THE QUESTION OF PROPORTIONALITY
103. It hardly needs to be said that Hezbollah's
kidnap and murder of Israeli soldiers, and its firing of rockets
into Israel, were completely unacceptable actions and should be
deplored in the strongest terms: this is not an issue of contention.
Israel's right to defend itself against such attacks is also unquestionable.
However, the nature of Israel's response to Hezbollah's actions
has sparked an important debate around proportionality. Dr Howells
was in Lebanon on 22 July. Whilst there, he strongly criticised
Israeli actions. He said:
I very much hope that the Americans understand what's
happening to Lebanon. The destruction of the infrastructure, the
death of so many children and so many people. These have not been
surgical strikes. And it's very difficult, I think, to understand
the kind of military tactics that have been used. You know, if
they're chasing Hezbollah, then go for Hezbollah. You don't go
for the entire Lebanese nation.[182]
However, the Government continues to refuse to label
Israel's actions as disproportionate. We asked Dr Howells how
this position could be held, given his comments above. He replied:
I tried […] to clarify in my own mind what would
be disproportionate, and that attempt to clarify what was going
on was not made any easier when I went to Haifa, because during
the period I was there 80 rockets fell on Haifa. These were not
fireworks; these were, essentially, missiles that had a 40 kilo
explosive charge in them surrounded by ball bearings.[183]
104. Dr Howells told the Committee that UN investigators
were present in Lebanon to assess Israel's actions, that they
were the "proper authorities" and that "they should
be allowed to do their work and come to their conclusions."[184]
The UN Commission of Inquiry into Lebanon later published its
report, focusing on the role of the Israeli Defence Force (IDF).
Amongst its numerous findings, it concluded that there was,
a significant pattern of excessive, indiscriminate
and disproportionate use of force by IDF against Lebanese civilians
and civilian objects, failing to distinguish civilians from combatants
and civilian objects from military targets.
It also commented on Israel's attack on UN bases
in Lebanon, remarking that it found,
no justification for the 30 direct attacks by the
IDF on United Nations positions, including those which resulted
in deaths and injury to protected United Nations personnel.[185]
During the conflict, Kofi Annan had referred to the
deaths of two UN observers as an "apparently deliberate targeting"
by the IDF.[186]
Cluster Munitions
105. One important aspect of proportionality is Israel's
use of cluster munitions during the conflict. We have maintained
a close interest in the damage caused by cluster munitions, most
recently in our Report on the FCO Annual Human Rights Report 2006,
where we noted that the UK would immediately withdraw its 'dumb'
cluster munitions from service.[187]
'Dumb' cluster munitions are understood to be those that do not
discriminate between targets, or do not have mechanisms to self-destruct
if they fail to explode on impact.[188]
106. Dr Howells told us that the UN Mine Action Co-ordination
Centre (UNMACC) estimates that Israel dropped "in the region
of 4 million cluster bombs on Lebanon from artillery projectiles."
This figure did not include bombs dropped "via aerial delivery."[189]
Although cluster bombs are designed to explode on impact, we were
told that if they fail to explode, they effectively become landmines.
We later wrote to Chris Clark from the UN in Lebanon, who informed
us that the estimate of the failure rate of 'dumb' cluster bombs
used by Israel was "moving towards 30%". The failure
rate of the so-called 'smart' M85 bomb was established as between
5-10%.[190] In 2003,
the Government stated that the failure rate of its 'dumb' BL 755
bomb was 6%.[191] In
May 2007, it stated that the failure rate of the 'smart' M85 bomb
was 2.3%.[192] We
conclude that the failure rate of 'dumb' cluster bombs could be
as high as 30%, much higher than the Government's estimate of
6%. We further conclude that the failure rate of 'smart' cluster
bombs could be as high as 10%, again significantly higher than
the Government's estimate of 2.3%. We recommend that, in its response
to this Report, the Government state whether it is prepared to
accept that the failure rate of 'smart' cluster munitions could
be as high as 10%, and if so, how it justifies continuing to permit
UK armed forces to hold such munitions.
