IV. CLUSTER BOMB USE IN AFGHANISTAN

Cluster bombs became a matter of international attention once again when the United States began its air campaign in Afghanistan in October 2001. The United States had used them previously and extensively in the 1991 Gulf War and the 1999 NATO campaign in Yugoslavia, leading to discussion about the pros and cons of a weapon containing submunitions. The Afghan conflict renewed this debate. The U.S. military considered cluster bombs a valuable part of their Afghan arsenal. In 232 strikes during the first six months of the war, the United States dropped about 1,228 CBUs with 248,056 bomblets.⁶⁰ Their use, however, generated wartime criticism from governments and NGOs and gave new life to the push for cluster bomb regulation.

The War in Afghanistan
The U.S. air war in Afghanistan, a response to the terrorist attacks of September 11, began on October 7, 2001.⁶¹ The first few days of the war consisted of "strategic" attacks on fixed military targets and were followed by weeks of "tactical" attacks on moving targets and command-and-control activities. As part of Operation Enduring Freedom, U.S. planes dropped bombs daily on military bases, airfields, terrorist training camps, communication facilities, and other targets. On October 19, a small number of U.S. ground troops were deployed to help work with and coordinate air strikes with Afghan proxy forces. With help from the skies, these anti-Taliban forces fought their way toward the country's major urban centers. During the second week of November, they captured Mazar-i-Sharif and Taloqan in the north, Herat in the northwest, and Jalalabad in the east. The string of successes included the fall of Kabul, Afghanistan's capital, on November 13. Kunduz and Kandahar, the last Taliban strongholds, fell on November 25 and December 7, respectively. On December 22, interim Chairman Hamid Karzai and the new government took office.

In December, the United States shifted its attention to Afghanistan's mountain caves where Taliban and al-Qaeda troops were hiding. It began a month-long bombardment of the mountains around Tora Bora on November 30. Operation Anaconda, which lasted from March 2 to March 18, 2002, targeted pockets of al-Qaeda in the Shahi-Kot area south of Gardez. As of November 2002, U.S. forces continued to carry out operations in the mountain regions and in central Afghanistan.

Cluster bombs played a role throughout the U.S. air campaign. In the first week alone, Air Force B-1 bombers reportedly dropped fifty CBU-87s, containing 10,100 bomblets, in five missions.⁶² The first widely publicized case of cluster bomb use occurred on October 22 when at least one weapon apparently went astray near Herat.⁶³ The United Nations reported that eight people died during a strike on Qala Shater and a ninth died from an unexploded bomblet after the attack. The bomblets also injured fourteen others and completely or partially destroyed twenty of the village's forty-five homes.⁶⁴ U.S. officials acknowledged the use of cluster bombs but would not comment on the specific strike. "As we said before, we're going to use the entire spectrum of our conventional weaponry. And . . . yes, we have used cluster-bomb units," Gen. Richard Myers, chairman of the Joint Chiefs of Staff, said at an October 25 press briefing.⁶⁵ The Qala Shater incident attracted great media attention and started a public debate over the use of cluster bombs in Afghanistan.⁶⁶

As the war progressed, journalists tracked cluster bomb use across the country. The United States dropped CBUs near Herat at the end of October and against frontline troops near Mazar⁶⁷ and in the Shomali Plain north of Kabul shortly thereafter.⁶⁸ Reporters witnessed cluster bomb strikes outside Kunduz around the time of its fall in late November.⁶⁹ After that, use seemed to shift to the south as the United States and its allies moved in on Kandahar.⁷⁰ By the end of November, journalists began writing regularly about the aftereffects of cluster strikes-civilians killed by unexploded bomblets that littered the country, especially in the Shomali Plain and near Herat and Khanabad.⁷¹

The United States also used cluster bombs extensively in its cave campaigns near Tora Bora and Shahi-Kot.⁷² Forty-six of the reported 232 strikes fell on these regions.⁷³ Reporters who arrived at an al-Qaeda camp in mid-December described the aftermath of a cluster strike, including denuded trees, shredded clothing, "twisted cooking pots," torn religious books, and dead al-Qaeda fighters.⁷⁴ Nearby they found CBU casings with messages painted on them by U.S. troops. "For those `dreams taken,' have a few nightmares. D.," said one. "This is going to shine like a diamond in a goat's ass. Gary," read another.⁷⁵ Since Operation Anaconda, there has been little, or no, use of cluster bombs.

