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Cluster Attacks and International Law
Published on Wednesday, August 9, 2006 by the Seattle Post-Intelligencer
Cluster Attacks and International Law
by César Chelala
 

As if the ruthless air attacks on Lebanese civilians weren't enough, Israel has been using illegal cluster munitions in populated areas of that country. Human Rights Watch researchers working on the ground in Lebanon confirmed that an attack with cluster weapons was carried out on the village of Blida on July 19, killing one and wounding at least 12 civilians, including seven children. According to Human Rights Watch, the use of such munitions in populated civilian areas may violate international humanitarian law.

What makes those munitions particularly lethal is that they consist of a container that breaks open in mid air and disperses smaller sub-munitions. Those weapons are designed to explode on impact, right before and immediately after impact, saturating an area with flying shards of steel. These sub-munitions generally have a higher explosive charge than anti-personnel land mines.

The failure rate for cluster weapons is between 5 percent and 30 percent. Failure to explode on impact doesn't mean they are harmless. On the contrary, they may explode with the slightest touch by a child or an innocent passerby. What makes them even more dangerous is that they become more unstable with each passing year, according to bomb-disposal experts working in Laos.

Human Rights Watch said it has not found any evidence that Hezbollah is using cluster munitions.

Currently, no treaty specifically regulates cluster munitions. However, Additional Protocol I of 1977 to the Geneva Conventions has some internationally accepted legal standards to assess the problems caused by those weapons. Although that protocol recognizes the inevitability of some civilian deaths, it also says states cannot legally target civilians or engage in indiscriminate attacks.

Cluster munitions have the potential to be indiscriminate because they cannot be precisely targeted. In that regard, Article 51 (4) (b) specifically prohibits attacks "which employ a method or means of combat which cannot be directed at a specific military objective." Kenneth Roth, executive director of Human Rights Watch, states, "Cluster munitions are unacceptably inaccurate and unreliable weapons when used around civilians, and should never be used in populated areas."

Lebanese security forces have denounced Israel's use of cluster munitions in its attacks not only on Blida, but also on other border villages, including attacks earlier this year around the contested Shebaa Farms area.

Because of the high proportion of civilians killed or injured by those weapons, they are opposed by many organizations including the Red Cross, the Cluster Munition Coalition and the United Nations. There is now a growing international consensus to stop the use of those weapons.

In February 2006, Belgium became the first country to ban cluster munitions; Norway announced a moratorium on the same weapons in June. Presently, more states are calling for a new international instrument to deal with it, as it is felt that existing humanitarian law is not sufficient to respond to the issues associated with cluster munitions.

In a recent report titled "Fatal Strikes: Israel's Indiscriminate Attacks Against Civilians in Lebanon," Human Rights Watch states, "By consistently failing to distinguish between combatants and civilians, Israel has violated one of the most fundamental tenets of the laws of war: the duty to carry out attacks on only military targets ... the extent of the pattern and the seriousness of the consequences indicate the commission of war crimes."

In that context, the use of cluster munitions adds only a further note of desperation. Israel should accept widely recognized norms of civilized behavior, even in times of war, and renounce the use of those weapons.

As a significant deterrent to what easily can become a regional war, Francis Boyle, a law professor at the University of Illinois, indicates that the U.N. General Assembly should establish an International Criminal Tribunal for Israel along the lines of the International Criminal Tribunal for Yugoslavia, which was established by the Security Council.

As Boyle says, "The establishment of the ICTI would provide some small degree of justice to the victims of Israeli war crimes, crimes against humanity and genocide against the peoples of Lebanon and Palestine -- just as the ICTY did for the victims of international crimes committed by Serbia and the Milosevic regime throughout the Balkans."

César Chelala is an international public health consultant and a winner of an Overseas Press Club of America award for an article on human rights.

© 1998-2006 Seattle Post-Intelligencer

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