April 14, 2009

Use of Cluster Munitions by Russia

Russia used cluster munitions in or near nine towns and villages in the Gori-Tskhinvali corridor south of the South Ossetian administrative border. Russian cluster munition strikes on populated areas killed 12 civilians and injured 46 more. Human Rights Watch did not document any casualties from Russian duds after the time of attack, but it did find many unexploded submunitions so the potential for future injuries remains.

During multiple missions to the Gori and Kareli districts just south of the South Ossetian administrative border, Human Rights Watch researchers found unexploded submunitions, pieces of detonated submunitions, and carrier bombs and rockets. They also conducted interviews with victims and witnesses of cluster munition strikes and deminers who work in the area. Through these sources, researchers gathered evidence of Russian cluster munitions in or near villages, towns, and one city mostly in a band to the south of the area investigated: Akhaldaba, Dzlevijvari, Gori, Pkhvenisi, Ruisi, Variani, and Varianis Meurneoba. In early 2009 NPA deminers found evidence of Russian 9N210 submunitions from the August 2008 conflict in two additional villages: Kvemo Khviti and Zemo Nikozi.[66]

In official statements, Russia has repeatedly denied using cluster munitions.[67] Nevertheless, Human Rights Watch has concluded that these incidents are attributable to Russian actions. According to witnesses, the targets were Georgian, not Russian, troops. Although Georgian troops were usually not in the immediate vicinity of a strike, they were often in the general area, and Russian troops were not. Russia is known to have produced and to stockpile the types of cluster munitions used (AO-2.5 RTM and 9N210 submunitions, RBK series bombs, Uragan rockets, and Iskander missiles, as described above). Georgia reports that it possesses RBK-500 bombs, but that their shelf-lives have expired and they are slated for destruction.[68] Human Rights Watch knows of no evidence that Georgia ever possessed the Uragan rocket with 9N210s or the Iskander missile.[69] International deminers, who are cluster munition experts and are doing clearance in the region, believe these submunitions to be Russian.[70]

In its strikes on or near populated areas, Russia violated the international humanitarian law prohibition against indiscriminate attacks.[71]

Civilian Casualties at the Time of Attack

Russian cluster munitions landed in or near a city, town, or village in nine strikes, and in three—on Gori, Ruisi, and Variani—they caused dozens of civilian casualties. Many witnesses said Georgian troops or vehicles, the most likely cluster munition targets, were not in the immediate area at the time of the strikes, and in no case did Human Rights Watch find evidence of enemy units at the site of the attack.

Gori City

According to an investigation initiated by the Dutch Ministry of Foreign Affairs, Russia attacked the city of Gori with cluster munitions on August 12. The conclusions of the investigation support the findings of Human Rights Watch’s research. Gori’s GorMed Hospital, the civilian hospital in Gori, reported that the attack killed six civilians, including a Dutch cameraman, and injured 24.[72]

The Dutch government investigation was an effort to clarify the circumstances that led to the death of RTL cameraman Stan Storimans on that day. The team analyzed the site, photographs and videos, physical evidence, and testimony from witnesses, government officials, and nongovernmental organization (NGO) researchers. It concluded that a Russian Iskander missile carrying submunitions landed on the main square in Gori at around 10:45 a.m., killing Storimans and killing and injuring others in the area.[73]

The Dutch government report determined that Georgian troops had fled Gori by August 12. Storimans, his colleague Jeroen Akkermans, and Israeli journalist Zadok Yehzekli arrived at Gori’s central square around 10:30 a.m. that day. Storimans had recorded footage of the scene, including the statue of Stalin, and was heading back to his taxi when the explosion occurred. It killed Storimans, seriously injured Yehzekli, and killed or injured many other bystanders.[74] While the blast did not cause any structural damage, it shattered windows and left fragmentation marks in neighboring buildings and the taxi.[75]

The Storimans investigation did not find any submunitions but identified from photographs in the vicinity an Iskander missile, a Russian weapon that the Dutch report said carries 20 submunitions. It determined that “the entire square and several nearby streets [an area of about 300 by 500 meters] had been hit in the same manner” with metal fragments measuring about five millimeters.[76] The report says, “It was deduced from the entry holes that the bullets [that is fragments] were from multiple explosions, both on the ground and in the air.”[77] Video footage from journalists and security cameras also showed such explosions.[78] This evidence was consistent with the workings of and damage caused by cluster munitions.

One of heads of the Dutch investigation, Adriaan Jacobovits, told Human Rights Watch that the submunitions had identical fragments and that he believed they were only antipersonnel weapons. Investigators ruled out the alternative possibility of an airburst of a unitary weapon because video from three cameras showed one incident with 20 explosions. Each explosion left a distinct pattern with fragmentation marks radiating from the center, like the pattern left by a submunition. The explosions also created craters in the main square, on neighboring streets, and even in homes, Jacobovits said.[79]

Human Rights Watch’s research focused on this incident from the perspective of Georgian civilians and independently reached the same conclusion as the Storimans investigation. Human Rights Watch researchers took victim and witness testimony and examined both video footage and physical damage to the area. They also found different parts of an Iskander missile at two sites within a few blocks of the strike.

