28 October, 2009 — Palestine Telegraph
There was much praise for the UN investigations into war crimes committed in Gaza, led by Richard Goldstone. However, I feel that this report did not go far enough to investigate some other more serious allegations that were made.
There is a sense of urgency to bring this investigation forward and to put those responsible on trial but one must understand that something much more sinister did not even get a mention and has since been swept under the carpet.
Let’s take a closer look at some aspects of this report which certainly showed a distinct weakness in the team’s ability to understand what constitutes a breach of the Geneva Convention.
Quote from item 46: the Mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of wilful killings and wilfully causing great suffering to protected persons and as such give rise to individual criminal responsibility. It also finds that the direct targeting and arbitrary killing of Palestinian civilians is a violation of the right to life.
Quote from item 47: The last incident concerns the launch of a bomb on a house resulting in the killing of 22 family members. Israel’s position in this case is that there was an ‘operational error’ and that the intended target was a neighbouring house storing weapons. On the basis of its investigation, the Mission expresses significant doubts about the Israeli authorities’ account of the incident. The Mission concludes that, if indeed a mistake was made, there could not be said to be a case of wilful killing. State responsibility of Israel for an internationally wrongful act, however, would remain.
Response to item 46 and 47: Even if an operational mistake was made it still constitutes wilful killing as such bombs were dropped in areas of dense population and thus had the correct target been hit the civilians in the adjacent target area would have died or been severely injured.
Quote from Item 48: Based on its investigation of incidents involving the use of certain weapons such as white phosphorous and flechette missiles, the Mission, while accepting that white phosphorous is not at this stage proscribed under international law, finds that the Israeli armed forces were systematically reckless in determining its use in built-up areas. Moreover, doctors who treated patients with white phosphorous wounds spoke about the severity and sometimes untreatable nature of the burns caused by the substance. The Mission believes that serious consideration should be given to banning the use of white phosphorous in built-up areas. As to flechettes, the Mission notes that they are an area weapon incapable of discriminating between objectives after detonation. They are; therefore, particularly unsuitable for use in urban settings where there is reason to believe civilians may be present.
Response to Item 48: First of all Mr Goldstone needs to understand that White Phosphorus is an Incendiary Weapon and therefore is covered under international law in its use of White Phosphorus on densely populated areas.
It is in violation of the Geneva Convention: Protocol on Prohibitions
or Restrictions on the Use of Incendiary Weapons (Protocol III) namely:
Certain use of incendiary weapons, in particular the use of air delivered incendiary weapons against targets situated amongst concentrations of civilians (Protocol III to the Conventional Weapons Convention).
One should also draw attention to the fact that exactly the same treatment was handed out by the IDF in Southern Lebanon (2006). This picture shows the terrible lethal consequences on a child in Lebanon. Let’s now look at a case that was filed in Israel on the back of the Geneva Convention and the ICJ. As one would expect when dealing with the Israel court system the case failed. One could live in hope that such a case in the European Courts would carry a different result
The ‘Flechette’ shells (from the French ‘flêchette,’ meaning ‘small arrow’) are known to contain thousands of small metal arrows, each some four centimeters long. When the shell explodes in the air, at a height of approximately 30 m above the ground, the lethal arrows scatter over a cone-shaped area some 300 m in length and 94 m wide. It should be noted that the Flechette was developed by the Americans in Vietnam, when they sought an effective weapon for attacking Viet Cong forces hiding among the trees in the jungles and dispersed over a large area.
It is worth noting that this weapon has been considered controversial since it was first introduced. The arguments raised against the Flechette are based, inter alia, on the principles of international law in the field of the laws of war, according to which weapons causing ‘unnecessary suffering’ are not to be used, and the indiscriminate use of weapons in population centers is prohibited. The Appellants will argue that the Flechette causes ‘unnecessary suffering’ due to the enormous number of arrows, which injure the victim’s body (similarly to an explosive device containing nails), and that it is also considered an ‘indiscriminate’ weapon, since it disperses over an enormous area, and is very difficult to use precisely. Accordingly, the Appellants argue, its use is prohibited, particularly in civilian population centers.
These photographs show flechettes as used in Gaza and an X-Ray of a boy’s shoulder clearly showing a flechette deeply embedded.
Flechette Factual Background
As mentioned above, the IDF has used this weapon for many years, particularly in the context of its operational activities in southern Lebanon, during which ‘dead areas’ were declared along the border of the ‘Security Zone’ – any person entering these areas was considered a ‘terrorist’ to be eliminated. As soon as movement was identified in these areas, the tanks fired Flechette shells. It is worth mentioning that even during this period, arguments were raised against the IDF that the use of these shells caused the death and injury of dozens of Lebanese citizens, despite the fact that the use of Flechette shells was limited to sparsely-populated areas.
