12th Greek Australian Legal and Medical Conference
Samos, Greece 2009

“The impact of cluster bombs on civilians:
How can law and medicine respond?”

Dr Hadia Haikal-Mukhtar
Phillip Salem

1. Introduction

Our world is being continuously challenged in unprecedented ways. Consider the growing threats arising from global warming, spiralling human population, overuse of natural resources, poverty, new viruses, pollution, wars and new weapons causing indiscriminate suffering and destruction. More than ever, health and legal professionals equipped with knowledge, expertise, influence and authority should be proactive in responding to our challenged world in order to promote a better world, a world envisioned by Michael Kirby as follows:

“Ours is the world of love, …questing to find the common links that bind all people... In our world, everyone can find their place, where their human rights and human dignity will be upheld.”[1]

2. The role of law and medicine

We argue that law and medicine have a large role to play in responding to a challenged world; and in achieving a better world, where every human being has a place and can live in peace, with their human rights and dignity respected.

This role is within the general purpose of law and medicine, as inherent in these disciplines are the ideals of doing good and not doing harm. In medicine, these are a universally agreed ethical principles, together known as the beneficence principle. It underpins the practice of medicine.

Whilst in law, the principle is not expressly stated, adopting the natural law jurisprudential approach, one can argue for a similar principle which should underpin the purpose of the law. In the words of St Thomas Aquinas: “. . . the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this”[2] .This principle was echoed by John Finnis. Arguing for a ‘common good’, he stated:

“In the case of political community, the point or common good of such an all-round association…[is] the securing of a whole ensemble of material and other conditions that tend to favour the realization, by each individual in the community, of his or her personal development” [3]

Daniel Engster argued a similar proposition in his article, ‘Care Ethics and Natural Law Theory”[4].

The law may be simply defined in normative, positivist analysis[5], as a set of rules that govern relations between members of a society, imposed by a governing authority in order to achieve an orderly coexistence. But, in our view, it is the purpose of the law that really matters: the notion of “do good and do no evil or no harm” clearly permeates much of our legal system, ranging from child protection to the laws regulating mergers and acquisitions.

3. Cluster bombs: how can law and medicine respond?

Like landmines, cluster bombs or cluster munitions (the terms will be used interchangeably in this paper) cause horrific indiscriminate injuries, mainly to civilian populations. 34 countries are known to have produced over 210 different types of cluster munitions, ‘including artillery projectiles, aerially delivered bombs, and rockets or missiles that can be delivered by surface or aerial means’[6].  At least 15 countries are known to have used them. 36 countries and territories are known to be affected by cluster munitions from use in armed conflict. [7]

To date, the use of cluster munitions has been proven to be disproportionate and indiscriminate, and thus concerns have been raised that they contravene international humanitarian law. Although to date, there is no international humanitarian law treaty that has specific rules on cluster munitions, concerns have been raised about cluster munitions contravening the following rules: the rule of distinction, the rule prohibiting indiscriminate attacks, the rule of proportionality, and the rule on feasible precautions[8].

Humanitarian international law, a reflection of the principles of natural law of avoiding harm, makes it clear that:

“In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited”[9] and “It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering” [10].

Further humanitarian law mandates avoiding harm to civilians in time of conflict.

“Those who plan or decide upon an attack shall:

  1. Do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives …;
  2. take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects;
  3. refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”[11]

Despite such clear guidelines on the rules of armed conflict, cluster munitions continue to be used. An example is their use in Lebanon during the 2006 war.

In July and August 2006 Israel bombed Lebanon. 72 hours prior to the end of the conflict, with impending peace and a cease fire, Israel dropped most of some 4 million cluster bombs in the south of Lebanon[12], a small confined agricultural and densely inhabited area. Quoting Jan Egeland, UN humanitarian chief at the time:: ““What’s shocking - and I would say to me completely immoral - is that 90% of the cluster bomb strikes occurred in the last 72 hours of the conflict, when we knew there would be a resolution,”. “Every day people are maimed, wounded and are killed by these ordnance.”[13]

A significant proportion of the bombs were cheap US-manufactured munitions dating back to the 1970s with a high failure rate of the self - destruction mechanism[14]. About 40% of these bombs remain unexploded with bomblets lying on the ground in agricultural fields or caught in branches of olive groves and orange orchards. On source reported that “… more than one million unexploded cluster bombs spread over almost 1050 strike locations, all in inhabited areas and fertile agricultural land”[15]. The result, death and a horrific collection of injuries to civilians, with a significant proportion of maimed and killed being children, loss of harvest and an unworkable, unusable farmland[16].