Public Debate over Cluster Bombs
The use of cluster bombs and reports of civilian casualties caused great debate during the war. NGOs and some governments criticized the use of cluster bombs in Afghanistan. Human Rights Watch as well as other NGOs, the International Committee of the Red Cross (ICRC), and the European Parliament called for an immediate stop to the use of cluster bombs in Afghanistan.⁷⁶ The Taliban tried to capitalize on this sentiment. "They are contaminating our farm lands and destroying our villages. It is very dangerous for civilians to try and remove these bombs," Taliban Education Minister Amir Khan Muttaqi said the day after the Qala Shater incident.⁷⁷ He asked human rights groups to push the United States to suspend cluster attacks.⁷⁸

Most organizations focused on the dangers cluster bombs posed to Afghan civilians. Some groups highlighted the inherent inaccuracy of CBUs. Landmine Action said they are "prone to miss their targets."⁷⁹ Anti-mine NGOs emphasized the dud rate and long-term effects of unexploded bomblets. "Politicians must tell the military that they do not have the right to use arms they know have dramatic consequences against civilian populations, even after a conflict is over," said the director of Handicap International.⁸⁰ Landmine Action noted that the duds both endangered civilians' lives and kept the already starving population from farming their land.⁸¹ Seeking to minimize the aftereffects of these duds, several critics called for the U.S. government to take responsibility for post-war cleanup.⁸²

Opponents argued the bombs were not only dangerous but also ineffective, especially in a war against terrorism where winning civilian support was crucial. "You will not win the hearts and minds of a people if, in your effort to provide them with a better future, your real legacy is to be associated with hidden deaths and hideous wounds for years to come," said a Church of England spokesman.⁸³ Christian Aid and others said the use of cluster bombs countered the U.S. claim that it intended to minimize civilian casualties.⁸⁴

The U.S. cluster bomb attacks drew criticism from governments and intergovernmental organizations as well as NGOs. In a December resolution prompted by the events in Afghanistan, the European Parliament called for an "immediate moratorium" on cluster bombs until an international agreement was reached.⁸⁵ The Parliament said it was "extremely concerned at the difficulty in accurately targeting cluster bombs during conflict, the high proportion of cluster bomblets which are found to have failed to detonate on impact, and the wide area of coverage of the bomblets, all of which means they pose a serious long-term threat to the civilian populations."⁸⁶

Meanwhile, U.N. officials asked the U.S. military for information on the "nature, timing and targets of daily bombing runs so that innocent civilians would not be needlessly injured."⁸⁷ They also called on the United States to provide technical advice and assist with BLU clearance in Afghanistan.⁸⁸ The U.N. organization that oversees demining in Afghanistan said its local deminers put themselves at risk when clearing BLUs because they were unfamiliar with this kind of submunition.⁸⁹ A Pentagon official responded that the U.S. military does not assume responsibility for clearing unexploded ordnance.⁹⁰

The United States defended its use of cluster munitions in Afghanistan. Officials argued that the weapons were militarily effective and legal under international law.⁹¹ Secretary of Defense Donald Rumsfeld and Rear Adm. John Stufflebeem highlighted their use against frontline al-Qaeda and Taliban troops⁹² while others said they were useful for attacking military facilities.⁹³ The Pentagon did not deny the claims of civilian side effects but emphasized that it limited the use of cluster bombs to certain circumstances. "[I]t goes back to the basic issue of targeteering and weaponeering the particular target. We take great pains to do that. And we only use the cluster munitions when they are the most effective weapon for the intended target," Myers said after the Qala Shater incident.⁹⁴ Myers said that the military considered IHL and the minimization of civilian casualties as part of this calculus. He explained, "We are trying to be very careful in the way we plan this particular conflict. Probably only the U.S. and its allies could do it in such a way that we minimize civilian casualties. If we match up a specific weapon to a specific target and we make the judgment that it's in accordance with the law of armed conflict, and we've worked this very, very carefully, then we'll use that weapon."⁹⁵

While the care taken in targeting shows that the United States was concerned about potential civilian casualties, the Pentagon placed these casualties in the larger context of the war on terrorism. "We're now being threatened with weapons that could kill tens of thousands of people. We're trying to avoid killing innocent people, but we have to win this war and we'll use the weapons we need to in this war," Deputy Secretary of Defense Paul Wolfowitz said in response to a question about cluster bombs.⁹⁶ When asked about the civilian casualties CBUs cause, Pentagon officials said that they were more concerned with the thousands who were intentionally killed on September 11. "In some cases, [matching the weapon to a target] means cluster bombs. And we understand the impact of those. I would take you back to September 11. We also understand the impact of that," Myers said.⁹⁷ With such comments, the military highlighted the distinction between civilians killed as an unintentional side effect of war and civilians intentionally targeted.

Through much of this public debate, the Department of Defense did itself a disservice. First, Human Rights Watch discussions with military officials illuminated the elaborate targeting process they followed for air strikes, but the Defense Department never publicized the details of this process. Second, while identifying an important distinction in the cause of civilian deaths, its comparison to September 11 suggested insensitivity to deaths of innocent Afghans. Finally, it refused to comment on specific incidents where civilians died. When asked about the widely reported Qala Shater incident, Myers said he had not heard of it.⁹⁸ His inability to comment was in part due to the Pentagon's lack of information from the ground, but he made no effort to explain that or follow up with more information later.

