The United States used cluster bombs on four major types of targets in Afghanistan: military bases, frontlines, villages where Taliban or al-Qaeda forces were hiding, and cave complexes. The Human Rights Watch bomb damage assessment team visited examples of the first three. The caves were inaccessible because of security concerns. The appendix provides details on nineteen strike sites visited, and the text below analyzes the most interesting case studies. The majority of the strikes were aimed at military bases and frontlines, but Human Rights Watch found several cases of cluster bomb use in or near populated areas. The civilian casualties that resulted demonstrate the dangers of dropping cluster bombs on or near villages and towns.
Military Bases and Frontlines
Northern Afghanistan and the Shomali Plain exemplify the use of cluster bombs against frontlines. In the north, the United States employed clusters to drive Taliban forces from hilltops and trenches. Gerhard Zenk of the demining group HALO Trust, who described the strikes as "very accurate," said the cluster bombs fell "right next to the trenches, right behind them as if going for their vehicles."106 He said he noticed tire tracks near some strikes suggesting that the Taliban were "hit as they were trying to bug out."107 "It doesn't take long for guys truly stuck in trenches-and these guys are good trench fighters-to move pretty quickly," said Zenk, commenting on the weapon's military effectiveness.108 Cluster bombs were also used heavily in the Balkh Valley, south of Mazar. In the Shomali Plain, the United States dropped cluster bombs on Taliban positions in villages from which most residents had fled. Karlwan, 25, one of the few civilians to remain in Denar Khail during the fighting, said that about four hundred Taliban and al-Qaeda fighters occupied the town.109 Human Rights Watch found evidence of CBU strikes in a line of villages in the adjacent Estalef and Karabagh districts.
The targeting of military bases and frontlines with cluster bombs is legitimate under international law. The law permits attacks on "military objectives," such as military bases and enemy soldiers.110 As long as the strikes do not cause disproportionate civilian damage, they are legal.111 The military bases in Herat were generally large enough to encompass the broad footprint of a cluster bomb without causing collateral damage when the bombs landed on target. The use of cluster bombs against frontline troops in open areas away from civilians was also legitimate, at least when evaluated for immediate effect.112 Problems arose with both of these kinds of targets in Afghanistan, however, because bases and Taliban troops were often located in or near populated areas.
Controversial Targets: Cluster Bombs in Villages
While the target in this case is not entirely clear, deminers said that Taliban troops were passing nearby. Marhama said that no soldiers were in the village,116 but a deminer believed that they may have been on a nearby ridge or passing through. "A lot of Taliban were running from Takhar to Kunduz. There might have been Taliban in the village," Zenk said.117 In the adjacent village of Charikari, about one-tenth of a mile (two-tenths of a kilometer) away, unitary bombs destroyed homes and a local mosque. Together these factors suggest that the cluster strike on Ainger landed in its intended location and was not the result of stray bombs. If the enemy forces were in fact on the move, it is unclear why the United States attacked them with cluster bombs while they were close to the village. It would appear that the United States did not take all feasible precautions to avoid civilian losses in this instance, as required under IHL.
Taliban soldiers were present in Ishaq Suleiman during the strikes. The village is located about a mile (1.7 kilometers) from the Fourth Armored Brigade Headquarters, which was heavily bombed with cluster munitions. The Taliban escaped from the base by hiding in the village and nearby hills. Witnesses said some Taliban troops occupied a green, NGO building across from the first two strikes.125 The bombs left the building unscathed. Another witness said that the Taliban returned to the village every night. They parked ten to twelve vehicles on every street and tried to hide them under carpets.126 The fifth strike fell near a low circular wall, the ruins of a shrine, where the Taliban had camped out many nights in a row.127 The villagers did not flee but recognized the danger of their position. "Time and again we complained and asked them to leave the area. The Taliban said, `You are cooperating with the United States. You are against us,' and would not leave," one witness said. "[We told them] `the American people have no hostility with us, only with you,'" another man said. "But they did not leave our area."128 After the first two strikes, the villagers organized a protest. According to witnesses, about two hundred people, young and old and including about one hundred women, marched to convince the Taliban to leave. The soldiers eventually fled, but not before three more cluster bombs had fallen on the village.129
While witness testimony suggested that the United States intentionally targeted the Taliban troops, U.S. military documents indicate that the strikes were in fact accidental. Residents of Ishaq Suleiman presumed the Taliban attracted the bombs, and the regular pattern of the strikes seemed to corroborate this theory. After returning from Afghanistan, however, Human Rights Watch reviewed U.S. Air Force mission reports and intelligence documents and plotted every cluster bomb drop reported by the Air Force and Navy. None appeared intended for Ishaq Suleiman.130 The fact that the attacks occurred during the day and the Taliban occupied the village at night supports the conclusion that troops were not the target. According to U.S. military records, the bombs were intended for the nearby Fourth Armored Brigade Headquarters and forces encamped to the north and east of the garrison. Air Force sources indicated to Human Rights Watch that the choice to use some less accurate CBU-87s (rather than CBU-103s with WCMDs) and to fly towards, rather than away, from Ishaq Suleiman caused them to fall on the inhabited village instead. Although the base was separated from the village by open fields, the two sites were close enough that multiple stray bombs caused significant civilian damage.
