GAZA : Accountability – Impunity

In the aftermaths of Operation "Cast lead " conducted by the Israeli army in the Occupied Gaza Strip from 27 December 2008 to 17 January 2009, several reports resulting from fact-finding missions have been published by a very large scale of human rights and humanitarian organizations, as well as, for the first time, by inter-governmental regional organizations such as the Arab League.
By 18 January 2009, when unilateral ceasefires were announced by both Israel and Hamas, some 1,400 Palestinians had been killed, including some 300 children and hundreds of other unarmed civilians, and large areas of Gaza had been razed to the ground,leaving many thousands homeless and the already dire economy in ruins [1].

Considering the unprecedented level of violence, the United Nations institutions have also taken up the issue at the Human Rights Council level by giving mandate to " an urgent, independent international fact-finding mission" under the supervision of Richard Goldstone, whose report is expected to be released within hours, during the current session of the Council.

FIDH has been working very closely with its member organizations in Israel and in the Occupied Territory, in conformity with the priorities set forth by the organization in the fight against impunity.
For years, FIDH has been focusing on possible ways for victims of serious international crimes to obtain justice in their own country or abroad if/when the national justice system does not allow for it, bearing in mind that complaints brought on the basis of universal jurisdiction can serve as an important catalyst for judicial action in the territorial state, in cases where national authorities have previously been unwilling to investigate and prosecute those involved in serious international crimes. Universal jurisdiction complaints can also help to put out in the open States’ human rights violations and as such potentially contribute to a change of policy.

Since the creation of the International Criminal Court, FIDH has also constantly contributed to the ICC Office of the Prosecutor’s preliminary analyses and investigations, by submitting -together with its member organizations in the relevant countries- communications providing information on the crimes committed in certain countries, and on the lack of domestic investigations and prosecutions. Regarding the situation in the Gaza Strip, and considering the potential perpetration of grave human rights violations, FIDH has immediately after Operation Cast Lead called the UN Security Council to refer the situation to the ICC prosecutor and has since been supporting the preliminary examination conducted by the ICC Prosecutor, after the Palestinian Authority accepted, on January 22nd, 2009, to refer the situation to the Office of the Prosecutor, on the basis of article 12 of the Rome Statute.

Accountability in international law:

International law, and namely the Geneva Conventions, requires that every state deals with serious human rights violations that are committed by bodies or persons acting on its behalf or with its consent. This obligation takes two primary forms: 1) investigation of suspicions of commission of human rights violations followed by prosecution of the persons responsible where the findings of the investigation warrant, and 2) compensation of the victims for the injuries they suffered as a result of the violation.
The principle of individual responsibility requires the state to investigate, thoroughly and without bias, every suspicion of commission of international crimes by persons acting on its behalf or with its consent. If the investigative findings confirm the suspicions, the state must arrest the suspects and prosecute them. If the state fails to do so, other states may arrest the suspects, when they are present on the other country’s soil, and prosecute them, or extradite them, for the crimes they have allegedly committed.
The obligation to investigate serious violations of human rights is derived also from the right of the victims, specified in international law, to know the facts of the case in which they, or members of their family, were harmed. The root of this right, known as "the right to truth," lies in international humanitarian law, which recognizes the right of family members to receive information on the fate of their relatives, and requires the states taking part in the hostilities to search after missing persons [2].

- Impunity at the national level:

At the beginning of the al-Aqsa intifada, the Judge Advocate General’s office changed its policy regarding the opening of Military Police investigations for cases in which IDF soldiers kill Palestinian civilians. In the first intifada, the IDF investigated every case in which a Palestinian was killed except for those in which the person killed was involved in the fighting. When the current intifada began, the JAG’s office decided that Military Police investigations would only be opened for those cases in which soldiers "severely violate the open-fire regulations and cause bodily injury or loss of life." Under the new procedure, the army unit investigates every incident in which a soldier from that unit kills a Palestinian civilian. The findings are forwarded to the JAG’s office which then decides whether the findings warrant a Military Police investigation.
This change in policy has led to a drastic fall in the number of Military Police investigations opened.
In justifying the change in policy, the JAG’s office contends that since the beginning of the al-Aqsa intifada, an "armed conflict" has been taking place in the territories, and that the Israeli army, therefore, is not automatically required to investigate every attack on civilians
But even if the situation is one of armed conflict, the army is still required to investigate attacks on civilians. Armed conflict has rules, and intentional attacks on the civilian population are forbidden. To ensure that soldiers comply with these rules, such incidents must be investigated.

