April 14, 2009

Summary

During their August 2008 conflict over the breakaway region of South Ossetia, both Russia and Georgia used cluster munitions, a weapon that the international community was in the process of banning. Together, their cluster munitions killed at least 16 civilians and injured at least 54 more in Georgia south of the South Ossetian administrative border, at the time they were fired or afterwards. Civilians remain at risk as deminers expect to be clearing submunitions from 15 million square meters of contaminated land until at least August 2009. The use of cluster munitions in Georgia was a vivid reminder of why this notorious weapon should be categorically prohibited, not merely regulated.

While the quantity of cluster munitions fired and the numbers of casualties they caused may not rise to the levels of some recent conflicts, notably Lebanon (2006) and Iraq (2003), their use again exemplified the dangers inherent to the weapon. As is generally the case, the cluster munitions were used in many populated areas. They caused significant civilian casualties during and after the war. They also left large numbers of unexploded submunitions that threaten lives and livelihoods for months to come. Their use by both sides of the conflict and the relatively small size of the battle area amplified the impact of the attacks.

These events came less than three months after 107 states from around the world adopted the Convention on Cluster Munitions, which comprehensively bans the weapon. Neither Russia nor Georgia took part in that process, and their use of cluster munitions was in defiance of an emerging consensus on a basic prohibition on the weapon.

During research missions at the time of the conflict in August and also in the Gori and Kareli districts of Georgia in September and October, Human Rights Watch documented Russian use of cluster munitions in or near seven towns and villages and Georgian cluster munitions in or near nine. In March 2009 Norwegian People’s Aid (NPA) reported evidence of Russian cluster munitions from the August 2008 conflict in two additional villages. Human Rights Watch researchers took extensive testimony from about 100 witnesses, deminers, and military and government officials and examined physical evidence. They concluded that Russian weapons caused most of the civilian casualties at the time of the strikes and Georgian cluster munitions killed and injured civilians after, as well as during, attacks.

Cluster munitions are large, ground-launched or air-dropped weapons that, depending on their type, contain dozens or hundreds of submunitions. During strikes they endanger civilians because they blanket a broad area, and when they are used in or near populated areas, civilian casualties are virtually guaranteed. They also threaten civilians after conflict because they leave high numbers of hazardous “duds,” that is submunitions that have failed to explode on impact as designed, which unwitting civilians can easily set off.

Russia used two types of Russian-produced submunitions: the air-dropped AO-2.5 RTM and the ground-launched 9N210. According to an investigation by the Ministry of Foreign Affairs of the Netherlands into the death of a Dutch cameraman in Gori, the Russians also used the surface-to-surface Iskander (or SS-26) missile that carries an unknown model of submunition. Georgia used M85 submunitions delivered by Mk.-4 160mm rockets, which it bought from Israel.

Human Rights Watch found that Russian forces fired many of their cluster munitions into populated areas of Georgia. On August 8 and 12, 2008, Russian submunitions landed in neighborhoods in the town of Variani, killing three civilians and wounding sixteen, ranging in age from eight years to seventy. Among them was 13-year-old boy, Beka Giorgishvili, who went to a friend's house to say goodbye before his family fled town. An explosion went off as he was helping pump up his friend's new bike tire. Beka lost part of his skull and suffered brain damage; shrapnel remains lodged in his head.

Russian cluster munitions killed an additional nine civilians and injured thirty in strikes on Gori city and Ruisi on August 12. The Gori attack hit the main square of the city as a crowd of locals and journalists was gathering. The Ruisi attack hit two ends of the town, not only causing civilian casualties but also leaving duds with a 35 percent failure rate in at least one area being cleared.

Despite the evidence from Human Rights Watch, the Dutch government investigation, and clearance organizations, Russia has repeatedly denied using cluster munitions “in the area of the Georgian-Ossetian conflict.”

