February 17, 2008

Israel's Statements on the Use of Cluster Munitions and the Findings of Investigations  

Israel's few public remarks regarding its use of cluster munitions in Lebanon have stressed that it was in conformity with international humanitarian law. An internal "operational" inquiry launched in November 2006 found that, while remaining in conformity with IHL, the use of cluster munitions had violated internal regulations. A follow up investigation, released in December 2007, reached a similar conclusion; it, too, looked into instances of "deviation[s] from orders," but determined the use of cluster munitions was "still in accordance with international law."[305]

However, the findings of non-national investigations raised serious questions about Israel's use of cluster munitions. Two investigations by the UN have concluded that the use of cluster munitions represented a violation of IHL. An inquiry by the US determined the use may have violated secret agreements relating to the transfer of the weapons.

Israel's Public Statements and Investigations

During the war, IDF and Israeli government officials gave the media widely diverging accounts about cluster munitions. Some Israeli officials denied that the IDF was using cluster munitions.[306] Others acknowledged use but claimed it was away from civilian areas. Maj. Gen. Benny Gantz, who was in charge of Israel's ground forces, told the New York Times in July 2006 that Israel does use cluster munitions, but noted, "We try to minimize their use. We only use them in designated areas that have been closed even by Hezbollah itself."[307] An IDF spokesperson, asked about Israel's use of cluster munitions in Lebanon, told Human Rights Watch, "We use all munitions within the confines of international humanitarian law and cannot give more details that would jeopardize our operations."[308]

On September 5, 2006, the Israel Ministry of Foreign Affairs put out a paper titled, "Behind the Headlines: Legal and Operational Aspects of the Use of Cluster Bombs." It begins by noting, "Both international law and accepted practice do not prohibit the use of the family of weapons popularly known as 'cluster bombs.' Consequently, the main issue in a discussion of Israel's use of such weaponry should be the method of their use, rather than their legality."[309] It states:

[C]onsiderations of compliance with international norms were paramount features of the Israel Defense Forces' (IDF) operations in Lebanon, in which strenuous efforts were made to ensure that these were carried out in complete accordance with international law, both with regard to method and weaponry. IDF operations are directed only against legitimate military targets (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). The IDF does not deliberately attack civilians and takes steps to minimize any incidental collateral harm by warning them in advance of an action, even at the expense of losing the element of surprise.[310]

In November 2006 the Ministry of Foreign Affairs issued another statement reiterating, "It is important to clarify that the use of cluster munitions is not prohibited by international law…. The weapon is used by a number of states and, as in the case of all arms, the use of cluster munitions must conform to the rules of warfare." [311]

This statement followed the findings of an initial "operational inquiry" by the IDF, which reported that IDF units had not always used cluster munitions in accordance with the IDF's regulations and then Chief of Staff Lt. Gen. Dan Halutz's orders. [312] At the time these regulations were reported to be that the use of cluster munitions was permitted in only open and unpopulated areas (at least during the Lebanon conflict). [313] The Army acknowledged that instead of using cluster munitions against only particular targets, the IDF had used rockets to deliver the submunitions over larger areas. [314]

Despite alleging some fault, the inquiry excused the IDF's actions. The Ministry of Foreign Affairs November 2006 statement on the inquiry's findings said:

It should also be noted that the findings of the operational inquiry show that, prior to the use of cluster munitions, the IDF repeatedly warned the civilian population to leave targeted areas. The findings also show that cluster munitions were directed only at legitimate military targets, which had been identified as sites from which Katyusha rockets were being launched against Israeli population centers.[315]

Lieutenant General Halutz said he was "disappointed but not surprised" to learn of breaches of his orders and told the Israeli Army radio that it was necessary to further investigate how military orders for the use of cluster munitions had been "given and implemented."[316] He appointed Maj. Gen. Gershon HaCohen to oversee a broad inquiry. Officers in the IDF's artillery and rocket units expressed surprise at the investigations, however, with soldiers alleging that units that fired cluster munitions received approval from representatives of the Army's land forces command and that all use of cluster munitions was in accordance with the orders they had received.[317]

The findings of the second inquiry were made public in a statement released on December 24, 2007, by the military advocate general, Brig. Gen. Avihai Mendelblit. It reported that "rocket attacks on Israel were carried out from areas of dense vegetation, in which the Hizbullah set up fortified infrastructure." Most "cluster munitions were fired at open and uninhabited areas, areas from which Hizbullah forces operated and in which no civilians were present." When the IDF used cluster munitions in "residential areas/neighborhoods," it did so "as an immediate defensive response to rocket attacks by Hizbullah from launching sites located within villages." Implying the IDF chose to use cluster munitions for their area effect, the military advocate general said, "the IDF had to make use of weaponry which allowed for an immediate response to rocket fire while providing maximum coverage within the targeted area." The military advocate general reported that the IDF's use of cluster munitions was in accordance with IHL, "even where there was a deviation from orders" (not to fire at built up areas). "Accordingly," he had "decided not to take legal measures in response to the deviations."[318]

