Back Bill To Ban Cluster Bombs

Only Human

By Kathleen Peratis

Published March 23, 2007, issue of March 23, 2007.
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The United States and Israel, as well as dozens of other countries that are makers, sellers or stockpilers of weapons, are in the cross hairs of an international movement to abolish cluster bombs.

Weapons are, of course, meant to kill, and are a fact of war. But cluster bombs, like landmines, kill indiscriminately, and therefore they should be banned. This is how they work: A single cluster bomb spews dozens or hundreds of smaller sub-munitions, called bomblets, over a wide “footprint.” The bomblets are designed to explode on impact and to destroy broad targets, such as massed armor and infantry formations.

But the design of the vast majority of sub-munitions available today, including the billions that are stockpiled, is grotesquely imperfect. Unguided, these sub-munitions hit unintended targets. Worse, some of the bomblets do not explode on impact — duds, as they’re called.

Duds become de facto landmines, capable of exploding much later when touched by a plough or a child — which is a horrifyingly routine occurrence.

According to the International Committee of the Red Cross, duds from cluster bombs dropped by the United States between 1964 and 1973 have killed or injured some 11,000 people in Laos alone since the end of the Indochina war, and continue to claim victims to this day. The United States used tens of millions of sub-munitions in the 1991 Gulf War, and an estimated 2 million in the 2003 invasion of Iraq.

Dud rates vary widely, as do opinions as to what rate is “acceptable.” In 2001, then-defense secretary William Cohen announced that all future American sub-munitions should have a dud rate of less than 1%. Many manufacturers, for their part, claim about 5% dud rate under test conditions.

But the dud rate in last summer’s war in Lebanon, in which Israel dropped enough cluster bombs to scatter as many as 4 million bomblets, is estimated by United Nations sources and by de-miners to be more like 25%.

Why so high a rate? “Most of Israel’s arsenal was (and still is) American supplied, and the American clusters were for the most part older than the Israeli versions, and less reliable,” according to Steve Goose, head of the arms division of Human Rights Watch. “But it is not unusual for militaries to use up old stuff before the new.”

The usual suspects have, as expected, defended Israel’s use of clusters during the recent war in Lebanon. Israel “used this weapon primarily during the last stages of fighting, when nearly all civilians had fled southern Lebanon,” Avi Bell asserts on NGO Monitor’s Web site.

It is true that many civilians fled, but many, unable to flee for a variety of reasons, stayed put. They, along with the returnees, found their fields, gardens and roads littered with unexploded bomblets, which have so far killed at least 30 civilians and injured nearly 200, according to the U.N.’s Mine Action Coordination Center. (Hezbollah fired more than 100 Chinese-produced cluster munitions into northern Israel; to date, there are no reported casualties.)

Israel’s cluster bombing of southern Lebanon has remained controversial within Israel. Last November, the military’s then chief of staff, Dan Halutz, ordered an inquiry into whether there had been any violation of his orders regarding cluster bombs (though he never said publicly what his orders had been). Results from the inquiry, however, have yet to be made public.

In January, a preliminary report from the State Department suggested that Israel had violated the terms of bilateral agreements regarding the use of American-made cluster bombs. Israel still has not addressed this issue publicly, though Foreign Affairs Ministry spokesman Mark Regev has denied any violation of international law and insisted that the weapons were used in self-defense. (Both claims ignore Israel’s duty to avoid indiscriminate killing of civilians in any war.)

There is little doubt that Israel’s use of cluster bombs last summer has heightened public awareness of their deadly randomness and has fueled the ongoing international and congressional efforts to limit their use. Last month, 46 countries launched an effort to do for cluster bombs what an earlier group did for landmines: Ban the manufacture, sale and use of those arms with unacceptable humanitarian consequences.

Not surprisingly, the United States is not among the 46 countries. “We take the position that these munitions have a place and a use in military inventories, given the right technology as well as the proper rules of engagement,” said State Department spokesperson Sean McCormack.

A decade ago, the Clinton administration said pretty much the same thing about landmines. In 1997, President Clinton, apparently under pressure from the Pentagon, refused to sign the Mine Ban Treaty, claiming present military necessity. He did set a goal of joining the treaty by 2006, but under the Bush administration the United States became the first nation to declare that it would never sign.

But the news is not all grim.

Last month, Democratic Senators Dianne Feinstein and Patrick Leahy introduced the Cluster Munitions Civilian Protection Act of 2007. If passed, the bill would ban the use, sale and transfer of cluster bombs with a dud rate of 1% or more, as well as ban the use of all cluster munitions in places “where civilians are known to be present or in areas normally inhabited by civilians.” And when cluster bombs are used, a clean-up plan would be required within 30 days. The bill also provides for a presidential waiver of the law’s requirements if “vital to protect the security of the United States,” a provision that may make the bill more palatable to many of the senators who opposed a similar ban last fall.

The bill’s chances would be vastly improved if it were supported by Jewish organizations, but so far their reaction has been tepid. The American Israel Public Affairs Committee, for example, says it is taking no position at all.

It is a shame, because we should seize this opportunity to join the community of nations. On this bill, and on the international effort to ban cluster bombs, we should say “Yes,” and loudly.

Kathleen Peratis, a partner in the New York law firm Outten & Golden, is a trustee of Human Rights Watch.

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