107. The UN estimated that one million cluster bombs
remained unexploded in south Lebanon following the war.[193]
26% of Lebanon's cultivatable land had been contaminated.[194]
Jan Egeland, then the UN's humanitarian chief, noted that 90%
of the cluster bombs dropped on Lebanon "occurred in the
last 72 hours of the conflict", i.e. after Security Council
Resolution 1701 had been passed. Mr Egeland called this "shocking
and completely immoral."[195]
The United States sells cluster bombs to Israel, and on 29 January
2007, the State Department announced that "there were likely
violations" by Israel with regard to a "use agreement"
between the two countries.[196]
This agreement is believed to ban their use in populated areas.[197]
In order to give the Israeli Government a fair chance to defend
its actions, we decided to write to the Ambassador in London.
We asked him what the intended military purpose of using the cluster
bombs at a late stage in the war was.[198]
In his reply, the Ambassador failed to deal with the issue of
timing:
The Israeli use of cluster munitions was in full
compliance with international law—specifically the principles
of military necessity and proportionality. Cluster munitions were
directed at rocket and missile launching sites. In most cases
they were fired at open areas. In those cases where they were
fired against targets located near or within built-up areas, this
was carried out with the utmost caution so as to prevent civilian
casualties, often costing our forces the element of surprise.
Such measures included the dispersal of millions of fliers in
Arabic from the air, the broadcasting of warning messages on the
Al-Mashrek radio station and the delivery of thousands of recorded
voice messages to telephones.[199]
We consider the international efforts to clear cluster
bombs from Lebanon later in this chapter.
108. We
accept that Israel has an inalienable right to defend itself from
terrorist threats. However, we conclude that elements of Israel's
military action in Lebanon were indiscriminate and disproportionate.
In particular, the numerous attacks on UN observers and the dropping
of over three and a half million cluster bombs (90% of the total)
in the 72 hours after the Security Council passed Resolution 1701
were not acceptable. We recommend that, in its response to this
Report, the Government explicitly state whether it believes that,
in the light of information now available, Israel's use of cluster
bombs was proportionate.
AFTER THE WAR
Implementing Resolution 1701
109. The United Nations Interim Force in Lebanon
(UNIFIL) was established in 1978 during Lebanon's civil war. Security
Council Resolution 1701 increased the size of UNIFIL from 2,000
troops in August 2006 to a maximum of 15,000. UNIFIL's mandate
was also strengthened so that it became the means of monitoring
the "cessation of hostilities" set out in Resolution
1701. Although UNIFIL was only to deploy south of the Litani river,
the Resolution also emphasised the need for the Government of
Lebanon to establish its authority over all of its territory and
called for the halt of all arms smuggling to groups in Lebanon.[200]
It is clear that this is a reference to the fact that Iran and
Syria have historically supplied Hezbollah with much of its weaponry.[201]
110. In March 2007, we asked Dr Howells about Hezbollah's
level of arms. He replied that,
from our intelligence it seems to be back to the
pre-war levels as far as rockets and other weapons are concerned.
They have come across the Syrian border and we have called upon
the Syrians many times to police that border properly and, if
anything, the Syrians have done the opposite and have threatened
retaliatory action if there is a serious attempt made at policing
it. That is a serious situation and is a real violation of the
sovereignty of Lebanon and its Government.[202]
In a written submission, his assessment was that
there was no "significant Hezbollah activity in breach of
UNSCR 1701." However, he mentioned that Hezbollah's leader,
Sheikh Hassan Nasrallah, had "said publicly that Hezbollah
is back to full military strength" and that he remained concerned
by credible reports of smuggling across the Syria-Lebanon
border.[203] In February,
The Times reported that Hezbollah was regrouping and rearming
north of the Litani river, i.e. above the boundary of UNIFIL's
operations.[204] In
a written answer in June 2007, Mrs Beckett, in what appeared to
be a hardening of the Government's view, stated that the Government
judged Syria to be "involved in providing Hezbollah with
weapons as well as facilitating the transfer of weapons from Iran
in breach of UNSCR 1701."[205]
111. When in Lebanon, we heard accusations that Israel
had been violating Lebanon's sovereignty through the use of 'overflights'
in Lebanese airspace. We asked Dr Howells if the Government kept
any record of the frequency of these flights. He presented the
following data obtained by UNIFIL:
