizing problems associated with dud cluster bombs and promoting self-destruct fuse as possible solution).
(33.) Wiseman, supra note 27, at A1.
(34.) See id. Specifically, the U.S. Army added self-destruct fuses to M42 and M46 bomblets that are fired by 155mm artillery. Id.
(35.) See HELEN DUFFY, THE 'WAR ON TERROR' AND THE FRAMEWORK OF INTERNATIONAL LAW 237 (2005) (stating controversy surrounding cluster bombs' submunitions dispersal over wide area beyond intended target); HUMAN RIGHTS WATCH, OFF TARGET: THE CONDUCT OF THE WAR AND CIVILIAN CASUALTIES IN IRAQ, 55-56 (2003), available at http://www.hrw.org/reports/2003/usa1203/usa1203.pdf (asserting cluster bomb strikes endanger civilians by blanketing broad area with submunitions and are often inaccurate).
(36.) Berrigan, supra note 25, at 20.
(37.) Human Rights Watch, Israeli Cluster Munitions Hit Civilians in Lebanon: Israel Must Not Use Indiscriminate Weapons (July 24, 2006) http://hrw.org/english/docs/2006/07/24/isrlpa13798.htm (arguing indiscriminate use of cluster bombs in area populated with civilians potentially violates international law).
(38.) Herthel, supra note 14, at 262-69.
(39.) See Human Rights Watch, Memorandum to CCW Delegates, Cluster Munitions and International Humanitarian Law: the Need for Better Compliance and Stronger Rules, at 2 (July 5-15, 2004) [hereinafter Memorandum to CCW Delegates] http://www.hrw.org/backgrounder/arms/clusters0704/clusters0704.pdf (stating no treaty exists to regulate cluster munitions). Protocol I, however, offers "internationally accepted legal standards for evaluating the problems posed by these weapons." Id.
(40.) See generally Christopher Greenwood, The Law of War (International Humanitarian Law), in INTERNATIONAL LAW 789, 789-821 (Malcolm D. Evans ed., 2003) (describing key facets of international humanitarian law).
(41.) See DUFFY, supra note 35, at 218-22 (recognizing existence of armed conflict based on factual inquiry rather than technical legal analysis); see also Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. PA. L. REV. 675, 691 (2004) (discussing background regarding laws of armed conflict). But see Geoffrey S. Corn, Hamdan, Lebanon, and the Regulation of Hostilities: the Need to Recognize a Hybrid Category of Armed Conflict, 40 VAND. J. TRANSNAT'L L. 295, 311-15 (2007) (arguing changing warfare necessitates hybridization of conflict to trigger foundational principles of laws of war). The key characteristic of any armed conflict is "the resort to force between two or more identifiable parties." DUFFY, supra note 35, at 219.
[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.
Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, [paragraph] 70 (Oct. 2, 1995).
(42.) See DUFFY, supra note 35, at 223-28 (recognizing international humanitarian law found in treaties and customary law).
(43.) See United States v. Yousef, 327 F.3d 56, 92 (2d Cir. 2003) (quoting The Paquete Habana, 175 U.S. 677, 694 (1900)) (defining customary international law).
(44.) See Brooks, supra note 41, at 691 (discussing background regarding laws of armed conflict). For example, it is "accepted as universally binding on all parties to all armed conflicts" that noncombatants must be given minimum protections under Common Article III of the Geneva Conventions. Id.
(45.) See id. Contemporary international humanitarian law rejects the principle that international humanitarian law treaty provisions only apply as treaty law if all parties ratified the treaty. See DUFFY, supra note 35, at 225 (stating principles of contemporary international humanitarian law). For instance, state parties engaged in armed conflict must abide by the Geneva Conventions, which contains numerous facets of customary law, regardless of whether other parties involved in the conflict, such as terrorists, are a party to the Geneva Conventions. See id. at 225-26 (discussing obligations of states to abide by Geneva Conventions).
(46.) See Yousef, 327 F.3d at 92 (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)) (discussing relationship between domestic U.S. law and international law). See generally 48 C.J.S. International Law [section] 3 (2006) (evaluating international law as part of U.S. law).
(47.) See Greenwood, supra note 40, at 790 (describing components of international humanitarian law); Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; The Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316; The Convention Relative to the Treatment of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Protocol I, supra note 4.
(48.) See Greenwood, supra note 40, at 790 (noting protected groups covered by Geneva Conventions).
(49.) See Greenwood, supra note 40, at 790 (discussing applicability of Geneva Conventions of 1949).
(50.) See Memorandum to CCW Delegates, supra note 39, at 2 (recognizing applicability of Protocol I in analysis of cluster bomb legality); see also McDonnell, supra note 12, at 74-79 (providing overview of history of Protocol I). See generally Protocol I, supra note 4 (outlining protections for victims of war).
(51.) Memorandum to CCW Delegates, supra note 39, at 2; see McDonnell, supra note 12, at 76 (discussing resolutions passed to better protect civilians).
(52.) See Memorandum to CCW Delegates, supra note 39, at 2 (describing purposes of Protocol I).
(53.) Protocol I, supra note 4, at art. 48 (requiring parties in conflict to always distinguish between civilian population and combatants).
(54.) Protocol I, supra note 4, at art. 51(5)(b) (noting test for disproportionate attack).
(55.) Herthel, supra note 14, at 248; Memorandum to CCW Delegates, supra note 39, at 2 (noting Protocol I part of customary international law). When refusing to ratify Protocol I, President Ronald Regan referred to the agreement as "fundamentally and irreconcilably flawed." President Ronald Reagan, Message to the Senate Transmitting a Protocol to the 1949 Geneva Conventions (Jan. 29, 1987), available at http://www.reagan.utexas.edu/archives/speeches/1987/012987B.HTM. President Reagan determined that Protocol I "would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war" and "would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves." Id. See generally George H. Aldrich, Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions, 85 A.J.I.L. 1 (1991) (evaluating United States's refusal to ratify Protocol I and suggesting necessity of reevaluating this decision).
(56.) Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 U.N.T.S. 137 [hereinafter CCW].
(57.) See Wiebe, supra note 5, at 152-57 (outlining creation of CCW).
(58.) See id. at 152 (discussing opposition to ban on cluster bombs in CCW discussions).
(59.) See CCW, supra note 56 (noting types of restrictions on specific types of weapons).
