Doomed to be violated? The U.S.-Israeli clandestine end-user agreement and the second Lebanon war: lessons for the Convention on Cluster Munitions.

• Author: Barak, Eitan

Israel's extensive cluster munitions (CMs) use in the 2006 Second Lebanon War served as a major impetus for the 2008 Convention on CMs (CCM). It also led to an extensive U.S.-Israeli diplomatic entanglement over Israel's supposed violations of U.S. legislation, specifically the 1976 classified Bilateral End-User Agreement detailing Israel's use of U.S.-made CMs. The Article first tracks the Agreement's inception and the diplomatic crises caused by Israel's alleged breach since then. The second section provides a detail account of the 2006 crisis while the third analyzes if U.S. legislation was violated. The Article concludes, using a flexible interpretation, that in effect U.S. legislation was not violated and argues that given its out-dated stipulations the Agreement was doomed to be violated under a formal interpretation. More importantly, given the restrictions imposed on Israel by the Agreement, this case provides a unique opportunity to assess the rationale behind the refusal of CCM supporters to accept anything but a total ban on CMs.

Only after the war did we, Amir [Amir Peretz, Israel's 2006 Wartime Minister of Defense] and I, first learn about the use of cluster bombs . . . the responsible echelons in the IDF [Israel Defense Force] refused to provide me with the maps [of the strike locations]. They wanted to hide the fact that we had fired this problematic weapon ... without any higher authorization and in an uncontrolled manner, although they were old munitions which the Americans had provided us following assurance that we would use it only in case our very survival was at stake. (1)

1. INTRODUCTION

   In summer 2006, amidst intense fighting, accusations appeared in the international media claiming Israel's use of cluster munitions (CMs) (2) in Lebanon was illegal. (3) Yet the world's outcry was raised in the war's aftermath, with Israel suddenly finding itself under heavy attack. (4)

   However, while the government's initial formal response stressed that "strenuous efforts were made to ensure that these [IDF operations] were carried out in complete accordance with international law, both with regard to method and weaponry," (5) on November 19, 2006 the then IDF Chief of Staff Lt. Gen. Dan Halutz surprisingly chose a completely different response stating that the use of cluster bombs often constituted a clear violation of his explicit order not to fire into populated zones. (6)

   As expected, Halutz's announcement took the Israeli public by surprise and caused bitterness among Israeli war veterans who felt that they had followed all orders when firing. (7) An artillery officer (reservist) was quoted saying: "Did he [Halutz] really say that.... We fired not a single rocket on our own initiative. No one would have ever considered firing at any target without explicit orders to do SO." (8)

   The queries over Halutz's statement given its unequivocal connotation (i.e., the IDF was an unruly army which did not follow orders) as reflected in the Israeli press became more frequent and vocal. However, neither the Israeli public nor the international community was aware that Halutz's admission was made in an attempt to appease the U.S.; the U.S. State Department had already begun an inquiry into Israel's use of U.S.-made cluster bombs prior to his admission. (9) Israel's concern was not due to the seemingly pertinent U.S. legislation: The 1952 U.S.-Israeli Mutual Defense Assistance Agreement (hereinafter the 1952 Agreement) under which Israel may employ U.S.-made weapons if they are "'used solely to maintain its internal security, its legitimate self-defense ..." (10) and the 1976 U.S. Arms Export Control Act (AECA), which governs use of U.S.-made defense equipment and services by foreign nations and under which the U.S. may stop aid to countries that use U.S. military assistance for purposes other than "'legitimate self defense." (11)

   On December 16, 1976 a bilateral end-use agreement specifying conditions for the use of U.S.-made cluster bombs by Israel was concluded between the two allies. (12) The agreement is so highly classified that even 30 years later the two states continue to keep its exact terms secret: "[O]ftentimes it [the end use agreement] gets into rules of engagement for specific countries and those themselves are usually classified or tightly held by the foreign national government." (13)

   Today, with the crisis behind us and the participants (the Olmert Government and the Bush Administration) leaving center stage, it is a good time to explore this affair within its current context. In December 2008, 94 states signed the Convention on Cluster Munitions (CCM) in Oslo, Norway, (14) which prohibits the use, development, production, stockpiling, and transfer of CMs. (15) The CCM represents the culmination of the Oslo Process which spearheaded five international conferences between February 2007 (Oslo, Norway) and May 2008 (Dublin, Ireland). (16)