On the morning of August 12 a group of civilians had gathered to receive food from local officials at the Gori Municipality Administration building located on the city square. A nearby car accident caused further commotion and crowding, and some journalists stopped on the square to inquire about directions. Two victims estimated that there were at least 40 civilians on the square when the attack took place.[80]

Victims of the attack said that before falling to the ground, they saw numerous small explosions within seconds. Keti Javakhishvili, 24, was walking to a neighbor’s house for bread when the attack came.[81] Dr. Merab Kiladze, head of the surgery department of the Gudushauri National Medical Center in Tbilisi, told Human Rights Watch that Javakhishvili suffered massive injuries to her liver, stomach, and intestines as well as hemorrhagic shock. Kiladze said it would require multiple procedures to repair all of the damage and months to convalesce.[82]

Another victim, Nodar Mchedlishvili, 54, told Human Rights Watch that he went to the municipality building to get rice to feed eight people displaced from South Ossetian villages. He said, “In a couple of seconds, from everywhere I heard what sounded like massive gunfire. We fell on the ground, and some people never got up.”

Mchedlishvili sustained shrapnel wounds to his left leg and knee. He was driven to GorMed Hospital in a car with six other victims as part of a convoy of the injured before being transferred to Tbilisi. Giorgi Malkhaziani, 59, whose right leg was shredded as a result of the attack, corroborated Mchedlishvili’s account of the events.[83]

The main command center for the Georgian military operation in South Ossetia was located in Gori. Witnesses, however, reported no military forces on the square when it was attacked.[84] The Dutch report corroborated this testimony and stated that the Georgian military had fled Gori by August 12.[85]

Ruisi

On August 12 Russian forces attacked the village of Ruisi at its northwest and southeast ends. They used Uragan rockets that scattered 9N210 submunitions across the area. The submunitions killed three civilians and wounded six others at the time of the attack.

Suliko Goginashvili, 65, died in the northwest part of town that day. He had taken the family’s cows to graze in their fields in the morning. An assault began around 11 a.m. and lasted until about 2 p.m. “When we found him he had numerous wounds. His head was broken…. His legs and hand were sliced off,” his 57-year-old wife, Iza, said.[86] Cluster munitions also killed Natela Guraspashvili, a 75-year-old woman who accompanied Goginashvili to the fields. While Goginashvili’s family waited three days to bury him, Guraspashvili’s body was so damaged that it “could not be put back together,” and she was buried immediately.[87] Khvicha Sa’atashvili, a 45-year-old carpenter, showed Human Rights Watch researchers pieces of an Uragan rocket that he found near where Suliko Goginashvili died. He also showed them fragments of 9N210s he found in his house and yard in the middle of town.[88]

On the same day, around noon, Ushangi Beruashvili, 68, hurried along the highway near the edge of his village, heading to Kareli to escape the violence. When the fighting began, he turned back to find shelter in a basement not far from Goginashvili’s field. As he was entering the basement, “Something hit me in the stomach area. My intestines fell out. I held them in.”[89]

As his wife, uninjured, left to seek help, the village administrator passed by with his own family and drove Beruashvili to Khashuri Hospital, west of Kareli. Beruashvili stayed in the hospital for two weeks with several other victims from his village, including Mzia Khanisvhili. His small intestine had been “cut into pieces”; doctors have sewed it back together, but he said in October 2008 that he would have to wait for three months, while the intestine healed, for an operation to reinsert it in his abdomen.[90] At the time of Human Rights Watch’s visit, his wife was in Tbilisi to negotiate with the minister of health for the medical assistance Beruashvili needs.

The population of Ruisi suffered casualties at the other end of town during the same attack. Amiran Vardzelashvili, 76, was walking on the path to his garden next to his home when a cluster munition landed. A submunition fragment pierced his heart, killing him almost immediately.[91]

Marine, one of his six daughters, was at home when the strike occurred, and she described the scene:

We heard bombs exploding in different places. People were screaming and crying. We could feel the blast waves from the explosions. It was right near our house…. Suddenly, we heard our father screaming, “Gela!” He was calling for his son. We ran out and saw him. My father was on the ground, all covered in blood. He died on the spot from shrapnel wounds. We buried him here, in the yard.[92]

According to Vardzelashvili’s 35-year-old son, Gela, the attack left one big crater and 15 small ones in the garden.[93] He and a neighbor showed Human Rights Watch pieces of an Uragan rocket that landed at the scene.

