PCHR - 29 September 2009

The reality of Operation Cast Lead, Israel’s 23 day offensive on the Gaza Strip (27 December – 18 January) is now well known. The Palestinian Centre for Human Rights (PCHR) have investigated and documented numerous violations of international human rights and humanitarian law, many of which constitute war crimes and grave breaches of the Geneva Conventions. Evidence indicates that Israeli forces may also have committed crimes against humanity in the Gaza Strip; the crime against humanity of persecution, manifested, inter alia, by the illegal blockade of the Gaza Strip, continues to this day. These findings have been confirmed by investigations conducted by a diverse range of bodies, such as Amnesty International, Human Rights Watch, the UN Board of Inquiry, the Independent Fact Finding Mission of the Arab League, the Office of the High Commissioner for Human Rights, and now the Human Rights Council mandated Goldstone report.

It is important to note that Operation Cast Lead was not an isolated event. Although it was the most brutal single offensive in the history of the occupation, Israel’s actions during Operation Cast Lead were the manifestation of longstanding illegal practices in the occupied Palestinian territory. The majority of the crimes committed during Operation Cast Lead – including, inter alia, the direct targeting of civilians, the extensive destruction of civilian property, indiscriminate attacks, and the use of human shields – have become an almost routine feature of the occupation.

Yet despite the documentation of such crimes, neither the State of Israel nor individuals suspected of committing war crimes, have been held to account. It is now over nine months since Operation Cast Lead, and no effective investigations have been conducted. Regrettably, this lack of accountability, and the resultant climate of impunity, has been a longstanding feature of Israel’s occupation of Palestinian territory. Neither the State of Israel, nor individuals suspected of violating international law, have ever been brought before a court and tried in accordance with the norms of international law. PCHR firmly believe that this lack of accountability serves to encourage further violations of international law and to undermine the respect for the rule of law itself. International law codifies extensive provisions designed to protect civilian populations, and to preserve fundamental human dignity. However, in order for the law to be relevant, it must be enforced. History has shown that as long as individuals are granted impunity, they will continue to violate the law: innocent civilians will continue to suffer the horrific consequences.

The Report of the United Nations Fact Finding Mission on the Gaza Conflict investigated and documented numerous violations of international law. As noted previously, there is evidence to indicate that crimes against humanity may have been committed, and indeed, are ongoing.

One of the key outcome’s of the Fact Finding Mission’s report is the focus on accountability, and criminal responsibility; PCHR fully endorse all of the Report’s findings and recommendations. As a human rights organization and a representative of the victim’s, PCHR stress the fundamental importance of accountability. The crimes perpetrated over the course of Operation Cast Lead demand effective judicial redress; victim’s legitimate right to an effective judicial remedy must be upheld, those responsible must be held to account.

Article 2 of the International Covenant on Civil and Political Rights confirms individual’s legitimate human right to an effective judicial remedy, while article 26 affirms that all people are entitled to the protection of the law. In order for these fundamental human rights to be upheld, those accused of violating the law must be brought to trial. Israel’s lack of compliance with international law and the State’s unwillingness to genuinely investigate allegations of criminal misconduct have been extensively documented, and were highlighted in the report of the Fact Finding Mission. Simply, justice for Palestinians is unattainable within the Israeli legal system. Equally, to date, there have been no effective investigations conducted by the responsible Palestinian authorities.

In the evident absence of domestic judicial remedy recourse must be had to international mechanisms. PCHR thus fully endorse the Fact Finding Mission’s recommendations that the report be submitted to the Security Council. If, after a period of six months, effective domestic judicial proceedings are not forthcoming, then, acting under Chapter VII of the UN Charter, the Security Council must refer the situation to the Prosecutor of the International Criminal Court, pursuant to article 13 (b) of the Statute of the International Criminal Court. Should the Security Council prove unable to discharge its responsibilities on behalf of all Member States, then the General Assembly should consider its responsibility for maintaining international peace and security – in accordance with Resolution 377 (V), Uniting for Peace – and take all necessary measures to ensure accountability; inter alia, the General Assembly should evaluate the possibility of referring the situation directly to the International Criminal Court.

In concert with these efforts, States Parties to the Geneva Conventions of 1949, remain under a legal obligation to initiate investigations in their national courts, in accordance with the principle of universal jurisdiction, where there is sufficient evidence of the commission of grave breaches of the Geneva Conventions. As recommended by the Fact Finding Mission, "[w]here so warranted following investigation, alleged perpetrators should be arrested and prosecuted in accordance with internationally recognised standards of justice." PCHR stress the fundamental importance of universal jurisdiction with respect to the maintenance of the rule of law, and upholding individuals’ legitimate rights.