While initially only condemning Russia’s use, in response to Human Rights Watch inquiries, Georgia publicly acknowledged on September 1 deploying ground-launched Mk.-4 160mm rockets carrying M85 submunitions. According to the then first deputy minister of defense, Batu Kutelia, Georgia fired these rockets only at Russian forces between Tskhinvali, the capital of South Ossetia, and the Roki Tunnel on the border with Russia. Human Rights Watch has not independently verified this claim.

Human Rights Watch, as well as Georgian military deminers and international demining organizations, however, found M85 submunitions farther south. Human Rights Watch gathered extensive evidence of Georgian M85 submunitions and Mk.-4 160mm carrier rockets in populated areas along the Gori-Tskhinvali corridor south of the South Ossetian administrative border. These weapons killed at least one civilian and wounded at least two when they landed on the villages of Tirdznisi and Shindisi. Since the attacks, submunition duds, which in March 2009 still littered the area, have killed at least three civilians and wounded at least six in three towns. In Brotsleti in August 2008, for example, a farmer on his way to his field met a friend holding two M85s. The submunitions exploded, killing his friend instantly. The farmer himself suffered serious injuries, but moving a few steps away to answer his cell phone saved his life.

In October 2008 then-First Deputy Minister of Defense Kutelia could not explain the presence of Georgian cluster munitions in the area south of the South Ossetian administrative border. He said that Georgia was conducting an investigation and indicated the government would ask the Israeli company from which they bought the weapons to assist. In February 2009 the Georgian Ministry of Defense confirmed Kutelia’s information and wrote to Human Rights Watch that its investigation was ongoing. The results of this study should be made public.

The evidence of Georgian forces’ cluster munition use found by Human Rights Watch was not consistent with typical cluster munition use. The rockets landed short of their minimum range, there were more M85 duds than M85s that exploded on impact, many of these duds were in an unarmed state, and witnesses did not report Russian troops in the area of the Georgian strikes. Widespread failure of the munitions, due to technical or human error, is one possible explanation of these factors. The Georgian Ministry of Defense said in February 2009 that it is investigating the possibility of “failure of the weapons system.”

In addition to documenting civilian casualties, Human Rights Watch researchers investigated the socioeconomic effects of cluster munition use. During their field missions, they found many submunitions launched by both sides that had failed to explode. Such duds remained hidden in fields of cabbages, tomatoes, and other crops, and farmers said they feared going into their fields. Deminers estimated in February 2009 that it would take at least until August 2009 to clear the area of duds. The threat of duds has caused civilians to lose harvests and, therefore in some cases, their ability to feed their families. Submunitions have cost livelihoods as well as lives.

Because of the ongoing danger of duds, efficient and effective clearance is imperative. Russian troops did extensive clearance in the Gori District before they withdrew to the South Ossetian administrative border on October 10. Russia should now provide assistance in other ways. The Georgian military contributed to initial clearance after the Russian withdrawal. International deminers are now conducting clearance, but they have faced several obstacles, such as winter weather, unskilled clearance by community members, and a shortage of reliable data.

International humanitarian law, also known as the laws of war, governs conduct during armed conflict. It requires belligerents to distinguish between combatants and non-combatants and prohibits as “indiscriminate” any attacks that fail to do so. Cluster munition attacks in or near populated areas should be presumed indiscriminate. These inaccurate and unreliable weapons, which have a large area effect, cause foreseeable civilian casualties during strikes and afterwards. Human Rights Watch believes there should similarly be a rebuttable presumption that cluster munition strikes in or near populated areas are unlawfully “disproportionate,” that is their expected civilian harm outweighs anticipated military advantage.

Russia, which deployed the weapons in circumstances in which they were incapable of distinguishing between civilian and military objects, violated international humanitarian law with its use of cluster munitions. Its attacks in or near villages, towns, and one city were inherently indiscriminate and thus unlawful. They were also likely disproportionate. The lack of evidence of Georgian troops in the vicinity of Russian strikes at the time they occurred combined with the foreseeable civilian harm supports such a presumption in this case.