The neighborhood's proximity to a military base suggests that the strike was caused by technical failure of a cluster bomb or human error in its delivery. Witnesses said that Taliban fighters came in two vehicles to pray at the mosque on the day of the attack,137 but it appeared the Taliban did not occupy the village, as they did Ishaq Suleiman. Qala Shater, however, is about eight-tenths of a mile (1.3 kilometers) from Firqa #17, a heavily cluster bombed military facility in a residential district and probably the intended target. The small number of Taliban reported and the Firqa's closeness suggest technical failure or pilot error as the cause of these civilian casualties.
Conclusions and Recommendations
Whether the incidents discussed above were responses to the Taliban's actions or the result of technical or human error, the United States should increase attention to civilian protection and avoid using cluster bombs in or near populated areas. All three incidents demonstrate the danger of such use. In Ainger, enemy troops may have been the target, but the bomblets' wide dispersal and inability to pinpoint soldiers led to the death or injury of civilians, including children. In Qala Shater and, according to Air Force information, Ishaq Suleiman, bombs intended for nearby military bases went astray; because the targets were in or near urban areas, the choice of weapon and failure in accuracy led to deadly consequences.
In these cases, the United States failed to "take all feasible precautions," as required under existing IHL. It used cluster bombs known for wide footprints and inaccuracy in and around cities and villages. As discussed above, Human Rights Watch believes there should also be a presumption that dropping cluster bombs in a populated area is an indiscriminate attack.142 If this were the case, the U.S. military would bear the burden of proving that the use of cluster bombs in such populated areas was legitimate.
To help the international community evaluate the use of cluster bombs, the United States should increase transparency about its targeting choices, at least once a campaign is over. Field research suggested that Taliban troops were the target in Ishaq Suleiman and pointed to a technical failure in Qala Shater, but post-mission interviews suggest that both were accidental strikes. The specifics of the Ainger strike remain uncertain. With more complete and accessible targeting information, independent auditors could better weigh the benefits and dangers of cluster bomb use.
Human Rights Watch, therefore, recommends that:
· The international community condemn the use of civilian shields and hold the Taliban who were responsible for such acts accountable.
101 Human Rights Watch interview with Farooq, Team Leader #4, OMAR, Herat, Afghanistan, March 27, 2002. Many Afghan people use only one name and thus are cited in that fashion in this report.
102 Briefing by OMAR Team Leader, Fourth Armored Brigade Headquarters, near Herat, Afghanistan, March 28, 2002.
103 Human Rights Watch interview with Sher-Agha, Operations Officer, OMAR, Herat, Afghanistan, March 28, 2002.
104 U.S. DoD, Probable UXO [Unexploded Ordnance] Locations, November 23, 2001 [hereinafter U.S. Cluster Bomb List-November].
105 Human Rights Watch interview with Sean Moorhouse, Swiss Federation for Mine Action, Herat, Afghanistan, March 27, 2002.
106 Human Rights Watch interview with Gerhard Zenk, Liaison Officer, HALO Trust, Pul-i Khomri, Afghanistan, March 18, 2002. Another demining official commented on the accuracy of the strikes, saying, "I've seen four locations and each one had a legitimate target nearby. Therefore [the weapon] seems accurate." Human Rights Watch interview with Tim Horner, RMAC, Kandahar, Afghanistan, March 24, 2002.
107 Human Rights Watch interview with Gerhard Zenk, Pul-i Khomri.
108 Human Rights Watch interview with Gerhard Zenk, Liaison Officer, HALO Trust, Kunduz, Afghanistan, March 17, 2002.
109 Human Rights Watch interview with Karlwan, Denar Khail, Afghanistan, March 14, 2002.
110 Protocol I, Art. 48.
111 Ibid., Art. 51(5)(b).
112 This report will discuss the controversial aftereffects of cluster bombs in the next chapter.
113 Human Rights Watch interview with Marhama, Ainger, Afghanistan, March 17, 2002.
114 Human Rights Watch interview with Najubullah, Ainger, Afghanistan, March 17, 2002. Najubullah, 22, the nephew of Gullagha, was injured during the attack. The doctors have not been able to remove the piece of shrapnel in his shoulder. His brother Asadallah, 16, suffered an ear injury, and his sister Shahibi, about 16, received other injuries.
