SHAMELESS BBC:
WHEN MISINFORMATION MEANS WAR CRIMES
Exclusive interview with Karen Parker, Chief Counsel of the Association of
Humanitarian Lawyers By Gabriele Zamparini (*)
The BBC News website, in a special page “Q&A: White
phosphorus” and under the title “The BBC News website looks at the
facts behind the row.” reads:
What are the
international conventions?
Washington is not a signatory to any treaty restricting the use of white
phosphorus against civilians.
White phosphorus is covered by Protocol III of the 1980 Convention on
Conventional Weapons, which prohibits its use as an incendiary weapon against civilian
populations or in air attacks against enemy forces in civilian areas.
The US - unlike 80 other countries including the UK - is not a signatory to
Protocol III.
The same BBC News website, in the
article “Iraq
probes US phosphorus weapons” reads:
“Washington is not a signatory to
an international treaty restricting the use of the substance against
civilians.”
I asked Karen Parker, Chief Counsel
of the Association of Humanitarian
Lawyers based in San Francisco to comment on what the BBC reports.
Question: Karen, how do you comment on what the BBC writes?
Answer: The comment “Washington is not a signatory to an international
treaty restricting the use of the substance [WP] against civilians.” assumes
that therefore civilians may be targeted by WP weapons. This is an outrageous
assumption because civilians may NEVER be the target of military operations --
whether using bows and arrows or white phosphorous, or any other weapon. This
rule is not dependent on specific treaties but is a fundamental part of the
laws and customs of war. Protocol III relating to incendiary weapons (of the
Convention on Prohibitions on the Use of Certain Conventional Weapons Which May
Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (1983))
makes all this clear by reinforcing this. While this treaty mainly sets out
rules relating to WP in regards to combatants, it also reinforces the rule
against targeting civilians.
There seems to be some controversy about whether WP might be a chemical weapon
or a poisonous gas weapon and hence prohibited by treaties ratified by the US
relating to these types of weapons. While a technically interesting question,
it deflects attention from the fact that the US forces targeted civilians with
WP and other weapons, both illegal and legal in Falluja. The debate about what
category of weapons WP weapons are is irrelevant to THAT issue. What is
important is to focus on the deliberate targeting of civilians or using weapons
against a legal military target when there is a substantial likelihood of
serious and numerous civilian casualties. Such targeting is a grave breach of
the Geneva Conventions, especially due to the nature of the weapons such as
those containing WP used against them.
While the US may not have ratified certain weapons conventions, this does not
mean that therefore the US may legally use the weapons that are the subject of
such treaties. This is because weapons may be otherwise banned by operation of
existing humanitarian law. Under these rules, a weapon may be considered banned
if: (1) it cannot be contained to the legal field of battle; (2) it cannot be
stopped or cleaned-up when the war is over; (3) it causes "undue
suffering" or "superfluous injury" (terms from The Hague
Conventions of 1899 and 1907 -- echoed in the "Conventional Weapons
Treaty"); or (4) it unduly harms the environment. The nature of WP makes
it difficult to control, so it cannot be contained to legal military targets.
In this sense, it could be banned by operation of international law in urban
areas, as it cannot be sufficiently controlled to the legal field of battle.
Note that the Incendiary Weapons Protocol was intended to limit the use of
these weapons even against combatants because of the "excessively
injurious" issue.
Most specific weapons treaties have provisions that provide for "similar,
but unnamed weapons" that are "analogous" to the names ones. For
example, the 1925 Protocol on Gases has such clauses. WP weapons fit this rule
as either "chemical" or "gases" by analogy.
Q. The US government has just admitted to have used WP in Fallujah as a
weapon. What’s your comment on this?
A. It is very disturbing that the US lied for a number of months about
the use of WP in Falluja, and only came forward with an admission of use after
clear evidence. While combatant forces are allowed to withhold certain
information from the general public at certain times, the US apparently lied to
US Members of Congress and other officials. This is especially disturbing
because the use of WP in urban areas is prohibited by operation of law. In this
sense, the US was covering up war crimes.
Q. Which other WMD - if any - have been used by the US in Iraq?
A. The US has used weapons containing depleted uranium (DU) in both the
first and second Gulf Wars. DU weapons also fail the test set out above, as
attested by the UN Sub-Commission on the Promotion and Protection of Human
Rights in its resolutions and reports on this issue. Both the UN Secretary
General and a Sub-Commission expert, Chief Justice Sik Yuen (Supreme Court,
Mauritius) addressed this issue in their reports, that concurred with my prior
assessment, submitted to the UN Commission on Human Rights and its expert body,
that DU weapons are illegal.
I also understand that napalm may have been used in Iraq. At present, I have
not been able to verify this conclusively.
Q. What should the international community do now and what you and your organization
are doing?
A. My organization, the Association
of Humanitarian Lawyers, has filed a legal action against the US at the
Organization of American States for attacking hospitals and medical facilities
in Falluja and for using illegal weapons in those attacks. For details, please
see www.humanlaw.org. Obviously, this
lawsuit needs to be fully supported, and I welcome help in that regard. In
addition, however, we at AHL are trying to set up a "conclave" of
attorneys to look at both this and a number of other legal challenges to the
way that the US has conducted military actions in Iraq. I would hope to look at
illegal weapons, illegal military operations and a wider variety of
humanitarian law violations than just torture. I would also hope to look at the
"anticipatory" agreements that the US pushed with a number of
European and other governments in which the signatory States agreed to NOT
bring the US to either the International Criminal Court (not possible anyway,
as the US has not ratified the treaty) or to its own domestic Courts as
mandated by the Geneva Conventions. These "anticipatory" treaties are
"void" as they violate the Geneva Conventions and basic principles of
international law, but they need to be judicially challenged. Such challenges
are very expensive and economically beyond the reach of human rights
organizations such as ours. One reason to force these agreements is that there
are no funds to challenge them. So "they" win by default. This is
tragic.
Q. How the antiwar movement may help?
A. The anti-war movement can help by making certain that they understand the
gravity of the breaches of international law. This is not a "rogue
elephant" situation -- this is a herd of rogue elephants. The US, and to a
lesser extent the UK, are decimating the Geneva Conventions and all other rules
of the laws and customs of war. It is shocking that most MP and Members of US
Congress do not even know the rules: they are willing to send their citizens to
die, but don't know the rules. It doesn't get any worse than this. The anti-war
movement could also help to raise funds for legal actions. Yes, we must be in
the streets, but we must also be in the courthouse. There simply must be legal
challenges to these egregious violations. For those interested in helping in my
Association of Humanitarian Lawyers action against the US at the OAS, please
feel free to contact me at ied@igc.org or reb@xcaretresearch.com. And as
stated, we are interested in holding a conference for attorneys who are ready,
willing and able to take on the US in national and regional and UN forums.
To know more:
Association of Humanitarian Law
154 Fifth Avenue
San Francisco, CA 94118 USA
Telephone: + 1 (415) 465-9900
http://www.humanlaw.org/
(*) Gabriele Zamparini is an
independent filmmaker and freelance writer living in London. He's the producer
and director of the documentaries XXI CENTURY and The Peace! DVD and author of
American Voices of Dissent (Paradigm Publishers). He can be reached at
info@thecatsdream.com