About 700 meters away, a group of women watched other parts of the village being destroyed. Fearing for their lives if they stayed in their homes, they fled to the local church, clearly marked by a large cross. Seventeen-year-old Tinatin Beruashvilisaid, “We felt the Russians would know it was a church and not bomb it.”[94] She and her mother, Maya, 40, and two neighbors, Tsiuri Khanishvili, 56, and Tsiala Beruashvili, 50, huddled near the church on a large pipe under a tree, and cluster munitions fell around them. Rather than finding safety, they all suffered extensive injuries, and houses near the church burned.[95] The church itself was not damaged, but gravestones in the attached cemetery had fragmentation marks from exploding submunitions.

Tsiala described hearing an explosion as something hit the church cemetery. When she realized she could not run away, she lay down:

I felt a big piece of shrapnel cutting my left leg. There was a big open wound. I lost consciousness. When I came to my senses, I heard Tinatin screaming that I needed help because I couldn’t walk. They helped me out.

Tsiala stayed in the hospital for two weeks and had to return regularly for another two weeks to receive treatment as an ambulatory patient.[96]

Maya did not lie down. She said she thought she had lost an eye and felt her hand get “heavy.” She suffered shrapnel wounds near her eye and to her face, right hand, hip, and back. Seeing that Tsiala could not stand, Maya helped her up, and the two walked to get help. A neighbor took them in a minivan to the hospital.[97] Maya showed Human Rights Watch a piece of shrapnel that doctors had removed, and it matched the fragmentation of a 9N210.

Maya’s daughter Tinatin said she was hit in the lower right leg. She suffered a broken bone, and the hospital put her leg in a cast.[98]

Tsiuri said she screamed when she heard the explosion. “I had shrapnel in my back. When I stood up to run away, several hit me in the buttock. I still have shrapnel in my body,” she said. The overwhelmed hospital could not give her deep wounds due attention and therefore did not remove the shrapnel.[99]

The women showed Human Rights Watch researchers an Uragan rocket that had fallen in the cemetery, and a neighbor boy showed them a handful of 9N210 fragments from the same place. Damage from such fragments was visible on the gravestones of the cemetery. According to Tamara Khodanovich, 59, her husband, Arjevan Beruashvili, 72, passed the women hiding by the church on his way to his garden. Another rocket fell near him, but he was not injured. Khodanovich showed Human Rights Watch researchers the rocket, which was also an Uragan.[100]

While in Ruisi, Human Rights Watch researchers also visited a contaminated garden next to some homes. NPA deminers were clearing the site and showed researchers seven unexploded 9N210s as well as many pieces of submunitions and rockets from the attack. The submunitions had shattered the windows and left shrapnel marks on the walls of a neighboring home. Amir Musanovic, who was leading the clearance team, estimated the 9N210s in his 200,000 square meter area of operation had a 35 percent dud rate.[101]

Some witnesses who spoke to Human Rights Watch said that Georgian troops had moved through the town the previous day but that on the day of the attack, all Georgian troops had left the town and were deployed a few kilometers outside of it.[102] A local shopkeeper described how Georgian troops were fleeing the area with their equipment by two roads on August 11, the day before the attack.[103] Another resident, however, said that Georgian troops were in the town at the time of the attack.[104] Regardless of whether Georgian troops were present, use of cluster munitions in a populated area like Ruisi would violate existing international humanitarian law.

Variani

Russian forces attacked the town of Variani with AO-2.5 RTMs on August 8 and again on August 12. Human Rights Watch found evidence of submunitions spread throughout two neighborhoods as well as in the fields on the edge of town. Incidents in the two neighborhoods killed a total of three civilians and wounded 16 more.

 

Strike at the Birzha

On August 8, more than a dozen men had congregated at a birzha, or gathering place, in the center of town. “It was in the morning, when people send their cows to pasture.... We were talking and chatting.... The bomb fell from the air, and it exploded. It happened in seconds, and we all fell down. When I looked around, I saw people spread all around,” said 70-year-old Teimuraz Khizanishvili. A few meters away, he saw Malkhaz Bedoshvili, about 31, lying face down, dead. Malkhaz’s father, Omar, about 65, “sat down and covered his wounds. He was taken to Gori [GorMed] Hospital and died several hours later.” Khizanishvili said there were no Georgian troops in the neighborhood.

Khizanishvili himself, wheelchair-bound with two large casts in October 2008, suffered serious injuries. Both his legs were broken, and he had shrapnel “everywhere” in his body, including his forehead, hand, legs, torso, and back. His 43-year-old son, Nikoloz, sustained numerous shrapnel injuries, including a gaping wound in his right thigh. After four operations, he still had to use crutches and would have to have further surgery. Khizanishvili’s 70-year-old wife, Tamara Kokashvili, was at their nearby home, and the explosion burst her eardrum so that she has lost almost all her hearing.[105]

Izo Khizanishvili, 67, who lived immediately adjacent to the birzha, was in her garden when the submunitions landed. She said,

I heard a loud explosion in the area. There were multiple ones. I dropped my tool and ran away. When I got to the fence, shrapnel hit me. I was hit in the back and was bleeding. My son was not home, so I was worried. I went out and saw 14 to 15 people around. There were two dead, and the rest were wounded.