Many non-governmental organisations (NGOs) came to the rescue of the civilian population of Lebanon with a desire to clear the cluster bombs and spare lives and injuries.

In December 2006 and January 2007, our delegation of doctors and a lawyer under the banner of Medical Association for Prevention of War (MAPW) and Australians for Lebanon had the opportunity to witness injuries, as well as the remediation mission. We spoke to local inhabitants of South Lebanon as well as to program leaders of various NGOs[17].

Only 155,000 of the cluster bombs have been cleared. Until the date of finalising this paper, Israel had refused to provide the strike data to allow the United Nations to identify the sites of the cluster bombs.[18] However, on 12 May 2009, the United Nations Interim Force in Lebanon (UNIFIL) announced: “UNIFIL received from the Israel Defence Forces ( IDF) technical strike data and related maps on the cluster munitions fired by the IDF over Lebanon during the 2006 conflict” [19]. Further, Israel has been busy refining the design and manufacture of cluster bombs. In 2007, Israeli Military Industries Ltd (IMI) , a Government owned corporation, put a submission to the Australian Government arguing against the ban of cluster munitions [20] and against Senator Lyn Allison‘s proposed bill to ban the use, possession and manufacture of cluster munitions by Australia[21].

The submission proudly promoted its new cluster munitions to Australia, arguing that a near non-fail self-destructing mechanism has been achieved, and using the case of Lebanon to illustrate the high failure rate of other cluster munitions.

In the letter dated 2 February 2007 to the Australian Senate Standing Committee Inquiry into Cluster Munitions (Prohibition Bill), Ilan Glickman, IMI Ltd, stated:

“We have deployed the M85 cluster device specifically to deal with the high dud rate experienced when using US cluster munitions.

Our testing suggests that the M85 cluster device has hazardous dud rate of 0.06%, compared with rates reported by the UN from American M42, M46 and M77 devices of 20 – 40 percent”[22].

And further in the “Executive summary: Cluster Munitions – Un-Exploded- Ordnance Issue”:

“MLRS, M26 artillery rockets carrying M77 bomblets were used extensively during the 1991 “Desert Storm” operation in Iraq and the 2006 conflict in south Lebanon.

Consequently, huge quantities of unexploded M77 bomblets were later found on the battlefield. Those duds caused deaths and injuries to friendly troops and local population.

The US official dud rate was stated as 2% – 23%, UN official reports estimations are close to 40%.

The above operations inaccurately labeled all “Cluster Munitions” as “immoral ammunition”.[23]

On the facts, in our view, Israel violated international humanitarian law by its use of cluster bombs in Lebanon. Cluster bombs have proven to cause disproportionate harm[24] to the population and to be indiscriminate in the killing and maiming of civilians and children. However, instead of being made accountable to its wrongdoing, Israel, through IMI Ltd, embarked on an attempt to profit from it.

There needs to be a ban on the manufacture and use of such weapon. There also needs to be a remedy for the people of South Lebanon and for the wrongdoer to be made accountable. This can only be achieved through the wrongdoer being brought in front of an international tribunal that has power to consider the facts and if appropriate, impose a just penalty for the wrongdoing, i.e. restitution or compensation and redress for the victims[25].

This approach has a precedent. In general, legal systems require reparation by the wrongdoer to the victim for the harm caused. Post World War II, Germany was made to pay “reparations, restitution and indemnification due to the Jewish people from Germany” [26] . Restitution or payment of compensation should and will act both as a specific and general deterrent ensuring the wrongdoer and other nations intending to follow suit, are deterred from committing such acts and abide by international law. If the wrongdoer refuses to abide by such decision, then economic sanctions could be imposed by the United Nations and adhered to by all countries. However sanctions should be carefully applied, balancing their impact on the wrongdoer versus punishment of its innocent citizens. Sanctions in South Africa were a factor in putting an end to apartheid, while sanctions in Iraq had a devastating effect on the civilian population.

Doctors and lawyers have a role to play in witnessing and documenting the injuries and the wrong doing. They can lobby governments and people to apply the law in order to protect innocent people and to compensate victims. Human Right Watch[27], Handicap International[28] and the Medical Association for Prevention of War[29] are examples of legal and health professionals advocating for a world free of violence and which affirms the human rights of individuals.