Neither IDF inquiry was independent, nor have their detailed reports or the evidence supporting their conclusions been made public. For example, while indicating that there were deviations from orders not to target built up areas, IDF statements on inquiry findings do not provide case-by-case information justifying why deviations occurred. Instead, the IDF claims summarily that "IDF forces used the resources in their possession in an effort to curtail the relentless rocket fire at Israeli civilians." Their statements do not explain the high saturation of towns and villages across south Lebanon. They do not give any reasons why dud rates were so high. The statements do not acknowledge the foreseeable future effects on civilians of high dud rates.[319] Accordingly, the impartiality and rigor are impossible to assess. Neither internal inquiry fulfills Israel's duty to mount credible, independent, and impartial investigations into Israel's apparently extensive violations of IHL, investigations that should include an examination of whether individual commanders bear responsibility for war crimes.  

In its various communications with Israeli officials, Human Rights Watch requested general information on Israel's objectives and rationale for using cluster munitions and also asked for specific information about numbers and types of cluster munitions used, strike locations, and the military justifications for those strikes. In its January 8, 2007, letter to the Defense Minister regarding a variety of different types of air and ground attacks, Human Rights Watch asked for detailed information on targeting and weapons selection, vetting review procedures, precautions taken by the IDF to prevent civilian casualties, and any post-strike battle damage assessment procedures carried out by the IDF. 

In May 2007, Israel replied to Human Rights Watch saying that its use of cluster munitions in south Lebanon was in accordance with "the principles of armed conflict" and was a response to Hezbollah's deployment and camouflaging of missile launchers "in built-up areas and areas with dense vegetation." The decision to use cluster munitions "was only made after other options had been examined and found to be less effective in ensuring maximal coverage of the missile launching areas." The IDF claimed that all cluster munition fire was directed at legitimate military targets and that for humanitarian reasons "most was directed at open areas, keeping a safe distance from built up areas." Where fire was directed at military targets "in the vicinity of built up areas, it was always toward particular locations from which missiles were being launched against Israel, and after significant measures were taken to warn civilians to leave the area."[320]

 

In July 2007, Human Rights Watch met with lawyers from the IDF's International Law Section, who reiterated the above positions. Maj. Dorit Tuval said that the use of cluster munitions was legal and that the IDF did "everything necessary to apply IHL," particularly the principles of distinction and proportionality.[321] She said, "The vast majority of the population left the area and were not in place in inhabited areas when cluster munitions were used. The vast majority [of cluster munitions]…were used toward vegetated areas where Hezbollah hid and shot munitions."[322] As explained above, Tuval said that the IDF only launched attacks on built-up areas where rockets were shot from, and "paid the price" for not using cluster munitions more.[323] Tuval's colleague Lt. Col. David Benjamin said the IDF had no alternative weapon to use because cluster munitions are effective against mobile targets. "You can't hit a rocket on the head…. We cannot know the exact location of the target. When we could, we used much more accurate munitions. Once we don't know where the target is exactly located, what else can we do?"[324] He dismissed the dud problem as "solvable" if the civilians are kept out of the area and clearance is done efficiently.[325] "We're grieving every loss, but after one and a half years, the area will be cleared. The population is dealing with it," Tuval said.[326]

UN Investigations

After the conflict, international concern prompted a number of investigations. A group of four UN Special Rapporteurs traveled to Israel and Lebanon and released a report in October 2006 to the UN Human Rights Council, which criticized Israel's use as "inconsistent with principles of distinction and proportionality."[327] The Special Rapporteurs reported that although Israel said it acted in accordance with IHL, "actual practice fell short" in various respects, including the "reckless, perhaps even deliberately reckless, use of cluster munitions."[328] The panel noted that Israel claimed cluster munitions were the most effective weapon against Hezbollah launch sites, but that the "IDF interlocutors of the mission did not provide any information that would confirm that these weapons were in practice used in a manner consistent with this military rationale."[329]

The Special Rapporteurs noted that some Israeli officials denied the allegation that the majority of cluster munitions were fired in the last 72 hours, while others said there was a gradual crescendo in use of cluster munitions in the last 10 days.[330] The panel concluded, "If proven, the widely reported claim that the great majority of these bombs were dropped in the final 72 hours of the campaign, when a ceasefire was imminent, would indicate an intention to inhibit and prevent the return of civilians and a reckless disregard for the predictable civilian casualties that have occurred."[331]