She was taken to GorMed Hospital, treated, and released.[106]

Lia Kereselidze, 48, was at her nearby home when she heard the explosion followed by screams and shouts. “My husband [56-year-old Niko] was wounded and screaming for help. He was still conscious,” she said. Niko had 14 pieces of shrapnel in his left side and three more in his back. He was in Gori for treatment at the time of Human Rights Watch’s visit.[107]

The Giorgishvili family was planning to leave the village before the attack came. That morning, 13-year-old Beka went to say goodbye to his friends, 12-year-old Vakho and 8-year-old Tsira Urjumelashvili, who lived about 90 meters away from the birzha. The three friends were pumping up the tires of Vakho’s new bike when an explosion went off about five meters away. Fragments broke Beka’s skull, and doctors could not remove the shrapnel; he suffered brain damage and can no longer speak clearly.[108] Vakho had shrapnel in the back of his shoulder and armpit, and his sister Tsira was also wounded.[109]

Human Rights Watch collected testimony that in addition to killing two men, the strike at the birzha injured 14 people.[110] Their names and ages are:

1)       Kakha Adamashvili, about 43

2)      Ilia Adamashvili, about 31

3)      Temo Adamashvili, about 27

4)      Dato Akopov, about 31

5)      Beka Giorgishvili, 13

6)     Niko Kereselidze, 56

7)      Izo Khizanishvili, 67

8)     Mikkeil Khizanishvili, about 46

9)      Teimuraz Khizanishvili, 70

10)  Nikoloz Khizanishvili, 43 (Teimuraz’s son)

11)    Tamara Kokashvili, 70 (Teimuraz’s wife)

12)   Vano Khizanishvili, about 65

13)   Tsira Urjumelashvili, 8

14)   Vakho Urjumelashvili, 12.

At Lia Kereselidze’s home, about 130 meters from the birzha, Human Rights Watch saw a cluster munition canister labeled “RBK-500/AO-2.5 RTM” in Cyrillic and the crater in which it had landed. Kereselidze said two others had been found in the area but had been removed.[111]

Strike on Another Neighborhood

Cluster munitions caused additional civilian casualties in a neighborhood on the other side of Variani. On August 12, Suliko Zubashvili, 59, stood on a street corner talking to two neighbors, Zakro Buzaladze and 78-year-old Gaioz Kebadze, when he heard a jet overhead, followed by an explosion. The strike wounded both Zubashvili and Buzaladze and killed Kebadze. “I was wounded in the leg, chest, back, [and] fingers,” Zubashvili said. “I don’t remember how many explosions there were. I fell down and got up. I was bleeding, and when I looked back, Gaioz was dead. Nobody was here to help so I went home and tried to stop the bleeding.” When he could not stop the bleeding himself, he went to his brother’s wife who called a nurse to help bandage the wounds. The next day, he walked 12 kilometers to the GorMed Hospital in Gori because there was no ambulance. He was ultimately transferred to Tbilisi and spent about 10 days in the hospital there. Buzaladze suffered minor wounds to his back and treated himself.[112]

While those were the only casualties in that part of town, AO-2.5 RTMs covered the neighborhood. Galaktion Zubashvili, 79, said he was sitting on a bench outside his front door when jets flew overhead. “Something told me I should get up and go inside. Then something exploded.... [T]hen I saw shrapnel, and smoke rising up,” he said. He sought shelter in his home. After the fighting stopped, Zubashvili found three unexploded submunitions, craters from three submunitions that exploded in his yard, and one crater in his neighbor’s yard.[113]

Anzor Zubashvili, 68, said at least two submunitions exploded on impact in his yard. When he came out of his basement after the attack, he said, “Windows had come down. Doors had come off. The leaves and trees had fallen. It looked as if there had been many years of no one in the area.” He later found six unexploded AO-2.5 RTMs in his house and yard. For example, when he went to repair his roof a month after the strike, he found two submunitions and carried them downstairs until deminers could remove them. He found another one on October 16, two days before Human Rights Watch arrived.[114]

During its visit, Human Rights Watch found three unexploded AO-2.5 RTMs and the separation rings of two more. It heard reports of an additional 50 individual submunitions that had exploded on impact or been destroyed by deminers in Variani and the fields just outside it.[115]

While some villagers said Georgian troops might have been in the fields surrounding Variani, they said there were none in the town at the time of the attacks.[116]

 