(61.) Protocol on the Explosive Remnants of War (Protocol V), U.N. Doc. CCW/MSP/2003/3 (Nov. 28, 2003) [hereinafter CCW Protocol V] (addressing post-conflict threats and removal of unexploded ordinances). See also Memorandum to CCW Delegates, supra note 39, at 2 (addressing CCW Protocol V in relation to cluster bomb use). President George W. Bush recommended that the United States ratify CCW Protocol V. See President George W. Bush, Message to the Senate of the United States, (June 19, 2006), available at http://www.whitehouse.gov/news/releases/2006/06/20060620-3.html (urging Senate to give favorable consideration and consent to ratification of CCW Protocol V).
(62.) See generally 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) (discussing dangers posed by unexploded bomblets in Laos).
(63.) Press Release, Office of U.S. Senator Patrick Leahy, Senate Debates, Votes on Feinstein-Leahy Amendment to Tighten Controls on U.S. Sales and Transfers of Cluster Bombs that Pose Lingering Threats to Innocent Civilians (Sept. 6, 2006), available at http://leahy.senate.gov/press/200609/090606a.html [hereinafter Leahy Press Release].
(64.) See Capati, supra note 62, at 227-28 (discussing dangers posed by unexploded bomblets in Laos); see also Henry Kamm, Decades-Old U.S. Bombs Still Killing Laotians, N.Y. TIMES, Aug. 10, 1995, at A12 (describing dangers posed by unexploded cluster bomblets two decades later).
(65.) See Briefing Paper, Human Rights Watch, Cluster Munitions a Foreseeable Hazard in Iraq, (Mar. 2003), [hereinafter HRW Foreseeable Hazard] http://www.hrw.org/backgrounder/arms/cluster031803.htm (describing use of cluster bombs in Iraq in 1991).
(66.) Id. Approximately twenty-five percent of all the aerial bombs used during the 1991 Persian Gulf War were cluster bombs. Id.
(68.) Human Rights Watch, U.S. Using Cluster Munitions in Iraq, Apr. 1, 2003, http://www.hrw.org/english/docs/2003/04/01/usint5475.htm.
(69.) HRW Foreseeable Hazard, supra note 65, (describing use and impact of cluster bombs in Iraq in 1991). In 2002, more than ten years later, 2400 dud cluster bombs were subsequently found and destroyed. Id.
(70.) See generally McDonnell, supra note 12 (describing use of cluster bombs in Yugoslavia).
(71.) Id. at 52-53.
(72.) Id. at 115-18.
(73.) Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, [paragraph] 27, available at http://www.un.org/icty/pressreal/nato061300.htm (June 8, 2000) [hereinafter OTP Report].
(75.) McDonnell, supra note 12, at 116-18 (describing investigation of Martic). The Trial Chamber found that, the use of the Orkan rockets in this case was not intended to hit military targets, but rather to terrorize the Zagreb's civilians and are thus "contrary to fundamental rules of customary and conventional international law." Press Release, International Criminal Tribunal for the Former Yugoslavia, The Tribunal Issues an International Arrest Warrant Against Milan Martic, U.N. Doc. No. CC/PIO/042-E (Mar. 8, 1996) [hereinafter Martic Press Release], available at http://www.un.org/icty/pressreal/p042-e.htm.
(76.) See Prosecutor v. Martic, Case No. IT-95-11, Amended Indictment, [paragraph][paragraph] 51-52 (July 14, 2003) available at http://www.un.org/icty/indictment/english/mar2ai030909e.htm; see also Martic Press Release, supra note 75 (describing charges against Martic).
(77.) Prosecutor v. Martic, Case No. IT-95-11, Ruling Transcript, at 140 (Mar. 8, 1996) available at http://www.un.org/icty/transe11/R61/960308IT.htm (noting statements of Chamber regarding cluster bombs); OTP Report, supra note 73.
(78.) See generally Donald H. Rumsfeld, Afghanistan: Five Years Later, WASH. POST, Oct. 7, 2006, at A23 (discussing developments in war in Afghanistan).
(79.) See generally FATALLY FLAWED, supra note 2 (outlining use of cluster bombs in Afghanistan). In the first week of the air war in Afghanistan, fifty CBU87 cluster bombs, which contained 10,100 bomblets were dropped in five missions. Id. at 15.
(80.) U.S. Department of Defense, DoD News Briefing--Rear Admiral John Stufflebeem, Joint Staff, Nov. 28, 2001, available at http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=2468. "[C]luster munitions are most effective against troops that are in lightly defended positions. So the place to best use them is in an area that would have minimal collateral damage impact and maximum numbers of forces that you would wish to kill." Id. The foothills on the south side of Mazar-e Sharif are a good physical example of an area where cluster munitions would be most often used. Id. Specifically, the United States used CBU-87 Combined Effects Munitions and CBU-103 cluster bombs, which contain a Wind Corrected Munitions Dispensor kit for better accuracy. Press Release, Human Rights Watch, Cluster Bomblets Litter Afghanistan (Nov. 16, 2001), available at http://hrw.org/english/docs/2001/11/16/afghan3365.htm. Both types of cluster bombs release 202 BLU-97 bomblets, which are yellow and approximately the size of a soda can. Id.
(81.) Press Release, Human Rights Watch, Cluster Bomblets Litter Afghanistan (Nov. 16, 2001), available at http://hrw.org/english/docs/2001/11/16/afghan3365.htm.
(83.) See generally Harold Hongju Koh, The Spirit of the Laws, 43 HARV. INT'L L.J. 23 (2002) (arguing need to respect human rights and rule of law in light of September 11, 2001 terrorist attacks).
(84.) See generally HRW BACKGROUNDER, supra note 13 (detailing destruction caused by cluster bomb use in war in Afghanistan).
(85.) See Elizabeth A. Neuffer, Food Drops Found to Do Little Good, BOSTON GLOBE, Mar. 26, 2002, at A1 (noting difficulty in discerning between food rations and cluster bombs because of similar colors).
(86.) HUMAN RIGHTS WATCH, supra note 35, at 6.
(87.) Wiseman, supra note 27, at A1. Incomplete Iraqi hospital records and the manner in which Iraqi families bury the dead, however, make it almost impossible to verify the accuracy of cluster bomb civilian casualties in Iraq. Id.