Among other publications, a special chapter was devoted to the IDF’s use of this weapon in Lebanon in a report of the organization B’Tselem entitled ‘The Violation of the Human Rights of Lebanese Citizens by Israel (January 2000).’
Illegality in International Humanitarian Law – The Rules of War
It is a principle of international humanitarian law and the rules of war that means that cause indiscriminate injury or that are unable or incapable of distinguishing between civilians and combatants are prohibited. In addition, means causing unnecessary suffering and superfluous injury are prohibited.
The obligation to protect the health and life of civilians who are not engaged in combat is mentioned in all the conventions constituting international humanitarian law; in some conventions, the obligation is mentioned several times. The prohibition on the arbitrary taking of life outside the parameters of self-defense may be identified on several levels in international law. The most basic level is that of the general rules of war, which establish the basic principle that civilian targets, including civilians, shall not be the targets of attacks.
Inter alia, Article 22 of the Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter ‘the Hague Regulations’), which was revolutionary for its time, stated that ‘the right of belligerents to adopt means of injuring the enemy is not unlimited’.
Among other provisions, a specific regulation was established prohibiting the use of weapons that cause unnecessary suffering. Article 23 states:
‘Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden
(e) To employ arms, projectiles, or material calculated to cause unnecessary suffering;
The second level establishes the prohibition against inhuman treatment for those not, at that time, actively engaged in fighting; the center of this facet is the prohibition against the taking of life.
This obligation is established in Article 3, which is common to all four Geneva Conventions from 1949. This applies to all armed conflicts, not only to occupied territories. Among other provisions, sub-clause 1 states:
Persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
Violence to life and person
A) The above-mentioned Article 3, which, as noted, is common to all four Geneva Conventions, is today considered international customary law binding all nations of the world; as such, it may be enforced by this Court. In addition, the State of Israel signed and ratified the Geneva Conventions in 1951; accordingly, it is also legally bound to observe the conventions as a contracting party.
The third level of the rules of war comprises the rules for the control of occupied territory, which grant the occupied population special protection in addition to the rights and protections accruing from the general rules of law and to the rights and protections enjoyed by all citizens, whether or not living in an occupied territory.
These protections and rights are established both in the Hague Regulations and in many clauses scattered throughout the Fourth Geneva Convention regarding the Protection of Civilian Population, as well as in the two protocols to the conventions, signed in 1977.
Regulation 30 of the Hague Regulations relates to the protection of the residents of an occupied territory, stating as follows:
‘Family honour and rights, the lives of persons and private property… must be protected’
No-one would deny that the general and special rules of law, as reflected in the Hague Regulations, now constitute international customary law binding all nations of the world, and enforceable in this Court (see, for example, the comments by then Justice Barak in HCJ 393/82, Jamayat Iskan Almu’alamoun v Commander of IDF Forces, Piskei Din 37(5) 785, in para. 11 of the ruling).
However, the principal protection is afforded to the citizens of an occupied territory in the Fourth Geneva Convention. These citizens are ‘protected persons’ as defined in Article 4 of the Convention. The disagreements between the international community and Israel regarding the applicability of the definition in Article 4 to the Palestinian population in the Occupied Territories has already been resolved in a long series of petitions to this Court, in which the state has declared its commitment to observe the humanitarian provisions of the Convention as if they applied to the territory.
In order to complete the picture, we should note that additional protections on civilian lives are established in the two protocols to the Geneva Convention signed in 1977; these expanded the protection afforded to the civilian population to include disputes other than those between states. The State of Israel has not signed these protocols, but some of their provisions constitute a part of international customary law, and as such bind Israel.
Prohibition on the Use of Weapons Causing ‘Unnecessary Suffering’ and ‘Indiscriminate’ Weapons – Customary Law
The Appellants shall argue that the use of Flechette shells by the IDF is incompatible with the principles of international customary law as noted above, which require the military echelon to consider, alongside military needs, the need to minimize unreasonable danger of injury to the local population.
Article 35(2) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (hereinafter ‘the First Protocol’) establishes as follows:
Article 35.–Basic rules
1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.
2. It is prohibited to employ weapons, projectiles and material and
methods of warfare of a nature to cause superfluous injury or unnecessary suffering.
3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.
Article 51 establishes:
Article 51.–Protection of the civilian population
1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in circumstances.