Other Strikes

Human Rights Watch itself found evidence of Russian cluster munitions in or near four other towns. In Akhaldaba, Russian forces dropped AO-2.5 RTMs along the Liakhvi River on the edge of town. Amiran Natsvlishvili, a trout farm guard, described the submunitions and showed Human Rights Watch researchers HALO Trust warning signs and sandbags. He also said that deminers had cautioned him not to touch the submunitions.[117]

On August 11 Ilia Chagalishvili, a 54-year-old farmer, was resting on a log in his field outside Dzlevijvari. Suddenly, at around 11 a.m., a rocket crashed into the next field. “When it fell and exploded, I started running [home]. I saw there was another one in my house. I saw the windows were broken,” he said.[118] The rocket that was embedded in his backyard had suffered a catastrophic failure, meaning that it had not properly dispensed its submunitions and most of them had not exploded. He was too afraid to sleep in his home for two weeks, but the rocket was not cleared until the week of October 12.[119] He added, “There was no Georgian military here on the 11th [of August]. The entire village was empty. There were only five people remaining. There was nobody around. I have no idea why the Russians would attack.”[120] Human Rights Watch found many pieces of 9N210 submunitions at the craters both at his home and in his field.

In Pkhvenisi, Gocha Asanidze, a 44-year-old farmer, showed Human Rights Watch researchers an Uragan rocket embedded in a tomato field outside of town and many pieces of 9N210 submunitions. He had found the rocket and debris when he returned to town after the war in late August. Deminers had cleared the site in mid-October.[121] As will be discussed in the next chapter, Georgian cluster munitions also struck Pkhvenisi.

 

Residents of Varianis Meurneoba showed Human Rights Watch researchers nine pieces of RBK-250 pusher plates, which help deploy the AO-2.5 RTMs carried by the bombs. Each bomb has three such plates that form a circle. The residents reported that the Russians had done extensive clearance in the area before they withdrew in October.

In March 2009 NPA reported to Human Rights Watch that 9N210s had landed on two additional villages during the conflict. It identified the submunitions in an orchard outside of Kvemo Khviti. It also found the remains of an Uragan rocket and its submunitions “throughout the village area” of Zemo Nikozi, including 100 meters behind a school.[122] As will be mentioned in the next chapter, Georgian M85 submunitions also landed on both these villages.

Socioeconomic Harm

Since the area’s economy relies heavily upon agriculture, Russian duds have endangered those who attempt to harvest their crops and impeded Georgians’ ability to tend their farms and livestock and earn a living. While some of the Russian strikes on fields may have been aimed at Georgian military targets, the Russian forces’ decision to use cluster munitions, which have high dud rates, has caused socioeconomic harm after the conflict.  This harm was most visible in Variani, where submuntion duds blocked many farmers from their fields. Nukri Stepanishvili, a 44-year-old farmer, left the town on August 11, just as the Georgian military was fleeing, and returned a couple weeks later to find two submunition duds had penetrated his home. On October 18, he found another unexploded AO-2.5 RTM in his cabbage patch. He reported it to the police and showed it to Human Rights Watch researchers. “I haven’t harvested. I won’t until there is some clearance,” he said. He feared losing his cabbages, which would be ready to harvest in early November. He had also lost his tomatoes because they went unwatered during his forced absence in August.[123]

Tamar Eremov, a 68-year-old farmer, echoed Stepanishvili’s fears. Looking for walnuts on her land near the edge of town, she found an unexploded AO-2.5 RTM. “[Contamination] has interfered with my harvest.… Now I’m afraid to go in[to my fields] because of the ordnance.”[124] She said she worried that the submunitions would prevent her from harvesting her tomatoes, beans, and corn.

Anzor Zubashvili, who had had eight submunitions land in his home and yard, said the attack had resulted in the loss of about 15,000 flowers, which he had grown to sell. Submunitions also killed his cow and one of his chickens.[125]

Tengo Kebadze, 42, another farmer from Variani, reported that the Georgian military deminers removed 27 submunitions from his cherry orchard. He still had a live AO-2.5 RTM in another field he owns that he had not reported.[126]

Russian Statements about Cluster Munitions

Russia has denied using cluster munitions since the first reports about cluster use were published by Human Rights Watch. In a daily news briefing on August 15, Col. Gen. Anatoly Nogovitsyn, deputy head of the General Staff, said, “We did not use cluster bombs, and what’s more there was absolutely no necessity to do so.”[127] The Ministry of Defense said it did not use cluster munitions “in the area of the Georgian-Ossetian conflict,” but the ministry did not explain what is included in the Georgian-South Ossetian conflict zone and whether it includes areas of Georgian territory beyond South Ossetia.[128] At the September meeting of the CCW Group of Governmental Experts, Andrei Malov, senior counselor in the Russian Ministry of Foreign Affairs, echoed this denial. In a January 30, 2009 letter to Human Rights Watch, a Russian Foreign Ministry official wrote, “Despite Georgian aggression in South Ossetia, the Russian Federation did not employ the use of cassette [cluster] bombs or antipersonnel landmines.”[129]

On August 16, 2008, the Russian Ministry of Defense denied that it had used the Iskander missile in South Ossetia.[130] The Dutch Foreign Ministry investigation later said Russian forces had used this weapon in Gori. Human Rights Watch researchers saw the remnants of an Iskander missile in Gori in mid-August.