(88.) Wiseman, supra note 27, at A1. According to Saad Khazal al-Faluji, a surgeon at Hillah General Hospital, at least forty civilians were killed by cluster bomb strikes in a neighborhood in Hillah, which is sixty miles south of Baghdad. Wiseman, supra note 27, at A1.
(89.) See supra notes 33-35 and accompanying text (discussing steps taken by United States to improve safety of cluster bomblets). Major Gary Tallman, a spokesman at the Pentagon, calls cluster weapons effective "against enemy troop formations and light-skinned vehicles" and are used only after "a deliberate decision-making process." Wiseman, supra note 27, at A1.
(90.) Wiseman, supra note 27, at A1
(91.) Wiseman, supra note 27, at A1. Colonel Cayce said, "No other army in the world does that [embeds lawyers with troops to ensure compliance with international humanitarian law] ... We value the rule of law." Id.
(92.) See Israel and Lebanon: The Accidental War, ECONOMIST, July 22, 2006, at 53 (outlining origins of conflict); The Crisis in Lebanon, Israel and Palestine: Ending Will Be Harder, ECONOMIST, July 22, 2006, at 65 (discussing conflict between Israel and Lebanon).
(93.) The Crisis in Lebanon, Israel and Palestine: Ending Will Be Harder, supra note 92, at 65. See generally, Tom Ruys, Crossing the Thin Blue Line: An Inquiry into Israel's Recourse to Self-Defense Against Hezbollah, 43 STAN. J. INT'L L. 265 (2007) (examining legality of Israel's military intervention in Lebanon against Hezbollah in 2006).
(94.) Edward Cody and John Ward Anderson, Deadliest Day Yet in Assault on Lebanon: Hezbollah Rockets Fired Into Israel Kill Two Arab Boys, WASH. POST., July 20, 2006, at A01.
(95.) See Anne Barnard, Fighting Rises Across Israel, Lebanon Line: Jets Hit Beirut Strongholds; Hezbollah Rockets Strike Haifa, BOSTON GLOBE, July 14, 2006, at A1 (recounting types of attacks launched by both Israel and Hezbollah).
(96.) See id.
(97.) See Thanassis Cambanis, U.N. Force Mobilizes Cautiously in Lebanon: Hezbollah Leaders Present Obstacles, BOSTON GLOBE, Oct. 17, 2006, at A1 (discussing transition to U.N. force after Aug. 14, 2006 cease-fire). While the conflict largely remained centered in Lebanon, the Lebanese Armed forces did not take an active role in the conflict. See Ruys, supra note 93, at 284 (describing Lebanon's role in the conflict).
(98.) See Shadid, supra note 3, at A1 (examining aftermath of Israel's use of cluster bombs in Lebanon); Thanassis Cambanis, Unexploded Bombs Sow Fear in Lebanon: UN Tries to Clear Israeli Ordinance, BOSTON GLOBE, Oct. 13, 2006, at A1 (discussing problems posed by unexploded Israeli cluster bomblets).
(99.) See Thanassis Cambanis, Hezbollah Used Cluster Bombs, Rights Group States: Says Munitions Fired into Civilian Areas of Israel, BOSTON GLOBE, Oct. 20, 2006, at A9 (reporting on purported use of cluster bombs by Hezbollah against Israel). Hezbollah purportedly fired 113 Chinese-manufactured cluster bombs containing about 4400 bomblets at Israel. Id. Two alleged cluster bomb rocket strikes landed near houses in the village of Maghar in northern Israel. Id.; Human Rights Watch, Lebanon/Israel: Hezbollah Hit Israel with Cluster Munitions During Conflict, (Oct. 19, 2006), http://hrw.org/english/docs/2006/10/18/lebano14412.htm (asserting Hezbollah fired cluster munitions into northern Israel). Human Rights Watch believes Hezbollah's cluster bomb attacks with the Chinese-made Type-81 122mm rockets "were at best indiscriminate" because "they violated the principle of distinction by using unguided and highly inaccurate cluster munition models against populated areas." Id. At worst, "Hezbollah deliberately attacked civilian areas with these weapons." Id.
(100.) Human Rights Watch, Cluster Munitions in Lebanon, http://www.hrw.org/campaigns/israel_lebanon/clusters/index.htm (last updated Oct. 19, 2006). Italian peacekeepers have even resorted to role play, songs, and cartoons to teach Lebanese children about the dangers of the millions of unexploded cluster bomblets left behind from the conflict. See Italians Teaching Lebanese Kids How to Avoid Bombs, But ..., AsiaNews.it (Jan. 19, 2007), http://www.asianews.it/index.php?l=en&art=8275&size=A (describing efforts of Italian peacekeepers to educate Lebanese children about danger of dud bomblets).
(101.) Israel's 'Immoral' Use of Cluster Bombs in Lebanon Poses Major Threat--UN Aid Chief, UN NEWS CENTRE (Aug. 30, 2006), http://www.un.org/apps/news/story.asp?NewsID=19670&Cr=Leban&Cr1= (launching criticism of use of cluster bomb strikes during last seventy two hours of conflict). Under-Secretary-General for Humanitarian Affairs Jan Egeland noted that roughly 250,000 Lebanese returnees who fled the fighting were unable to return due to the dangers posed by unexploded cluster bomblets. Id. Egland stated: "What's shocking and I would say to me, completely immoral, is that 90 per cent of the cluster bomb strikes occurred in the last seventy-two hours of the conflict when we knew there would be a resolution, when we really knew there would be an end of this." Id.
(102.) See Israel Ministry of Foreign Affairs, Behind the Headlines: Legal and Operational Aspects of the Use of Cluster Bombs (Sept. 5, 2006), http://www.mfa.gov.il/MFA/About+the+Ministry/Behind+the+Headlines/Legal+a nd+operational+aspects+of+the+use+of+cluster+bombs+5-Sep-2006.htm (arguing Israel's use of cluster bombs should focus on method rather on legality of cluster weapons themselves).