Following our trip to Lebanon in 2006, we submitted a report to the Australian Government with the following recommendations:

Further, MAPW has been involved in promoting and lobbying for an international ban on cluster munitions, through the Convention on Cluster Munitions or CCM[31] . The process was launched after the Oslo process when 46 countries agreed to the 2007 Oslo Declaration, committing them to achieve the following:

“Concluded by 2008 a legally binding international instrument that prohibits the use and stockpiling of cluster munitions that cause unacceptable harm to civilians and secure adequate provision of care and rehabilitation to survivors and clearance of contaminated areas”[32]

The Convention was adopted on 30 May 2008 in Dublin. To date 96 countries have signed the CCM and 7 countries have ratified it. Lebanon is a signatory but sadly many countries, including Israel, have refrained from signing it,. Addressing countries that have refrained from accepting the Convention, the Minister of Foreign Affairs and Emigrants of the Republic of Lebanon made the following statement:

”the time has come to put the welfare of human beings and their security as a priority above national security.”[33]

The convention will enter into force when 30 countries ratify it. This gives hope to the civilian population of countries whose governments are engaged in violent conflict. This is the first step in a constructive response to a challenged world. But more need to be done.

4. Conclusion

Where there has been total disregard for the safety and well being of civilians, all of us, and in particular health and legal professionals, witnessing or dealing with the repercussions of such conduct have a duty to speak out, advocate and lobby for the rule of law to be applied equally to all and to its fullest to ensure accountability. Providing remedies for the victims and putting in place effective specific and general deterrents for the future will minimise the harm of violent conflicts and ensure a safer world.

A powerful group will be formed if doctors and lawyers rallied as proactive citizens to effect necessary change and create a better world.

[1]“Courage”.Speech delivered by Michael Kirby at the 6th International Gay Games. 2002. http://www.smh.com.au/cgibin/common/popupPrintArticle.pl?path=/articles/2002/11/05/1036308310233.html

[2] Quoted in “Fides et Ratio and the Metaphysical Basis of Aquinas’ Natural Law”
John F. X. Knasas. Center for Thomistic Studies University of St. Thomas Houston, Texas
and in “St Thomas Aquinas” Online guide to ethics and moral philosophy. http://caae.phil.cmu.edu/Cavalier/80130/part1/sect3/Aquinas.html

[3] John Finnis, Natural Law and Natural Rights New York. Oxford University Press, 1980. P218. And quoted in “Philosophical Theory and the Universal Declaration of Human Rights” Edited by William Sweet. University of Ottowa Press. 2003.

[4] “Can Care Ethics be Institutionalized? Toward a Caring Natural Law Theory” http://www.csus.edu/org/wpsa/pisigmaalphaaward.pdf Daniel Engster (2004). Care Ethics and Natural Law Theory: Toward an Institutional Political Theory of Caring. The Journal of Politics, 66 , pp 113-135 doi:10.1046/j.1468-2508.2004.00144.x

[5] “Legal Positivism”. Stanford Encyclopaedia of Philosophy. 2003.

[6] “Production of cluster munitions” MCC 2009. http://www.hrw.org/legacy/backgrounder/arms/cluster0405/2.htm#_Toc100550276

[7] Ibid

[8]See “Group of governmental experts of the states parties to the convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects” 2007 session. Geneva, 19-22 June 2007. http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/cluster-munitions-statement-220607/$file/Cluster-munitions-paper-ICRC.pdf

[9] Additional Protocol I (1977), to the Geneva Conventions 1949. http://www.unhchr.ch/html/menu3/b/93.htm

[10] Article 35.2, Additional Protocol I (1977) to the Geneva Conventions 1949

[11] Article 57.2 (ii) and (iii), Additional Protocol I (1977) to the Geneva Conventions 1949. http://www.unhchr.ch/html/menu3/b/93.htm

[12]: “Cluster Munition Convention - Oslo signing ceremony” TV News Footage, 1 December 2008 http://www.icrc.org/web/eng/siteeng0.nsf/html/cluster-munitions-tvnews-011208!OpenDocument

[13] Cluster bombing of Lebanon ‘immoral’ Unofficial tells Israel”. Ron McCarthy. The Guardian. Thursday 31 August 2006. http http://www.globalexchange.org/countries/mideast/lebanon/4353.html

