Attached are:
1. The Human
Rights
Council Annual Review of Israel
2. The Combined
report of
the Special Rapporteur on the right of everyone to the enjoyment of the
highest
attainable standard of physical and mental health, the Special
Representative
of the Secretary-General for Children and Armed Conflict (see p. 35), Special
report on Gaza and southern Israel prepared by the Special
Representative of
the Secretary-General for Children and Armed Conflict
Pasted below, with
hyperlinks,
are:
3. Links
to recent Amnesty
International Reports on Gaza
4. Reuters:
UN's Falk: Israel committed
war crimes in Gaza
5. Reports
on Richard Falkâs
report in the media
6. Interview
with Richard Falk
7. HUMAN RIGHTS SITUATION
IN PALESTINE
AND OTHER OCCUPIED ARAB TERRITORIES: Report of the Special Rapporteur on the
situation of
human rights in the Palestinian territories occupied since 1967,
Richard Falk
8.
Link
to OCHAâs Field up-date on Gaza
from the Humanitarian Co-ordinator | 17 - 23 March 2009
3. Amnesty Reports:
http://www.amnesty.org/en/region/israel-and-occupied-territories#news
Palestinian armed
groups and the
Israeli authorities are denying prisoners their rights, including
Israeli
soldier Gilad Shalit, who has been held for 1000 days ...
A group of 16 of the
world's
leading war crimes investigators and judges - backed by Amnesty
International -
has urged the United Nations to launch a full inquiry ...
In the Middle East and North Africa region, human rights defenders are
all too
often vilified, persecuted and even criminalized for their peaceful
activities.
This ...
Both Israel and Hamas
used weapons
supplied from abroad to carry out attacks on civilians, Amnesty
International
said today as it released fresh evidence on the ...
Both Israel
and Hamas used weapons
supplied from abroad to carry out attacks on civilians. This briefing
contains
fresh evidence on the munitions used during the ...
Both Israel
and Hamas used
foreign-supplied weapons to attack civilians according to fresh
evidence
released by Amnesty International.
With fragile ceasefires
now in
place in Gaza and southern Israel,
the
full extent of the devastation caused in the recent conflict is
becoming
increasingly clear.
United Nations
Secretary-General
Ban Ki-Moon has been urged tobroaden an investigation of attacks on UN
installations in Gaza.
United Nations
Secretary-General
Ban Ki-Moon has been urged to broaden an investigation of attacks on UN
installations in Gaza.
Return to the top
4. UN's Falk: Israel committed war crimes in Gaza
|
Gaza
Aftermath
|
|
 Falk
- 'Inhumane form of warfare' Photo: AFP
|
Citing
casualty
figures presented by Palestinian center, United Nations special
rapporteur on
human rights asserts Israel
violated Geneva Conventions in recent
operation
against Hamas, Reuters, 19th March, 2009
A United Nations human rights investigator said on Thursday that Israel's military assault on densely
populated Gaza
appeared to
constitute a grave war crime.
Richard
Falk, UN special
rapporteur on human rights in the Palestinian territories, said the
Geneva
Conventions required warring forces to distinguish between military
targets and
surrounding civilians.
"If it
is not possible to do
so, then launching the attacks is inherently unlawful and would seem to
constitute a war crime of the greatest magnitude under international
law,"
Falk said.
"On the
basis of the
preliminary evidence available, there is reason to reach this
conclusion,"
he wrote in an annual 26-page report submitted to the UN Human Rights
Council.
Falk
gave the same death toll from
Israel's
offensive in December and January - 1,434 Palestinians, including 960
civilians
- as the Palestinian human rights center.
Israel, which lost 13
people during
the war, disputes the figures and has accused Hamas fighters in Gaza of using
civilians
as human shields during the conflict - an allegation which Falk said
should be
investigated.
He
called the Israeli attacks a
"massive assault on a densely populated urbanized setting" in which
the entire civilian population had been subjected to "an inhumane form
of
warfare that kills, maims and inflicts mental harm".
"As all
borders were sealed,
civilians could not escape from the orbit of harm," he said.
This
denial of people's right to
flee the war zone as refugees may also constitute a crime against
humanity, he
said.
War
crimes probe
Falk
called for an independent
experts group to probe possible war crimes committed by both Israeli
forces and
Hamas. It should gather eyewitness testimony as well as explanations
from
Israeli and Palestinian military commanders.
Violations
included Israel's
alleged "targeting of schools, mosques and ambulances" during the
offensive, which lasted from Dec. 27 to Jan. 18, and its use of weapons
including white phosphorus, as well as Hamas' firing of rockets at
civilian
targets in southern Israel.
Falk
said that Israel's
blockade of the coastal strip of 1.5 million people violated the Geneva
Conventions and this suggested further war crimes and possibly crimes
against
humanity.
The
aggression was not legally
justified and may represent a "crime against peace" - a principle
established at the Nuremberg
trials of Nazi war criminals, according to Falk, an American law
professor who
serves as the Human Rights Council's independent investigator.
Falk
suggested the Security
Council might set up an ad hoc criminal tribunal to establish
accountability
for war crimes in Gaza, noting Israel has not signed the Rome statutes
establishing the International
Criminal Court.
He was
denied entry to Israel
two weeks before the assault started,
forcing him to abort a planned mission to Gaza.
In his report, he said that the refusal had set an "unfortunate
precedent" for treatment of a special rapporteur.
On
Monday, he is to present his
report formally to the Human Rights Council, a 47-member forum where
Islamic
and African countries backed by China,
Cuba and Russia
have a
majority. Neither Israel
nor
its chief ally the United
States are members.
Return to the top
5. Reports on Richard Falkâs report
in the media:
WASHINGTON
POST (Reuters) [see above]
U.N. rights envoy sees Israeli war crimes in Gaza
GENEVA
(Reuters) - A United Nations human
rights investigator said on Thursday that Israel's
military assault on densely populated Gaza
appeared to constitute a grave war crime. Richard Falk, U.N. special
rapporteur
on human rights in the Palestinian territories, said the Geneva
Conventions required
warring forces to distinguish between military targets and surrounding
civilians. "If it is not possible to do so, then launching the attacks
is
inherently unlawful and would seem to constitute a war crime of the
greatest
magnitude under international law," Falk said. "On the basis of the
preliminary evidence available, there is reason to reach this
conclusion,"
he wrote in an annual 26-page report submitted to the U.N. Human Rights
Council...
www.washingtonpost.com/wp-dyn/content/article/2009/03/19/AR2009031902078.html
AL
JAZEERA
Gaza
offensive possible 'war crime'
The
United Nations special rapporteur on human rights in the Palestinian
territories
has said Israel's
military
offensive on Gaza
"would seem to constitute a war crime of the greatest magnitude under
international law". Richard Falk calls the Israeli attacks a
"massive assault on a densely populated urbanised setting", with the
civilian population subjected to "an inhumane form of warfare that
kills,
maims and inflicts mental harm"...
http://english.aljazeera.net/news/middleeast/2009/03/200932035423101519.html
HAARETZ
UN envoy: Gaza
op seems to be war crime of greatest magnitude
A
United Nations human rights investigator said on Thursday that Israel's offensive against Hamas in
densely
populated Gaza
appeared to constitute a war crime of the "greatest magnitude."