According to a member of the Dutch investigative team, Russian authorities provided no information for the report on the Gori incident, saying they had none to give.[131] Nevertheless, on October 23, the Russian Ministry of Foreign Affairs disputed the findings of the Dutch investigation, claiming that it had not been presented with sufficient evidence to warrant the conclusion that a Russian cluster munition had killed Storimans. In a public statement, the ministry said, “No unambiguous conclusion about the identity of the ammunition whose fragments to all appearances had killed [Storimans] can be drawn on the basis of the data provided by the Dutch. The documents and death scene photographs submitted by the Dutch side are not sufficient evidence that Stan Storimans was killed as a result of the use of weapons by the Russian side.”[132] The statement continued:

It is only regrettable that the arguments set forth at the Russian MFA during the October 17 meeting by the Russian side were not heard and did not find proper reflection in this document. We believe that the establishment of the true circumstances will require more careful work by military expects [sic]. Incidentally, the Georgian side has cluster warheads in service.[133]

Notably, while rejecting the findings of the Dutch report, Russia did not specifically repeat its denial of cluster munition use elsewhere in this statement.

About a week later, the Russian Foreign Ministry announced it would conduct its own investigation of the Gori incident. “We are cooperating closely with the Dutch government commission and have received its leadership in Moscow. All documents are currently being studied, and it has been decided that the results of our investigation will be offered to the Netherlands,” said Foreign Minister Sergei Lavrov.[134]

Legal Analysis

Strikes on Gori’s main square and in the towns of Ruisi and Variani caused civilian casualties, and the strike on Dzlevijvari hit a farmer’s home in town. Human Rights Watch believes that cluster munition attacks in or near populated areas are indiscriminate and thus unlawful. Cluster munitions cannot distinguish between soldiers and civilians so when they are used in places where the two groups may commingle, they are inherently indiscriminate.

The attacks were also likely disproportionate. The Georgian military was retreating at the time, and many witnesses told Human Rights Watch that Georgian forces were not in the immediate vicinity of those attacks. As a result, the military advantage of the strikes is questionable. Their civilian harm, however, is clear. Russian cluster munitions killed or injured almost 60 civilians. Given the proximity of centers of civilian population to the strike areas, this harm was foreseeable, and Russia should have anticipated it. Human Rights Watch believes there should be a presumption that attacks on populated areas are disproportionate, and the evidence in these cases supports that position.

Russia should not only abide by these international humanitarian law provisions in the future but also live up to its obligations under CCW Protocol V, which it consented to be bound by on July 21, 2008. Under this instrument, which encompasses cluster munitions, Russia’s duties include “provid[ing] where feasible” assistance for clearance of ERW, such as submunitions.[135] As will be discussed below, Russian troops did significant surface clearance before they withdrew to the South Ossetian administrative border on October 10. Now the Russian military should provide assistance to other deminers, including by sharing information on strike locations, weapon types, and numbers of submunitions used, to facilitate and expedite clearance efforts.

The types of cluster munitions used by Russia fall under the scope of the new Convention on Cluster Munitions, and for those states party to the convention, their future use would violate its basic prohibition on all use of cluster munitions.

Russia, like all states, should sign and ratify the Convention on Cluster Munitions as soon as possible. If it cannot do so at this point, however, Russia should take immediate interim measures to minimize the humanitarian harm of cluster munitions. It should cease use in populated areas, a measure necessary anyhow to comply with its obligations under international humanitarian law. It should also prohibit future production and transfer, begin destruction of its enormous stockpiles, and assist with remedial measures, such as clearance, to ensure civilians do not die from the duds it left behind in Georgia.

 

[66] Email communications from Jonathon Guthrie, program manager, Norwegian People’s Aid, to Human Rights Watch, March 10 and March 27, 2009.

[67] See, for example, “Russia Denies Use of Cluster Bombs in Georgia,” RIA Novosti, August 15, 2008, http://en.rian.ru/world/20080815/116065270.html (accessed January 28, 2009).

[68] Response of Georgian Ministry of Defense to Human Rights Watch Questions, February 12, 2009.

[69] Widely respected sources on arms arsenals, including Jane’s and the International Institute of Strategic Studies, have not reported any Georgian stockpiles of these weapons. As stated in the Dutch investigative report, the Iskander is believed to be stockpiled only by Russia. Dutch Ministry of Foreign Affairs, “Report of the Storimans Investigative Mission,” p. 6.

