The UN Human Rights Council in Geneva has received and is discussing a report on last summer’s Israeli attack upon Lebanon from a Commission of independent experts, who say that: “Where the attacks against civilians or their property were direct and deliberate, where abductions, transfers and detentions in Israel of civilians occurred, it can be consider that there is a violation of the right to life, the right to property, the interdiction of inhuman, humiliating and degrading treatment. Moreover, these deliberate strikes against civilians amount in fact to summary and extra-judicial executions of persons (suspected or assimilated to terrorists-enemies). It not only violated the fundamental rights of these persons (right to life, right to personal security, fair trial, non- discrimination) but also constitutes a very negative State practice, extremely disturbing for contemporary legal culture”.
The Commission reported that “generally, respect for the principle of humanity and humanitarian considerations was absent during the conflict”. And it said it was “convinced that damage inflicted on some infrastructure was done for the sake of destruction”.
The Commission also said it was convinced that the Israeli bombings (on July 13 and July 15) of certain specific fuel storage tanks at the Jiyyeh electrical power plant, located near the seashore, was “premeditated”. The Commission’s report stated that “the strike was directly aimed at those tanks that had been filled in the days preceding the attacks. No missile was directed at empty tanks, nor at the main generator and machinery, which are just a few meters away from the storage tanks. The Commission called the oil spill “an ecological disaster for the maritime environment on the Lebanese coast and beyond”, with devastating and long-lasting effect.
While the Commission found that “there was evidence of Hezbollah using UNIFIL and Observer Group Lebanon posts as deliberate shields for the firing of their rockets”, it nevertheless “found no justification for the 30 direct attacks by the Israeli Defense Forces (IDF) on United Nations positions, including those which resulted in deaths and injury to protected United Nations personnel”. It said it did not see how Israel could possibly justify these direct attacks.
Four unarmed United Nations observers were killed by IDF fire at the Khiyam base. A UNIFIL staff member and his wife were also killed in an Israeli air strike on their apartment building in Tyre.
The Commission also stated that “It is significant that, towards the end of the conflict, after the ceasefire had been announced, there was a dramatic increase in IDF direct attacks on UNIFIL positions”.
The Commission reported that, “according to Government estimates, nearly one quarter of the population was displaced between 12 July and 14 August, with approximately 735,000 seeking shelter within Lebanon and 230,000 abroad. Much of the displacement in Lebanon was the result, either direct or indirect, of indiscriminate attacks on civilians and civilian property and infrastructure, as well as the climate of fear and panic among the civilian population caused by the warnings, threats and attacks by IDF”.
The Commission reported that it had come to the conclusion that IDF did not give effective warning as required under international humanitarian law.
And the Commission noted that Lebanese authorities have concluded that the conflict resulted in 1,191 deaths and 4,409 injured.
One third of the casualties and deaths were children.
Projections made by the UN’s World Health Organization show that a large percentage of the population suffer from moderate or severe mental psychological stress, and this obviously includes children.
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The Commission found that active hostilities only took place between Israel and Hezbollah fighters, and that no indication that the Lebanese Armed Forces actively participated in the hostilities that ensued.
The Commission noted that in Lebanon, Hezbollah is a legally recognized political party, whose members are both nationals and a constituent part of its population, and which has duly elected representatives in the Parliament and is part of the Government; and it therefore integrates and participates in the constitutional organs of the State.
The Commission determined that “while Hezbollah’s illegal action under international law of 12 July 2006 provoked an immediate violent reaction by Israel, it is clear that, albeit the legal justification for the use of armed force (self-defence), Israel’s military actions very quickly escalated from a riposte to a border incident into a general attack against the entire Lebanese territory. Israel’s response was considered by the Security Council in its resolution 1701(2006) as [an] ‘offensive military operation’. These actions have the characteristics of an armed aggression, as defined by General Assembly resolution 3314 (XXIX)”.
And, the Commission reported, “the conduct of Israel demonstrates an overall lack of respect for the cardinal principles regulating the conduct of armed conflict, most notably distinction, proportionality and precaution”.
