Tuesday, July 19, 2005

Victims of U.S. Cluster Bombs

A 13-year-old Iraqi boy, Ayad al-Sirowiy, severely wounded and disfigured by an American cluster bomb, was flown to Washington, D.C., to be treated in a laser surgery clinic there. This happened thanks to two Americans who heard about Ayad, felt compassion, were in a position to help, and did so.

Here is what happened to Ayad:

Thirteen years old, small and skinny, Ayad was severely burned and blinded in one eye when an American cluster bomb blew up in his face at the beginning of the Iraq war.

The explosion blasted thousands of fragments into his skin and left scars deeper than that. The village boys tease him, calling him "Mr. Gunpowder." Even on sweltering days, Ayad wraps a scarf around his face when he leaves home, and most nights he sleeps with sunglasses still on.
It was about a month after the American-led war against Iraq began that Ayad was injured in his hometown, Kifil, also referred to as Al-Kifl, about two hours south of Baghdad. The town was heavily attacked with cluster bombs, which crack open in the sky to sprinkle smaller "bomblets" over a wide area. Some of them do not detonate immediately, and each year many civilians, especially children, are maimed after happening upon them.

Ayad says it was his family's cow that set off the cluster bomb that injured him, in April 2003.

"Boom," the boy said, as he recalled the incident. "Bomb."

His face swelled to a black crisp, and his family, poor date farmers, had no means to help him. He eventually healed, but his right eye was ruined and his forehead and cheeks were tattooed with ugly blue freckles. His disfigurement led to shame, and his shame kept him out of school. Seeking help, his father made the rounds of American military bases, where he crossed paths with a reporter in March 2004 in Baghdad.

A week later, Ayad's picture was on the front page of The New York Times.

This story is meant to be touching and heartwarming -- a demonstration of how generous Americans can be when suffering normally hidden from view is made known to them.

And that story hook is not untrue.

But there is something perverse and twisted in spotlighting the help given to one victim of a weapon that is meant to kill and maim human beings when normally nothing is written about the U.S. government's continuing to use it, and continuing to justify its use.

All bombs are meant to kill, but cluster bombs are specifically designed to grievously wound and maim as well as kill. Their modus operandi is set up to bury metal fragments in human flesh and tear apart human tissue.

Independent Television Service, an alternative broadcast and film group that covers issues and points of view that are underserved by the mainstream media, describes in one of its videos what cluster bombs do:

Cluster bombs are small explosive bomblets carried in a large cannister that opens in mid-air, scattering them over a wide area. The bomblets may be delivered by aircraft, rocket, or by artillery projectiles.

The CBU (cluster bomb unit) 26, which was widely used in Laos, is an anti-personnel fragmentation bomb that consists of a large bombshell holding 670 tennis ball-sized bomblets, each of which contain 300 metal fragments. If all the bomblets detonate, some 200,000 steel fragments will be propelled over an area the size of several football fields, creating a deadly killing zone.

Because the fragments travel at high velocity, when they strike people they set up pressure waves within the body that do horrific damage to soft tissue and organs: even a single fragment hitting somewhere else in the body can rupture the spleen, or cause the intestines to explode. This is not an unfortunate, unintended side-effect; these bombs were designed to do this.

Like nuclear weapons, cluster bombs continue to kill and maim long after any given war is over. Nuclear weapons keep killing because of the radiation they release; cluster bombs because of the "bomblets" that did not explode when the bomb they came from was dropped. These bomblets bury themselves in the ground; they can't be seen and it's impossible to know or predict where they are -- until they are set off by a person or an animal.

Although the use of cluster bombs is not addressed by existing international laws or treaties, international protocols that proscribe indiscriminate or untargeted attacks on civilians create a presumption in favor of considering cluster-type weapons unacceptable.

Human Rights Watch's section on cluster munitions describes in detail the existing international law with regard to these weapons [emphasis mine]:

Although there is no treaty that specifically regulates cluster munitions, Additional Protocol I of 1977 to the Geneva Conventions offers internationally accepted legal standards for evaluating the problems posed by these weapons. The articles discussed below are considered customary law, that is, legal norms deriving from common state practice that bind all nations regardless of specific legal commitments. The CCW Protocol V on Explosive Remnants of War, agreed to in November 2003, is also relevant to cluster munitions.