2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) Those which are not directed at a specific military objective;
(b) Those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as indiscriminate:
(b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Although the State of Israel is not committed to the provisions of the First Protocol, these articles are considered customary and binding in international law. Proof of this may be found in the ‘Advisory Opinion’ of the International Court of Justice dated July 8, 1996 on the subject of the ‘Legality of the Threat or Use of Nuclear Weapons.’
In the course of the above-mentioned opinion, the court was asked, inter alia, to address the subject of an indiscriminate weapon that causes unnecessary suffering. Among other points, the court ruled as follows:
A large number of customary rules have been developed by the practice of States and are an integral part of the international law relevant to the question posed.
The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering.
In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use.
In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians or because of the unnecessary suffering caused to combatants, that is to say, a harm greater than that unavoidable to achieve legitimate military objectives. If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law.
Nor is there any need for the Court elaborate on the question of the applicability of Additional Protocol I of 1977 to nuclear weapons. It need only observe that while, at the Diplomatic Conference of 1974-1977, there was no substantive debate on the nuclear issue and no specific solution concerning this question was put forward, Additional Protocol I in no way replaced the general customary rules applicable to all means and methods of combat including nuclear weapons. In particular, the Court recalls that all States are bound by those rules in Additional Protocol I which, when adopted, were merely the expression of the pre-existing customary law, such as the Martens Clause, reaffirmed in the first article of Additional Protocol I. The fact that certain types of weapons were not specifically dealt with by the 1974-1977 Conference does not permit the drawing of any legal conclusions relating to the substantive issues which the use of such weapons would raise.’…
The entire text as per above was taken from http://www.btselem.org with reference to Legal Documents/HC8990 02 Flachette Appeal
Israel Supreme Court – Sitting as the High Court of Justice – HCJ/02 in the case of Physicians for Human Rights – Israel and The Palestinian Centre for Human Right (The Appellants) V General of the Southern Command – Doron Almog and The State of Israel – Ministry of Defense (The Respondents)
Petition for an Interim Decree
A petition is hereby respectfully submitted to the Court requesting that the Respondents be ordered to come and give grounds why the use of ‘Flechette’ type tank shells in the context of IDF operations in the Gaza Strip area should not be halted and prohibited.
Data listed within this article were taken from the Internet site of the International Court of Justice (www.icj-cij.org).
As we would expect the case failed to achieve it goals and was kicked out of court as follows:
The appellants asked us to prohibit the army from using flechette shells. Since we have realized that the use of this ammunition is not prohibited by the laws of war, the petitioners’ request cannot be accepted. This court has ruled that ‘the choice of weapons, which the respondents use for the goal of preventing murderous terror attacks, is not one of the topics in which this court sees fit to intervene.’ (HCJ 5872/ 01, Bracha v Prime Minister, PD 56 (3)1). Needless to say, the respondents have eased our minds that the scope of use of this ammunition is arranged by the IDF through rules that are binding on the commanders of forces acting in the field. The decision regarding the question as to whether the conditions in the arena of combat, in every given case, justify use of the flechette, is determined by the authorized commander, who in formulating his decision is commanded to act according to professional guidelines, that in principle were intended to prevent harming residents not involved in activities that endanger IDF soldiers or Israeli citizens.
The petition is rejected. Justice The Honourable Justice M. Heshin: I agree.
Justice The Honourable Justice A. Hayout: I agree.
Decided, as stated, in Justice E. Matza’s decision.
Rendered today, 25 Nissan 5763 (27 April 2003)
It must be noted that Goldstone’s report did not follow the same conclusion as per the case above but rather highlighted Flechette’s unsuitability in an urban environment when he quoted the following: ‘As to flechettes, the Mission notes that they are an area weapon incapable of discriminating between objectives after detonation. They are, therefore, particularly unsuitable for use in urban settings where there is reason to believe civilians may be present’
Part 2 of this series will next cover the use of DIME weapons within Gaza. It will also focus on Goldstones disregard of the use of depleted uranium that had been raised in earlier submissions. This surely must head the top of the list of the Israeli War Crimes in that weapons that contain uranium components do not discriminate between military and civilian targets or respect international borders. Consequently these weapons contaminated the entire Gaza Strip and crossed over the border to contaminate most of Central and Southern Israel and beyond. What is ironic was this same situation developed during the Lebanon War in 2006 when the entire Southern part of Lebanon was contaminated and again the contamination crossed over the border to do the same to Northern Israel. In other words the IDF has ‘Nuked’ its own people.
We will cover how these two weapons were clearly left out of the enquiry despite the fact they were originally very much part of the initial submissions. One would also assume that accordingly the people of Israel would have a case against the Israeli Government and the IDF.
– Peter Eyre, Middle East Consultant”