The Special Rapporteurs concluded that "the use of cluster munitions was inconsistent with principles of distinction and proportionality.… In effect, then, the decision was taken to blanket an area occupied by large numbers of civilians with small and volatile explosives. The impact of these bomblets would obviously be indiscriminate and the incidental effects on civilians would almost certainly be disproportionate."[332]

The report also concluded that the international community should "take urgent action to add cluster munitions to the list of weapons banned under international law."[333]

After hearing from the Special Rapporteurs, the UN Human Rights Council charged a separate, special UN Commission of Inquiry (COI) with investigating possible violations of human rights and humanitarian law by Israel in Lebanon.[334] The COI released a report in November 2006 describing the attacks as indiscriminate and disproportionate, finding that Israel's use of cluster munitions "was excessive and not justified by any reason of military necessity."[335] It stated, "There is also ample evidence that cluster bombs were used in an indiscriminate manner and that many towns and villages were littered with the bomblets as well as large tracts of agricultural land."[336] It continued, "When all is considered, the Commission finds that these weapons were used deliberately to turn large areas of fertile agricultural land into 'no go' areas for the civilian population."[337] However, the report does not explicitly cite the evidence leading to its conclusion of "deliberate" harm. It, too, called for "urgent action to include cluster munitions in the list of weapons banned under international law."[338]

US Investigation

Shortly after the end of the conflict, it was reported that the US State Department's Office of Defense Trade Controls was investigating Israeli use of cluster munitions in Lebanon to determine whether Israel violated classified agreements with the United States. These agreements, dating back to the 1970s, govern when and how Israel can use US-supplied cluster munitions.[339] In January 2007, the State Department concluded that Israel "may have" been in violation and submitted a report to Congress.[340]

Israel's use of cluster munitions, like other weapons, is subject to the 1952 Mutual Defense Assistance Agreement with the United States.[341] After the United States first exported cluster munitions to Israel in 1976, it entered into an additional agreement specific to the weapons. When concerns arose about the civilian casualties caused by Israel's use of cluster munitions in Lebanon in 1978, the United States reaffirmed the understanding in April 1978. While the agreements are secret, various sources over the years have reported that the agreements require that the munitions be used only against organized Arab armies, under conditions similar to the Arab-Israeli wars of 1967 and 1973, only against clearly defined military targets, and not in areas where civilians are known to be present or in areas normally inhabited by civilians.[342]

In July 1982, following Israeli cluster attacks on civilian targets in Lebanon, the Reagan administration placed a moratorium on exports of cluster munitions to Israel. The United States found that by using US-supplied cluster munitions against civilian targets in Lebanon, Israel violated the 1976/1978 understandings and may have violated its 1952 Mutual Defense Assistance Agreement with the United States. The United States quietly lifted the moratorium in November 1988.[343]

[305] Israel Ministry of Foreign Affairs, "Opinion of the Military Advocate General Regarding Use of Cluster Munitions in Second Lebanon War."

[306] For example, Israel's ambassador to Russia denied Israeli use of cluster munitions, dismissing reports as "Hezbollah propaganda." "Israeli Ambassador to Moscow Dismisses Use of Cluster Munitions in Lebanon as 'Hezbollah Propaganda,'" MosNews.Com, July 26, 2006.

[307] Craig Smith and Helene Cooper, "Cease-fire Talks Stall as Fighting Rages on," New York Times, July 26, 2006.

[308] "Lebanon: Israeli Cluster Munitions Threaten Civilians," Human Rights Watch news release.

[309] Israel Ministry of Foreign Affairs, "Behind the Headlines: Legal and Operational Aspects of the Use of Cluster Bombs," September 5, 2006.

[310] Ibid.

[311] Israel Ministry of Foreign Affairs, "IDF to Probe Use of Cluster Munitions in Lebanon War."

[312] Hasson and Rapoport, "IDF Admits to Targeting Civilian Areas with Cluster Bombs," Ha'aretz.

[313] Ibid.; Yaakov Katz, "Safer Israeli Cluster Bombs Not Used," Jerusalem Post, November 21, 2006; Yaakov Katz, "N. Command Ordered Cluster Bombing," Jerusalem Post, November 28, 2006.

[314] Tim Butcher, "Israel Admits Breaching Own Rules on Cluster Munitions," TheDaily Telegraph, November 21, 2006.

[315] Israel Ministry of Foreign Affairs, "IDF to Probe Use of Cluster Munitions in Lebanon War."

