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Israel’s Use of Cluster Munitions and International Humanitarian Law

In south Lebanon in 2006, Israel employed a means of warfare that was likely to cause significant harm to civilians—unreliable and inaccurate submunitions used widely and heavily in populated areas. Despite ample past experience of the deadly effects of cluster duds on the civilian population of south Lebanon, awareness of the impending end of the war, and the knowledge that there would be a legacy of unexploded duds creating de facto minefields, the IDF did not refrain from launching these attacks or choose alternative means that would be less harmful to civilians.

As described in this report, Human Rights Watch found submunitions in houses, schools, businesses, and municipal centers—all areas frequented by civilians. In many cases, cluster strikes occurred in areas where we found no evidence of Hezbollah rocket launchers, fighters, or other military objectives. The post-ceasefire casualties have to our knowledge all been civilians or deminers, and civilian access to agricultural areas and property has been severely affected. The aftereffects of Israel’s cluster strikes were foreseeable by the IDF and should have been taken into account when assessing the likely civilian impact of planned attacks—the estimated hundreds of thousands and possibly up to one million submunition duds on the ground in south Lebanon do not differentiate between soldiers and civilians when they unexpectedly explode. These factors all tend to establish that Israel’s use of submunitions violated the IHL requirement of distinction between civilians and military targets.

Neither Human Rights Watch’s research nor the limited information offered by the IDF provides affirmative evidence that Israel’s cluster attacks had potential military advantage greater than the significant and ongoing harm that they caused. The paucity of evidence of specific military objectives, the known dangers of cluster munitions, the timing of large-scale attacks days before an anticipated ceasefire, and the massive scope of the attacks themselves lead to the conclusion that the attacks were of an indiscriminate and disproportionate character, in violation of international humanitarian law. If they were launched in knowledge or reckless disregard of that character, they give rise to a duty on Israel’s part to investigate criminal responsibility on the part of those who authorized the attacks.

Indiscriminate Attacks

In many of the cases that Human Rights Watch examined, the few civilians present at the time of the attacks could not identify a specific military target such as the presence of Hezbollah fighters, rocket launchers, or munitions in the villages attacked, nor did we find material evidence of such military targets. Furthermore, the staggering number of cluster munitions that rained on south Lebanon over three days before a negotiated ceasefire went into effect, as well as statements by Israeli soldiers attesting to the indiscriminate nature of the attacks, raises serious questions about whether they were aimed at specific targets or strategic locations, or were instead an effort to blanket whole areas with explosives and duds.

In response to Human Rights Watch’s request that it identify the military objectives in specific attacks, including the cluster strike on Blida, the IDF declined to specify, but did send a response identifying “damage to key routes” as well as “maximal coverage of the missile-launching areas” as general objectives of its cluster munition attacks.344 IDF lawyer Maj. Dorit Tuval later said, “The vast majority [of cluster munitions] were not used toward populated areas or near inhabited areas.”345 Those that were used in built-up areas were directed “toward places where rockets were shot from toward Israel.”346

Although transport routes and missile (technically rocket) launching areas can be legitimate military objectives, the sheer scope and intensity of the assaults casts doubt on the adequacy of this general explanation and whether, in fact, there were discrete military objectives for all cluster munition attacks. Israeli officials, despite repeated requests, have declined to disclose with greater specificity the particular objectives that they targeted.

In this regard, the scholar Yoram Dinstein writes: “a specific land area can be regarded per se as a military objective.”347 However, he also qualifies this, explaining: “Admittedly, the incidence of such locations cannot be too widespread; there must be a distinctive feature turning a piece of land into a military objective (e.g., an important mountain pass; a trail in the jungle or in a swamp area; a bridgehead; or a spit of land controlling the entrance to a harbour).”348 This view accords with the authoritative Pictet commentary on the additional protocols to the Geneva Conventions, which confirms that area denial may be a legitimate military objective, but warns: “Of course, such a situation could only concern limited areas and not vast stretches of territory. It applies primarily to narrow passages, bridgeheads or strategic points such as hills or mountain passes.”349 Israel’s use of cluster munitions over large areas of south Lebanon would not pass muster under this standard. 

The laws of international armed conflict also specifically prohibit “an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.”350 Israel’s systematic “flooding” of certain villages and populated areas with cluster munitions suggests there may have been a violation of this aspect of the principle of discrimination as well.

Even if Israel fired on legitimate military targets, something that many commentators, including the two UN inquiries, have challenged, its use of cluster munitions in population centers was highly likely to violate international humanitarian law, given that cluster munitions are imprecise area weapons and their duds cannot distinguish between military objectives and civilians. The huge number of submunitions employed, the way that they were used, and the antiquated types that were fired foreseeably resulted in an extraordinary number of duds littering fields and dozens of towns and villages, waiting for the return of civilians.

While immediate civilian casualties from the explosions were limited, the long-term effects in terms of injuries, deaths, and other loss have been considerable. In interpreting the prohibition on attacks “which employ a method or means of combat which cannot be directed at a specific military objective,”351 a respected scholarly commentary notes that “blind” weapons such as landmines can violate this rule with regard to their effect over time in the absence of precautions such as self-destruct mechanisms.352 By extension, this would also apply to clusters that leave significant numbers of landmine-like duds. 