Because Human Rights Watch did not conduct, for reasons explained in the methodology section, an in-depth investigation of the area that Georgian officials acknowledged targeting with cluster munitions, it is unable to assess whether use of the weapon in this area was in violation of international humanitarian law. If the Georgian military intentionally launched its submunitions on the towns and villages in Georgia where Human Rights Watch found them, those strikes would have violated international humanitarian law. Even if their presence in populated areas is attributable to failure, however, it underscores the unacceptable danger of these weapons. In particular, the weapons’ large number of submunitions exacerbates the harm caused when cluster munitions fail.

Russia and Georgia must also consider their legal obligations under Protocol V to the Convention on Conventional Weapons (CCW), which establishes standards for dealing with explosive remnants of war (ERW), such as cluster munition duds. Russia formally submitted its consent to be bound by the protocol on July 21, 2008, and the instrument took effect for it six months later. Georgia gave its consent to be bound on December 22, 2008. Although it will not enter into force for Georgia until June 2009, in the meantime, Georgia must not “defeat the object and purpose” of the protocol.

Under this instrument, the duties of user states include “provid[ing] where feasible” assistance for clearance of ERW, including submunitions. This assistance should include sharing information about the types, numbers, and locations of cluster munitions used to facilitate clearance. Affected states parties must also take “all feasible precautions” to protect civilians, including through risk education, and all states parties “in a position to do so” must provide assistance for clearance and risk education.

In addition to raising concerns under existing law, Russian and Georgian use of cluster munitions ran afoul of the standards enshrined in the new Convention on Cluster Munitions. In May 2008, before the conflict in Georgia, 107 nations, including large numbers of users, producers, and stockpilers of cluster munitions, negotiated and formally adopted this convention. It comprehensively prohibits the use, production, trade, and stockpiling of cluster munitions. It also establishes remedial measures, such as those for clearance, risk education, and victim assistance, in order to minimize the aftereffects of past use. The treaty, which opened for signature in Oslo on December 3, 2008, has been signed by 96 countries and ratified by six as of March 2009.

Neither Russia nor Georgia participated in the negotiation process, and the treaty has not yet entered into force, but its signing by 96 states demonstrates widespread support among many nations for its principles. The Convention on Cluster Munitions is the best tool for preventing future use of these weapons and thereby mitigating and ultimately eliminating their effects on civilian populations. The humanitarian harm caused by cluster munitions in Georgia should serve as an impetus for states to sign and ratify it.

Russia and Georgia should sign and ratify the Convention on Cluster Munitions as soon as possible. Doing so has the added benefit of making parties affected by this conflict eligible for international assistance for remedial measures, including clearance and risk education. If they cannot commit at this point, Russia and Georgia should take immediate interim measures to minimize the humanitarian harm of cluster munitions. In compliance with the rules on targeting under the laws of war, they should make no future use of cluster munitions in populated areas, and they should prohibit future production and transfer, begin destruction of stockpiles, and adopt remedial measures to ensure civilians do not die from the duds they left behind. Most urgently, they should provide assistance for clearance in Georgia, including if necessary in South Ossetia. This assistance should include providing exact information on the location, types, and numbers of cluster strikes for international deminers.

Russia and Georgia should also conduct independent, impartial, and rigorous investigations into their use of cluster munitions and make public the findings. They should address the effects and legal implications of their cluster munition use. Russia should acknowledge its military’s use of cluster munitions in Georgia and accept responsibility for its actions. A Russian investigation should include a thorough examination of whether individual commanders bear responsibility for the international humanitarian law violations that resulted from indiscriminate and disproportionate cluster munition attacks. For Georgia, an investigation should not only examine possible violations of international humanitarian law but also consider the possibility of a massive failure of cluster munitions and what caused it. Moscow should provide information about Georgian cluster munitions that landed in territory under Russia’s effective control, such as the types, numbers, and locations of submunitions found, and Tbilisi should do the same with regard to Russian cluster munitions. As mentioned above, Russia and Georgia should also provide strike data on their own cluster munitions. Both countries should ensure their investigations are transparent and open to public scrutiny.