(103.) See HUMAN RIGHTS WATCH, FATAL STRIKES, ISRAEL'S INDISCRIMINATE ATTACKS AGAINST CIVILIANS IN LEBANON (Aug. 2007), http://www.hrw.org/reports/2006/lebanon0806/lebanon0806webwcover.pdf (arguing Israel launched indiscriminate attacks on Hezbollah in Lebanon); AMNESTY INTERNATIONAL, ISRAEL: FEAR FOR SAFETY (Sept. 1, 2006), http://web.amnesty.org/library/Index/ENGMDE150802006 (recognizing danger posed by unexploded cluster bomblets in Lebanon). But see Alan Dershowitz, 'Civilian casualty'? That's a Gray Area; Those Who Support Terrorists Are Not Entirely Innocent, LOS ANGELES TIMES, July 22, 2006, at B17 (questioning true innocence of civilians supporting Hezbollah during armed conflict); Alan Dershowitz, Blame the Terrorists, Not Israel, BOSTON GLOBE, July 24, 2006, at A9 (arguing terrorists exploit human rights and media by hiding behind civilians and causing casualties); Alan Dershowitz, Couldn't Qana's Carnage Have Been Avoided?: Hezbollah Made Pawns Out of Lebanese Children, BOSTON HERALD, Aug. 2, 2006, at 23 (arguing Hezbollah used civilians and children as human shields to launch rocket attacks).
(104.) See Shadid, supra note 3, at A1 (quoting U.N. estimates of one million unexploded bomblets remaining throughout southern Lebanon). But see Lebanon: Unexploded Israeli Cluster Bombs Deadly Risk; UN Asks Israel for More Data, UN NEWS CENTRE (Sept. 19, 2006), http://www.un.org/apps/news/story.asp?NewsID=19900&Cr=leban&Cr1= (stating at least 350,000 unexploded cluster bomblets remain a risk).
(105.) U.N. Peacekeeper Killed in Lebanon, Associated Press, July 25, 2007, available at, http://www.washingtonpost.com/wpdyn/content/article/2007/07/ 25/AR2007072501411.html; Hailstorm Sets Off Bomblets in Lebanon, Associated Press, Nov. 20, 2007, available at, http://ap.google.com/article/ALeqM5gemUmTfvF6e_bPbxQrGRw9qqKQbwD8T1 G8P81.
(106.) See David S. Cloud, Inquiry Opened Into Israeli Use of U.S. Bombs, N.Y. TIMES, Aug. 25, 2006, at A1. The United Nations Mine Action Coordination Center found the following types of American made cluster bomb submunitions: 559 M-42's, an anti-personnel bomblet that is used in 105-millimeter artillery shells, 663 M-77's, a type of submunition found in M-26 rockets, and 5 BLU-63's, a type of bomblet found in CBU-26 cluster bombs. Id. Moreover, 608 M-85's, an Israeli submunition, were also discovered. Id.
(107.) Cloud, supra note 106, at A1.
(108.) See David S. Cloud & Greg Myre, Israel May Have Violated Arms Pact, U.S. Says, N.Y. TIMES, Jan. 28, 2007, at A1 (examining possible consequences of Israel's use of cluster bombs against targets in Lebanon). An internal debate exists within the Pentagon and the State Department as to whether Israel actually violated the agreements or was justified in using the cluster munitions for self-defense in an effort to stop Hezbollah's rocket attacks on Israeli civilians. Id. Israel also maintains that it dropped leaflets warning civilians in Lebanon of impending attacks, and thus most villages were deserted after civilians fled the area. Id. See generally Sean McCormack, U.S. Department of State Daily Press Briefing, Jan. 29, 2007, available at http://www.state.gov/r/pa/prs/dpb/2007/79467.htm (discussing U.S. State Department's report to Congress about Israel's potential misuse of cluster bombs).
(109.) David S. Cloud, Israel Asks U.S. to Ship Rockets With Wide Blast, N.Y. TIMES, Aug. 11, 2006, at A1.
(110.) Cloud, supra note 109, at A1.
(111.) Cloud, supra note 109, at A1.
(112.) Cloud, supra note 109, at A1.
(113.) Cloud, supra note 109, at A1.; Cloud, supra note 106, at A1.
(114.) Cloud, supra note 109, at A1. American sales of cluster bombs to Israel dates back to the 1970s. See Cloud, supra note 106, at A1.
(115.) Cloud, supra note 106, at A1.
(116.) Cloud, supra note 106, at A1.
(117.) Cloud, supra note 109, at A1.
(118.) See Nir Hasson & Meron Rapoport, IDF Admits Targeting Civilian Areas in Lebanon With Cluster Bombs, HAARETZ, Nov. 21, 2006, http://www.haaretz.com/hasen/spages/789876.html (describing Israel's inquiry into use of cluster bombs during conflict with Lebanon).
(119.) Hasson & Rapoport, supra note 118.
(120.) Tim Butcher, Israel Admits Breaching Own Rules on Cluster Munitions, THE DAILY TELEGRAPH (LONDON), Nov. 21, 2006, at 19.
(121.) Butcher, supra note 120, at 19.
(122.) Meron Rapoport, When Rockets and Phosphorous Cluster, HAARETZ, Sept. 30, 2006, http://www.haaretz.com/hasen/spages/761910.html. One Israeli soldier said, "In the last 72 hours we fired all the munitions we had, all at the same spot ... [we] didn't even alter the direction of the gun." Meron Rapoport, What Lies Beneath, HAARETZ, Sept. 14, 2006, http://www.haaretz.com/hasen/spages/760246.html.
(123.) See Human Rights Council, Report of the Commission of Inquiry on Lebanon Pursuant to Human Rights Council Resolution S-2/1, U.N. Doc. A/HRC/3/2 (Nov. 23, 2006), available at http://www.ohchr.org/english/bodies/hrcouncil/docs/specialsession/ A.HRC.3.2.pdf [hereinafter UNHRC Report] (analyzing potential human rights violations in Lebanon); see Human Rights Council, 3rd Session Daily Update, COUNCIL MONITOR (Int'l Serv. for Human Rights, Geneva, Switz.), Dec. 1, 2006, http://www.ishr.ch/hrm/council/dailyupdates/session_003/1_December_06.pdf, (providing discussion notes of UNHRC's sessions); see also, infra, Part IV.B.1 (outlining findings of UNHRC Report). See generally James G. Stewart, The UN Commission of Inquiry on Lebanon: A Legal Appraisal, 5 J. INT'L CRIM. JUST. 1039 (Nov. 2007) (analyzing UNHRC Report). The U.N. General Assembly established the UNHRC on March 15, 2006 "to strengthen the world body's machinery to promote and protect fundamental rights, and deal with major human rights offenders." Press Release, U.N. General Assembly, General Assembly Establishes New Human Rights Council By Vote of 170 in Favor to 4 Against, with 3 Abstentions (Mar. 15, 2006), available at http://www.un.org/News/Press/docs/2006/ga10449.doc.htm. See generally U.N. Human Rights Council, http://www.ohchr.org/english/bodies/hrcouncil/ (last visited Oct. 8, 2007) (describing UNHRC).
