THE INTERNATIONAL ORGANIZATION FOR THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (EAFORD)
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Commission on Human Rights

Sixty-second  session (13 March – 21 April 2006)

2nd Session of the Human Rights Council

18 September – 6 October 2006

 

Israeli Aggression on Lebanon and Palestine

The Need to Activate the General Assembly

And International Criminal System

By Dr. Abdelaziz Nouaydi

 

 

First: The Crime of Aggression on Lebanon

 

Some human rights organizations, like Human Rights Watch, International Federation for Human Rights and Amnesty International, speak about the violation of humanitarian law by both Israel and Hezbollah alike, through the random targeting of civilians. Human Rights Watch went even further by speaking about war crimes committed by Hezbollah, just like Israel. Confronted with this, things must be put into perspective.

 

Before speaking about international humanitarian law, or the law that organizes the behavior of warring sides, we should first speak about international law itself. That is to say the aggression that led to the eruption of military confrontation due to resistance actions that are considered a legitimate right for any people confronting aggression or under occupation. In this regard, we should remind all parties that the biggest abuser of international law and the UN charter has been Israel ever since it came into existence. It is highly ironic that Israel was the only state brought into existence based on a UN General Assembly resolution, yet it is the first to abuse most articles of that organization's Charter in form and essence. Israel ignores resolutions of international legitimacy, whether issued by the Security Council or by the General Assembly.

The military attack on Lebanon perfectly fits into the definition of aggression determined by the United Nations General Assembly resolution of 1974. According to that definitionAggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.

According to Article five of the same resolution, 1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression. 2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility. 3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.

Article seven of the same resolution asserts: “Nothing in this definition… could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration”.

Hezbollah a Grassroots Resistance Movement

Hezbollah was established in the first place as a resistance to the Israeli occupation of Lebanon that resulted from repeated aggressions, especially the occupation of Southern Lebanon in 1978.

 

Israel only withdrew from South Lebanon after 22 years of occupation. It did so not in line with UN Security Council resolution 425 or other resolutions, but under the painful strikes of the resistance. Israel has always showed contempt for all UN resolutions, enjoying growing and continuing diplomatic protection from the United States of America.

 

Israel's insistence on occupying the Shebaa Farms and its refusal to withdraw from them, coupled with its continuous aggression against Lebanon, meant there was a state of war, justifying the existence of a national resistance personified by Hezbollah. Within that context, the resistance captured two Israeli soldiers. This is a legitimate act; especially since its goal is to end the status of detention and arbitrary imprisonment of detainees kidnapped by Israel.

 

Hezbollah is a popular, political and military power that grows because of growing Israeli aggression and because of the organizational and intellectual strength of its leadership. Speaking about the elimination of Hezbollah means only the elimination of a big portion of the Lebanese people, just like speaking about eliminating Hamas means only the elimination of the majority of the Palestinian people.

 

In light of all these considerations, is it acceptable from human rights organizations to keep turning a blind eye to the context, and to equate resistance with an aggressive State known for its addiction to violating international law?! Is it acceptable here to look into the conditions of launching the war without arguing about its illegality as a crime under the terms of international law?!

 

Aggression Requires the Immediate Activation

 of the System of  Collective Security

 

Aggression is considered the mother of all crimes under international law. It leads to, or facilitates, war crimes, crimes against humanity and genocide. Aggression alone demands an immediate activation of collective security measures, especially the intervention of the Security Council using powers given to it under the seventh chapter of the UN Charter; that is resorting, in need, to the use of force to deter aggression. That was the case when Iraq invaded Kuwait. Iraq then was given a deadline by the Security Council to withdraw. Once that deadline expired, the international community was authorized by the Security Council to go to war. That war was led by the United States, in ignorance of the arrangements mentioned in the Charter, and the intervention was carried out on January 17, 1991, to liberate Kuwait and stop the aggression.

 

But liberation has turned into aggression on the Iraqi people since then though. Iraqis were subjected to a fatal and unjust blockade for over a decade. The events of September 11th came to top the aggression. After the war on Afghanistan, an Anglo-American aggression was launched against Iraq in March 2003, this time without any authorization from the Security Council. France had then threatened to veto any UN Security Council resolution authorizing war on Iraq. Since that day, the system of collective security fell apart and the US-British bombs falling on Baghdad then tore this system of collective security apart at the same time.