International Responsibility
In certain cases, such as the deliberate attacks against civilians and civilian properties, attacks against Red Cross ambulances and other protected objects, and the indiscriminate use of cluster munitions, the violations committed by IDF could qualify as serious violations of the laws and customs of war and war crimes.
Israel infringed its international law, international humanitarian law and human rights obligations. As a consequence, the question of its international responsibility arises. It is worth recalling that the obligation of a State responsible for an internationally wrongful act to put an end to that act is well established in general international law, and the existence of such a duty has been reiterated by the International Court of Justice.
The Government of Israel was required to respect and ensure respect at all times for international humanitarian law and human rights by its armed forces. These violations were not only committed by members of IDF but were part of a plan or policy.
The declarations of high military commanders that ‘we will turn Lebanon’s clock back 20 years’, and that ‘once inside Lebanon everything is legitimate’, bears this out.
The conduct of military operations is regulated by a universally recognized body of legal prescriptions. It is also well settled that serious violations of international humanitarian law entail individual criminal responsibility. In this regard, first, grave breaches of the Geneva Conventions and Additional Protocol I constitute war crimes and their violations entail individual responsibility. Second, customary international law also provides for individual criminal responsibility for such breaches as well as for violations of the laws and customs of war and other serious violations of international humanitarian law. Third, it must also be underlined that violations of a number of core human rights equally entail under the relevant international human rights instruments and customary international law individual responsibility.
The Commission’s report contains many indications of conduct that constitute serious international humanitarian law and human rights violations for which individual responsibility can be imputed. These entail an obligation on the part of Israel to put to an end to serious breaches of international humanitarian law and human rights committed and to prosecute those responsible. In this regard, the international community has its part of responsibility.
It is important that continued attention be given and efforts be undertaken by the Human Rights Council to ensure justice for the victims and accountability for international humanitarian law and human rights violations. If not, the culture of impunity will not be brought to an end.
The Commission recommended that the UN’s Human Rights Council should establish a follow-up procedure for the rebuilding of Lebanon and above all for ensuring that there will be reparations for victims among the Lebanese civilian population.
And the Commission recommended that the Human Rights Council should take an initiative to promote urgent action to include cluster munitions to the list of weapons banned under international law. It said that “there is ample evidence pointing to a significant increase in the intensity of the overall bombardment including cluster munitions in the last 72 hours of the conflict, including the period after the adoption of Security Council resolution 1701 (2006). OCHA [the UN’s Office for the Coordination of Humanitarian Affairs] affirms that 90 per cent of all cluster bombs and their sub-munitions were fired by IDF into south Lebanon during these last 72 hours of the conflict. For example, cluster bombardments were particularly heavy in and around the Tibnin hospital grounds, especially on 13 August when 2,000 civilians were seeking shelter there”.
The Commission said that Human Rights Council should also ask competent bodies to take a look at the legality of some weapons particularly indiscriminate to the civilian population, including weapons which use depleted uranium.
It also urged the Human Rights Council to strongly call upon Israel to immediately hand over to UNIFIL and the Government of Lebanon full and detailed information on the use, and of all coordinates of cluster munitions launched in Lebanon.
The three members of the Commission, who were appointed by the President of the Human Rights Council in Geneva, wera Joao Clemente Baena Soares (Brazil), Mohamed Chande Othman (United Republic of Tanzania) and Stelios Perrakis (Greece); they were chosen on the basis of their expertise in international humanitarian law and human rights law. They visited Lebanon twice, from 23 September through 7 October, and again from 17 through 21 October.
WEAPONRY
During the Commission’s investigations allegations were made concerning the use by the IDF of a range of weapons or, more accurately, ammunition which might be considered illegal.
Such allegations were made in relation to the use of depleted uranium, white phosphorous and fuel air explosives.
Some witnesses also brought to the Commission’s attention injuries they described as abnormal, e.g. completely charred but intact corpses, or human bodies that apparently simply vaporized.