[70] Human Rights Watch interview with Joseph Huber, then program manager, Norwegian People’s Aid, Tbilisi, October 14, 2008; Human Rights Watch interview with Mick McDonnell, operations manager, iMMAP, Tbilisi, October 17, 2008.

[71] For a full discussion of international humanitarian law violations by Russia in the August 2008 conflict, see Human Rights Watch, Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia, 1-56432-427-3, January 2009, http://www.hrw.org/en/reports/2009/01/22/flames-0.

[72] Human Rights Watch telephone interview with Paata Kharabadze, chief doctor of GorMed Hospital, Gori, November 5, 2008.

[73] Dutch Ministry of Foreign Affairs, “Report of the Storimans Investigative Mission,” p. 7.

[74] Ibid., p. 4.

[75] Ibid.

[76] Ibid., p. 5.

[77] Ibid.

[78] Ibid.

[79] Human Rights Watch telephone interview with Adriaan Jacobovits, former ambassador and head of Storimans Investigative Mission, November 19, 2008.

[80] Human Rights Watch interview with Nodar Mchedlishvili and Giorgi Malkhaziani, Gudushauri National Medical Center, Tbilisi, August 13, 2008.

[81] Human Rights Watch interview with Keti Javakhishvili, Gudushauri National Medical Center, Tbilisi, August 13, 2008.

[82] Human Rights Watch interview with Dr. Merab Kiladze, Gudushauri National Medical Center, Tbilisi, August 13, 2008.

[83] Human Rights Watch interview with Nodar Mchedlishvili and Giorgi Malkhaziani, August 13, 2008.

[84] Human Rights Watch interview with Keti Javakhishvili, August 13, 2008; interview with Gvtiso Sekhniashvili, Gori, August 29, 2008.

[85] Dutch Ministry of Foreign Affairs, “Report of the Storimans Investigative Mission,” p. 4. The report states, “By August 12, military and police units had abandoned Gori.”

[86] Human Rights Watch interview with Iza Goginashvili, wife of victim, Ruisi, October 15, 2008.

[87] Ibid.

[88] Human Rights Watch interview with Khvicha Sa’atashvili, carpenter, Ruisi, October 15, 2008.

[89] Human Rights Watch interview with Ushangi Beruashvili, Ruisi, October 15, 2008.

[90] Ibid.

[91] Human Rights Watch interview with Gela Vardzelashvili, son of victim, Ruisi, October 15, 2008.

[92] Human Rights Watch interview with Marine Vardzelashvili, daughter of victim, Ruisi, August 22, 2008.

[93] Human Rights Watch interview with Gela Vardzelashvili, October 15, 2008.

[94] Human Rights Watch interview with Tinatin Beruashvili, Ruisi, October 15, 2008.

[95] Human Rights Watch interview with Tsiala Beruashvili, Ruisi, October 15, 2008.

[96] Ibid.

[97] Human Rights Watch interview with Maya Beruashvili, Ruisi, October 15, 2008.

[98] Human Rights Watch interview with Tinatin Beruashvili, October 15, 2008.

[99] Human Rights Watch interview with Tsiuri Khanishvili, Ruisi, October 15, 2008.

[100] Human Rights Watch interview with Tamara Khodanovich, Ruisi, October 15, 2008.

[101] Human Rights Watch interview with Amir Musanovic, technical advisor, Norwegian People’s Aid, Ruisi, October 15, 2008.

[102] See, for example, Human Rights Watch interview with Tsiala Beruashvili, October 15, 2008; Human Rights Watch interview with shop woman, Ruisi, October 15, 2008; Human Rights Watch interview with Ushangi Beruashvili, Khashauri hospital, August 24, 2008 (saying he believed the attacks were targeting Georgian military two kilometers outside of town); Human Rights Watch interview with Naira Mindiashvili, Tbilisi, August 17, 2008 (saying that there were no military objects in Ruisi and that the Georgian military was closer to Variani); Human Rights Watch interview with Marine Vardzelashvili, August 22, 2008.

[103] Human Rights Watch interview with shop woman, Ruisi, October 15, 2008.

[104] Human Rights Watch interview with resident (name withheld), Ruisi, October 15, 2008 (saying “The military was running through the village and was in a house nearby with some equipment.”).

[105] Human Rights Watch interview with Teimuraz Khizanishvili, Variani, October 18, 2008.

[106] Human Rights Watch interview with Izo Khizanishvili, Variani, October 18, 2008.

[107] Human Rights Watch interview with Lia Kereselidze, Variani, October 18, 2008.

[108] Human Rights Watch interview with Khatuna Giorgishvili, Beka’s mother, Variani, October, 18, 2008.

[109] Human Rights Watch interview with Vakho Urjmelashvili, Variaini, October 18, 2008.