 

The architects of the system of collective security worked to put into effect a means that allows the UN Security Council to protect weak states that may be subject to aggression by other countries with an aggressive and racist military tendency as was the case with Nazi Germany in the past and as is now the case with Israel. The whole idea is when this type of aggression takes place, an organized collective reaction is to be taken under the UN charter and through the Security Council, according to military arrangements allowing for the cessation of aggression and restoration of peace.

 

 

The United States of America

Destroys the Collective Security System

 

The use of the Security Council for selfish ends by the United States has destroyed the collective security system on three levels:

 

1-     On the one hand, the United States used its veto power to stop the Security Council from intervening to prevent or to end aggression in situations where aggression was obvious, as the case is today;

2-     On the other hand, the United States intervened militarily to commit aggression without authorization from the Security Council;

3-     On a third level, the United States used that political entity – through bargains and horse-trading with other permanent Security Council members – to issue unjust resolutions against some countries or peoples, as was the case with extending the blockade on Iraq or as is the case with imposing the disarmament of resistance through some articles of resolution 1559 issued by the Security Council on Lebanon in 2004.

 

 

The first crime human rights organizations and the

United Nations should raise is the crime of aggression,

in addition to other crimes under international law

 

We repeatedly call on human rights organizations to mobilize for the integration of aggression into the jurisdiction of the International Criminal Court, with the occasion of the upcoming amending conference in 2009, seven years after the activation of the Treaty of Rome. We also remind them that Nazi leaders were tried, among other crimes, for the crime of planning, leading and executing an aggressive war.

 

As regards war crimes and crimes against humanity, in addition to genocide crimes that fall under the jurisdiction of the International Criminal Court, the main element about them all is leading a wide ranging attack against civilian residents through the use of criminal acts that constitute violations of war rules and norms. That includes the Geneva Convention. International humanitarian law states that war crimes are committed in the case of attack against civilians or attack on military targets that inflict more harm on civilians than the targeted military gain. A war crime is also committed when an attack is deliberately launched, with the knowledge that it will cause collateral damage to civilian lives or civilian installations on a wide scale or it will cause wide ranging environmental damage.

 

The major element of crimes against humanity lies in leading a wide ranging attack against civilians through acts engaging deliberate killings and arbitrary evacuation of residents, in addition to inhumane acts that deliberately cause severe suffering or physical, mental or psychological harm. Israel has committed and is committing all these crimes in Lebanon and Gaza at the time these lines are written (27th of July 2006).

 

As regards Hezbollah, it is true that international law prohibits the launching of rockets that may kill civilians randomly. But this is a reaction not to be compared to or equated with the planned aggressive war and the wide-ranging attack with massive firepower used by a state armed to its teeth (Israel) with the support of a superpower (USA). Based on legal standards there can hardly be any talk about war crimes, because Hezbollah is not launching a wide-ranging attack nor is it deliberately targeting civilians. Most Hezbollah causalities are military targets while the vast majority of the victims of Israeli aggression whether Lebanese or Palestinian are civilians including mostly women and children! Israeli response to capture two of its soldiers was by no means proportional or legitimate under international law standards.

 

Towards International Criminal Justice

Without Discrimination

 

It is necessary and a good thing for international criminal justice to be applied to some political and military officials, who were engaged in genocide crimes, war crimes or crimes against humanity and were tried before courts from Nuremburg to Tokyo, Yugoslavia and Rwanda. But it is unfair, unreasonable and illogical for Israeli and US political and military leaders today to remain immune to any accountability or punishment. (Fallujah crimes and other acts in Iraq, in addition to the stark complacency in the Israeli barbaric aggression on Lebanon… We here recall that the United States, prior to Secretary of State Condoleezza Rice's visit to Israel and Lebanon, sent a unique gift to Tel Aviv in the form of intelligent  "laser-guided bombs", as if the Israeli military arsenal was in need of more fatal weapons).

                                       

Intervention by the UN General Assembly and

Signatory States to the Geneva Conventions

 

We all know how paralyzed the Security Council is due to the US stand. Institutions that can intervene politically or legally are the General Assembly and the Secretary-General, including the UN High Commissioner for Human Rights, in addition to the International Court of Justice and the signatory states to the Geneva Conventions.

 

It was supposed that the Security Council would stop the aggression and demand Israel to put an end to it. It was even supposed to go as far as sending a fact-finding mission to look into the occurrence of war crimes and crimes against humanity in Lebanon and Palestine. If that is confirmed, it will have been the duty of the Security Council to refer the file of officials responsible for such crimes to the International Criminal Court as it is allowed by article 13 of Rome Treaty.