Cluster Bombs
The extent of the use cluster munitions by IDF goes beyond that required to interdict their opponents and points more towards a punitive use of and points more towards a punitive use of [the] weapon. The particular military use of these munitions lies in the wide area the munitions can cover. It provides the military with a very effective weapon against targets such as troops in the open or in defensive positions, artillery batteries, and concentrations of vehicles or tanks. However, the inherent area coverage of cluster munitions calls for clear separation between military targets and civilians or their property otherwise the latter will suffer the indiscriminate consequences of their use. Account must also be taken of the known failure rates of such ammunition which can result in excessive and disproportionate harm to civilians after the conflict. Although there are ongoing efforts to ban cluster munitions, for example under the umbrella of the Conventional Weapons Convention, unfortunately there is no prohibition under international humanitarian law on their use at present. The key issue in relation to the law and their use by the military rests on the known wide dispersal pattern of the cluster munitions on the ground and hence the fact that they cannot be targeted precisely. As a result it is often difficult, if not impossible, for the military to discriminate between military and civilian objects when the weapons are used in or near populated areas. The pertinent issue therefore is how the munitions are used. Considering the indiscriminate manner in which cluster munitions were used, in the absence of any reasonable explanation from IDF, the Commission finds that their use was excessive and not justified by any reason of military necessity. When all is considered, the Commission finds that these weapons were used deliberately to turn large areas of fertile agricultural land into ‘no go’ areas for the civilian population. Furthermore, in view of the foreseeable high dud rate, their use amounted to a de facto scattering of anti-personnel mines across wide tracts of Lebanese land. The use of cluster munitions by IDF was of no military advantage and was in contradiction to the principles of distinction and proportionality. These were part of a widespread and systematic targeting of civilians and their property, thus causing great suffering, injury and death during and after the conflict.
The extent of the use of the munitions particularly during the last 72 hours of the conflict, points toward a plan by IDF.
Depleted Uranium
The IDF has within its arsenal of weapons munitions that can be equipped with depleted uranium warheads. It is therefore possible that depleted uranium (DU) munitions were used by the IDF during the conflict.
However, the preliminary findings of the Lebanese National Council for Scientific Research, which carried out a detailed field survey of several bomb sites, concluded that there was no indication of depleted uranium having been used in the conflict, with the caveat that some additional field work was still necessary to draw a final conclusion.
White phosporous
White phosphorous is designed for use by artillery, mortars or tanks to put down an instant smoke screen to cover movement in, for example, an attack or flanking manoeuvre.
The phosphorous ignites on contact with air and gives off a thick smoke. If the chemical touches skin it will continue to burn until it reaches the bone unless deprived of oxygen.
It is not designed as an incendiary weapon per se, for example in the same way as a flame thrower or the petroleum jelly substance used in napalm.
The Commission received a number of reports concerning the use of this type of ammunition.
In addition, the Commission was told about and witnessed a number of sites where the possible use of white phosphorous had occurred, among others, at Marwaheen on 16 July during the gathering of the civilians in the village prior to their evacuation under UNIFIL supervision. This was witnessed by civilians concerned and interviewed by the Commission. It was also confirmed by UNIFIL officers on the scene that 12 white phosphorous rounds were fired directly at the civilians.
The Commission did not find evidence concerning the use of incendiary weapons, such as flame throwers or napalm.
Dense inert metal explosives (DIME)
Various media have reported on the possible use by IDF of Dense inert metal explosives (DIME), a new weapon, in Lebanon.
[The weapon can be launched from drones and is said to produce microscopic particles which cannot be seen by x-ray machines. It is reputed to comprise a carbon-fiber casing filled with tungsten powder and explosives. In the explosion, tungsten particles are spread at very high temperature causing death.]
It was reported that Israeli Air Force Major General Yitzhak Ben-Israel had described the weapon as being designed “to allow those targeted to be hit without causing damage to bystanders or other persons”.