(124.) See Yaakov Katz, Safer Israeli Cluster Bombs Not Used, JERUSALEM POST, Nov. 21, 2006, available at http://www.jpost.com/servlet/Satellite?cid=1162378451634&pagename=JPost%2F JPArticle%2FShowFull (noting Israel's decision not to use cluster bombs with self-destruct mechanisms); GlobalSecurity.org, M85 Dual-Purpose Bomblet, http://www.globalsecurity.org/military/systems/munitions/m85.htm (last visited Oct. 18, 2007) (describing Israel Military Industries's (IMI) cluster bomblet with self-destruct fuse).
(125.) Katz, supra note 124.
(126.) Katz, supra note 124. IMI manufactures cluster bomblets with selfdestruct fuses and hence low dud rates. Id. Over 60 million IMI cluster bomblets have been sold to customers throughout the world, including the United States and some European countries. Id.
(127.) Amos Harel and Yuval Azoulay, IDF Won't Take Legal Action Against Officers for Firing Cluster Bombs in Lebanon, HAARETZ (Dec. 25, 2007), available at http://www.haaretz.com/hasen/spages/937953.html; Isabel Kershner, Israel Won't Prosecute for Use of Cluster Bombs in Lebanon, N.Y. TIMES, Dec. 25, 2007, at A4.
(128.) Harel and Azoulay, supra note 127.
(129.) Harel and Azoulay, supra note 127.
(130.) See generally Israel Ministry of Foreign Affairs, Opinion of the Military Advocate General Regarding Use of Cluster Munitions in Second Lebanon War (Dec. 24, 2007), available at http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Opinio n+of+the+Military+Advocate+General+regarding+use+of+cluster+munitions+in+ Second+Lebanon+War+24.htm (presenting Military Advocate General's findings regarding Israel's use of cluster munitions). The IDF issued a statement that recounted the following information:
The MAG examined the information given and presented his evaluation of the issue, stating that the Investigating Officer's conclusions showed that the use of cluster munitions did not breach international law. In his view, the use of this weaponry was legal once it was determined that, in order to prevent rocket fire onto Israel. Its use was a concrete military necessity. Thus, cluster munitions were fired exclusively at military targets, in accordance with the principle of distinction, and were used only when the officer in command determined that the potential damage to civilians and civilian infrastructure was not disproportionate to the military advantage gained from firing at the target. Based on these findings, the MAG determined that the use of cluster munitions during the Second Lebanon War was in accordance with international humanitarian law. The MAG also examined instances where commanders deviated from orders regarding the use of cluster munitions along with the circumstances which led to the deviations. In this regard, the MAG noted that during the war, the IDF was confronted with difficult combat, and that northern Israel was under constant and massive rocket and missile attacks, which resulted in approximately 4,000 rockets and missiles being fired at Israeli territory, all of which were deliberately intended to harm civilians and IDF soldiers. Under these circumstances, IDF forces used the resources in their possession in an effort to curtail the relentless rocket fire at Israeli civilians. These resources included cluster munitions--the most effective weapon with which the IDF could fight Hizbullah--while taking all feasible measures to minimize civilian casualties. The MAG determined that even though these circumstances did not legitimize the deviations from the orders, these circumstances cannot be ignored when evaluating the deviations. Furthermore, the MAG also considered the fact that, even where there was a deviation from orders, the use of cluster munitions fire was still in accordance with international law. Accordingly, the MAG decided not to take legal measures in response to the deviations. In his report, the Investigating Officer presented various suggestions relating to the future use of cluster munitions (e.g.--in training, combat doctrine, command and control, etc.). These suggestions were fully adopted and implemented by the IDF.
(131.) See 152 CONG. REC. S8992-S8996 (daily ed. Sept. 6, 2006) (outlining debate concerning amendment to restrict use and sale of cluster bombs). The proposed amendment stated:
(Purpose: To protect civilian lives from unexploded cluster munitions)
At the end of title VIII, add the following: Sec. 8109. No funds appropriated or otherwise made available by this Act may be obligated or expended to acquire, utilize, sell, or transfer any cluster munition unless the rules of engagement applicable to the cluster munition ensure that the cluster munition will not be used in or near any concentrated population of civilians, whether permanent or temporary, including inhabited parts of cities or villages, camps or columns of refugees or evacuees, or camps or groups of nomads.
See 152 CONG. REC. S8948 (daily ed. Sept. 5, 2006). See also Nathan Guttman, U.S. Senate Rejects Bid to Curb Use of Cluster Bombs. Israel Defends Resort to the Bombs Against Terrorist Targets, JERUSALEM POST, Sept. 8, 2006, at 3 (noting U.S. Senate's attempt to curb cluster bomb sales and use); Senate Defeats Measure to Ban Cluster Bomb Use in Populated Areas, INSIDE THE PENTAGON, Sept. 7, 2006, (outlining proposed amendment to regulate cluster bomb use); Frida Berrigan, Weapon of War--Killer of Innocents Like Landmines, U.S. Wants Its Cluster Bombs, SAN FRANCISCO CHRON, Jan. 7, 2007, at E3 (arguing failed amendment regulating cluster bombs should be resubmitted to Congress).
(132.) See Press Release, U.S. Senator Dianne Feinstein, Senators Feinstein and 1eahy Call for New Policy on Use of Cluster Bombs (Sept. 5, 2006), available at http://feinstein.senate.gov/06releases/r-cluster-bomb.pdf (outlining proposed amendment and desire to prevent civilian deaths from unexploded cluster munitions); Press Release, U.S. Senator Patrick Leahy, Senate Debates, Votes on Feinstein-Leahy Amendment to Tighten Controls on U.S. Sales and Transfers of Cluster Bombs that Pose Lingering Threats to Innocent Civilians (Sept. 6, 2006), available at http://leahy.senate.gov/press/200609/090606a.html [hereinafter Leahy Press Release] (recognizing Israel's alleged use of cluster bombs in Lebanon as one factor for proposing amendment). Senator Leahy reports that over 405 cluster bomb sites, each with a radius of approximately 220 yards and containing 100,000 unexploded bomblets, have been discovered. Leahy Press Release. Moreover, it would take twelve to fifteen months to remove the unexploded bomblets. Id. Further, he cites the following statistics of civilian casualties related to unexploded bomblets in past conflicts:
* An estimated 1220 Kuwaitis and 400 Iraqi civilians have been killed since 1991.