[14]“ Israel opted for cheaper, unsafe cluster bombs in Lebanon war”. Meron Rapoport. Haaretz correspondent. Nov 14, 2006. http://www.guardian.co.uk/world/2006/aug/31/israelandthepalestinians.syria

[15] “Mine Action in the Republic of Lebanon”. Report. http://www.lebmac.org/files/publications/Mine_Action_in_the_Republic_of_lebanon.pdf

[16]United Nations Office for the Coordination of Humanitarian Affairs. “A Lasting legacy. The deadly impact of cluster bombs in Southern Lebanon”. http://www.mineaction.org/downloads/1/OCHA_lasting%20legacy.pdf

[17] “Cluster bombs: the case of Lebanon”. MAPW. April 2007. http://www.mapw.org.au/files/downloads/Cluster%20report%20with%20cover.pdf

[18] Refer Tekinmiti Gilbert, Acting program manager of UN Mine Action Coordination Centre: ”We don’t know exactly what is left for the simple reason the Israelis haven’t told us” quoted in: “Removal of Israeli cluster bombs from Lebanon at risk over lack of funding”. 7 February 2009. http://aftermathnews.wordpress.com/2009/02/07/removal-of-israeli-cluster-bombs-from-lebanon-at-risk-over-lack-of-funding/ and Refer to Amnon Vidan, from Amnesty International in Israel: “I find it hard to understand why Israel doesn’t give the coordinates and maps [of the cluster bomb sites]. Maybe it thinks it will show the haphazard way in which it used the cluster bombs,” Quoted in “Israel-Lebanon: Israel must reexamine use of cluster bombs, committee says”. http://www.irinnews.org/Report.aspx?ReportId=76546

[19] Naharnet. 13 May 2009. “ Israel hands over Lebanon cluster bombs maps” http://www.naharnet.com/domino/tn/NewsDesk.nsf/getstory?openform&54D0F149D40AE6A3C22575B5001B6EC5

[20] Israeli Military Industries Ltd. Artillery Ammunition Directorate. Submission. “Cluster Munitions- Un-Exploded Ordnance Issue” ”http://www.aph.gov.au/senate/committee/FADT_CTTE/completed_inquiries/2004-07/cluster_bill_2006/submissions/sub03.pdf

[21] “Cluster Munitions (Prohibition) Bill 2006. http://www.comlaw.gov.au/comlaw/Legislation/Bills1.nsf/0/D83B597A5D0397D4CA25723C001D4CC9/$file/06202b.pdf

[22] Israeli Military Industries Ltd. . “Cluster Munitions-
Un-Exploded Ordnance Issue” http://www.aph.gov.au/senate/committee/FADT_CTTE/completed_inquiries/2004-07/cluster_bill_2006/submissions/sub03.pdf

[23] Ibid

[24] “Cluster bombs: the military effectiveness and impact on civilians of cluster munitions” Rae McGrath. Landmine Action. The campaign against landmines. UK working group on landmines 2000. http://www.landmineaction.org/resources/Cluster_Bombs.pdf

[25] ” Genocide and crimes against humanity reparation.” http://www.enotes.com/genocide-encyclopedia/reparations

[26] Words of Weizmann on behalf of the Jewish Agency.in “Reparations, German,” Encyclopaedia Judaica, Vol. 14, pp. 72-73. Quoted in Jewish Virtual Library. http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0017_0_16646.html

See also” Genocide and crimes against humanity reparation.” http://www.enotes.com/genocide-encyclopedia/reparations

[27] Human Rights Watch. http://www.hrw.org/en/node/75136

[28] Handicap International, Founded in 1979 by two French doctors who witnessed the impact of antipersonnel landmines on men women and children when working in a refugee camp on the Thai- Cambodian border. History. http://en.handicapinternational.be/History_a78.html

[29] Medical Association for Prevention of War. http://www.mapw.org.au/

[30] “Cluster bombs: The case of Lebanon. April 2007”, http://www.mapw.org.au/files/downloads/Cluster%20report%20with%20cover.pdf

[31] “The Convention on Cluster Munitions”. http://www.clusterconvention.org/?gclid=COStwPCesJoCFYMvpAodfCpldA

[32] Ibid

[33] Statement t by H E Fawzi Saloukh Minister of Foreign Affairs and Emigrants of the Republic of Lebanon”. http://www.clusterconvention.org/pages/pages_i/documents/Lebanon312.pdf