Israel's Use of Cluster Bombs Legal? Wrong.

So, according to BBC, an inquiry by the Israeli government has considered the evidence against generals who deployed cluster munitions in urban areas during the 2006 war with Lebanon, and concluded – wait for it – that this was wholly consistent with international law:

According to BBC, “The Israeli army announced there would be no indictments against officers who used them, after a year-long enquiry.
‘The use of the weaponry was a concrete military necessity,’ a statement said.”

Israel’s Judge Advocate General has accepted this finding.

Hmm. Let’s see, cluster munitions themselves aren’t technically banned under international law, but articles 49 and 51 of the first Additional Protocol to the Geneva Conventions do outlaw indiscriminate attacks, including those resulting from the use of weapons whose effects by their nature cannot be controlled or directed at military objectives.

How do cluster munitions measure up against these standards? The weapons work by fragmenting into small “bomblets” after launch, which litter the target area, creating many small explosions on impact rather than one big one (though “small” is relative: a single BLU bomblet will kill anyone within 50 meters and severely injure anyone within 100 meters).

The main problem is many of the bomblets fail to explode when dropped, and sit around waiting for civilians (such as unsuspecting children who are attracted to their bright colors) to tamper with them, sometimes after the war is over.

Because of the high fail rates (between 8-12% in Kosovo, leading to more post-hoc civilian deaths than those from land mines; and up to 20% in Afghanistan), cluster munitions are now generally considered an inherently indiscriminate weapon – not because governments mean to hit civilians with them, but because their effects cannot be controlled after they’re deployed.

So, Israel’s dropping of an estimated 4 million of these onto Lebanese urban areas is illegal under international law for sure, eh?

One problem: Israel never actually became a party to Additional Protocol 1 of the Geneva Conventions, so arguably it’s not bound by those rules. Nor has it signed onto the 5th Additional Protocol to the 1980 Convention on Conventional Weapons (CCW), which deals with Explosive Remnants of War. And even if they had, that treaty doesn’t ban the use of cluster munitions but only enjoins those states who’ve signed to clean up after themselves.

Nonetheless, the protection of civilians against indiscriminate attack is considered a part of customary international law, meaning that so many states agree it is wrong that it is to be considered criminal no matter whether the state that is responsible agrees it is or not.

Israel’s Judge Advocate General Avihai Mandelblit seems to accept as much, insofar as it he is not justifying the ruling on the basis of Israel’s non-party status to the relevant treaties. Instead, the public statement invokes a loophole in the language of humanitarian law that allows for carnage against civilians in cases of “military necessity.”

While no impartial war crimes court would likely consider this such a case – a settlement with Lebanon was already in the process of being reached when the weapons were used – the ruling does showcase the ambiguity of humanitarian law and the weakness of the legal protections that do exist for civilians (unlike the lengthy and detailed provisions for imprisoned combatants, go figure).

Actually, this ruling is probably good for the future of civilian protection, insofar as it will likely galvanize efforts to ban the use of these weapons outright. The Norwegian government has spearheaded an effort, now backed by 110 civil society organizations and 84 countries, including half the world’s stockpilers and half its producers, to draft an international treaty banning cluster munitions entirely by the end of 2008.

But the Israeli ruling also exposes another tremendous failing of the existing Geneva regime: that the only entities responsible for enforcing the rules are the very governments whose soldiers break them. No efforts on the horizo to draft a treaty to change this.