Flooding South Lebanon - Human Rights Watch

This does not just mean immediate civilian losses, but also encompasses casualties
over time—it is increasingly accepted that long-term effects should be a factor in
judging the proportionality of cluster munition attacks. The preamble of the final
declaration of the Third Review Conference of the Convention on Conventional
Weapons recognizes “…the foreseeable effects of explosive remnants of war on
civilian populations as a factor to be considered in applying the international
humanitarian law rules on proportionality in attack and precautions in attack.” 48
States parties, including Israel and the United States, adopted this language on
November 17, 2006.
Taking into account both strike and post-strike civilian harm greatly increases the
likelihood that the loss will 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. Based on its field research in Yugoslavia, Afghanistan, and Iraq, as well as
Lebanon, Human Rights Watch believes that when cluster munitions are used in any
type of populated area, there should be a strong, if rebuttable, presumption that an
attack is disproportionate.
States are legally bound to minimize civilian harm. Taking “all feasible precautions”
to do so entails a legal obligation to choose means and methods of attack that
would minimize harm to civilians, or even to cancel or refrain from attack where the
attack can be expected to cause disproportionate harm to civilians. 49 Given the high
potential for cluster weapons to be disproportionate and indiscriminate, states
should avoid strikes in or near population centers and minimize the long-term
effects of duds.
48 CCW Third Review Conference, “Final Declaration,” p. 4.
49 Protocol I, art. 57(2).
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Human Rights Watch February 2008