* In Iraq in 2003, 13,000 cluster bombs with nearly 2 million bomblets were used. Combining the first and second Gulf Wars, the total number of unexploded bomblets in the region is approximately 1.2 million.
* In Afghanistan in 2001, 1228 cluster bombs with 248,056 bomblets were used. Between October 2001 and November 2002, 127 civilians were killed, 70 percent of them under the age of 18.
* In the first Gulf War, 61,000 cluster bombs were used containing 20 million bomblets. Since 1993, unexploded bomblets have killed 1600 innocent men, women, and children, injuring more than 2500 others.
* Between nine and 27 million unexploded cluster bombs remain in Laos from U.S. bombing campaigns in the 1960s and 1970s. Approximately 11,000 people, 30 percent of them children, have been killed or injured since the war ended.
(133.) See 152 CONG. REC. S8996 (daily ed. Sept. 6, 2006) (statement of Senator Ted Stevens) (arguing against passage of amendment to limit use and sale of cluster bombs).
(134.) See id. Moreover, the Department of Defense also believed that the Arms Export Control Act already provided broad guidelines on the use of weapons that are sold by the United States. Id.
(135.) See id.
(136.) See 152 CONG. REC. S8996 (daily ed. Sept. 6, 2006).
(138.) Sue Pleming, Senate Passes Bill on Cluster Bomb Use (Sept. 7, 2007), available at http://www.reuters.com/article/politicsNews/idUSN0720436020070907?sp=true; William C. Mann, Cluster Bombs Decried in Bill, Associated Press (Sept. 7, 2007), available at http://www.foxnews.com/printer_friendly_wires/2007Sep07/0,4675,ClusterBombs, 00.html; see Press Release, Senate-Passed FY 2008 State-Foreign Operations Appropriations Bill Includes Leahy-Feinstein Reforms To Restrict The Sale Or Transfer of Cluster Bombs (Sept. 7, 2007), available at http://leahy.senate.gov/press/200709/090707.html. The Fiscal Year 2008 State-Foreign Operations Appropriations Bill is the annual funding bill for the State Department, U.S. foreign aid, and foreign operations. Press Release, Senate-Passed FY 2008 State-Foreign Operations Appropriations Bill Includes Leahy-Feinstein Reforms To Restrict the Sale or Transfer of Cluster Bombs (Sept. 7, 2007), available at http://feinstein.senate.gov/public/index.cfm?FuseAction=NewsRoom.PressRelease s&ContentRecord_id=e0bb080f-ab0c-20f1-eb510e63ccd57503&Region_id=&Issue_id= [hereinafter Feinstein 2007 Press Release]. Senator Feinstein issued a statement noting that the Senate's vote to restrict the sale or transfer of cluster bombs "sends a message to the rest of the world that we're ready to do our part to protect innocent men, women and children from these de facto landmines." Id. Senator Leahy called the bill "the start of a process and an example that can be a model for other nations to follow." Id. Senator Feinstein's press release noted that "it is estimated that Israel dropped 4 million bomblets in southern Lebanon, and 1 million of these bomblets failed to explode. And reports indicate that Hezbollah retaliated with cluster bomb strikes of their own." Id. The language concerning cluster bombs states:
(b) CLUSTER MUNITIONS- During the current fiscal year, no military assistance shall be furnished for cluster munitions, no defense export license for cluster munitions may be issued, and no cluster munitions or cluster munitions technology shall be sold or transferred, unless--
(1) the submunitions of the cluster munitions have a 99 percent or higher tested rate; and
(2) the agreement applicable to the assistance, transfer, or sale of the cluster munitions or cluster munitions technology specifies that the cluster munitions will only be used against clearly defined military targets and will not be used where civilians are known to be present. Consolidated Appropriations Act, 2008 (H.R. 2764, 110th Cong. [section] 646 (2008)).
(139.) Pleming, supra note 138.
(140.) Pleming, supra note 138.
(141.) Feinstein 2007 Press Release, supra note 138.
(142.) Mann, supra note 138; see Executive Office of the President Office of Management and Budget, Statement of Administration Policy: H.R. 2764--State Foreign Operations, and Related Programs Appropriations Act of 2008 (Sept. 6, 2007), available at http://www.whitehouse.gov/omb/legislative/sap/1101/ hr2764sap-s.pdf, at 4 (stating Administration's opposition to restrictions on providing military assistance for cluster munitions).
(143.) Ben Feller, Bush Signs $555 Billion Spending Bill, Associated Press, (Dec. 26, 2007), available at http://www.abcnews.go.com/Politics/wireStory?id=4053140; see supra note 138 (quoting language of H.R. 2764 restricting sale or transfer of cluster munitions).
(144.) Jean Luis Arce, More Than 70 Countries Push for Cluster Bomb Ban, Reuters (May 25, 2007), available at http://www.reuters.com/article/latestCrisis/idUSN25480041. In February 2007, over forty countries met in Oslo, Norway in an effort to begin the process of negotiating an international treaty prohibiting cluster munitions. See Human Rights Watch, Cluster Munitions: Governments to Discuss New Treaty: Oslo Conference Plans to Limit Weapon Threatening Civilians, Feb. 20, 2007, http://hrw.org/english/docs/2007/02/20/global15362_txt.htm (outlining anticipated process at Oslo Conference aimed at negotiating cluster munitions treaty). The Norwegian government first announced the creation of the Oslo Conference in November 2006. Id.
(145.) Arce, supra note 144.
(146.) See Arce, supra note 144 (recounting countries that favor weaker cluster bomb treaty).
(147.) Arce, supra note 144.
(148.) See id. (describing some countries' perceived unwillingness to achieve anything less than complete cluster bomb ban).
(149.) See Bonnie Docherty, The Time is Now: A Historical Argument for a Cluster Munitions Convention, 20 HARV. HUM. RTS. J. 53, 55 (2007) (concluding time for negotiating cluster munitions conventions has arrived). Docherty identifies three prerequisites for international negotiations of a weapons treaty: "documented humanitarian harm, widespread public concern, and declining military utility." Id. She concludes that these conditions have been met regarding cluster munitions and identifies eight elements she deems essential for the regulation of cluster munitions, including: destroying stockpiles, restricting transfer, reducing dud rates, and prohibiting use in or near populated areas. See id. at 70-82 (outlining eight essential elements of cluster munitions regulation).
