38 Denv. J. Int'l L. & Pol'y 1 (2009-2010)

handle is hein.journals/denilp38 and id is 1 raw text is: DOOMED TO BE VIOLATED ?
THE U.S.-ISRAELI CLANDESTINE END-USER AGREEMENT AND THE
SECOND LEBANON WAR: LESSONS FOR THE CONVENTION ON
CLUSTER MUNITIONS
EITAN BARAK*
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 US.-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 US. legislation was violated The Article concludes, using a
flexible interpretation, that in effect US. 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.'
* Lecturer (U.S. Assistant Professor), Department of International Relations, The Hebrew University of
Jerusalem. I am indebted to John Borrie, Guy Harpaz, Milton Leitenberg, Richard Moyes, Eric
Prokosch, Jullian Perry Robinson, Robbie Sabel, and Dan Yakir for their comments and suggestions.
Special thanks are due to Brian Rappert, Yael Ronen and Yuval Shany. I also thank participants of the
International Law Forum, the Hebrew University, in which an earlier draft of this article was discussed
in March 2008. I am also grateful to Yaccov Verzberger for sharing his views on specific issues with
me. Last but not least, I am indebted to Lior Avni, Yeela Porat and Roee Ariav for outstanding research
assistance. Any remaining errors are mine alone.
1. See Akiva Eldar, Captured in Conception, HAARETZ, Friday Supplement, July 18, 2008, at 21,
24 (recollection of Hagai Alon, a former political adviser of Peretz).

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