 

It is ironic that the United States and Israel should demand an international force today to protect Israel's security despite possessing such military power. On the other hand, Lebanon has nothing but its resistance that is now required to be disarmed and destroyed, bearing in mind that the Lebanese army does not have the necessary tools to defend the country's security.

 

Due to the Security Council not seeing to its duties and USA disabling the collective security system and the international criminal justice system, the General Assembly is to convene in order to practice its role for the sake of peace.

 General Assembly Resolution 377 A (V) of 1953 (uniting for peace) states that:

"if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly should consider the matter immediately with a view to making appropriate recommendations to Members for collective measures..."

 

The General Assembly can adopt a resolution (recommendation) which

1-Call on immediate end of the Israeli aggression;

2- Create Humanitarian corridors and make humanitarian assistance an immediate obligation for the whole UN members and UN system;

3- Ask Secretary General to:

   A-send a commission of enquiry to Lebanon to investigate and document Israeli War crimes and crimes against humanity;

  B- at the light of that, make a proposal for the GA to create an Ad Hoc Criminal Tribunal to prosecute and judge Israeli criminals, (because of the eventual opposition of US to let the Security Council bring the case before The International Criminal Court as it can be under article 13 paragraph b of Rome Statute). As was the case with the Security Council, we believe the General Assembly is entitled to go over the Security Council and take a decision to set up an Ad Hoc Special Criminal Court.

C- Designate a panel of experts to evaluate damages to Lebanon infrastructure and to natural environment (including pollution of marine air and soil environment),

      4- Establish an international fund for reconstruction of Lebanon and reparation for victims. While the contributions should be voluntary for member states, they should be obligatory for Israel as a consequence of UN evaluation (Point C);

  5- Call for all High Parties to Geneva conventions to fulfill their obligation vis à vis Israel in Lebanon and The Occupied Territories, and convene for a conference in Geneva for that end;

6- Call for a comprehensive framework for peace in the Middle East based on Security Council and GA resolutions and taking into account ICJ advisory opinion on The Wall (which is mandatory because it interprets the current international law and Jus Cogens norms, coming from the highest judicial organ of the world community).

 

Yes, that matter requires a diplomatic battle to be fought by the Arab and Islamic blocks with the help of Non-Aligned states (77 Group). We believe most of these countries in the three continents (Africa, Asia and Latin America) will respond positively to these moves. Despite the huge pressures by Washington on Arab governments and on other states, we still believe the General Assembly can, as it did when it asked for the International Court of Justice to rule on the wall, issue a resolution even with a simple majority if most Western states oppose or abstain. The UN Secretary-General, who is known for swallowing his tongue in most cases and engaging in several political settlements that do not go with his task as a watchdog of the UN Charter and international legitimacy, will find himself forced to implement the General Assembly's resolution and to form an investigation team with the tasks and specifications determined by the General Assembly's resolution. It is certain that the committee will conclude that war crimes have been committed. That committee may be chaired by the UN High Commissioner for Human Rights and it may include as members international criminal law specialists, such as professor Sharif Bassiouni, in addition to other experts and public figures known for their honesty and integrity.

 

With regards to the signatory countries to the Geneva Convention, Switzerland, in its capacity as the keeper of the Geneva Conventions, should make an immediate call on the signatory countries to look into the implementation of their obligations by imposing respect of these Conventions and punishing the states that violate them.

 

Israeli Crimes in Palestine

Who needs a partner for peace?

 

The Hamas movement has won fair and transparent elections that were monitored by international observers from Europe and the United States. It is strange that these countries that have been loudly calling for spreading democracy in the Arab world have boycotted the government formed out of those elections.

 

The few democratic experiences in the Arab world, whether in Palestine or Lebanon, are the ones under bombing now by the planes and tanks of Israel’s occupation and with the blessing and support of the United States under the watchful eyes of Europe and the rest of the world.

 

Israel has been claiming it could not find a partner in the peace process. The truth is that Israel does not seek peace, it rather seeks hegemony. Yasser Arafat was the most powerful partner in the peace process as he was the legitimate symbol and representative of the Palestinian people. He was given the Nobel Peace Prize, along with Isaac Rabin. But the war criminal, Ariel Sharon - one of the main officials responsible for the aggressive war on Lebanon in 1982 that left over 30,000 killed under the pretext of exterminating the Palestine Liberation Organization and was also responsible for the Sabra and Shatila massacres- That serial killer, described by his accomplice in war crimes George Bush as “a man of peace,” struck a fatal blockade on Yasser Arafat. The democratically elected President and architect of peace, remained in this humiliating situation, under the watchful eyes of the whole world, until he died, most likely by poison. The truth of the matter is that it is the Palestinians who are the party that cannot find a peace partner.