Other states committed to ending the humanitarian harm of cluster munitions, like that which occurred in Georgia, should join the Convention on Cluster Munitions as soon as possible. The treaty will establish binding provisions as soon as it enters into force, six months after its thirtieth ratification. Supporters of the ban should also join the convention in order to increase its influence on non-states parties and to stigmatize the weapon. Stigmatization based on ban treaties has reduced use of other weapons, including antipersonnel landmines, and has the potential to do the same with cluster munitions. By signing and ratifying the treaty, states can signal to peers, including Russia and Georgia, that use of these weapons is considered internationally unacceptable and unlawful.

Methodology

Human Rights Watch carried out extensive on-the-ground research in Georgia for this report. It also drew on more than a decade of field and documentary research on cluster munitions.

Human Rights Watch researchers were in Georgia during the conflict and were the first to confirm Russia’s use of cluster munitions when they documented the attacks in Gori and Ruisi. They did further research after the August 12, 2008 ceasefire, traveling to locations along the Gori-Tskhinvali corridor south of the South Ossetian administrative border. In October they conducted an intensive 10-day mission to survey the extent of the humanitarian harm from cluster munitions. Researchers investigated both casualties at the time of the attack and the ongoing aftereffects of the submunitions, including loss of lives and interference with farming.

Human Rights Watch conducted several fact-finding missions to South Ossetia to document international humanitarian law violations by Georgian, Russian, and South Ossetian forces for a report released on January 23, 2009; it did not conduct a separate fact-finding mission to South Ossetia specifically to investigate Georgia's use of cluster munitions in that region. Human Rights Watch had already gathered extensive information on damage caused by Georgian cluster munitions south of the South Ossetian administrative border. There were no reports from South Ossetia, including from the press or government authorities, that cluster munitions were causing humanitarian harm there. Human Rights Watch researchers investigating international humanitarian law violations in South Ossetia encountered only one report of cluster munitions use, which is included in this report, and no reports of civilian casualties caused by them. In an October 13, 2008 letter to the Russian minister of defense about several issues regarding the conflict, Human Rights Watch directly asked for information about Georgian use of cluster munitions in South Ossetia, territory under effective Russian control. The ministry's response on January 30, 2009, did not address the question. A February 27, 2009 letter from the Russian Prosecutor General’s Office mentioned Georgian use of cluster munitions in civilian areas but provided no information on civilian casualties or humanitarian impact. These factors, combined with logistical and other difficulties, suggested to Human Rights Watch that a separate mission to South Ossetia was not warranted.

In October 2008 Human Rights Watch researchers visited 19 of the 20 Georgian towns and villages, all south of the South Ossetian administrative border, that HALO Trust listed as facing an “immediate explosive hazard,” like that caused by clusters munitions. They documented cluster munition use in 15 of those towns. Researchers analyzed physical evidence of the strikes, including unexploded submunitions, debris from exploded submunitions, pieces of carrier munitions, and damage to nearby structures. They took photographs and global positioning system (GPS) coordinates at every location. They interviewed dozens of civilians who had been directly affected by the cluster munition attacks, including numerous men, women, and children who had been injured by submunitions or submunition duds. Researchers also met with demining experts who are clearing duds and coordinating clearance efforts.

Finally, Human Rights Watch researchers conducted interviews with Georgian government and military authorities, including then-First Deputy Minister of Defense Kutelia, and exchanged formal letters with the government. They also met with the new minister of defense of Georgia in January 2009.

Human Rights Watch has contacted Russian authorities by letter and informally in person at CCW meetings. The Russian Foreign Ministry responded in a letter dated January 30, 2009, again denying use of cluster munitions.