Richard Falk, UN special rapporteur on human rights in the Palestinian
territories, said the Geneva Conventions required warring forces to
distinguish
between military targets and surrounding civilians. "If it is not
possible
to do so, then launching the attacks is inherently unlawful and would
seem to
constitute a war crime of the greatest magnitude under international
law,"
Falk said...
http://www.haaretz.com/hasen/spages/1072481.html
Return to the top
6. Palestinians are winning the
legitimacy war: interview with Richard
Falk
Professor
Richard Falk is the United Nations Special Rapporteur for Human Rights
in the Occupied
Palestinian Territories.
He is world-renowned as an authority on international law and has
authored and
co-authored 20 books. Recently, Professor Falk has focused much of his
attention on the Israeli massacres in Gaza, alleging that Israel`s
actions are
constitutive of both violations of the laws of war and indicative of
crimes
against humanity. This is the transcript of a phone interview with him
from his
home in Santa Barbara,
California.
Can you begin by explaining the reasons why you believe
that
Israel
is guilty of war crimes and crimes against humanity?
Well
that`s a big question of course. I think that the attack on Gaza initiated
on December 27th of last year
was a violation of a fundamental norm of the UN Charter, which
prohibits
non-defensive uses of force. At the Nuremburg trials after World War
II, that
was treated as a crime against the peace, which was viewed as the most
serious
of all international crimes.
Following
from the attack itself, which was not a justifiable use of force, is
the whole
question of whether the use of modern weapons in a setting where the
civilian
population is exposed to the ravages of war can ever be reconciled with
the
international law of war. I believe it cannot be. That conclusion is
somewhat
controversial, it hasn`t been formally tested in an international
tribunal, but
I think the inability to prevent civilian casualties has clearly been
established by the results of the attacks on Gaza.
Beyond
the actual physical death and injury endured by Palestinians, including
many
women and children, is the wider reality that being trapped in a war
zone of
that sort almost certainly imposes severe and maybe incurable mental
damage to
the entire population. So it is a matter of waging war against a whole
civilian
population. That is, it seems to me, the essence of the most serious
violation
of the law of war. And it was aggravated in this situation because the
civilians in Gaza
were not even given the option to become refugees. They were locked in
the war
zone and therefore deliberately trapped in this combat area, which was
so
densely populated and being attacked from the sea and the air and by
land.
Finally
is the issue of the tactics and weapons that were used. There is a lot
of
eye-witness evidence that prohibited targets were struck, including
several UN
buildings; that civilians were deliberately targeted in an act of
vengeance,
apparently; and that legally dubious weapons were used in contexts
where
civilians were exposed to them, such as phosphorous bombs and a weapon
called
DIME, which involves a very intense explosive power that makes surgical
and
medical treatment impossible. So there`s a whole bunch of issues that
together
create quite an inventory of violations of the law of war as well as
violations
of the UN Charter.
Considering geopolitical realities today, do you think
there`s a chance that Israeli leaders will be brought to justice in any
way,
shape or form?
I
am skeptical at this point as to whether the intergovernmental
framework of
world politics has the capacity to impose legal responsibility on Israel
or on
its civilian and political leaders. And I don`t think the UN is likely
to do
anything significant although they have called for investigations of
these
allegations of war crimes and will give, I think, some further
documentation to
those allegations. But I am not very optimistic about implementing
those
reports by taking steps to impose accountability.
There
are two areas where there is some prospect of a development that would
move in
this direction. One is indicated by the national court system in Spain
that has
encouraged the prosecution of thirteen leading Israeli political and
military
officials. That at least establishes a legal claim by a governmental
institution giving added credibility to the allegations. It`s doubtful
whether
it can be operationalized in terms of real prosecution, but it probably
will
prevent prominent Israelis at any rate from visiting Spain, and it will
inhibit
their travel plans.
The
other possibility that I think is quite likely to take some form is the
organization by civil society of citizen tribunals that will
investigate these
allegations and reach a judgment that can`t be enforced in a typical
way but
has a considerable symbolic weight. This will be influential for
activists
around the world who are already pursuing efforts to impose boycotts,
encourage
divestment from companies doing business in Israel,
and encouraging their
governments to consider sanctions. So I think one shouldn`t overlook
the civil
society impact of this dimension of concern about the criminality of
what
Israel did in its attacks on Gaza, and that that criminality has
contributed to
the mobilization of people around the world in solidarity with the
Palestinian
struggle. One needs to remember that that is eventually what turned the
tide in
South Africa
and led to the victory of the anti-apartheid movement. It wasn`t a
victory that
was one by force of arms. It was a victory in what I call the second
war, the
legitimacy war, which eventually isolated South Africa in such a way
that it
internally transformed its constitutional and political system in a way
that
met the demands of international society.
As
you may be aware, a couple weeks ago over 40 cities in the world took
part in
the series of events called Israeli Apartheid Week. What`s your sense
of the
use of the term âapartheidâ to depict what is going on in
Israel/Palestine? Would you say that Israel is also guilty of
the
international crime of apartheid?
Well
I think that first of all, that event involving 40 cities is itself an
illustration of the degree to which the Palestinians are winning the
legitimacy
war. That would not have happened a year ago much less five years ago.
So
symbolically, again, this is a very important development, independent
of how
literally that analogy should be pursued. I think that there is some
mobilizing
effect of using that analogy but there`s also some alienating effects,
so it`s
very hard to know whether that`s a tactically useful language to use.
Each
situation has its originality. There are certainly resemblances that
South
African victims of apartheid have noted and there are dissimilarities.
This is
a military occupation that has its own characteristics that shouldn`t
be
overlooked such as the imposition of the settlements on the West Bank
or the
continuing blockade of Gaza.
So I think that it is not inappropriate to use the analogy between the
situation confronting the Palestinians and the anti-apartheid struggle
in South Africa.
But I find it less useful than to focus directly on the realities of
the
occupation as it affects the daily lives of the Palestinian people.
As you were mentioning, the settlements have become a
major
problem. There are now about a half million settlers living in the
occupied
West Bank, not to mention the recently unveiled plans to double that
number.
Meanwhile, the international community remains steadfast on pushing for
a
two-state solution despite the seemingly irreversible physical
realities on the
ground. Given this, in which direction do you suppose supporters of a
just
solution should proceed at this point?
It`s
a difficult question because both obvious paths of solution, two-state
or
one-state, seem very difficult to understand in regards to how one
proceeds
from the present reality to that solution. There`s no doubt that the
further
expansion of the settlements, if it actually takes place, represents
the death
of the two-state solution. Even without the expansion, it seems very
difficult
to implement a two-state solution without dismantling a substantial
portion of
the existing settlements. At the same time, many people feel that no
Israeli
leadership would have the political will or capacity to implement such
an
approach, even if it was itself desirous of moving in that direction.
But to
expand the settlements, especially so massively, not only exhibits
defiance of
the international will on such a question, but it also is a repudiation
of the
Quartet peace process that had rested in part on a settlement freeze,
which Israel
consistently has ignored.
So
I think if this expansion is not opposed effectively by the United States
and by the Quartet, it represents the end of the Quartet peace process.