There have been numerous opponents of universal jurisdiction. The horrific nature of international crimes, and the high political standing of those accused, has given rise to significant controversy. However, States legal obligations, both to their citizens and to the international community must be emphasised. When exercising universal jurisdiction, States act as agents of the international community, extending the rule of law to victims who were beyond its reach. Universal jurisdiction is only enacted when States prove genuinely unwilling or unable to conduct effective investigations and prosecutions; when they attempt to shield alleged war criminals from justice. The concept of human rights was borne from the desire to protect individuals from the abuse of State power; politics must not be placed above the legitimate rights of the individual, the rule of law must be enforced.

The Report of the Fact Finding Mission also highlighted the reparations owed to the people of the Gaza Strip by the State of Israel. Israel is internationally responsible for the internationally wrongful acts it committed; its victims are entitled to reparation. This reparation will not erase the reality of the acts committed, but it will help to rebuild lives and livelihood, and restore some semblance of normality. Today, nine months after the end of Operation Cast Lead, the Gaza Strip remains as it did on 18 January. Reconstruction is impossible as a result of the Israeli imposed illegal blockade, a form of collective punishment which indiscriminately affects each of Gaza’s 1.5 million inhabitants, frustrating any semblance of 'normal’ life.

Article 31 of the International Law Commission’s Articles on State Responsibility for Wrongful Acts affirm that the State of Israel "is under an obligation to make full reparation" for any injury caused by its wrongful actions. This injury, "includes any damage, whether material or moral" caused by the responsible State. The Permanent Court of Justice confirmed this responsibility in the Factory at Chorzów case holding that reparation "is the indispensable complement of a failure to apply a convention". The responsible State must endeavour to "wipe out all the consequences of the illegal act". The Court further held that reparation must entail "restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear".

Article 35 of the ILC Articles holds that reparation has a broad meaning, encompassing any action that needs to be taken by the responsible State. Should restitution in kind prove impossible, compensation is proposed as an alternative. However, given the current illegal closure regime imposed on the Gaza Strip, compensation is an inappropriate response, incapable of 'wiping out’ all the consequences of Israel’s illegal acts. The Israeli military extensively destroyed, or damaged, Gaza’s infrastructure. At least 50,000 Palestinians were made homeless as a result of destruction or damage inflicted to their homes, at least 6,855 dunums of agricultural land, and approximately 1,500 factories and workshops were completely or partially destroyed. The road, water, sewage and electricity networks were heavily damaged, and in some cases rendered unusable. It is evident that, in the absence of reconstruction materials, and in light of the fact that restitution in kind should be the principal form of reparation, pure compensation is inadequate, and inappropriate.

The State of Israel must accept responsibility for its illegal actions – as demanded by international law – and rebuild those sections of the Gaza Strip which it destroyed or damaged. Given the reality of the current situation, it is inappropriate that the State of Israel should directly participate in the physical process of reconstruction. Rather, in light of its primary responsibility with respect to restitution in kind, Israel must first, acknowledge its financial obligations as regards the reconstruction process, and second, ensure the provision of all necessary reconstruction materials and equipment. The State must also pay compensation to the victims of its illegal actions. In this regard PCHR call for the lifting of the illegal blockade, and the establishment of an escrow fund by the General Assembly to be used to pay adequate compensation to Palestinians who have suffered loss and damage as a result of unlawful acts attributable to the State of Israel.

Impunity has been a longstanding feature of the Israeli occupation. It has resulted in continuous and escalating violations of international law; a reality graphically underlined by the recent offensive. All civilians are legitimately entitled to the full protection of the rule of law, without discrimination. All those suspected of being involved in the perpetration of war crimes, grave breaches of the Geneva Conventions, or crimes against humanity, must be investigated and prosecuted in accordance with international law; victims’ rights to an effective judicial remedy must be upheld.

The Human Rights Council plays a significant role in promoting justice in the international arena and in ensuring respect for international law. Endorsing the recommendations of the Fact Finding Mission is the only suitable action that can be taken for the crimes committed during Operation Cast Lead. Due to an outcry by the international community, accountability has previously been sought, and hence been proven possible, by the creation of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Special Tribunal for Lebanon, and the establishment of the International Criminal Court.

PCHR reiterate support of the Fact Finding Mission’s report and recommendations, the crimes documented therein must be addressed and those responsible must be held to account. The consequences of impunity are continued violations of international law, and further civilian death and suffering.