Recommendations

Human Rights Watch makes the following recommendations to mitigate the humanitarian harm caused by cluster munitions in this conflict and to help ensure that such harm never happens again.

To the Government of Russia

·         Sign the Convention on Cluster Munitions, which opened for signature on December 3, 2008, and ratify it as soon as possible thereafter.

·         Initiate interim national measures to address the harm of cluster munitions. These measures should include: banning use in populated areas; prohibiting future production and transfer; and starting destruction of Russia’s stockpiles.

·         Acknowledge that Russian forces used cluster munitions in Georgia.

·         Provide assistance with remedial measures, such as clearance, to ensure civilians are not killed or injured by the duds left behind in Georgia. Such assistance should ideally meet the standards of the Convention on Cluster Munitions, but should at least follow the provisions laid out in CCW Protocol V, which entered into force for Russia in January 2009. According to both instruments, Russia should provide technical, financial, material, or human assistance for clearance.

·         Immediately provide to the demining organizations on the ground in Georgia the specific locations of cluster munition attacks and the specific types and quantities of weapons used, in order to facilitate clearance and risk education activities.

·         Investigate impartially and independently Russian forces’ use of cluster munitions in Georgia. Such an investigation should assess carefully whether the munitions were used in a manner consistent with international humanitarian law. It should address questions about deliberate use in populated areas; the types, quantity, and reliability of cluster munitions used; the specific military objectives for each attack (or lack thereof); whether separate and distinct military objectives were treated as a single one for the purpose of bombardment; and whether there was knowing or reckless disregard for the foreseeable effects on civilians and other protected objects. The results of the investigation should be made public.

·         Follow through on the pledge to investigate the attack on Gori and make the results of that investigation public.

·         Hold accountable, including through disciplinary action or prosecution if the facts warrant, those responsible for using cluster munitions in violation of international humanitarian law.

To the Government of Georgia

·         Sign the Convention on Cluster Munitions, which opened for signature on December 3, 2008, and ratify it as soon as possible thereafter.

·         Initiate interim national measures to address the harm of cluster munitions. These measures should include: banning use in populated areas; prohibiting future production, import, and export; starting destruction of Georgia’s stockpiles; and adopting remedial measures to ensure civilians are not killed or injured by the duds it left on its own soil.

·         Coordinate with international demining organizations, including by providing details on the clearance done by the Georgian military and providing information on the specific locations of cluster munitions attacks and the specific types and quantities of weapons used, in order to facilitate clearance and risk education activities. Its performance of remedial measures should ideally meet the standards of the Convention on Cluster Munitions, but should at least follow the provisions laid out in CCW Protocol V, which will enter into force for Georgia in June 2009.

·         Provide assistance with any remedial measures necessary in South Ossetia, including by providing strike data to those in charge of clearance. Such assistance should ideally meet the standards of the Convention on Cluster Munitions, but should at least follow the provisions laid out in CCW Protocol V.

  • Investigate impartially and independently Georgian use of cluster munitions. Such an investigation should assess carefully whether the munitions were used in a manner consistent with international humanitarian law. It should address questions about deliberate use in populated areas; the types, quantity, and reliability of cluster munitions used; the specific military objectives for each attack (or lack thereof); whether separate and distinct military objectives were treated as a single one for the purpose of bombardment; and whether there was knowing or reckless disregard for the foreseeable effects on civilians and other protected objects. It should include the findings of the ongoing investigation into how Georgian cluster munitions landed in populated areas of Gori District, which should consider why the rockets landed where they did, why the submunitions had such high failure rates, and why the submunitions did not have self-destruct devices. The government should ensure that the investigation is independent and open to public scrutiny.
  • If violations of international humanitarian law are found, hold accountable, including through disciplinary action or prosecution if the facts warrant, those responsible for using cluster munitions in violation of international humanitarian law.

To All Governments

  • Sign, ratify, and implement the Convention on Cluster Munitions as soon as possible.