[110] Human Rights Watch interview with Teimuraz Khizanishvili, October 18, 2008; Human Rights Watch interview with Khatuna Giorgishvili, October, 18, 2008; Human Right Watch interview with Vakho Urjmelashvili, October 18, 2008; Human Rights Watch interview with Lia Kereselidze, October 18, 2008; Human Rights Watch interview with Izo Khizanishvili, October 18, 2008.

[111] Human Rights Watch interview with Lia Kereselidze, October 18, 2008.

[112] Human Rights Watch interview with Suliko Zubashvili, Variani, October 18, 2008.

[113] Human Rights Watch interview with Galaktion Zubashvili, Variani, October 18, 2008.

[114] Human Rights Watch interview with Anzor Zubashvili, Variani, October 18, 2008.

[115] Human Rights Watch interview with Tengo Kebadze, Variani, October 18, 2008 (reporting deminers cleared 27 submunitions from his cherry orchard); Human Rights Watch interview with Lia Kereselidze, October 18, 2008 (reporting deminers had cleared four submuntions in her garden); Human Rights Watch interview with Teimuraz Khizanishvili, October 18, 2008 (reporting deminers had cleared two submunitions from his home); Human Rights Watch interview with Nukri Stepanishvili, Variani, October 18, 2008 (reporting two submunitions had been removed from his home); Human Rights Watch interview with Anzor Zubashvili, October 18, 2008 (reporting two explosions and six duds in his yard); Human Rights Watch interview, Galaktion Zubashvili, October 18, 2008 (reporting four explosions and three duds in his and his neighbor’s yard).

[116] Human Rights Watch interview with Archil Khizanishvili, Variani, October 18, 2008 (saying there were troops in town at other times but not at the time of this incident); Human Rights Watch interview with Teimuraz Khizanishvili, October 18, 2008 (saying that Georgian troops were not in town at the time of this attack but could have been outside the town); Human Rights Watch interview with Galaktion Zubashvili, October 18, 2008 (saying that Georgian troops were by a river outside of town).

[117] Human Rights Watch interview with Amiran Natsvlishvili, trout farm guard, Akhaldaba, October 18, 2008.

[118] Human Rights Watch interview with Ilia Chagalishvili, farmer, Dzlevijvari, October 21, 2008.

[119] Ibid.

[120] Ibid.

[121] Human Rights Watch interview with Gocha Asanidze, farmer, Pkhvenisi, October 20, 2008.

[122] Email communications from Guthrie, March 10 and March 27, 2009.

[123] Human Rights Watch interview with Nukri Stepanishvili, October 18, 2008.

[124] Human Rights Watch interview with Tamar Eremov, farmer, Variani, October 18, 2008.

[125] Human Rights Watch interview with Anzor Zubashvili, October 18. 2008.

[126] Human Rights Watch interview with Tengo Kebadze, October 18, 2008.

[127] “Russia Denies Use of Cluster Bombs in Georgia,” RIA Novosti, August 15, 2008, http://en.rian.ru/world/20080815/116065270.html (accessed February 17, 2009).

[128] “Russia Did Not Use Cluster Bombs in the Zone of the Georgian-South Ossetian Conflict Zone” (“Россиянеиспользовалакассетныебомбывзонегрузино-осетинскогоконфликта”), Ministry of Defense of the Russian Federation news release, August 15, 2008, http://www.mil.ru/info/1069/details/index.shtml?id=49501 (accessed November 14, 2008).

[129] Letter from Andrei Kelin, director, Fourth Department for CIS Countries, Ministry of Foreign Affairs of the Russian Federation, to Human Rights Watch, January 30, 2009 (on file with Human Rights Watch).

[130]Russian Ministry of Defense, Russian Troops Did Not Use the Iskander Missile System in South Ossetia (МинистерствообороныРоссийскойФедерации, “Российскиевойсканеприменяликомплекс 'Искандер' вЮжнойОсетии), August 16, 2008, http://www.mil.ru/info/1069/details/index.shtml?id=49537.

[131] Human Rights Watch telephone interview with Adriaan Jacobovits, November 19, 2008.

[132] Ministry of Foreign Affairs of the Russian Federation, “Response by the Russian Foreign Ministry’s Spokesman to a Media Question About the Death in Gori, Georgia, of a Netherlands Citizen in August 2008,” October 23, 2008,  http://www.ln.mid.ru/brp_4.nsf/sps/33BCABA43279F37FC3257523003F9EC7(accessed April 1, 2009).

[133] Ibid.

[134]“Russia Will Assist In Investigating the Death of Dutch Camera Operator in Georgia, (“РоссияпоможетрасследованиюгибелиголландскоготелеоператоравГрузии,”) Gazeta.ru, October 30, 2008,

http://www.gazeta.ru/news/lenta/2008/10/30/n_1289685.shtml (accessed February 17, 2009).

[135] Protocol V, art. 3(1).