   In contrast, due to the total ban adopted by the CCM in 2007, several major countries that stock and/or use CMs, led by the U.S., initiated another multilateral process. The new process called for the regulation of, rather than a complete ban of, CMs thorough a series of legally binding restrictions initiated under the auspices of the 1980 UN Convention on Certain Conventional Weapons (CCW). (17) In the face of international outcries over the absence of any legal restrictions on CMs, various restrictions were proposed in the (sixth) draft Protocol on CMs; these were believed to adequately address the need to dramatically minimize the likely post-conflict harm associated with such weapons. (18)

   At the time of its extensive use of CMs in the 2006 War, Israel was actually subject to legal restrictions far more stringent than those proposed by the current draft protocol ("Draft Protocol"). The source of these restrictions was, however, quite different: a bilateral end-user agreement (with subsequent assurances and clarifications) (19) and not a multilateral agreement.

   This Article is divided into three parts. Part One briefly sketches the background of the 1976 Agreement and its history leading up to the 2006 War. Since Israel used CMs in all of its post 1976 large-scale conflicts (i.e., 1978, 1982, 2006), the Article explores U.S. attempts to strengthen the Agreement following Israel's first round of CM use in Israel's 1978 invasion of Lebanon, by adding an additional, more detailed classified legal instrument. An overview of the sanction (suspension) imposed on Israel, following its second round of CM use in the 1982 Lebanon War, concludes this part.

   In Part Two, the Article focuses on the U.S.-Israel entanglement following Israel's extensive CM usage in 2006. It begins with an account of the IDF's unprecedented response to U.S. criticism analyzing the U.S. State Department's inquiry and the manner in which the Bush Administration managed the crisis by successfully concluding it despite escalating pressure from Human Rights NGOs and the international media.

   The first two parts provide the background necessary for the Article's main thrust: an in-depth legal analysis of whether U.S. legislation in general and the bilateral agreement in particular were violated during the Second Lebanon War. Furthermore, given the similarity between International Humanitarian Law's (IHL) requirements and U.S. demands vis-a-vis Israel, an inquiry into the aggregated stipulations of all pertinent U.S. instruments addressed by Israel implies addressing, in part, whether Israel's extensive CM use complies with international law in general and IHL in particular. This analysis in Part Three suggests that in applying flexible interpretation, Israel did not likely violate the 1976 Agreement. In contrast, under formal and strict methods of interpretation, such an agreement, given its outdated stipulations and clarifications was doomed to be violated. In fact, had Israel escaped its ever-growing dependency on the U.S., it could have invoked the doctrine of rebus sic stantibus. (20)

   Moreover, the restrictions imposed on Israel by the bilateral end-user agreement are similar to those introduced in the newly proposed CCW Protocol. Thus, regardless of the outcome of the U.S. initiative (creating a new CM protocol), the 2006 Israeli use in the context of the 1976 Agreement provides a unique opportunity to assess the rationale behind the refusal of CCM supporters to accept anything less than a complete ban on CMs. Salient conclusions as to the CCM's importance, beyond the legal issues, close the Article.

2. A HISTORY OF THE 1976 U.S.-MADE CLUSTER AGREEMENT (UP TO THE SECOND LEBANON WAR)

   1. Origins of the 1976 U.S.-Made Cluster Agreement

      In the 1950s, Israel began developing an aerial-dropped CM. In fact the first casualty (March 1954) suffered in EMET (21) resulted from a live CM test and the improper care of a dud's fuse. (22) Yet no mass production line was established at the time.

      In the face of mounting incidents on the Israeli-Egyptian front in the wake of the 1967 Six Day War, Israel repeatedly requested that the U.S. provide it with the modern U.S.-made CMs used during the Vietnam War. Its efforts were, however, to no avail. (23) When the intensity of armed incidents reached the level justifying their formal classification as a War of Attrition, Israel's need for CMs became more urgent. (24) Because the U.S. refused to provide Israel with this "sensitive weapon"--as the U.S. defined CMs--despite its necessity to attack the Egyptian anti-aircraft batteries that were limiting Israeli Air Force (IAF) freedom of operation, Israel was left with no choice but to begin master production of modern CMs. (25) Israel therefore initiated a crash program (26) in 1970, which resulted in the remarkable development of a highly advanced aerial-dropped CM known as Tal-1 (a 5501b bomb containing 279 bomblets). (27) However, because the War of Attrition ended on August 7, 1970, shortly after the...