Protocol I, along with the Fourth Geneva Convention, lays out the law that protects civilians during war. The basic principle of this branch of IHL is that of distinction between civilians and combatants. Article 48 of Protocol I states, “the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

Attacks that strike military objects and civilians or civilian objects without distinction are considered indiscriminate and are prohibited. While Protocol I recognizes that some civilian deaths are inevitable, it says states cannot legally target civilians or engage in indiscriminate attacks. Article 51(4) and Article 51(5) define the concept of indiscriminate attacks in several ways. Cluster munitions raise concerns under most of the definitions. These weapons are prone to being indiscriminate, particularly when certain methods of attack or older or less sophisticated models are used.

The legal analysis of cluster munitions can be organized according to their immediate impact and after-effects. Damage done during strikes raises concerns under Protocol I’s proportionality test, which balances military advantage and civilian impact. According to Article 51(5)(b), an attack is disproportionate, and thus indiscriminate, if it “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.” Certain kinds of cluster munition attacks tend to tip the scale toward being disproportionate. Strikes in or near populated areas are particularly problematic because when combatants and civilians commingle, civilian casualties are difficult to avoid. Based on research in Iraq, Afghanistan, and Yugoslavia, Human Rights Watch believes that when non-precision guided submunitions are used in any type of populated area, there should be a strong, if rebuttable, presumption under the proportionality test that an attack is indiscriminate. In other words, a cluster munition strike on a populated area should be considered indiscriminate under the law, unless the military, which should bear the burden of proof, could show the military advantage of a particular strike outweighed the civilian harm.

Cluster munition strikes also have the potential to be indiscriminate because the weapons cannot be precisely targeted. Article 51(4)(b) prohibits attacks “which employ a method or means of combat which cannot be directed at a specific military objective.”12 Article 51(5)(a), drafted in response to the carpet bombings of World War II, similarly prohibits bombings that treat “separated and distinct” military objectives as one. Cluster munitions are area weapons, useful in part for attacking dispersed or moving targets. They cannot, however, be directed at specific soldiers or tanks, a limitation that is particularly troublesome in populated areas. Cluster bombing a populated area in order to kill individual soldiers is not unlike carpet bombing a city in order to destroy separate military bases. In both cases the attack is indiscriminate.

The after-effects of cluster munitions also raise concerns under IHL. Experts disagree about the scope of the proportionality test. If it is interpreted as encompassing more than immediate loss, as Human Rights Watch believes it should be, the large number of explosive duds, which become de facto landmines, may make cluster munition use disproportionate. Unexploded submunitions cause greater “loss of civilian life, injury to civilians, and damage to civilian objects” than most types of unexploded ordnance. Taking into account both strike and post-strike casualties greatly increases the likelihood that the loss would be excessive in relation to the military advantage, especially if an attack occurred in a populated area or an area to which people might return.

Because of their dud rate, cluster munitions also exemplify weapons that can be indiscriminate in effect. Article 51(4)(c) of Protocol I says that indiscriminate attacks include “those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol.” Even if a cluster munition strike is not indiscriminate, its effects may be. The effects become more dangerous if the submunitions litter an area frequented by civilians or the dud rate is high due to poor design, use in inappropriate environments, or other factors. Cluster submunition duds cannot distinguish between combatants and non-combatants and will likely injure or kill whoever disturbs them. Under either the proportionality test or the effects provision, the high dud rate of cluster munitions combined with the large number of submunitions they release challenges the principle of distinction.

Regardless of whether cluster munitions are indiscriminate, states are legally bound to minimize civilian harm from strikes and duds. Article 57(2)(a)(ii) of Protocol I imposes a duty on states to “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.” “All feasible precautions” implies that the weapons should be used sparingly, if at all, when it is foreseeable that they will cause more than incidental harm to civilians. The availability of alternative weapons with more precise targeting and limited after-effects should also be considered.

But the United States has not taken "all feasible precautions" to eliminate or limit the use of cluster weapons. We used these weapons in Vietnam, Cambodia, and Laos 30 years ago; we used them in Yugoslavia in the Clinton administration; we used them in the Persian Gulf War; and we used them and continue to use them in Afghanistan and Iraq under the Bush administration.

On March 31, 2003, a United States cluster munition attack on al-Hilla in central Iraq killed at least thirty-three civilians and injured 109. While an egregious incident, this was not an anomaly in the conflict in Iraq, or in Afghanistan in 2001 and 2002, or in Yugoslavia in 1999. In all of these recent conflicts, and others as well, cluster munition strikes caused significant civilian casualties—casualties that could have been avoided had greater care been taken. Worse still, the vast number of explosive “duds” these weapons left behind have continued to kill and maim civilians long after the attacks, and the conflicts, have ended.