This
would introduce a new phase in the diplomatic approach to some sort of
solution
and would bring the one-state alternative into sharper focus. But
there, one
would have to think about whether there is a way to achieve a one-state
solution that doesn`t involve the abandonment of Zionism by the Israeli
leadership, because that would seem again to be beyond the realm of
feasible
politics. No foreseeable Israeli leadership would consent to renouncing
Zionism
as the basis of their governing process. If any leader were to do so,
it is
unlikely that he or she could survive politically and possibly even
physically.
Since being appointed UN Special Rapporteur you`ve been
refused entry into Israel.
Will you try again with the new government once it is formed?
I
will certainly explore the possibility. I would like to be able to
carry out my
role in a responsible way, which would involve visiting the West Bank
and Gaza
and meeting with
people and their leaders there. I`m not very optimistic that a change
of
government in Israel
will result in a change in policy toward my admissibility, but I will
certainly
do my best to carry out this job as well as I can.
Return to the top
7. Report
|
UNITED
NATIONS
|
|
A
|
|
|
General
Assembly
|
Distr.
GENERAL
A/HRC/10/20
17 March 2009
Original: ENGLISH
|
HUMAN RIGHTS COUNCIL
Tenth session
Agenda Item 7
HUMAN
RIGHTS SITUATION IN PALESTINE AND
OTHER OCCUPIED ARAB
TERRITORIES
Report
of the Special Rapporteur on the situation of human rights
in the Palestinian territories occupied since 1967, Richard Falk
Summary
In the light of
resolution S-9 adopted by the Human Rights Council at its ninth special
session, the present report of the Special Rapporteur on the situation
of human
rights in the Palestinian territories occupied since 1967 focuses on
the main
international law and human rights issues raised by Israel military
operations
commencing on 27 December 2008 and ending on 18 January 2009. He
challenges the
widespread emphasis on whether Israeli force was disproportionate in
relation
to Palestinian threats to Israeli security, and focuses on the prior
question
of whether Israeli force was legally justified at all. He concludes
that such
recourse to force was not legally justified given the circumstances and
diplomatic alternatives available, and was potentially a crime against
peace.
The Special Rapporteur
also gives relevance to the pre-existing blockade of Gaza, which was
in massive violation of the
Fourth Geneva Convention, suggesting the presence of war crimes and
possibly
crimes against humanity. He considers the tactics pursued during the
attacks by
both sides, condemning the firing of rockets at Israeli civilian
targets, and
suggests the unlawfulness of disallowing civilians in Gaza to have an
option to leave the war zone
to become refugees, as well as the charges of unlawful weapons and
combat
tactics. He recommends that an expert inquiry into these matters be
conducted
to confirm the status under international law of war crimes
allegations, and to
consider alternative approaches to accountability.
Finally, the Special
Rapporteur insists that Israeli security and the realization of the
Palestinian
right of self-determination are fundamentally connected, and that the
recognition of this aspect of the situation suggests the importance of
an
intensified diplomatic effort, respect by all parties of relevant
international
law rights, and implementation of the long deferred Israeli withdrawal
from
occupied Palestine as initially prescribed by the Security Council in
its
resolution 242 (1967). Until such steps are taken the Palestinian right
of
resistance within the limits of international humanitarian law and
Israeli
security policy will inevitably clash, giving rise to ever new cycles
of
violence. The Special Rapporteur also recommends action in response to
the
denial by Israel
of entry to him on 14 December 2008.
CONTENTS
Paragraphs Page
I.
Introduction
................................................................................................
1-2
II. INTRODUCTORY
CLARIFICATIONS..............................................................
3-6
III. INHERENT
ILLEGALITY:
LEGALLY MANDATORY DISTINCTION.................. 7-10
BETWEEN CIVILIAN AND
MILITARY TARGETS IMPOSSIBLE IN
LARGE SCALE SUSTAINED
ATTACKS ON GAZA AS COMMENCED
BY ISRAEL
ON 27
DECEMBER 2008
...............................................................
IV. NON-EXHAUSTION OF
DIPLOMATIC REMEDIES....................................... 11-17
V. REFUGEE
DENIAL........................................................................................
18-24
VI. EXPERT INQUIRY ON
WAR CRIMES...........................................................
25-39
A.
Scope
of the
inquiry......................................................................
25-30
B.
Applicable
international criminal law..........................................
31-35
C.
Availability
of mechanisms of accountability...............................
36-39
VII, THE BROADER
SETTING OF THE
ATTACKSâŠâŠâŠâŠâŠâŠâŠâŠâŠ...................... 40
VIII.
RECOMMENDATIONS.........................................................................
41
I.
Introduction
1.
The present report
does not have benefit from a recent mission to Gaza. Such a mission was planned and
attempted in mid-December 2008, but was not carried out due to the
denial of
entry to the Special Rapporteur on the situation of human rights in the
Palestinian territories occupied since 1967. The mission was to include
a visit
to the West Bank and East Jerusalem,
and was
supposed to commence with a scheduled meeting with the President of the
Palestine Authority, Mahmoud Abbas. Entry was denied on 14 December
2008, the
Special Rapporteur was detained in a facility close to Ben
Gurion Airport,
then expelled from Israel
the day after. Such a refusal to cooperate with a United Nations
representative, not to mention the somewhat humiliating treatment
accorded
(detention in a locked and dirty cell with five other detainees and
excessive
body search), has set an unfortunate precedent with respect to the
treatment of
a representative of the United Nations Human Rights Council, and more
generally
of the United Nations itself. This precedent should be seriously
challenged for
the sake of both the mandate and more broadly, to ensure that in future
Member
States accord appropriate respect and cooperation with official United
Nations
missions and activities. One possible form of challenge would be to
seek an
advisory opinion from the International Court of Justice as to the
applicability of the Convention on the Privileges and Immunities of the
United
Nations. Since such an approach, even if undertaken, would not produce
a result
in the near future, it would also be important to seek a modification
as soon
as possible to the position of Israel
via diplomatic channels.
2.
The expulsion of
the Special Rapporteur made information gathering on the ground
impossible. In
the light of resolution S-9/1 of the Human Rights Council adopted at
theist
ninth special session, the report will focus on the main international
law
issues raised by Israel
military operations commencing on 27 December 2008 and ending on 18
January
2009. It also considers implications for international criminal law,
and
discusses the underlying debate as to whether the attacks themselves
were
violations of the Charter of the United Nations, and international law.
This
broader inquiry is perhaps not strictly within the ambit of the
mandate
as a distinct subject matter, but its resolution bears directly on the
interpretation of alleged violations of international humanitarian and
human
rights law, which in turn underpin contentions of war crimes and crimes
against
humanity, as well as implications for accountability and individual
criminal
responsibility.
II.
INTRODUCTORY CLARIFICATIONS
3.