[316] Tim Butcher, "Israel Admits Breaching Own Rules on Cluster Munitions," TheDaily Telegraph, November 21, 2006; Greg Myre, "Israeli General Orders Lebanon Inquiry," New York Times, November 20, 2006.

[317] Rapoport, "A Barrage of Accusations," Ha'aretz; Hanan Greenberg, "Gunners: We Fired Cluster Bombs According to Orders," Ynet.com, November 21, 2006.

[318] Israel Ministry of Foreign Affairs, "Opinion of the Military Advocate General Regarding Use of Cluster Munitions in Second Lebanon War."

[319]  Ibid. See also Israel Ministry of Foreign Affairs, "IDF to Probe Use of Cluster Munitions in Lebanon War."

[320] Israel's Response to Accusations of Targeting Civilian Sites in Lebanon During the "Second Lebanon War."

[321] Human Rights Watch interview with Maj. Dorit Tuval, head of strategic section, International Law Department, IDF, Tel Aviv, Israel, July 2, 2007.

[322] Ibid.

[323] Ibid.

[324] Human Rights Watch interview with Lt. Col. David Benjamin, director, Civil and International Branch, International Law Department, IDF, Tel Aviv, Israel, July 2, 2007.

[325] Ibid.

[326]Human Rights Watch interview with Maj. Dorit Tuval, head of strategic section, International Law Department, IDF, Tel Aviv, Israel, July 2, 2007.

[327] UN Human Rights Council, "Implementation of General Assembly Resolution 60/251 of 15 March 2006, Entitled 'Human Rights Council': Mission to Lebanon and Israel," UN Doc. A/HRC/2/7, October 2, 2006, p. 13.

[328] Ibid., p. 10.

[329] Ibid., p. 13.

[330] Ibid., p. 14.

[331] Ibid., p. 25.

[332] Ibid., p. 13.

[333] Ibid., pp. 24-25.

[334] In 2006, Human Rights Watch called for the establishment of an independent and impartial Commission of Inquiry to investigate violations committed by all sides in the Israel-Hezbollah conflict. "Israel: Government Committee Should Probe Lebanon Laws of War Violations," Human Rights Watch news release, September 22, 2006, http://hrw.org/english/docs/2006/09/22/isrlpa14250.htm. However, the Human Rights Council limited the mandate of the Commission of Inquiry to investigating violations committed by Israeli forces, and not violations committed by Hezbollah.

[335] United Nations General Assembly, "Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled 'Human Rights Council,' Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council resolution S-2/1," A/HRC/3/2, November 23, 2006, p. 60 [hereinafter "Report of the Commission of Inquiry," November 23, 2006].

[336] "Report of the Commission of Inquiry," November 23, 2006, p. 59.

[337] Ibid., p. 60.

[338] Ibid., p. 77.

[339] Cloud, "Inquiry Opened into Israeli Use of US Bombs," New York Times.

[340] David S. Cloud and Greg Myre, "Israel May Have Violated Arms Pact, U.S. Says," New York Times, January 28, 2007, http://www.nytimes.com/2007/01/28/world/middleeast/28cluster.html?ex=1327640400&en=d2ba5ee2a96d6eed&ei=5088&partner=rssnyt&emc=rss (accessed September 3, 2007).

[341] A 2005 Congressional Research Service report notes this section of the 1952 agreement: "The Government of Israel assures the United States Government that such equipment, materials, or services as may be acquired from the United States…are required for and will be used solely to maintain its internal security, its legitimate self-defense, or to permit it to participate in the defense of the area of which it is a part, or in United Nations collective security arrangements and measures, and that it will not undertake any act of aggression against another state." Richard F. Grimmett, "US Defense Articles and Services Supplied to Foreign Recipients: Restrictions on Their Use," CRS Report for Congress, Congressional Research Service, March 14, 2005.

[342] See, for example, Cloud, "Inquiry Opened into Israeli Use of US Bombs," New York Times; Landmine Action, "Cluster Munitions in Lebanon," pp. 7-12. One source said the agreements allowed use "only for defensive purposes, against fortified military targets, and only if attacked by two or more 'Arab states.'" Another source said "cluster bombs could only be used against the regular armed forces of 'one or more Arab countries'" who were engaged in a war with Israel like the 1967 and 1973 conflicts. Yet another said use was prohibited except against "regular forces of a sovereign nation" and in "special wartime condition," with the latter phrase meaning conditions equal to or exceeding the level of conflict in 1967 and 1973. See Landmine Action, "Cluster Munitions in Lebanon," p. 9.

[343] Cloud, "Inquiry Opened into Israeli Use of US Bombs," New York Times; Landmine Action, "Cluster Munitions in Lebanon," pp. 7-12.