War Crimes in Gaza
The United Nations Fact Finding Mission on the Gaza Conflict reported war crimes and crimes against humanity after investigating the 23 days of air and ground attacks by Israel Military Forces on Gaza, 27 December 2008 to 18 January 2009. The UN mission found that there was evidence indicating “serious violations of international human rights and humanitarian law were committed by Israel during the Gaza conflict, and that Israel committed actions amounting to war crimes, and possibly crimes against humanity.” The Mission Report, which fills 575 pages, is based on detailed analysis of 36 specific incidents in Gaza, the West Bank and Israel. The Mission conducted 188 individual interviews, reviewed over 10,000 pages of documents, and viewed over 1,200 photographs, including satellite imagery, and 30 videos. The mission heard 38 testimonies during two separate public hearings held in Gaza and Geneva. It should be noted that Israel denied the Mission access to the West Bank and other occupied territories. Israel also failed to respond to a comprehensive list of questions posed to it by the Mission. Palestinian authorities in Gaza and the West Bank cooperated with the Mission.
From Mission Recommendations:
- In view of the gravity of the violations of international human rights and humanitarian law and possible war crimes and crimes against humanity that it has reported, the Mission recommends that the United Nations Human Rights Council request the United Nations Secretary-General to bring this report to the attention of the United Nations Security Council under Art . 99 of the Charter of the United Nations so that the Security Council may consider action according to the relevant Mission’s recommendations below.
- The Mission further recommends that the United Nations Human Rights Council formally submit this report to the Prosecutor of the International Criminal Court.
- With reference to the declaration under article 12 (3) received by the Office of the Prosecutor of the International Criminal Court from the Government of Palestine, the Mission considers that accountability for victims and the interests of peace and justice in the region require that the legal determination should be made by the Prosecutor as expeditiously as possible.
- The Mission recommends that the General Assembly promote an urgent discussion on the future legality of the use of certain munitions referred to in this report, and in particular white phosphorous, flechettes and heavy metal such as tungsten. In such discussion the General Assembly should draw inter alia on the expertise of the International Committee of the Red Cross (ICRC). The Mission further recommends that the Government of Israel undertake a moratorium in the use of such weapons in light of the human suffering and damage they have caused in the Gaza Strip.
- The Mission recommends that States Parties to the Geneva Conventions of 1949 start criminal investigations in national courts, using universal jurisdiction, where there is sufficient evidence of the commission of grave breaches of the Geneva Conventions of 1949. Where so warranted following investigation, alleged perpetrators should be arrested and prosecuted in accordance with internationally recognised standards of justice.
From Mission Conclusions:
- People of Palestine have the right to freely determine their own political and economic system, including the right to resist forcible deprivation of their right to self-determination and the right to live, in peace and freedom, in their own State. The people of Israel have the right to live in peace and security. Both peoples are entitled to justice in accordance with international law.
- The operation fits into a continuum of policies aimed at pursuing Israel’s political objectives with regard to Gaza and the Occupied Palestinian Territory as a whole. Many such policies are based on or result in violations of international human rights and humanitarian law.
- the policy of blockade that preceded the operations and that in the Mission’s view amounts to collective punishment intentionally inflicted by the Government of Israel on the people of the Gaza Strip. When the operations began, the Gaza Strip had been for almost three years under a severe regime of closures and restrictions on the movement of people, goods and services. This included basic life necessities such as food and medical supplies, and products required for the ordinary conduct of daily life such as fuel, electricity, school items, and repair and construction material.
- The dignity of the people of Gaza had been severely eroded. This was the situation in the Gaza Strip when the Israeli armed forces launched their offensive in December 2008. The military operations and the manner in which they were conducted considerably exacerbated the aforementioned effects of the blockade. The result, in a very short time was unprecedented long term damage both to the people and their development and recovery prospects.
- Several measures adopted by Israel in the West Bank during and following the military operations in Gaza also further deepen Israel’s control over the West Bank, including East Jerusalem, and point to a convergence of objectives with the Gaza military operations. Such measures include increased land expropriation, house demolitions, demolition orders and permits to build homes in settlements, greater and more formalized access and movement restrictions on Palestinians, new and stricter procedures for residents of the Gaza Strip to change their residency to the West Bank.