A conceptual
complexity arises from the nature of the participants in this conflict
with
respect to international law. International law governing the use of
force has
developed over time to regulate the behaviour of States in their
relations with
one another. Without in any way questioning the unity of the occupied
Palestinian Territory, it is important to come to terms with the
reality of
Gaza as sealed off from the rest of occupied Palestine and not directly
represented, given its present administrative structure, in
international
diplomatic arenas, such as the donorsâ conference at Sharm-al-Sheikh or
in the United Nations. At the same time, the purposes of international
law
governing force is concerned with the protection of peoples and the
preservation of peace, a sentiment echoed in Article 2 paragraph 4 of
the
Charter extended beyond relations among States by the phrase âor in any
other manner inconsistent with the purposes of the United Nationsâ. In
the enumeration of purposes of the United Nations, Article 1 paragraph
1
affirms the obligation to resolve disputes by peaceful means âin
conformity with the principles of justice and international lawâ. These
provisions, if read in the light of the Preamble to the Charter,
clearly
condition an assessment of any use of force in international relations
that
extends beyond the limits of territorial sovereignty. The decision of
the
International Court of Justice in the Nicaragua case extended
this
reasoning with regard to the inhibitions on defensive claims to use
force to
general international law beyond the framework of the Charter.
4.
With regard to Gaza there is a further concern with respect to
the nature
of the legal obligations of Israel
towards the Gazan population. Israel
officially contends that after the implementation of its disengagement
plan in
2005 it is no longer an occupying power, and therefore is not
responsible for
observance of the obligations set forth in the Fourth Geneva
Convention. That
contention has been widely rejected by expert opinion, by the de facto
realities of effective control, and by official pronouncements by for
instance
the United Nations High Commissioner for Human Rights and the
Secretary-General
(A/HRC/8/17), the General Assembly in its resolutions 63/96 and 63/98
and the
Security Council in its resolution 1860. Since 2005, Israel
has completely controlled
all entry and exit routes by land and sea and asserted control over
Gazan
airspace and territorial waters. By imposing a blockade, in effect
since the
summer of 2007, it has profoundly affected the life and well-being of
every
single person living in Gaza.
Therefore, regardless of the international status of the occupied
Palestinian
territory with respect to the use of force, the obligations of the
Fourth
Geneva Convention, as well as those of international human rights law
and
international criminal law, are fully applicable.
5.
The final
introductory clarification concerns the relations of international
human rights
law and international humanitarian law to international criminal law.
Not every
violation of human rights or infraction of the Geneva conventions constitutes a war
crime or
a crime of State. Moreover, criminal intent, by way of mental attitude
or
through circumstantial evidence, must be established. In essence,
âgrave
breachesâ of the Geneva Conventions as defined in article 147 of the
Fourth Geneva Convention normally provide a legal foundation for
allegations of
war crimes. It is to be noted that the role of international criminal
law is to
identify and implement the fundamental obligations of international
humanitarian law in wartime, but also to take account of severe
violations of
human rights arising from oppressive patterns of peacetime governance.
6.
The recommended
scope of investigation should combine attention to violations of
international
humanitarian law, the laws of war, and general international law
(treaty and
customary) as it bears on the rights and duties of Israel as the
occupying
Power, and Hamas as the party exercising effective political control in
Gaza at
the present time. It is to be expected that Israel would cooperate with
any
investigation authorized by the United Nations in accordance with its
obligations as a Member State under Article 56 of the Charter of the
United
Nations calling upon members to cooperate with the Organization, as
well as the
additional duties contained in the Convention on the Privileges and
Immunities
of the United Nations. It is disquieting, however, to read that Prime
Minister
Ehud Olmert and other Israeli high officials have made formal
statements to the
effect of taking all necessary steps to protect any member of the
Israel
Defense Forces from being accused, and, if excused, to prevent
indictment and
prosecution.[1]
Such sentiments seem inconsistent with any expectation of serious
official
cooperation with a proposed investigation. It may be necessary, given
this
prospect, to place greater reliance on respected nongovernmental
organizations
compiling evidence and submitting reports, and on formal interviews
with
qualified observers and witnesses.
III.
Inherent Illegality: Legally mandatory distinction
between civilian and military targets impossible in large scale
sustained
attacks on Gaza as commenced by Israel
on 27 december 2008
7.
It is the view of
the Special Rapporteur that the most important legal issue raised by an
investigation of the recent military operations concerns the basic
Israeli
claim to use modern weaponry on a large scale against an occupied
population
living under the confined conditions that existed in Gaza. This
involves trying to establish
whether, under the conditions that existed in Gaza, it is possible with sufficient
consistency to distinguish between military targets and the surrounding
civilian population. If it is not possible to do so, then launching the
attacks
is inherently unlawful, and would seem to constitute a war crime of the
greatest magnitude under international law. On the basis of the
preliminary
evidence available, there is reason to reach this conclusion.
8.
Considering that
the attacks were directed at densely populated areas, it was to some
extent
inevitable and certainly foreseeable that hospitals, religious and
educational
sites and United Nations facilities would be hit by Israeli military
ordinance,
and that extensive civilian casualties would result. As all borders
were
sealed, civilians could not escape from the orbit of harm. For
authoritative
and more specific conclusions on these points, it will be necessary to
mount an
investigation based on knowledge of Israeli weaponry, tactics and
doctrine to
assess the degree to which, in concrete cases, it would have been
possible,
given the battlefield conditions, to avoid non-military targets and to
spare
Palestinian civilians to a greater extent. Even without this
investigation, on
the basis of available reports and statistics, it is possible to draw
the
important preliminary conclusion that, given the number of Palestinian
civilian
casualties and degree of devastation of non-military targets in Gaza,
the
Israelis either refrained from drawing the distinction required by
customary
and treaty international law or were unable to do so under the
prevailing
combat conditions, making the attacks impossible to reconcile with
international law. On the basis of existing information, the principal
results
of the military operation were as follows:
(a) A
total of 1,434
Palestinian were killed. Of these, 235 were combatants. 960 civilians
reportedly lost their lives, including 288 children and 121 women. 239
police
officers were also killed; the majority (235) in air strikes carried
out the
first day. 5,303 Palestinians were injured, including 1,606 children
and 828
women (namely 1 in every 225 Gazans was killed or injured, not counting
mental
injury, which must be assumed to be extensive);[2]
(b) Homes
and public
infrastructure throughout Gaza, especially in Gaza City, sustained
extensive
damage, including several United Nations facilities; an estimated
21,000 homes
were either totally destroyed or badly damaged;
(c) A
total of 51,000
people were internally displaced in makeshift shelters that provided
minimal
protection, while others fled to homes of friends and relatives that
seemed
slightly safer.[3]
9.
There is no way to
reconcile the general purposes
and specific prescriptions of international humanitarian law with the
scale and
nature of the Israeli military attacks commenced on 27 December 2008.
The
Israeli attacks with F-16 fighter bombers, Apache helicopters,
long-range
artillery from the ground and sea were directed at an essentially
defenceless
society of 1.5 million persons. As recent reports submitted to the
Council by
the Special Rapporteur emphasized, the residents of Gaza were
particularly
vulnerable to physical and mental damage from such attacks as the
society as a
whole had been brought to the brink of collapse by 18 months of
blockade that
restricted the flow of food, fuel, and medical supplies to
sub-subsistence
levels and was responsible, according to health specialists, for a
serious
overall decline in the health of the population and of the health
system. Any
assessment under international law of the attacks of 27 December should
take
into account the weakened condition of the Gazan civilian population
resulting
from the sustained unlawfulness of the pre-existing Israeli blockade
that
violated articles 33 (prohibition on collective punishment) and 55
(duty to
provide food and health care to the occupied population) of the Fourth
Geneva
Convention. Considering the obligation of the occupying Power to care
for the
well-being of the civilian occupied population, mounting a
comprehensive attack
on a society already weakened by unlawful occupation practices would
appear to
aggravate the breach of responsibility described in the above owing to
the
difficulties of maintaining the principle of distinction.
10.
The deputy head of
the embassy of Israel
at the
European Union, Ambassador Zvi Tal, during discussions with a committee
of the
European Parliament, sought to defend the attacks on Gaza by
describing them as addressing
âa very peculiar situation.â In responding to allegations about the
bombing of United Nations schools in Gaza,
he was quoted as saying: âSometimes in the heat of fire and the
exchange
of fire, we do make mistakes. We're not infallible.â This is deeply
misleading in its characterization of the war zone. It is not a matter
of
mistakes and fallibility, but rather a massive assault on a densely
populated
urbanized setting where the defining reality could not but subject the
entire
civilian population to an inhumane form of warfare that kills, maims
and
inflicts mental harm that is likely to have long-term effects,
especially on
children that make up more than 50 per cent of the Gazan population.
IV.
Non-exhaustion of diplomatic remedies, DISPROPORTIONALITY,
NON-DEFENSIVE nature
OF the ATTACKS
11.
It is a
requirement of international customary law, as well as of the Charter
of the
United Nations, Article 2 paragraph 4 interpreted in the light of
Article 1
paragraph 1 that recourse to force to resolve an international dispute
should
be a last resort after the exhaustion of diplomatic remedies and
peaceful
alternatives, even in circumstances where a valid claim of self-defence
exists,
absent a condition of urgency, assuming for the moment that an
occupying power
can ever claim a right of self-defense (for doubt about the
availability of
such a claim see para 28).[4]
In the context of protecting Israeli society from rockets fired from Gaza, the
evidence
overwhelmingly supports the conclusion that the ceasefire in place as
of 19
June 2008 had been an effective instrument for achieving this goal, as
measured
by the incidence of rockets fired and with regard to Israeli casualties
sustained.
12.
The graph below,
based on Israeli sources, shows the number of Palestinian rockets and
mortar
shells fired each month in 2008, with the period of the ceasefire
stretching
basically from its initiation on 19 June to its effective termination
on 4
November when Israel
struck
a lethal blow in Gaza
that reportedly killed at least six Hamas operatives. It dramatically
demonstrates the extent to which the ceasefire was by far the most
secure
period with respect to the threats posed by the rockets:
13.
The authors of a
study based on the data displayed in the graph above[5]
concluded that âthe ceasefire was remarkably effective; after it began
in
June 2008, the rate of rocket and mortar fire from Gaza dropped to almost zero, and
stayed there
for almost four months.â The experience of the temporary ceasefire
demonstrates both the willingness and the capacity of those exerting
control in
Gaza to
eliminate rocket and mortar attacks.
14.
Beyond this,
records show that, during the ceasefire, it was predominantly Israel
that
resorted to conduct inconsistent with the undertaking, and Hamas that
retaliated. According to the above-mentioned study, during a longer
period,
from 2000 to 2008, it was found that, in 79 per cent of the violent
interaction
incidents it was Israel
that broke the pause in violence. In the course of events preceding the
attacks
of 27 December, the breakdown of the truce followed a series of
incidents on 4
November in which Israel killed a Palestinian in Gaza, mortars were
fired from
Gaza in retaliation, and then an Israeli air strike was launched that
killed an
additional six Palestinians in Gaza; in other words, the breakdown of
the
ceasefire seems to have been mainly a result of Israeli violations,
although
this offers no legal, moral or political excuse for firing of rockets
aimed at
civilian targets, which itself amounts to a clear violation of
international
humanitarian law.
15.
Furthermore, Hamas
leaders have repeatedly and formally proposed extending the ceasefire,
including for long periods. Khalid Mish'al writing in The Guardian on
January
6, 2009 said âWhen this broken truce neared its end, we expressed our
readiness for a new comprehensive truce in return for lifting the
blockade and
opening all Gaza
crossings, including Rafah.â It is notable that the President of the USA, Barack Obama, has called for this
result in
a statement accompanying his appointment of George Mitchell as Special
Envoy on
the Israel/Palestine conflict: âAs part of a lasting ceasefire, Gaza's border
crossings
should be open to allow the flow of aid and commerce.â This assertion
is
consistent with the call made by the Security Council in its resolution
1860
(2009) for âunimpeded provision and distribution throughout Gaza of
humanitarian assistance, including food, fuel, and medical treatment,â
which in effect prescribes the end of the blockade of Gaza that has
been
maintained by Israel in violation of articles 33 and 55 of the Fourth
Geneva Convention.
16.
The continuing
refusal of Israel
to acknowledge Hamas as a political actor, based on the label of
âterrorist organizationâ has obstructed all attempts to implement
human rights and address security concerns by way of diplomacy rather
than
through reliance on force. This refusal is important for reasons
already
mentioned (see para. 8 above), namely, that the population density in
Gaza
means that reliance on large-scale military operations to ensure
Israeli
security cannot be reconciled with the legal obligations under the
Fourth
Geneva Convention to protect to the extent possible the safety and
well-being
of the occupied Gazan population.
17.
There are several
relevant conclusions that demonstrate this link between relying on
non-violent
options and the requirements of international humanitarian law:
(a) The
temporary ceasefire was impressively successful in shutting down
cross-border
violence and casualties on both sides;
(b) The
Palestinian side adhered to the ceasefire, with relatively few
exceptions, and
relied on violence almost exclusively in reactive modes, while Israel
failed to
implement its undertaking to lift the blockade and seems mainly
responsible for
breaking lulls in the violence by engaging in targeted assassinations
and other
violent and unlawful provocations, most significantly by its air strike
on 4
November 2008;
(c) The Hamas
leadership appears ready at present to restore the ceasefire provided
that the
blockade is unconditionally lifted, which should in any event happen
owing to
its unlawful character, and should also be accompanied by guarantees
against
weapons smuggling on the Palestinian side, and a commitment to desist
from
targeted assassinations on the Israeli side;
(d) If
substantiated by further investigation, this overall pattern prevailing
at the
time the attacks were launched would undermine the claim by Israel
that its
recourse to force was ânecessaryâ and âdefensiveâ, both
features of which must be present to support a valid claim under
international
law of self-defence;
(e) On the
above basis, the contention that the use of force by Israel
was
âdisproportionateâ should not divert our attention from the prior
question of the unlawfulness of recourse to force. If for the sake of
argument,
however, the claim of self-defence and defensive force is accepted, it
would
appear that the air, ground, and sea attacks by Israel were grossly and
intentionally disproportionate when measured against either the threat
posed or
harm done, as well as with respect to the disconnect between the high
level of
violence relied upon and the specific security goals being pursued.
This legal
sentiment is authoritatively expressed in Article 51(5)(b) of the
Protocol I of
the Geneva Conventions, in which prohibited disproportionate attacks
are defined
as âan 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.â Israel did little to
disguise its
deliberate policy of disproportionate use of force, thereby
acknowledging a
refusal to comply with this fundamental requirement of international
customary
law. The Prime Minister of Israel was quoted after the ceasefire by the
press
agency Reuters as saying: âThe Governmentâs position was from the
outset that if there is shooting at the residents of the south, there
will be a
harsh Israeli response that will be disproportionate.â[6]
To the extent that the Prime Ministerâs comment reflects Israeli
policy,
it was a novel and blatant repudiation of one of the most fundamental
aspects
of international law governing the use of force.
V.
Refugee Denial
18.
In an
unprecedented belligerent policy, Israel
refused to allow the entire civilian population of Gaza, with the exception of 200
foreign
wives, to leave the war zone during the 22 days of attack that
commenced on 27
December. As the United Nations High Commissioner for Refugees stated
on 6
January 2009, Gaza
is âthe only conflict in the world in which people are not even allowed
to flee.â All crossings from Israel were kept closed
during the
attacks, except for rare and minor exceptions. By so doing, children,
women,
sick and disabled persons were unable to avail themselves of the
refugee option
to flee from the locus of immediate harm resulting from the military
operations
of Israel.
This condition was aggravated by the absence of places to hide from the
ravages
of war in Gaza,
given its small size, dense population and absence of natural or
man-made
shelters.
19.
International
humanitarian law has not specifically and explicitly at this time
anticipated
such an abuse of civilians, but the policy as implemented would suggest
the
importance of an impartial investigation to determine whether such
practices of
ârefugee denialâ constitute a crime against humanity as understood
in international criminal law. The initial definition of crimes against
humanity, developed in relation to the war crimes trials after the
Second World
War, is âmurder, extermination, enslavement, deportation and other
inhumane acts done against any civilian populationâ. More authoritative
is the definition contained in Article 7(1)(k) of the Rome Statute,
according
to which crimes against humanity includes âinhumane acts (âŠ)
intentionally causing great suffering, or serious injury to body or to
mental
or physical health.â Refugee denial under these circumstances of
confined
occupation is an instance of âinhumane actsâ, during which the
entire civilian population of Gaza
was subjected to the extreme physical and psychological hazards of
modern
warfare within a very small overall territory. It should be kept in
mind that
this restriction on free movement, to escape from the war zone, was
imposed on
a population already severely weakened by the effects of the blockade.
20.
The small size of Gaza and its
geographic
character also operated to deny most of the population remaining within
its
borders of an opportunity to internally remove itself from the combat
zones. In
this sense, the entire Gaza Strip became a war zone, although the
actual combat
area on the ground was more limited. In effect, leaving Gaza was the
only way to remove oneself to a
position of safety. In this respect, the option to become an internally
displaced person was, as a practical matter, unavailable to the
civilian
population, although some civilians sought relative safety in shelters
that
were made available on an emergency basis for a tiny fraction of the
population, mainly through the efforts of the United Nations Relief and
Works
Agency for Palestine Refugees in the Near East (UNRWA) and other United
Nations
and Non-Governmental Organizationsâ efforts. In some situations the
shelters were not always treated as sanctuaries by the Israeli armed
forces.
Six UNRWA emergency shelters were damaged during Operation Cast Lead.[7]
21.
Furthermore, given
such emergency conditions, it seemed feasible to establish temporary
refugee
camps either in southern Israel
or in neighboring countries for the duration of the attacks. This
course of
action had allowed almost one million Kosovars (almost half the
civilian
population) to obtain temporary refuge in the neighbouring former Yugoslav Republic of Macedonia
during the bombing by the North Atlantic Treaty Organization in 1999.
It seems
evident that, had Serbia
denied the Kosovo population such a refugee option by controlling
egress, it
would have been accused of inhumane behaviour and criminality by the
world
community. It would seem that the law of war and international human
rights
law, for the sake of the protection of civilian innocence in wartime
situations, needs to affirm the right of every non-combatant civilian
to become
a refugee, or at least to have the right to seek such a status,
especially if
the conditions for an internal ârefugeeâ option are not present.
22.
Such an
affirmation does not address the related question as to whether
neighbouring
countries have a legal duty to accommodate, to the extent feasible and
at least
temporarily, civilians seeking to escape from an ongoing war zone. It
would
seem at the very least that Israel
as occupying Power and belligerent party had such a legal obligation.
In a
general way, such an obligation is set forth in articles 13 to 26 of
the Fourth
Geneva Convention. Especially relevant are article 15 which looks to
the
establishment of âneutralized zonesâ to shelter the civilian
population from âthe effects of warâ, article 16 which imposes a
special duty to accord the sick and wounded, as well as expectant
mothers,
âparticular attention and respectâ, and article 24 which imposes a
duty on the occupying Power to protect any children under 15 who are
orphans or
separated from their families, and obliges it to âfacilitate the
reception of such children in a neutral country for the duration of the
conflictâ.
23.
It is acknowledged
that the particular circumstances in Gaza
made it difficult, but not entirely impossible, to fulfill these
obligations in
the manner set forth in the Fourth Geneva Convention. What seems clear,
however, is that Israel as occupying Power should have adapted these
protective
goals to the situation facing the population of Gaza, and that this was
feasible to a considerable degree, at least to the minimum extent of
allowing
particularly vulnerable categories of persons within the civilian
population,
such as children, the sick and disabled, orphans, the elderly and the
wounded,
to leave. On 21 January 2009, the Executive Board of the World Health
Organization reported, for instance, that more than half of the
civilian casualties
(over 1,300 dead and thousands injured) caused by the Israeli military
operations were women, children, infants and elderly persons. This
difficulty
also gives weight to the argument (see paras 8-10 above) that
contends that
such a military operation, by its intrinsic nature, generates war
crimes.
24.
There are further
implications with regard to upholding human rights and international
humanitarian law under wartime conditions. Confining the civilian
population to
the war zone also makes it more difficult, if not impossible, to
sustain
consistently the distinction between military and civilian targets, in
combat
situations. It also complicates an assessment of claims made by Israel
that
Hamas used civilians as human shields, and used civilian sites such as
schools
and mosques from which to engage in resistance. If civilians could not
leave
the war zone under such crowded conditions, some degree of
intermingling would
necessarily occur, especially in life and death situations.
VI.
expert inquiry ON WAR CRIMES
25.
There have been
widespread calls for an investigation of the allegations of war crimes
associated with the recent encounter in Gaza.
The United Nations Secretary-General has called for such an
investigation,
urging that in the event that evidence of war crimes is found,
mechanisms for
accountability should be established. The High Commissioner for Human
Rights
has also supported an investigation of possible war crimes,
recommending that
it consider allegations of war crimes on both Israeli and Palestinian
sides of
the conflict. The Special Rapporteur does not propose another
investigation but
an expert inquiry to report on the implications of available evidence
for
international humanitarian law, especially the implications of war
crimes of
apparent violations. Such a report should also take into account the
specific
undertakings of the Human Rights Council. In contemplating such an
inquiry, it
is important that several factors be considered, including the
preliminary
question as to the applicable body of international law, and the
concluding
question regarding the availability of mechanisms of accountability.
The
inquiry should be conducted by three or more respected experts in
international
human rights law and international criminal law.
A.
Scope of the inquiry
26.