(150.) See, e.g. Crook, supra note 23, at 501 (noting U.S. spokesmen have rejected claims that cluster munitions are unlawful); Herthel, supra note 14, at 269 (declaring cluster munitions versatile and effective weapons not banned under international agreements); McDonnell, supra note 12, at 128 (arguing cluster bombs not banned under even broadest interpretation of Protocol I).
(151.) See Herthel, supra note 14, at 269.
(152.) See Israel Ministry of Foreign Affairs, supra note 102 (describing proper means by which to analyze legality of cluster bomb use).
(153.) Herthel, supra note 14, at 269.
(154.) McDonnell, supra note 12, at 97.
(155.) McDonnell, supra note 12, at 97.
(156.) See McDonnell, supra note 12, at 97; see also Wiebe, supra note 5, at 97 (recognizing alternatives to cluster bombs including precision guided munitions).
(157.) See supra notes 24-38 and accompanying text (noting problems related to wide dispersal and dud bomblets).
(158.) See supra notes 24-27 and accompanying text (detailing problem of dud bomblets).
(159.) McDonnell, supra note 12, at 34-35.
(160.) Koh, supra note 83, at 37 (recognizing need to respect rule of law and human rights in fighting terrorism).
(161.) See supra notes 78-91 and accompanying text (evaluating cluster bomb use in Iraq and Afghanistan).
(162.) See supra notes 83-91 and accompanying text (discussing cluster bomb use in Afghanistan and Iraq).
(163.) See supra notes 83-91 and accompanying text (discussing cluster bomb use in Afghanistan and Iraq).
(164.) See supra notes 75-77 and accompanying text (discussing case involving Martic).
(165.) See supra notes 118-123 and accompanying text (evaluating Israel's use of cluster bombs against Hezbollah terrorists).
(166.) See supra notes 92-97 and accompanying text (outlining conflict between Israel and Hezbollah in 2006); see also UNHRC Report, supra note 123, at [paragraph][paragraph] 76-77 (citing statistics regarding damage as a result of conflict). Israel's Air Force flew over 12,000 combat missions, the Navy fired 2500 shells, and the Israeli Army used more than 100,000 shells. Id. at [paragraph] 76. Lebanon's government estimates that 30,000 homes were damaged or destroyed, and 109 bridges and 137 roads were damaged. Id. Moreover, in Lebanon, approximately 1191 people were killed, 4409 were injured, and about one third of the casualties and deaths were children. Id. at [paragraph] 77. Hezbollah's attacks on northern Israel caused 300,000 people to flee their homes, 43 civilian deaths, and 997 civilian injuries. Id. at [paragraph] 78.
(167.) UNHRC Report, supra note 123, at [paragraph] 1.
(168.) Id. Paragraph 7 of resolution S-2/1 mandated that the Commission was "(a) to investigate the systemic targeting and killings of civilians by Israel in Lebanon; (b) to examine the types of weapons used by Israel and their conformity with international law; and (c) to assess the extent and deadly impact of Israeli attacks on human life, property, critical infrastructure and the environment." Id.
(169.) Id. at [paragraph][paragraph] 10-17; see also Stewart, supra note 123, at 1041 (recognizing UNHRC Report failed to consider Hezbollah's violations of international humanitarian law).
(170.) See UNHRC Report, supra note 123, at [paragraph] 11 (describing effects of Israeli military actions).
(171.) See UNHRC Report, supra note 123, at [paragraph][paragraph] 314-40 (summarizing conclusions regarding Israel's violations of international humanitarian law, human rights law, and international law).
(172.) UNHRC Report, supra note 123, at [paragraph][paragraph] 13, 317-22.
(173.) See UNHRC Report, supra note 123, at [paragraph][paragraph] 249-56 (evaluating issue of Israel's cluster munitions use); see also supra Part III.B.2 (explaining use of cluster bombs in Israel/Hezbollah 2006 conflict). Israel used a variety of groundbased cluster munitions including: M483A1 155mm artillery shells, M 395 and M 396 155mm artillery shells, and the Multiple Launch Rocket System. UNHRC Report, supra note 123, at [paragraph] 249. Israel also dropped CBU-58 cluster bombs from the air. Id.
(174.) UNHRC Report, supra note 123, at [paragraph] 267. The Commission investigated the issue of weapons use through on-site visits, statements of witnesses, discussions with Lebanon's army, hospital officials, Red-Cross authorities, and first-hand observers on the ground. Id. at [paragraph] 248.
(175.) UNHRC Report, supra note 123, at [paragraph] 24; see supra note 101 and accompanying text (discussing increased intensity of Israel's use of cluster bombs during conflict's final hours). On August 13, 2006, cluster bomb strikes "were particularly heavy in and around the Tibnin hospital grounds" where 2000 civilians were seeking shelter. UNHRC Report, supra note 123, at [paragraph] 249.
(176.) UNHRC Report, supra note 123, at [paragraph] 24. More than 789 cluster bomb sites were identified in southern Lebanon, and over one million bomblets have littered Lebanon. Id. at [paragraph] 250. During the conflict, Israel's cluster bomb strikes were concentrated on three main areas of southern Lebanon. Id. at [paragraph] 252. The first area targeted was immediately to the east and southeast of Tyre, which is a heavily populated area, that was possibly targeted because of its wealthy agricultural area which specializes in banana and citrus orchards. Id. It is more probable, however, that the area was targeted because Hezbollah used the orchards as cover to fire missiles into Israel. Id. The Tibnin area, the second main area target, is a Hezbollah stronghold. Id. Israel also targeted areas north of the Litani river, but the Commission's report concludes that targeting in this area is difficult to justify because this area is outside the range of Hezbollah's rocket attacks into Israel. UNHRC Report, supra note 123, at [paragraph] 252. Also, the towns and villages of Tibnin, Nabatiyeh, Yahmor, Ain Ibel, Yaroun, Bent J'beil, Qfar Tibnit, and Swane were also deliberately targeted by Israel's cluster bomb attacks. Id. at [paragraph] 253.
