V. TARGETING, OR IMMEDIATE EFFECTS

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
The United States used cluster bombs heavily on both military bases and frontline positions. In Herat, for example, it dropped cluster bombs on three major bases, Firqa #17, the Fourth Armored Brigade Headquarters, and the Qol-e Urdu, or regional headquarters. Craters indicated that clusters were often used in combination with unitary bombs. The Organization for Mine Awareness and Afghan Rehabilitation (OMAR), the demining group in charge of clearance in Herat, reported finding two CBU casings at the Firqa and clearing about fifty bomblets.¹⁰¹ OMAR started clearing the Fourth Armored Brigade Headquarters on March 20 and destroyed sixty-two BLUs in the first four days.¹⁰² The base does not have clear borders, and deminers said the bomblets extended about two-and-a-half miles (four kilometers) into the hills where the Taliban had stored tanks and ammunition.¹⁰³ In a list of strikes submitted to the United Nations in November 2001, the United States estimated there would be 1,722 unexploded bomblets at the Qol-e Urdu;¹⁰⁴ demining consultant Sean Moorhouse said he believed there were many more.¹⁰⁵

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
The use of cluster bombs on inhabited villages raises serious targeting concerns. Most of the civilians who died during cluster bomb attacks died in this kind of strike. At three of the most controversial sites, Human Rights Watch found evidence of at least twenty-five civilian deaths from cluster bomb attacks. The case studies of Ainger, Ishaq Suleiman, and Qala Shater demonstrate the danger of dropping cluster bombs in or near populated areas and represent questionable targeting under IHL.

Ainger
Ainger, a village east of Kunduz near Khanabad, was hit with four cluster bombs, containing 808 bomblets, around noon on November 17, the first day of Ramadan. One fell in a dried up canal, spreading bomblets across the adjacent field and road. The other three landed in the village itself. Because the inhabitants of Ainger had not fled during the war, at least five civilians, including three children, died, and several more were wounded during the strike. Marhama, 25, was cooking bread in her kitchen when she heard the "whir" of an airplane. The explosion knocked her unconscious, and she woke up to find her husband, 60-year-old Aji Agha Pather, and son, 10-year-old Sami, dead. Marhama suffered a severe leg injury that has incapacitated her and made caring for her five surviving children difficult.¹¹³ Another man, Gullagha, 45, died while working in his home across the street.¹¹⁴ Two children died nearby. Shapery, 10, was killed while she was eating lunch. Azi Mala, 10, was injured by a BLU and died later in the hospital.¹¹⁵ The strike damaged property as well as persons. Fragments from exploding bomblets not only scarred exterior walls and roofs but also penetrated a home leaving holes in a bedspread.

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.

Ishaq Suleiman
Ishaq Suleiman, a village of 12,000 people northwest of Herat, was hit by five cluster bombs, containing 1,010 bomblets, over the course of six days. At least eight civilians died during the attacks, and four more died later from unexploded bomblets.¹¹⁸ On October 31, according to eyewitnesses, the United States dropped two cluster bombs on homes at the northeast edge of the village. The first killed house owner, Jaumagul, 55.¹¹⁹ The second fell an hour later on his neighbor's home and killed a father and son, Noor Ahmad, 55, and Nazir Ahmad, 19.¹²⁰ A third bomb was dropped two days after the first strike. It landed at about 2:00 p.m. on a small field at the southeast edge of town and killed 80-year-old Khalifa Hussain¹²¹ and 20-year-old shepherd Bismullah.¹²² Three days later around 5:00 p.m., the United States dropped another pair of cluster bombs on Ishaq Suleiman. The first fell along the main street in the center of town, killing Hajim Mohammed, 55, Karim, 55, and Ghul Aagha, 21, who were sitting in front of their shops.¹²³ This bomb also severely damaged Ghulam Nabi's house¹²⁴ and left a crater in an adjacent field. A second CBU landed in a field west of town.

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.

Qala Shater
On October 22, an apparently errant cluster bomb fell on Qala Shater, a neighborhood to the northeast of Herat.¹³¹ Between eleven and thirteen civilians died from the attack, and unexploded bomblets endangered those remaining.¹³² Casualties included Najibullah, 17, who died in front of his house,¹³³ and 70-year-old Faqir Mohammed.¹³⁴ Saleha, 35, said the bomb killed her 16-year-old son Firoze Ahmad and injured her husband. Her father-in-law, who watched his grandson die, has been psychologically "abnormal" ever since.¹³⁵ Many of the inhabitants had fled before the attack because of fighting in the Herat area, but at least one or two members of each family remained behind. "If we had all been here, two or three thousand would have been killed," one villager said.¹³⁶ Qala Shater is usually home to about eight hundred families, or about 4,800 people.

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
The Taliban bear responsibility for endangering civilians because they used villagers as human shields.¹³⁸ By hiding in civilian areas, such as Ishaq Suleiman and possibly Ainger, Taliban troops violated the IHL principle of distinction, which requires parties to "distinguish between the civilian population and combatants."¹³⁹ More specifically, they violated Article 51(7) of Protocol I to the Geneva Convention: "The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objects [such as troops] from attacks. . . ."¹⁴⁰ Although neither Afghanistan nor the United States have ratified the Protocol, this article rises to the level of customary law.¹⁴¹ The Taliban thus violated international law by using civilians as shields and compromising their immunity from attack.

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.
· Cluster bombs should not be used in or near populated or urban areas. The definition of a populated area should include inhabited towns and villages as well as cities.
· The United States should determine the cause of any targeting mistakes, technical failures, or pilot errors and address them before future use.
· The United States should be more open about explaining its target choices, at least after a conflict is over, so that analysts can better evaluate the decisions and the military value of cluster bombs.

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.

¹²⁴ Ibid.

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.

¹²⁸ Ibid.

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.

¹³⁷ Ibid.

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.