 

                                                Peace Rejected

 

The Arab world has stretched its hand out to Israel, suggesting consecutive peace proposals; the last of which was offered in the Arab Summit held in Beirut March 2002. The Israeli response to the collective Arab peace initiative was the crushing attack on the Palestinians and committing war crimes in Jenin, Nablus and other Palestinian cities and refugee camps in April 2002. Massacres have not stopped so far. That Israeli response calls to mind its reaction to the peace proposal offered in the Fez Summit of 1982, which was followed by the Sabra and Shatila massacres.

 

When Mahmood Abbas was elected in January 2005 in a fair election as President of Palestine, Palestinians then proved their maturity, patience, and grasp to hope and peace. They gave their votes to one of the most vocal advocates of peaceful co-existence. Yet, Israel and the United States never gave him a chance. They rather took as an excuse the desperate resistance reactions provoked by the ongoing Israeli aggression to weaken the man and destroy all his tools for action. They ask Abbas to condemn the resistance, hit it and destroy its infrastructure even though they had failed, with all their intelligence and military equipment, to do so. They failed despite all operations of assassination and massive and collective repression policies. In this regard, we recall the assassination of Sheikh Ahmed Yassin (the spiritual Leader of Hamas) in an air strike in March 2004. The serial killer Sharon, who bragged about it then, supervised that operation. One month later, the Israeli military cowardice hit another Hamas leader, namely Abdul Aziz Al-Rantissi, who caught up with a long line of Palestinian martyrs, including Abu Ali Mustafa, Abu Jihad Khalil Al-Wazeer and dozens of others.

 

At the same time Israel was asking Mahmood Abbas to strike what it calls “terrorism infrastructure” – a reference to the best freedom fighters and resistance activists of the Palestinian people, it was destroying the infrastructure of Palestinian intelligence and security forces; the very same forces Abbas was supposed to use against activists! It was only natural for Abbas, like Arafat did before, to refuse caving in to vicious and evil demands that could run counter to the best interest of the Palestinian people and that target stirring a civil war among Palestinians.

 

Crimes of International Law in Palestine

In accordance with the 1948 convention, genocide means any of the criminal acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Regardless of genocide crimes that were repeatedly committed in Palestine by Israel or under its supervision, what is taking place today in Gaza – blockade, starvation, suspension of financial payments, obstruction of the passing of passengers and goods at crossing points and targeting civilians and fighters alike, in addition to tearing down houses, striking homes with missiles and imposing a state of economic destruction on the Palestinian people… All these elements perfectly fit the definition of genocide, especially acts of (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

 

The Israeli goal is to force as many people as possible to leave their homes because living there becomes intolerable and their individual and collective security continues to be seriously compromised. On top of all that, Israel speaks about ensuring its security; that is to say denying a whole people their right to self-defense and their right to live.

 

Over five decades of Arab-Israeli conflict, the Jewish state has enjoyed full financial, diplomatic, political and military support. That support went even as far as preventing the United Nations from carrying out its duty of protecting the Palestinian people and imposing respect for international law.

 

Any solution to the current situation that resulted from the Israeli aggression requires, from an international law perspective that it starts with the immediate cessation of aggression following which resolutions of international legitimacy should be implemented. Those resolutions have been frozen for decades now. They include resolution 194 regarding the return of refugees, resolution 242 regarding withdrawal of Israeli occupation from all occupied Arab territories, including Jerusalem, the West Bank, the Gaza Strip and the Golan Heights, in addition to resolution 425 related to total Israeli withdrawal from Lebanon.

 

There are also the International Court of Justice recommendations on stopping Israel’s separation wall, destroying what has been built of it and compensating Palestinians, whose lands were snatched away, in addition to removing all settlements on occupied lands, including East Jerusalem. In respect for the 1949 Fourth Geneva Conventions, international law principles and the recommendations of the International Court of Justice, other countries should not acknowledge the legality of building the separation wall and should work on enforcing the respect of the Fourth Geneva Convention related to the treatment of civilians during armed conflicts.

 

The UN Security Council should see to its tasks and enforce the respect of international law, especially in cases of aggression, and should refer serious violations of human rights to the International Criminal Court as long as they fall under its jurisdiction. If the Security Council is disabled, the General Assembly should take the responsibility of re-establishing the peace and security and sanctioning the most serious violations of human rights mainly the crimes under international law.

 

 

Dr. Abdelaziz Nouaydi