- Both Palestinians and Israelis met by the Mission repeatedly stressed that the military operations carried out by Israel in Gaza from 27 December 2008 until 18 January 2009 were qualitatively different from any previous military action by Israel in the OPT. Despite the hard conditions that have long been prevailing in the Gaza Strip, victims and long time observers stated that the operations were unprecedented in their severity and that their consequences would be long-lasting.
- When the Mission conducted its first visit to the Gaza Strip in early June 2009, almost five months had passed since the end of the Israeli military operations. The devastating effects of the operations on the population were, however, unequivocally manifest. Reports of the trauma suffered during the attacks, the stress due to the uncertainty about the future, the hardship of life and the fear of further attacks, pointed to less tangible but not less real long term effects.
- Women were affected in significant ways. Their situation must be given specific attention in any effort to address the consequences of the blockade, continuing occupation and of the latest Israeli military operations.
- The Gaza military operations were, according to the Israeli Government, thoroughly and extensively planned. While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self defense, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole.
- The Mission recognizes that the principal focus in the aftermath of military operations will often be on the people who have been killed – more than 1400 in just three weeks.
- The timing of the first Israeli attack, at 11:30 am on a week day, when children were returning from school and the streets of Gaza were crowded with people going about their daily business, appears to have been calculated to create the greatest disruption and widespread panic among the civilian population. The treatment of many civilians detained or even killed while trying to surrender is one manifestation of the way in which the effective rules of engagement, standard operating procedures and instructions to the troops on the ground appear to have been framed in order to create an environment in which due regard for civilian lives and basic human dignity was replaced with the disregard for basic international humanitarian law and human rights norms.
- Israel’s continuing occupation of the Gaza Strip and the West Bank emerged as the fundamental factor underlying violations of international humanitarian and human rights law against the protected population and undermining prospects for development and peace. Israel’s failure to acknowledge and exercise its responsibilities as the Occupying Power further exacerbated the effects of occupation on the Palestinian people.
- After reviewing Israel’s system of investigation and prosecution of serious violations of human rights and humanitarian law, in particular of suspected war crimes and crimes against humanity, the Mission found major structural flaws that in its view make the system inconsistent with international standards. With military “operational debriefings” at the core of the system, there is the absence of any effective and impartial investigation mechanism and victims of such alleged violations are deprived of any effective or prompt remedy.
- The 2005 World Summit Outcome document recognized that ‘the international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from, inter alia, war crimes and crimes against humanity’.
- The State of Israel is therefore also failing to protect its own citizens by refusing to acknowledge the futility of resorting to violent means and military power. Israeli incursions and military actions in the Gaza Strip did not stop after the end of the military operations of December – January.
- To date, Amnesty International, Human Rights Watch and B’Tselem have been denied access to Gaza to collect data for their independent investigations into allegation of war crimes committed by both the Israeli forces and Palestinian armed groups.
- On the basis of the information before it and the above considerations the Mission finds that the failure of Israel to open prompt, independent and impartial criminal investigations even after six months have elapsed constitute a violation of its obligation to genuinely investigate allegations of war crimes and other crimes, and other serious violations of international law.
- The Mission considered whether the series of acts that deprive Palestinians in the Gaza Strip of their means of sustenance, employment, housing and water, that deny their freedom of movement and their right to leave and enter their own country, that limit their access a court of law and an effective remedy, could amount to persecution, a crime against humanity.
- Justice Richard Goldstone, head of mission, former member of the South African Constitutional Court and former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda
- Professor Christine Chinkin, Professor of International Law at the London School of Economics and Political Science, who was a member of the High Level Fact Finding Mission to Beit Hanoun (2008)
- Ms. Hina Jilani, Advocate of the Supreme Court of Pakistan and former Special Representative of the Secretary General on Human Rights Defenders, who was a member of the International Commission of Inquiry on Darfur (2004)
- Colonel Desmond Travers, a former officer in the Irish Armed Forces and member of the Board of Directors of the Institute for International Criminal Investigations (IICI).
As expected, Israel and the United States rejected the report as soon as it was released on September 15, 2009, apparently before fully reading all its 575 pages. It should also be noted that Turkey requested the United Nations Security Council to include the Report in its current session. It remains to be seen what the United Nations and the international community will do about these atrocities, war crimes and crimes against humanity. We will follow up, analyze and report.
Mohamed Alaadin A. Morsy, Ph.D.