115 Human Rights Watch interview with Mohebullah, Ainger, Afghanistan, March 17, 2002. Ezmarai, a 7-year-old boy and Shapery's sister, has had three operations as a result of the attack. Their father, Mohebullah, 45, said he was knocked unconscious when a piece of shrapnel lodged in his head.
116 Human Rights Watch interview with Marhama.
117 Human Rights Watch interview with Gerhard Zenk, Pul-i Khomri.
118 These numbers come from Human Rights Watch research in Ishaq Suleiman. OMAR's tally lists twelve deaths (not separated by strikes and duds), including four not on the Human Rights Watch list, and sixteen injuries. OMAR Sub Office Herat, "List of Killed and Injured People and Lost Their Properties at Isaq Suliman (sic)" [hereinafter OMAR Ishaq Suleiman Casualty List].
119 Human Rights Watch interview with Azima, Ishaq Suleiman, Afghanistan, March 29, 2002. Azima, 35, was injured in the attack.
120 Human Rights Watch interview with Nadira, Ishaq Suleiman, Afghanistan, March 29, 2002. Nadira, 40, was the wife of Noor Ahmad and mother of Nazir Ahmad. She said the bomb dropped as she and her family were trying to flee.
121 Human Rights Watch interview with Khalil Ahmad, Ishaq Suleiman, Afghanistan, March 29, 2002.
122 Human Rights Watch interview with Ghulam Rasoul, Ishaq Suleiman, Afghanistan, March 29, 2002. Ghulam Rasoul, 26, was the cousin of Bismullah.
123 Human Rights Watch interview with Ghulam Nabi, Ishaq Suleiman, Afghanistan, March 29, 2002. The three victims were 50-year-old Ghulam Nabi's brother, relative, and neighbor, respectively.
125 Human Rights Watch interview with Azima.
126 Human Rights Watch interview with Ghulam Nabi.
127 Human Rights Watch interview with Abdul Basir and Shames-u-din, Ishaq Suleiman, Afghanistan, March 29, 2002.
129 Ibid. See also Human Rights Watch interview with Azima. For more information on Taliban use of civilians as shields, see footnotes 138-141 and accompanying text.
130 Human Rights Watch interviews with U.S. Air Force officials, Washington, D.C., June 29-30, 2002.
131 Press reports often referred to Qala Shater as a village near Herat or a village near the Iranian border. In fact, Qala Shater seems to be more of a neighborhood of the city than a distinct village.
132 OMAR provided Human Rights Watch with a list of Qala Shater casualties that includes eleven deaths and fourteen injuries. OMAR Sub Office Herat, "List of Died (sic) and Injured People in Qala Shater" [hereinafter OMAR Qala Shater Casualty List]. Villagers said thirteen people died. Human Rights Watch learned of at least one death that was not on OMAR's list. Note that all of these numbers are higher than those initially reported in the press.
133 Human Rights Watch interview with Mohammed Eisah, Qala Shater, Afghanistan, May 27, 2002. Mohammed Eisah, 58, was the uncle of Najibullah and brother of deaf survivor Nasruallah, 54.
134 Human Rights Watch interview with Ghulam Sakhi, Qala Shater, Afghanistan, May 27, 2002. Ghulam Sakhi, 37, was the son of Faqir Mohammed.
135 Human Rights Watch interview with Saleha, Qala Shater, Afghanistan, May 27, 2002.
136 Human Rights Watch interview with Mohammed Eisah.
138 The Taliban's use of shields went beyond the reports in Ishaq Suleiman and possibly Ainger. For example, Taliban forces hid in civilian homes in Jebrael, a village near Ishaq Suleiman. See footnotes 156-157 and accompanying text. Abdul Ghari, 45, who stayed in the Herat suburb of Bag Nazer Gah during the entire campaign said, "the Taliban passed the night in residential areas." Human Rights Watch interview with Abdul Ghari, Bag Nazer Gah, Afghanistan, March 29, 2002.
139 Protocol I, Art. 48.
140 Ibid., Art. 51(7).
141 Lacey and Bill, eds., p. 5-3. For a definition of customary law, see footnote 32 and accompanying text.
142 See footnotes 39-44 and accompanying text.