The lack of "ground truth" made the wartime debate over cluster bombs provocative but limited. Because they could not investigate the weapon's effects on the ground during the height of the bombing, cluster bomb opponents based their criticism on their general knowledge of cluster bombs, experiences in Yugoslavia and the Gulf, and press accounts of casualties in Afghanistan. The press frequently relied on second- or third-hand sources, leading to inaccurate tallies or duplicate reports.⁹⁹ Even the U.S. military was unable to assess thoroughly the effects of its bombing. It relied on aerial photos, which proved ineffective in assessing cluster bomb use because the wide dispersal of bomblets and relatively small explosions they produce make it difficult to see civilian effects from high altitudes.¹⁰⁰

This report, by contrast, is informed by a three-and-a-half week mission to Afghanistan. Such on-the-ground investigation can establish what was and was not bombed, identify possible intended targets, and determine the effects of each strike. The next three chapters will lay out Human Rights Watch's findings from its mission and discuss the major issues surrounding the use of cluster bombs in Afghanistan: targeting, or the bombs' immediate effects, aftereffects, and clearance.

⁶⁰ U.S. DoD, Probable UXO [Unexploded Ordnance] Locations, March 2002 [hereinafter U.S. Cluster Bomb List-March]. Human Rights Watch has no information on the use of cluster bombs after March 2002 although it may have occurred on a more limited scale.

⁶¹ Information on the chronology of the war comes from "Chronology of Operation Enduring Freedom," an internal Human Rights Watch database of press accounts, policy statements, and other information compiled during the war.

⁶² William M. Arkin, "A Week of Air War," washingtonpost.com, October 14, 2001, at http://www.washingtonpost.com/wp-dyn/nation/columns/dotmil/ (last visited November 22, 2002).

⁶³ Many newspapers picked up this story. See, e.g., Vernon Loeb and Thomas E. Ricks, "Pentagon Says Taliban Is Ready for Long Fight," Washington Post, October 25, 2001; Gregg Jones, "U.S. Criticized for Cluster Bomb Use," Dallas Morning News, October 25, 2001; Paul Richter and Peter Pae, "`Precision Bombing' Still a Very Imperfect Art," Los Angeles Times, October 25, 2001.

⁶⁴ Karl Malakunas, "U.S. Cluster Bomb Attack Kills Nine, Empties Village: UN," Agence France-Presse, October 25, 2001.

⁶⁵ "DoD News Briefing-Secretary Rumsfeld and General Myers," U.S. DoD News Transcript, October 25, 2001.

⁶⁶ See, e.g., Steven Edwards, "Cluster Bomb Use Raises Cry of Protest: Indiscriminate Killers," National Post (Canada), October 26, 2001.

⁶⁷ Justin Huggler, "U.S. Jets Open Up New Front As Assault Intensifies," The Independent, October 29, 2001; Paul Watson and Lisa Getter, "Silent Peril Lies in Wait for Afghanistan's People," Los Angeles Times, December 1, 2001 (reporting that cluster bombs fell near Mazar on October 26).

⁶⁸ "B-52s Pound Front North of Kabul," AP Online, November 2, 2001.

⁶⁹ Eric Schmitt and James Dao, "Use of Pinpoint Air Power Comes of Age in New War," New York Times, December 24, 2001 (describing cluster bomb strike on Taliban troops at the end of November); Colin Soloway, "Unfriendly Fire: Northern Alliance Forces Say They Suffered Casualties When U.S. Planes Continued To Bomb Konduz After Their Anti-Taliban Troops Entered the City," Newsweek.com, November 26, 2001; Luke Harding, "Frontline Troops Await the Final Act," Guardian, November 26, 2001.

⁷⁰ Watson and Getter.

⁷¹ See, e.g., Larry Kaplow, "Unexploded U.S. Bombs Pose Lingering Danger to Afghans," Austin-American Statesman, November 27, 2001; Watson and Getter; C.J. Chivers, "An Afghan Village Where Errant Bombs Fell and Killed, and Still Lurk in Wait," New York Times, December 15, 2001.

⁷² U.S. Cluster Bomb List-March. The United States reported dropping about eighty-four cluster bombs, containing 16,968 bomblets, in Shahi-Kot.

⁷³ Ibid.

⁷⁴ Jon Swain, "Air Blitz on Running Men of Tora Bora," Sunday Times (London), December 16, 2001; Jonathan S. Landay, Lauren Markoe, and Martin Merzer, "Surrender Talks and Bombing Resumed After a Deadline Passed," Philadelphia Inquirer, December 12, 2001.

⁷⁵ Swain.

