(Communicated by the IDF Spokesman)

The Military Advocate General, Brig. Gen. Avihai Mendelblit, recently concluded his evaluation of the implementation of IDF orders given during the Second Lebanon War regarding the use of cluster munitions. Among other things, the Military Advocate General stated that the IDF’s use of cluster munitions during the war was in accordance with international humanitarian law.

During the Second Lebanon War, Israel used cluster munitions as part of its military operations against the Hizbullah terrorist organization. In order to deal with Hizbullah’s massive rocket and missile fire towards the state of Israel, the IDF used those means which enabled it to effectively destroy the rocket launchers in order to minimize Hizbullah’s ability to fire rockets at Israel’s civilian population.

Throughout the course of the war, rocket attacks on Israel’s civilians were carried out from areas of dense vegetation, in which the Hizbullah set up fortified infrastructure, (known as "Nature Reserves"), such that Hizbullah’s launching sites and rockets were heavily camouflaged, and therefore difficult to identify. Consequently, the IDF had to make use of weaponry which allowed for an immediate response to rocket fire while providing maximum coverage within the targeted area, such as cluster munitions, a weapon that conforms to international law.

Following the war, the former Chief of Staff, Lieut. Gen. Dan Halutz, appointed Maj. Gen. Gershon HaCohen as the Investigating Officer to check the implementation of the orders given regarding the use of cluster munitions during the Second Lebanon War. The Investigating Officer’s conclusions were given to the Military Advocate General (MAG) for his evaluation who then, in accordance with military law, presented them to the Chief of Staff, Lieut. Gen. Gabi Ashkenazi. The Investigating Officer’s report shows that during the war the IDF complied with the Chief of Staff’s orders forbidding the firing of cluster munitions at built up areas.

Based on the evidence gathered by the Investigating Officer, it was clear that that majority of the cluster munitions were fired at open and uninhabited areas, areas from which Hizbullah forces operated and in which no civilians were present. In cases where cluster munitions were fired at residential areas/neighborhoods, it was as an immediate defensive response to rocket attacks by Hizbullah from launching sites located within villages, which, prior to IDF attacks, had been evacuated by the vast majority of their local population, as a result of the numerous and constant warnings given by the IDF to the civilian population. In one incident, during the grueling battle in Maroon-A-Ras, cluster munitions were fired at a built up area in order to allow the evacuation of IDF soldiers. 

Furthermore, the Investigating Officer determined that the forces which fired cluster munitions fully understood the need to use all of the lawful measures available to the IDF against rocket launching in an effort to protect Israeli civilians and prevent rocket barrages on northern Israeli communities and cities, while respecting the laws of armed conflict (including the obligation to act in a way that minimizes civilian casualties as much as possible) and preserving the ethical values of the IDF. As already stated, cluster munitions were fired by the IDF on built-up areas only in direct response to Hizbullah’s firing of rockets from within those same areas. Generally, the munitions were used only when they could be fired directly at the launching site. Furthermore, the munitions were fired on villages only when the forces understood them to have been almost completely evacuated, hence the anticipated harm to civilians was small.

The MAG examined the information given and presented his evaluation of the issue, stating that the Investigating Officer’s conclusions showed that the use of cluster munitions did not breach international law. In his view, the use of this weaponry was legal once it was determined that, in order to prevent rocket fire onto Israel. Its use was a concrete military necessity. Thus, cluster munitions were fired exclusively at military targets, in accordance with the principle of distinction, and were used only when the officer in command determined that the potential damage to civilians and civilian infrastructure was not disproportionate to the military advantage gained from firing at the target. Based on these findings, the MAG determined that the use of cluster munitions during the Second Lebanon War was in accordance with international humanitarian law.

The MAG also examined instances where commanders deviated from orders regarding the use of cluster munitions along with the circumstances which led to the deviations. In this regard, the MAG noted that during the war, the IDF was confronted with difficult combat, and that northern Israel was under constant and massive rocket and missile attacks, which resulted in approximately 4,000 rockets and missiles being fired at Israeli territory, all of which were deliberately intended to harm civilians and IDF soldiers. Under these circumstances, IDF forces used the resources in their possession in an effort to curtail the relentless rocket fire at Israeli civilians. These resources included cluster munitions – the most effective weapon with which the IDF could fight Hizbullah – while taking all feasible measures to minimize civilian casualties.

The MAG determined that even though these circumstances did not legitimize the deviations from the orders, these circumstances cannot be ignored when evaluating the deviations. Furthermore, the MAG also considered the fact that, even where there was a deviation from orders, the use of cluster munitions fire was still in accordance with international law. Accordingly, the MAG decided not to take legal measures in response to the deviations.

In his report, the Investigating Officer presented various suggestions relating to the future use of cluster munitions (e.g. – in training, combat doctrine, command and control, etc.). These suggestions were fully adopted and implemented by the IDF.