The hallmark of an indiscriminate attack is that “injury to the civilians is merely a matter of ‘no concern to the attacker.’”353 As Dinstein notes, from the standpoint of international humanitarian law, “there is no genuine difference between a premeditated attack against civilians (or civilian objects) and a reckless disregard of the principle of distinction: they are equally forbidden.”354 The launching of indiscriminate attacks knowingly is a war crime under international law.355 Israel is under a duty to investigate transparently the decisions to launch massive cluster munition attacks both as breaches of Israel’s obligations under international law and with regard to the potential criminal responsibility of individuals whatever their position or rank. As discussed above, it has to date failed to do so in an independent and credible manner.

Disproportionate Attacks

In justifying its decision to mount the armed conflict in Lebanon, Israel has said that the proper way to measure the proportionality of its actions is “not only in respect to the initial Hizbullah cross-border attack, or even the 4,000 missiles fired at Israel’s northern towns and villages, but also against the threat of the tens of thousands of missiles which Hizbullah had amassed and continued to receive from Iran and Syria.”356 It is important to recognize that this argument is relevant only to Israel’s rationale for war (or jus ad bellum) and does not in any measure justify the massive cluster attacks in the last 72 hours of the war. Those must be weighed by the principle of proportionality in the conduct of war (or jus in bello), under international humanitarian law. 

International humanitarian law defines proportionality in terms of “attacks,” not the overall military response to the threat posed by an enemy.357 “Attacks” mean “acts of violence against the adversary, whether in offence or defence.”358The military advantage of any given attack must be understood within the context of the broader strategy of a war. Even legal scholars who judge military advantage in light of the attack as a whole rather than its specific aspects acknowledge that “‘an attack as a whole’ is a finite event, not to be confused with the entire war.”359 Where a given attack produces disproportionately high civilian harm to low military advantage, it cannot be justified simply because a party deems the purpose of the overall military campaign to have value.

In the passage cited above, Israel has also justified the proportionality of its decision to go to war by citing the threat to its population from the entire Hezbollah arsenal. But again, this argument has little to do with measuring the proportionality of cluster attacks, which must be judged not in terms of the overall decision to use force but in terms of the concrete and direct military advantage anticipated. Cluster munitions are antipersonnel, area denial weapons and unsuited to disabling the Hezbollah rocket stockpiles. In these terms, the military value of cluster attacks is low. Moreover, despite IDF statements to the contrary,360 we found scant evidence that would demonstrate a concrete and direct military advantage with relation to any other possible military objectives, such as attacking fighters, rocket launchers, or strategic locales. 

When considering the foreseeable civilian damage that could ensue, the anticipated and soon-approaching end to the armed conflict weighs heavily against Israel’s last-minute massive saturation of civilian areas with old cluster stockpiles. Although Israel claims that its use of cluster munitions in fact resulted in “a disruption of missile attacks against Israeli population centers,”361 the civilian damage has been significant, including almost 200 civilian casualties, the currently known direct contamination of 38.7 square kilometers of land, and disruption to the lives of thousands of other civilians living across the 1,400 square kilometer area affected by cluster strikes north and south of the Litani river. The fact that duds would turn civilian areas into de facto minefields, given the extremely large number of submunitions employed and their known failure rates, was foreseeable—testimony from soldiers (and the reported IDF prohibition of firing cluster munitions into areas it would subsequently enter) indicate that the IDF knew this. The dud rate was made worse by Israel’s use of old weapons and the low trajectory and short-range firing by which it delivered some submunitions. 

Indeed, Israel was well aware of the continuing harm to Lebanese civilians from the unexploded duds that remained since its prior use of munitions in South Lebanon in 1978 and 1982. Unexploded cluster submunitions from the weapons used more than two decades ago—though far less extensive than in 2006—continued to affect Lebanon up to the beginning of the current conflict.

Unwarranted Reliance on Warnings

In calculating expected civilian harm, Israel needed to consider the presence of civilians. In November 2006 Israel stated, “It should also be noted that the findings of the operational inquiry show that, prior to the use of cluster munitions, the IDF repeatedly warned the civilian population to leave targeted areas.”362 The IDF lawyers who met with Human Rights Watch in July 2007 also said that “there was a great effort to ensure the population was not there during the war,”363 and the military advocate general’s December 2007 statement referred to “numerous and constant warnings given by the IDF to the civilian population.”364 Israel issued general warnings to civilians in south Lebanon to leave through Arabic flyers and radio broadcasts.

Having given warnings, Israel was not entitled to assume Lebanese civilians had universally heeded them and no civilians remained, or that all civilian infrastructure was thereby a potential military target. Giving warnings does not allow the parties to a conflict to then disregard the continuing presence of some civilians—all potential harm to civilians remaining must still be weighed against the concrete and direct military advantage anticipated from an attack, and the attack cancelled if the damage to civilians is disproportionate. Otherwise, Hezbollah would have been justified in “warning” civilians to flee northern Israel and then firing away without regard to civilian casualties—clearly an illegal method of warfare.

It is true that, by the end of the war when the vast majority of cluster munitions were used, most civilians had abandoned the targeted towns and villages, or remained inside shelters at the time of bombardment. As a result, relatively few civilians were killed or injured as cluster attacks were taking place. However, in many areas, the roads were too dangerous for civilians to flee, and transport prices were prohibitive. Many civilians remained because they were too poor or sick to leave, or wanted to remain to take care of elderly or sick relatives or their property, livestock, or fields.365 One Zawtar al-Sharkiyeh resident stated, “My land and dignity prevented me from leaving.”366 Others remained in service of their civilian duties as doctors, nurses, and ambulance drivers. “No town was 100 percent empty,” said Habbouba Aoun, coordinator of the Landmines Resource Center.367

Israel undoubtedly knew that some civilians were unable or unwilling to go because they were poor, elderly, afraid of being killed on the roads, or were unable to secure transport, and were thus vulnerable to cluster munitions. This was the case in the 1993 conflict between Israel and Hezbollah in south Lebanon, and indeed during the course of the 2006 conflict the media was filled with stories on Lebanese civilians dying in Israeli strikes or being trapped in place. In some instances, Israel seemed to know exactly how many people remained in a village.368

Attack on a Protected Place

Finally, the Tebnine hospital attack violates the special protection hospitals and medical facilities receive under IHL. Human Rights Watch has found no evidence that Hezbollah was using the hospital for military purposes at the time of the attack or that the hospital was in close proximity to a valid military objective. Unless such evidence is forthcoming, there is a strong presumption that Israel attacked the site either knowingly or in reckless disregard of the hospital’s presence. Should this be the case, Israel has the responsibility of investigating the incident as a war crime.369




344 Israel’s Response to Accusations of Targeting Civilian Sites in Lebanon During the “Second Lebanon War.” The December 2007 investigation also identified “maximum coverage” of launch sites as a reason to use clusters. Israel Ministry of Foreign Affairs, “Opinion of the Military Advocate General Regarding Use of Cluster Munitions in Second Lebanon War.”

345 Human Rights Watch interview with Maj. Dorit Tuval, head of strategic section, International Law Department, IDF, Tel Aviv, Israel, July 2, 2007.

346 Ibid.

347 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), p. 92.

348 Ibid.

349 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff Publishers, 1987), p. 621.

350 Protocol I, art. 51(5)(a).

351 This is one of the descriptions of an unlawfully indiscriminate attack under customary international law, as reflected in Protocol I, art. 51(4)(b).

352 Michael Bothe, Karl Josef Partsch, and Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague: Martinus Nijhoff Publishers, 1982), p. 305.

353 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, p. 117 (citing H.M. Hanke, “The 1923 Hague Rules of Air Warfare,” International Review of the Red Cross, vol. 33 (1993), p. 26).

354 Ibid.

355 Protocol I, art. 85; Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 8(b)(iv).

356 Israel’s Response to Accusations of Targeting Civilian Sites in Lebanon During the “Second Lebanon War.”

357 The issue of proportionality also arises in the analysis of legal justification of war, which is not the subject of our analysis in this paper.

358 Protocol I, art. 49(1). See ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949,p. 603 (“In other words, the term ‘attack’ means ‘combat action.’”).

359 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, p. 87.

360 Israel Ministry of Foreign Affairs, “Opinion of the Military Advocate General Regarding Use of Cluster Munitions in Second Lebanon War.”

361 Israel’s Response to Accusations of Targeting Civilian Sites in Lebanon During the “Second Lebanon War.”

362 Israel Ministry of Foreign Affairs, “IDF to Probe Use of Cluster Munitions in Lebanon War.”

363 Human Rights Watch interview with Maj. Dorit Tuval, head of strategic section, International Law Department, IDF, Tel Aviv, Israel, July 2, 2007.

364 Israel Ministry of Foreign Affairs, “Opinion of the Military Advocate General Regarding Use of Cluster Munitions in Second Lebanon War.”

365 Human Rights Watch, Lebanon–Fatal Strikes: Israel’s Indiscriminate Attacks Against Civilians in Lebanon, vol. 18, no. 3(E), August 2006, http://hrw.org/reports/2006/lebanon0806/, p. 42.

366 Human Rights Watch interview with `Ali `Aqil Shaytani, Zawtar al-Sharkiyeh, October 23, 2006.

367 Human Rights Watch interview with Habbouba Aoun, coordinator, Landmines Resource Center, Beirut, October 20, 2006.

368 For instance, on July 24, Lt. Gen. Dan Halutz, the IDF chief of staff, estimated that 500 residents remained in Bint Jbeil despite IDF warnings to leave. Hanan Greenberg, “Halutz: In the Next Speech Nasrallah Will Consider his Words Very Well,” Ynet News, July 24, 2006, http://www.ynet.co.il/articles/0,7340,L-3280528,00.html (accessed November 6, 2006).

369 Protocol I, art. 85(2); Rome Statute, art. 8(b)(ix).