⁷⁶ Human Rights Watch, "Cluster Bombs in Afghanistan"; Landmine Action, "Landmine Action Deplores Use of Cluster Munitions in Afghanistan," Press Release, October 23, 2001; Diana, Princess of Wales Memorial Fund, "New Call for U.K. To Lead on Cluster Bomb Controls," Press Release, December 3, 2001; Paul Grossrieder, "Clean Up Your Lethal Leftovers," International Herald Tribune, December 18, 2001 (op-ed by director-general of ICRC); European Parliament, "Resolution on Cluster Bombs," RSP/2001/2636, December 13, 2001.

⁷⁷ "Taliban Appeals to World Over Cluster Bombs, Calls on Aid Groups Return," Agence France-Presse, October 26, 2001.

⁷⁸ Ibid.

⁷⁹ Scott Canon, "Cluster Bombs Leave Duds, Debate," Kansas City Star, October 31, 2001 (quoting, e.g., Landmine Action, "Landmine Action Deplores Use of Cluster Munitions in Afghanistan").

⁸⁰ Richard Beeston and Helen Rumbelow, "Allies Defend Cluster Bombs," Times (London), October 29, 2001.

⁸¹ Canon (quoting letter to the Times (London) from the Diana, Princess of Wales Memorial Fund and Landmine Action, October 25, 2001).

⁸² See, e.g., Michael Winton, Bishop of Winchester, "Call to Restrict Use of Cluster Bombs," Letter to the Editor, Times (London), December 5, 2001 ("[T]he users should take full responsibility for the prompt clearance of unexploded ordnance."); Tom Baldwin and Katty Kay, "Stop Cluster Bombing, Diana's Fund Says," Times (London), October 25, 2001 (quoting letter to the Times (London) from the Diana, Princess of Wales Memorial Fund and Landmine Action, October 25, 2001, which said, "The UK should seek assurances from other members of the military alliance that they will not only cease using cluster munitions, but also take responsibility afterwards for the complete clearance of all unexploded bomblets.").

⁸³ Beeston and Rumbelow.

⁸⁴ Ibid.

⁸⁵ European Parliament, "Resolution on Cluster Bombs." This resolution was aimed at CCW negotiators who were considering a new protocol.

⁸⁶ Ibid.

⁸⁷ Michael Zielenziger, "Cluster Bomb Traps Villagers Inside Homes," Knight Ridder News Service, October 25, 2001.

⁸⁸ Brian Toohey, "U.S. Strategy in Afghanistan May Have Missed Its Target," Australian Financial Review, October 27, 2001.

⁸⁹ Zielenziger.

⁹⁰ Baldwin and Kay; Zielenziger ("A Pentagon official speaking on condition of anonymity told the Associated Press that the U.S. military does not get involved in clearing unexploded weapons and did not do so in the Kosovo conflict in 1999.").

⁹¹ See, e.g., "General Myers Interview with Al Jazeera," U.S. DoD News Transcript, October 31, 2001 (archived at November 5, 2001) (quoting Myers saying, "We will not use any illegal weapons in Afghanistan. . . . We used some cluster weapons, but my understanding is they are not illegal.").

⁹² "DoD News Briefing-Secretary Rumsfeld and General Myers," U.S. DoD News Transcript, November 1, 2001 (quoting Rumsfeld saying, "They are being used on front-line al Qaeda and Taliban troops to try to kill them, is why we're using them, to be perfectly blunt."); "DoD News Briefing-Rear Admiral Stufflebeem," U.S. DoD News Transcript, November 28, 2001 (quoting Stufflebeem saying that "cluster munitions are most effective against troops that are in lightly defended positions.").

⁹³ Richard Norton-Taylor, "America Deploys Controversial Weapon: B-52s Scour Country for Troop Convoys To Attack," Guardian, October 12, 2001 (quoting a U.S. defense official saying, "The prime focus was garrisons, bivouac areas, maintenance sites, troop-type facilities.").

⁹⁴ "DoD News Briefing-Secretary Rumsfeld and General Myers," U.S. DoD News Transcript, October 25, 2001.

⁹⁵ "DoD News Briefing-Secretary Rumsfeld and General Myers," U.S. DoD News Transcript, November 1, 2001.

⁹⁶ "Deputy Secretary Wolfowitz Interview with London Sunday Telegraph," U.S. DoD News Transcript, October 28, 2001.

⁹⁷ "DoD News Briefing-Secretary Rumsfeld and General Myers," U.S. DoD News Transcript, November 1, 2001.

⁹⁸ "DoD News Briefing-Secretary Rumsfeld and General Myers," U.S. DoD News Transcript, October 25, 2001.

⁹⁹ Lucinda Fleeson, "The Civilian Casualty Conundrum," American Journalism Review, April 2002.

¹⁰⁰ Tom Infield, "Pentagon Says Military Is Making Progress in Achieving Its Goals," Knight Ridder Tribune Business News, October 26, 2001.