Another HRW document notes that, although "U.S.-led Coalition forces took precautions to spare civilians and, for the most part, made efforts to uphold their legal obligations," a significant number of the civilian casualties that did occur were caused by cluster munitions.

The widespread use of cluster munitions, especially by U.S. and U.K. ground forces, caused at least hundreds of civilian casualties. Cluster munitions, which are large weapons containing dozens or hundreds of submunitions, endanger civilians because of their broad dispersal, or “footprint,” and the high number of submunitions that do not explode on impact. U.S. Central Command (CENTCOM) reported that it used 10,782 cluster munitions, which could contain at least 1.8 million submunitions. The British used an additional seventy air-launched and 2,100 ground-launched cluster munitions, containing 113,190 submunitions. Although cluster munition strikes are particularly dangerous in populated areas, U.S. and U.K. ground forces repeatedly used these weapons in attacks on Iraqi positions in residential neighborhoods. Coalition air forces also caused civilian casualties by their use of cluster munitions, but to a much lesser degree.

The problem is clear: We're living on a booby-trapped planet. An estimated 15,000 to 20,000 people are killed or injured by landmines and unexploded ordnance every year. Deaths and injuries from leftover cluster bombs and other landmines over the past 30 or 40 years number in the hundreds of thousands. Most landmine victims are civilians and most live in countries that are not at war. And landmines are present in over 80 countries.

Obviously, many countries besides the United States are responsible for this problem. But as the most powerful and influential country in the world -- militarily, economically, politically -- we have the biggest responsibility to serve as an example and a model for other nations. We have by far the highest amount of practical resources and leverage to do so.

But we do not.

In Kuwait, unexploded cluster bomblets from ordnance that Americans dropped in 1991 are still being found and destroyed at the rate of 200 a month. That could be seen as a positive thing; presumably it's Americans who are finding and destroying these munitions.

But while some Americans are doing their best to find and destroy landmines we are responsible for, the U.S. government continues to use cluster munitions and thus continues to contribute to the littering of our global landscape with these deadly hidden instruments of terrorism. "U.S. and British forces used almost 13,000 cluster munitions, containing nearly 2 million submunitions, that killed or wounded more than 1,000 civilians" -- in the first two months of the Iraq war alone.

In addition to limiting or eliminating the use of cluster weapons in the armed conflicts the United States is directly involved in, is there anything else this country can do to help put an end to the danger of landmines all over the world?

You bet there is. We can sign on to the 1997 Mine Ban Treaty. The English text of the treaty is here. As of July 11 of this year, 153 countries have either signed or acceded to the treaty (the same as signing, but done after the treaty went into effect); and 145 countries have taken the additional step of ratifying the treaty.

There are 41 countries that have neither signed nor acceded to the Mine Ban Treaty.

Guess which list the United States is on: the 153 countries that have signed, or the 41 countries that have refused to sign?

Well, I guess I gave the answer away three paragraphs up.

It is miraculous and wonderful that one 13-year-old boy has won the human kindness lottery because he was lucky enough to have his picture wind up on the front page of the New York Times. But until the United States of America puts its signature where its lip service is and gets its name on that first list of 153 countries who have agreed to be bound by the Mine Ban Treaty, then countless more young boys and girls, children, babies, teenagers, elderly, and every age in between will be needing the same services that Ayad al-Sirowiy was blessed to receive. Or they will not need them, because they will be dead.

And until the day the United States does decide to be counted among the 153 (as of today), then we all have to live with the knowledge that we are okay with a weapon that is designed to target civilians; that is intended to kill and maim innocent people in large numbers, not just in time of war but long after war is over.

Sources used for this post:

The New York Times, "Iraqi Boy's Journey to Erase the Scars of War," July 18, 2005.
International Campaign to Ban Landmines
International Television Service
Human Rights Watch, Documents on Cluster Bombs
Human Rights Watch, Human Rights News, "U.S.: Hundreds of Civilian Deaths in Iraq Were Preventable," December 12, 2003
Mother Jones, "The Case Against Cluster Bombs," May 28, 1999
Common Dreams, "Cluster Bombs: War Crimes of the Bush Administration," January 26, 2004
ReliefWeb, "Persian Gulf: U.S. Cluster Bomb Duds A Threat," March 18, 2003
FindLaw, "Ticking Time Bombs in Iraq: Cluster Bombs and Their Continuing Dangers," April 29, 2003

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