Silence breeds impunity - investigations are needed

Still from the documentary Fallujah: The Hidden Massacre which charges U.S. warplanes illegally dropped white phosphorus incendiary bombs on civilians in Iraq.

First there were allegations of illegal tactics. Now it is the illegal use of certain weapons. Such allegations are hardly new. Israel has for years been accused of both in its systematic dispossession, oppression and killing of Palestinians. However, the continued silence on the part of the international community has sent a dangerous message to Israel that it need not feel restrained in either the methods or weapons it uses in its military operations, and so it has set the bar of violence ever higher.

Outrage from the international community

Following repeated allegations of Israel’s disproportionate and indiscriminate use of force, reprisals and collective punishment against civilians in Lebanon and Gaza, all of which are grave violations of international law, one could only have expected outrage from the international community.

And the outrage came, though slowly.

It first came from citizens all over Europe, Canada, United States and South Africa, who took to the streets to express their anger at Israel’s attacks against Lebanese and Palestinian civilians.1 Demonstrations are still taking place, including at Amsterdam’s Schiphol airport and Scotland’s Prestwick airport in protest at the transit through these airports of weapons from the United States, destined for Israel’s military.

Top UN officials Louise Arbour and Jan Egeland also came out early with strong statements criticising the behaviour of both sides. However, given Israel’s complete disregard for international law and apparently deliberate attacks on UN installations, it was unavoidable that their criticisms mostly focussed on Israel’s violations. The latest Resolution of the United Nations Human Rights Council confirms this.

He who pays the piper…

Meanwhile, the US Secretary of State Condoleeza Rice simply dismissed Hezbollah as a “terrorist organisation”, while Israel was politely urged to “exercise restraint in exercising its right to self-defence”. Such arguments came across as hollow as the US continued to pound Iraq, ignoring the UN Security Council if it didn’t “co-operate”, exercising little restraint itself either in its choice of weapons or tactics and dismissing the Geneva Conventions as “inapplicable”.2

Supported by its benefactor, a confident Olmert smiled before the cameras, not being asked to justify Israel’s justifications for its continued military aggression in Lebanon and Gaza. The final reckoning, however, may yet come, including from Israel’s increasingly mutinous military.

Illegal use of deadly weaponry

The new level of disregard for international law displayed by the Israeli leadership not only prompted a massive escalation in its hostilities against Lebanon and Occupied Gaza, it also granted tacit permission to Israel’s war commanders to experiment with a vast and sophisticated arsenal of deadly weaponry. An arsenal, it must be noted, that is supplied through United States and European arms companies, paid for with billions of dollars provided each year by the American taxpayer.

The New York-based organisation Human Rights Watch has come out strongly against Israel’s use of cluster bombs, which it argued were indiscriminate weapons. The bombs released multiple “bomblets”, which did not distinguish between soldiers or resistance fighters (or “combatants”) and civilians.3

Although cluster bombs are not (yet) banned under international law, it is illegal for any military to use weapons or tactics that do not make such a distinction. It is therefore not the weapon itself, but Israel’s use of these weapons in such an indiscriminate way, in civilian areas, which have amounted to potential war crimes.

Towards the end of July, Human Rights Watch also began investigating gruesome reports by medical doctors of bodies that had been blackened, but had not been burnt. According to a medical doctor in Beirut, such injuries were consistent with the use of unconventional weapons, such as white phosphorous.

These were confirmed by Italian scientists of the International Peace Bureau, who on the 9th of August issued an urgent appeal. Referring to these and other “countless” reports from hospitals and journalists, the appeal claimed that “new and strange symptoms are reported” that are consistent with the use of banned weapons, including “chemical and/or biological agents”.4 Similar allegations were reported by doctors in Gaza.5

Allegations of the use of white phosphorous by Israel came in the wake of earlier allegations of its use by US armed forces in Iraq. The US military had also notoriously used this substance as a weapon in Vietnam, referring to it as “WP” or “Willy Pete”.

Similar to cluster bombs, while white phosphorous as a substance is itself not (yet) banned in international law, the way in which it is used is heavily restricted. Like other incendiary devices, such as napalm, the use of any offensive weapon against civilians, or in circumstances where civilians are likely to be the victims of an attack is banned in international law.6

As reported by the American Society of International Law, its renewed use in Iraq has generated a worldwide debate, not only because of the indiscriminate (i.e. illegal) way in which it is used, but because of the particularly nasty nature of the injuries that it causes.7 As such, there is currently a debate as to whether white phosphorous ought specifically to be banned as a chemical weapon in international law.8

Chemical weapons convention

Neither Israel, nor Lebanon, are parties to a major international convention governing chemical weapons. However, the Unites States, along with 177 other countries, is a member. This means that they, along with most European countries, are prohibited under article 1 of the Chemical Weapons Convention (CWC):

never under any circumstance to: develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone.

In other words, another country would be violating international law if they supplied Israel with a banned chemical weapon. Furthermore, although not a party to the CWC, both Israel and Lebanon are obliged not to use such weapons because of two customary rules of international humanitarian law, namely that one must always make a distinction between combatants and non-combatants and prohibit unnecessary suffering.9

Potential role for the OPCW

According to the Organisation for the Prevention of Chemical Weapons (OPCW), it is empowered to co-operate with and provide assistance to the United Nations in terms of a “Relationship Agreement” if allegations exist that a state has used chemical weapons, whether or not that State is a party to the Chemical Weapons Convention.10

As such, the Secretary-General of the United Nations, acting in accordance with article 2 of the Chemical Weapons Convention, could specifically request the OPCW to investigate whether chemical weapons may have been used by either Hezbollah or Israel.

Investigations can lead to accountability

On the 16th of August 2006, the International Commission of Jurists, an international NGO with its headquarters in Geneva, announced that it had launched an inquiry into violations of international law following the month-long conflict between Israeli forces and Hezbollah militants.11

More significantly, however, the United Nations Human Rights Council passed a Special Resolution on the 11th of August 2006 that called upon “all parties” to respect international law, but was particularly critical of Israel’s behaviour.12 In sending a high-level commission of inquiry to the region, the Council declared in a press statement that, “among others, the commission will investigate “the systematic targeting and killings of civilians by Israel”.13

In the light of numerous recent allegations of the use of certain types of virulent weapons, including cluster bombs, white phosphorous and potentially other chemical and/or biological agents, the UN Secretary-General should also consider a request to the Organisation for the Prevention of Chemical Weapons to conduct an investigation on whether banned chemical weapons or substances have been used in this conflict.

While silence from the international community breeds impunity, investigations can lead to greater accountability and are to be welcomed, particularly from the United Nations. As such, they should receive the full support of the international community.

The author is a human rights lawyer, based in The Netherlands. He is also completing a doctorate and lectures on human rights subjects at the Netherlands Institute of Human Rights (SIM), Utrecht University.

Endnotes

[1] Electronic Lebanon: Action & Activism

[2] Human Rights Watch: World Report, 2003, United States

[3] Civilian Pawns: Laws of War Violations and the Use of Weapons on the Israel-Lebanon Border, Human Rights Watch (May 1996)

[4] IPB-Italia. The IPB won the Nobel Peace Prize in 1910.

[5] Are New Weapons Being Used in Gaza and Lebanon?, David Halpin (14 August 2006)

[6] Civilian Pawns: Laws of War Violations and the Use of Weapons on the Israel-Lebanon Border, Human Rights Watch (May 1996), Ibid.

[7] American Society of International Law

[8] Wikipedia

[9] Thanks to Genti Zyberi for this particular insight.

[10] OPCW

[11] International Commission of Jurists