An inquiry,
complementary to the fact-finding mission authorized by the Council in
its
resolution S-9/1, should be authorized to perform two basic tasks: to
review
all reports, including those pursuant to resolution S-9/1 results; and
to
establish, as definitively as possible, the facts underlying the main
allegations of war crimes, including evidence in the form of
eye-witness
testimony, of contested battlefield practices, as well as explanations
in
exoneration or mitigation to the extent available, especially if
provided by
Israeli and Palestinian military commanders and political leaders. In
other
words, despite the apparent one-sidedness of the Gaza attack, allegations of war
crimes on both sides
of the conflict should be taken
into account. With respect to Hamas, this refers primarily to the
factual
profile relating to the rockets fired from its territory, including the
determination of intent and issues of attribution (whether rockets were
being
fired by independent militias or even by groups opposed to Hamas). It
would
also need to consider all available evidence bearing on the types of
weapons
used and the combat circumstances of use. It would also be helpful if
the
inquiry report addressed such issues as the source of applicable rules
of international
criminal law by which to assess the evidence and that it recommend
alternative
procedures for establishing potential accountability on the part of
individuals
and political actors, especially with respect to the responsibility and
capacity of the United Nations system. In this regard, legal
uncertainties and
political obstacles to the establishment of effective mechanisms should
be
acknowledged in the report.
27.
It should be
remembered that establishing evidence of the violation of international
humanitarian
law creates a non-criminal responsibility on the part of a State, and
possibly
of a non-State actor depending on the view taken with regard to the
recent
development of international treaty and customary laws of war,
including the
overall impact of Protocol I to the Geneva Conventions (1977) on the
clarification of relevant legal norms. It should be made clear in the
inquiry
report that violations of the laws of war, even if grave breaches, do
not
automatically constitute war crimes or crimes against humanity or
crimes
against peace, although the Rome Statute in Article 8 treats all
established
grave breaches as war crimes. Potential legal accountability of
political
actors (including States) and individuals requires further assessment
of
whether the allegations and evidence appear to indicate violations of
international humanitarian law and international human rights law and
thus
provide a solid basis in fact and law for charging the commission of
international crimes. [8]
28.
It is important
that an inquiry in the context of the military operations initiated on
27
December 2008 and continuing until 18 January 2009, evaluate the
allegations on
both sides, including the issues of alleged criminality associated with
both
the decisions of the Government of Israel to launch the attacks and
initiate a
ground invasion of Gaza, as well as the circumstances surrounding the
firing of
rockets by Palestinian militants. It is further recommended that the
underlying
claim of Israel that it was acting in self-defence be evaluated in
relation to
the contention that such an attack violated Article 2 paragraph 4 of
the
Charter of the United Nations and amounted to an act of aggression
under the
circumstances, and whether the reliance on disproportionate use of
force or the
inherently indiscriminate nature of the military campaign should be
treated as
a criminal violation of international customary and treaty law. There
exists
here a complex and unresolved issue as to whether an occupying power
can claim
âself-defenceâ in relation to an occupied society, and whether its
use of force, even if excessive, and of a border-crossing variety, can
be
regarded as âaggressionâ. Israel seems to be barred
from
relying on its status as occupier considering that it claims that the
occupation
has ended, but of course the inquiry report need not respect that
interpretation of the legal relationship.
29.
There are
difficult issues bearing on the status of what were called crimes
against peace
at the Nuremberg
trials. On the one hand, the Rome Statute establishing the
International
Criminal Court does not yet include aggression or crimes against peace
as
falling within the competence of the tribunal due to the inability to
agree
upon a definition of aggression. In the event that there is agreement
within
the framework of the International Criminal Court, then the crime of
aggression
could be prosecuted (Article 5.2 of the Statute). On the other side of
this
question of the clarity of the anti-aggression norm embedded in crimes
against
peace is the majority decision of the British House of Lords in the
recent case
of Regina v. Jones and
others, to
the effect that the criminality of aggressive war established at
Nuremberg
remains firmly established in international customary law and its
bearing on
contested uses of force remains authoritative. This is an important
issue that
casts a shadow over the entire controversy about the Israeli attacks,
and
should be clarified to the extent possible in the inquiry report.
30.
Other legal
concerns relating to the inquiry and any accountability sequel involve
the
distinctive nature of the belligerent parties, including questions
about the
proper assessment of the legal responsibility of an occupying Power
towards the
occupied people from the perspective of international criminal law, the
legal
effects on the nature of Israeli criminal responsibility given its
disengagement from Gaza in 2005, and the criminal responsibility under
international law of a non-State actor that was exercising de facto
administrative and governmental control during the period being
investigated.
B.
Applicable international criminal law
31.
The applicable
body of international criminal law for any investigation would include
the
jurisprudence compiled by the ad hoc International Criminal Tribunal
for the
Former Yugoslavia and the International Criminal Tribunal for Rwanda,
which has
fully examined violations of the laws of war, as contained in the
jurisdictional statutes setting up such tribunals, established under
the
authority of the Security Council. It should also include the list of
international crimes enumerated in the Rome Statute of the
International
Criminal Court.
32.
The crimes
described in the London Agreement establishing the Nuremberg Tribunal
in 1945
were subsequently confirmed as part of customary international law by
the
International Law Commission in 1950 under the rubric of âPrinciples of
International Law Recognized in the Charter of the Nuremberg Tribunal
and in
the Judgment of the Tribunalâ.[9]
These principles are treated by most international law experts as
constituting
âperemptory normsâ as defined in article 53 of the Vienna
Convention on the Law of Treaties (1988): âA peremptory norm of general
international law is a norm accepted and recognized by the
international
community of States as a whole as a norm from which no derogation is
permitted
and which can be modified only by a subsequent norm of general
international
law having the same character.â Thus, if the Nuremberg categories of criminality
qualify
as peremptory norms embedded in international customary law, these
crimes
remain valid and relevant for the purpose of assessing the Israeli
attacks
under the labels of âcrimes against peaceâ, âwar
crimesâ, and âcrimes against humanityâ. Reliance on the
relevance of these crimes, especially crimes against peace, is
singularly
important to allow assessment of the underlying allegation that the
Israeli
attacks commencing on 27 December 2008 were intrinsically criminal
because of
their incapacity to maintain the distinction between military and
civilian
targets, a contention that Israeli political and military leaders
challenge. If
a solid basis in fact and evidence could be provided to back up this
contention, it would provide the grounds for contending that the
highest
political and military leaders could potentially be held criminally
responsible.
33.
Alleged crimes
associated with battlefield operations and command policy, such as the
targeting of schools, mosques, ambulances, residential homes and health
facilities, should be investigated to the extent possible, including
evidence
pertaining to the existence of deliberate intent or gross negligence.
Extenuating circumstances should be taken into account, including
allegations
that buildings and their near surroundings were being used for combat
purposes.
It is important that this evidence be gathered quickly, and that the
cooperation of the parties be solicited to the extent that the
investigation
establishes a prima facie case with respect to war crimes, and the
responsible
perpetrators can be identified, then the investigating report should
either
recommend that the parties be encouraged to establish criminal law
procedures
by which such individuals can be indicted, prosecuted, accorded due
process and
punished if found guilty, or propose some alternative mechanism. It is
quite
likely that the investigation will be able to establish that certain
practices
and incidents have the characteristics of war crimes, but that it will
be
impossible to identify the supposed perpetrator(s), at least not
without the
cooperation of the parties engaged in combat.