It was brought to the Commission’s attention by a number of expert medical witnesses that some of the casualties had suffered from inexplicable burn injuries not witnessed before. These witnesses had extensive experience of war wounds from previous conflicts; their testimony is therefore of some relevance.
IDF have strongly denied the use of such weapons.
If they were effectively used, the Commission finds that they would be illegal under international humanitarian law. Protocol I of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (hereafter ‘the Conventional Weapons Convention’), to which Israel is a signatory, prohibits the use of any weapon the primary effect of which is to injure by fragments which cannot be detected by X-rays.
The Commission was unable in the time available to thoroughly investigate the claims. However, in drawing attention to this weapon and in particular to the expert witnesses’ testimonies, it finds that the possible use of such weapons in Lebanon should be the subject of further investigation.
Fuel-air explosives
There were some allegations from witnesses that IDF used fuel-air explosives during the conflict. This was particularly the case in relation to the destruction of property in South Beirut.
[These are weapons that disperse an aerosol cloud of fuel which is ignited by an embedded detonator to produce an explosion. The overpressure so produced flattens all objects within close proximity of the centre of the explosion.]
The weapon is designed for targets such as minefields, armour, and aircraft parked in the open and vehicles. Its vacuum effect is particularly useful against hardened bunkers.
The Commission found no evidence of its use for such purposes.
There were some reports that Israel employed fuel-air explosives to clear areas suspected to be planted with improvised explosive device (IED) and mines placed by Hezbollah in South Lebanon.
The fuel-air countermine called ‘carpet’ is employed by the Israeli corps of engineers. The carpet uses small rockets fired from a stand-off range, deploying highly explosive aerosol over the suspected area. The explosion of this mixture develops high pressure impulse which effectively kills fuses or sets off explosive devices in the affected area.
Booby Traps
The Commission found no evidence of booby traps having been left in place by IDF .
None of the weapons known to have been used by IDF are illegal per se under international humanitarian law. However, the way in which the weapons were used in some cases transgresses the law.
The Commission’s findings, detailed earlier in this report in relation to the direct targeting of civilian objects, infrastructure and protected property is at odds with the apparent interpretation of IDF and the application of the principle of distinction. The vast destruction of civilian objects throughout the Lebanon, but especially in the South where some villages were virtually completely destroyed indicates that weapons systems were not used in a professional manner despite assurances from IDF that legal advice was being taken in the planning process.
TIMELINE
+ On 12 July 2006, Hezbollah fighters fired rockets at Israeli military positions and border villages while another Hezbollah unit crossed the Blue Line, killed eight Israeli soldiers and captured two.
+ From 13 July 2006, the IDF attacked Lebanon by air, sea and land, including a number of incursions on Lebanese territory by Israeli ground forces.
+ The Government of Lebanon decided on 27 July 2006 that it would extend its authority over its territory in an effort to ensure that there would not be any weapons or authority other than that of the Lebanese State.
+ Over the course of the several weeks, Lebanon frequently pleaded for the Security Council to call for an immediate, unconditional ceasefire between Israel and Hezbollah.
+ On 11 August 2006, the Security Council at UNHQ/NY adopted resolution 1701 (2006) calling inter alia for a ‘full cessation of hostilities based upon, in particular, the immediate cessation by Hezbollah of all attacks and the immediate cessation by Israel of all offensive military operations, and emphasizing the need to address urgently the causes that have given rise to the current crisis, including by the unconditional release of the abducted Israeli soldiers’.
+ On the same day, the UN Human Rights Council, meeting in Geneva, called for the establishment of the Commission of Inquiry.
+ Both parties to the conflict agreed on a ceasefire, which took effect on 14 August 2006 at 0800 hours.
+ The Lebanese Army began deploying in southern Lebanon on 17 August 2006. The aerial blockade was lifted on 6 September and the maritime blockade was lifted on 7 September 2006.
+ On 1 October, the Israeli army reported that it had completed its withdrawal from southern Lebanon, information that was confirmed by UNIFIL.
The situation related to Shabaa Farms remained the same.”