(177.) UNHRC Report, supra note 123, at 254. The Commission's report quoted a potential dud rate of these cluster bomblets as high as forty percent. Id. at [paragarph] 250. See supra note 122 and accompanying text (describing Israel's wide use of cluster bombs from soldier's perspective).
(178.) UNHRC Report, supra note 123, at [paragraph] 254; see supra note 19 and accompanying text (noting effectiveness of cluster bombs). The wide inherent coverage area of cluster munitions, however, "calls for a clear separation between military targets and civilians or their property" else civilians and civilian property will suffer from cluster bombs' inherently indiscriminate design. UNHRC Report, supra note 123, at [paragraph] 254.
(179.) UNHRC Report, supra note 123, at [paragraph] 349 (proffering Commission's recommendations to UNHRC.)
(180.) UNHRC Report, supra note 123, at [paragraph] 349. The Commission recognized the ongoing efforts to ban cluster munitions citing efforts to have cluster munitions covered under the Conventional Weapons Convention. Id. at [paragraph] 255. Moreover, the Commission recognized that the key legal issue is how the cluster munitions are specifically used because their wide dispersal pattern does not allow for accurate targeting. Id.
(181.) UNHRC Report, supra note 123, at [paragraph] 349.
(182.) UNHRC Report, supra note 123, at [paragraph] 349.
(183.) UNHRC Report, supra note 123, at [paragraph] 349 (emphasis added).
(184.) UNHRC Report, supra note 123, at [paragraph] 337; see supra notes 118-123 (describing facts surrounding Israel's use of cluster bombs). But see supra note 130 and accompanying text (noting IDF concluded its use of cluster bombs was not in violation of international humanitarian law).
(185.) See Protocol I, supra note 4, at Article 51(4). Protocol I requires that "[i]n order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives." Id. at Article 48.
(186.) Protocol I, supra note 4, at Article 51(5)(a). Another example of an indiscriminate attack as defined under Protocol I is: "[a]n attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." Id. at Article 51(5)(b).
(187.) Protocol I, supra note 4, at Article 57(2)(a).
(188.) See McDonnell, supra note 12, at 96 (analyzing whether using cluster bombs over large areas violates Protocol I).
(189.) See Cloud & Myre, supra note 108 (noting possible argument regarding Israel's right to self-defense); see supra notes 98-101 and accompanying text (describing Israel's use of cluster bombs over large areas).
(190.) Israel Ministry of Foreign Affairs, supra note 102 (arguing Israel's method of using cluster bombs should be focus of analysis of Israel's conduct).
(191.) See Dershowitz, supra note 103 (discussing innocence of certain civilians in age of terrorism). Dershowitz also recognizes the "vast difference--both moral and legal--between a 2-year-old who is killed by an enemy rocket and a 30-year-old civilian who has allowed his house to be used to store Katyusha rockets." Id. While both are "technically civilians" the child is more innocent than the civilian that sympathizes with the terrorists. Id. Dershowitz concludes that "[e]very civilian death is a tragedy, but some are more tragic than others." Id.
(192.) See supra Part III.B.2 (outlining Israel's use of cluster weapons against Hezbollah in southern Lebanon).
(193.) See supra notes 119-122 and accompanying text (detailing reactions of IDF forces to Israel's use of cluster bombs in 2006 conflict).
(194.) See supra notes 101, 187 and accompanying text (discussing legality of Israel's actions during last seventy-two hours of conflict with Hezbollah).
(195.) See supra Part III.B.2 (detailing Israel's use of cluster bombs in 2006 Lebanon War).
(196.) See supra Part III.B.2 (outlining Israel's use of cluster weapons against Hezbollah in southern Lebanon); supra note 187 and accompanying text (citing Article 57(2)(a) of Protocol I).
(197.) See supra notes 39-61 and accompanying text (describing state of international law regarding cluster bombs).
(198.) See supra Part II.B (outlining laws relating to cluster bombs).
(199.) See supra Part II.B (describing existing laws that lack meaningful consequences for cluster bomb misuse).
(200.) See supra Part II.B (discussing laws related to use of cluster bombs in armed conflicts).
(201.) See supra notes 56-61 and accompanying text (describing aspects of CCW).
(202.) See supra notes 89-91 and accompanying text (discussing responsible use of cluster bombs by United States military).
(203.) See supra note 30 and accompanying text (noting ban on landmines); see also supra notes 144-146 (recognizing absence of United States in international efforts to ban cluster bombs).
(204.) See supra Part IV.A (analyzing cluster bomb use in war on terror).
(205.) See supra note 86 and accompanying text (discussing use of cluster bombs in Iraq).
(206.) See supra Part II.B (outlining laws relating to cluster bombs).
(207.) See supra Part II.B.3 (describing U.S. Senate legislation relating to cluster bombs).
(208.) See supra note 138 and accompanying text (describing language relating to cluster munitions in 2008 Consolidated Appropriations Act).
(209.) See supra notes 125-126 (recognizing U.S.-made cluster bomblets chosen over Israeli-made cluster bomblets).
(210.) See supra notes 138-142 and accompanying text (outlining Senate's proposed restrictions on cluster bombs).
(211.) See supra note 138 and accompanying text (discussing U.S. Senate's cluster bomb legislation).
(212.) See supra notes 32-34 and accompanying text (highlighting problem of dud cluster bomblets).
(213.) See supra note 138 and accompanying text (discussing U.S. Senate's cluster bomb legislation).
(214.) See supra notes 32-34 and accompanying text (describing self-destruct fuses on cluster bomblets).
(215.) See supra note 90 and accompanying text (evaluating United States's cluster bomb use during push from Kuwait to Baghdad in 2003).
(216.) See supra notes 100-101 and accompanying text (noting Israel fired four million submunitions into southern Lebanon).
(217.) See supra Parts II.A--II.B (detailing extensive use of cluster bombs in past wars.)
(218.) See supra Part IV (arguing Israel's cluster bomb misuse highlights need for further attention to laws relating to cluster bomb use).
(219.) See supra Part IV.B (analyzing Israel's use of cluster bombs against Hezbollah terrorists).
(220.) See supra Part IV.A (discussing cluster bomb use in war on terrorism).
(221.) See supra Part II.A (detailing general characteristics and problems associated with cluster bombs).
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|Author:||Ching, Karl C.|
|Publication:||Suffolk Transnational Law Review|
|Date:||Dec 22, 2007|
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