34.
Alleged crimes
associated with legally dubious use of weaponry such as white
phosphorous
(which burns through clothing, sticks to skin and burns flesh to the
bone),
flachette bombs (which expel razor sharp darts), and Dense Inert Metal
Explosives (DIME) bombs (causing intense explosions in a small area and
body
parts to be blown apart) should also be investigated. None of these
weapons is,
per se, explicitly banned by international law, but there is
considerable
support for the view that their use in dense urban areas where
civilians are
known to be or are habitually present would be a war crime. An
investigation is
needed to establish the extent of such use, and the specific
circumstances under
which use occurred. To the extent that a basis for criminal prosecution
is
established, the orbit of responsibility should focus on the command
levels of
decision with respect to policies and practices governing use, and
generally
accord serious, yet subordinate, attention to the identity of the low
level
perpetrators carrying out orders. Here too the cooperation of Israeli
governmental authorities should be evaluated as a means of achieving
accountability; if not regarded as reliable, alternative approaches
should be
recommended.
35.
The practices of
Hamas alleged to constitute war crimes should also be investigated,
including
the firing of rockets and mortar shells aimed at civilian targets; the
alleged
use of children and civilians as âhuman shieldsâ; and the abuse of
the protected status of certain structures either to hide weaponry or
as places
of sanctuary for carrying on combat operations. The extent to which
these
latter practices are distinct crimes or serve to mitigate or excuse
failures by
Israel
to respect the immunity of such targets needs to be determined. Here
also, it
is important to concentrate on the appropriate level of military and
political
command to determine the locus of possible criminality, and to
recommend how
accountability should be assessed.
C.
Availability of mechanisms of accountability
36.
An investigation
should also address the mechanisms of accountability evaluated in terms
of
jurisdictional competence and political plausibility if it determines
that
substantial grounds for holding individuals and other political actors
criminally responsible exist. Since Israel is not a State Party to the
Rome
Statute establishing the International Criminal Court, the most
efficient
mechanism for assessing accountability would be to establish, under the
authority of the Security Council, an ad hoc criminal tribunal for
occupied
Gaza, following the precedents of the 1990s (although this does not
seem
politically plausible under current conditions). It would also be
theoretically
possible for the Security Council acting under Chapter VII of the
Charter to
refer the situation to the Court for further action. It is arguable
(although
contested) that the General Assembly might establish such a tribunal by
invoking its authority to âestablish such subsidiary organs as it deems
necessary for the performance of its functionsâ. Whether such an
initiative is related to the functions of the Assembly is an unresolved
matter.
There is also some question as to whether the fact that the Security
Council,
in its resolution 1860 (2009) âdecided to remain seized of the
matterâ makes it constitutionally inappropriate for the Assembly to
take
any action relating to the situation in Gaza
resulting from the Israeli military operations.
37.
Ideally, Israel,
as the sovereign State exercising control over the territory where the
alleged
offences took place, should be the locus of judicial assessment,
whether by its
normal criminal law procedures or through the establishment of a
special ad hoc
process - but for reasons previously discussed (see para 6 above) this
is
extremely unlikely to take place. Nonetheless, human rights groups in Israel and occupied Palestine are compiling as much
information
as possible relating to allegations of war crimes to provide the legal
grounds
for recourse to national legal systems.
38.
From the outlook
of competence and plausibility, the most available accountability
initiatives
are associated with national criminal law procedures in those
countries, such
as Belgium and Spain,
that
give to their courts legal authority to prosecute war crimes under the
rubric
of universal jurisdiction, provided that the accused individual is
physically
present. It is likely that such an option would be influenced by the
existence
of a persuasive report under the auspices of the United Nations that
recommended accountability.
39.
The above
mentioned situation has led the Minister for Justice of Israel, Daniel
Friedman, to be designated to protect any Israeli detained abroad in
accordance
with the public pronouncement made by Prime Minister Olmert at a
gathering of
military officers a few days after the Gaza ceasefire went into effect:
âThe Government will stand like a fortified wall to protect each and
every one of you from allegationsâ. Israel also warned that it
will
take reprisals in the event that Israelis are arrested and charged
abroad. Note
that potential initiatives in national judicial settings are not
limited to
battlefield specific offences, but can be extended to encompass alleged
crimes
at the highest political and military levels of government. The case
involving
the indictment of former head of State of Chile, Agusto Pinochet,
adjudicated
these issues in the Spanish and British legal systems, as well as in Chile
itself,
during the late 1990s and early 2000s.
VII. THE BROADER
SETTING OF THE
ATTACKS
40.
At the conclusion
of the present report, it seems appropriate to reaffirm the connection
between
Israeli security concerns and the Palestinian right of
self-determination. As
long as Palestinian basic rights continue to be denied, the Palestinian
right
of resistance to occupation within the confines of international law
and in
accord with the Palestinian right of self-determination is bound to
collide
with the pursuit of security by Israel
under conditions of prolonged occupation. In this respect, a durable
end to
violence on both sides requires an intensification of diplomacy with a
sense of
urgency, and far greater resolve by all parties to respect
international law,
particularly as it bears on the occupation as set forth in the Fourth
Geneva
Convention. Furthermore, it is important to acknowledge that the time
has long
passed for the implementation of Security Council resolution 242 (1967)
requiring Israel to withdraw from Palestinian territories, for Israel
to close
unlawful settlements, desist from efforts to alter the demographics of
East
Jerusalem, respect the advisory opinion on the Wall of the
International Court
of Justice of 2004, and bring the occupation to a genuine end, either
through
negotiations or by unilateral action.
VIII.
Recommendations
41.
The Special
Rapporteur recommends that:
(a) An advisory opinion
on the
obligations of a Member
State to cooperate
with
special procedures of the Human Rights Council in relation to the
application
of Article 56 of the Charter of the United Nations and the relevant
provisions
of the Convention on the Privileges and Immunities of the United
Nations be
requested;
(b) A procedure for
conducting an
expert inquiry from the perspective of the role of the Human Rights
Council
into allegations of war crimes associated with Israeli military
operations in Gaza
from 27 December
2008 to 18 January 2009 be established;
(c) It be recognized
that the
Palestinian right of resistance under international law within the
limits of
international humanitarian law continually collides with Israeli
security
concerns as occupying Power, requiring basic adjustments in the
relationship of
the parties premised on respect for the legal rights of the Palestinian
people;
and
that sustainable peace in Gaza
requires the permanent lifting of the blockade in the short term, and a
diplomatic process that seeks peace in accordance with the requirements
of
international law in the long term.
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8. Field up-date on Gaza from
the Humanitarian Co-ordinator | 17 â
23 March 2009
OCHA humanitarian update on Gaza
crisis, 17 - 23 March 2009. This report focuses on the humanitarian
situation -
casualties, food, health, shelter, water and sanitation, electricity
and fuel,
access and crossings as well as priority needs. Situation reports
English
Link:
http://www.ochaopt.org/documents/ocha_opt_gaza_humanitarian_situation_report_2009_03_23_english.pdf
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