During and after operation "Cast Lead" in Gaza last January, Israeli officials have maintained that the army acted in a moral manner. The Israeli Chief of Staff even declared "I do not believe that IDF soldiers harmed Palestinian civilians in cold blood", adding, "my impression is that the IDF acted morally and ethically, and if there were incidents like these, they were isolated". [3]
Nevertheless, considering the extensive media coverage, five Colonels who were not directly in the chain of command for the operations in question were appointed to hold five field investigations into 17 separate allegations made by NGOs and international institutions. All these investigations found that the IDF had acted reasonably and had not deliberately violated limits of international humanitarian law.
Many more investigations are said to be still underway.
In July 2009, the Israeli Government published a 159-page-long report entitled "The Operation in Gaza 27 December 2008 – 18 January 2009, Factual and Legal Aspects" which concludes that the allegations of deliberate breaches of IHL are unfounded and that everything possible had been done to minimize damage to civilians, medical facilities, so that the Laws of Armed Conflict had not been breached [4] .
Several Israeli organizations have highlighted the reasons why such investigations conducted at the national level could not be considered appropriate local accountability mechanisms, mainly because it is the army, and not an external body, that investigated itself and reported to the Military Advocate General.

During Operation Cast Lead, FIDH member organizations sent several letters to Israeli Attorney General Mazuz, raising their concerns as they had grave suspicion of grave violations of IHL perpetrated by the Israeli army in the Gaza strip, asking the AG to communicate those concerns to the relevant officials, and to clearly impress upon them that attacks may not be aimed at civilian objects, and the consequences of acts carried out in contravention of IHL. It was clearly expressed in the letters that "at the end of the hostilities, the time will come for the investigation on this matter, and accountability will be demanded of those responsible for the violations".
These letters have remained unanswered.

Accountability at the extra-territorial level:

The principle of "universal jurisdiction" recognizes that individuals suspected of serious international crimes such as genocide, war crimes, crimes against humanity, torture and enforced disappearances, can be prosecuted in any country, irrespective of where the crimes are said to take place.
Despite its strong basis in international law, judges, prosecutors and victims relying on universal jurisdiction are faced with serious opposition, particularly when it is exercised against higher level officials. Belgium changed its universal jurisdiction legislation in 2003 after the USA allegedly threatened to move NATO headquarters from Brussels in response to a complaint filed against high level Israeli and US government officials, including Ariel Sharon, and US army officials.
Considering the well-established Israeli legal jurisprudence regarding accountability (very few complaints actually result in an indictment), as well as the first conclusions of the investigations conducted by the Israeli army following the January 2009 offensive on Gaza, there is very little chance for the Palestinian victims to obtain justice before Israeli courts.
The Palestinian Center for Human Rights has started several years ago to file complaints under the principle of universal jurisdiction in European countries.
In 2009, FIDH has been working in close cooperation with PCHR together with a team of European lawyers to collect accurate information and affidavits to represent the interests of Palestinian victims abroad, in particular in Spain.
The pressure apparently exercised by Israel on Spain in response to complaints filed against Israeli officials for war crimes and crimes against humanity led the Spanish Parliament to adopt a resolution on 19 May 2009 designed to limit Spain’s universal jurisdiction legislation and to prevent victims of serious human rights abuses to access justice in Spain.

The Goldstone "Commission":

The appointment of the mission followed the adoption on 12 January 2009 of resolution S-9/1 by the United Nations Human Rights Council at the end of its 9th Special Session. 
"Decides to dispatch an urgent, independent international fact-finding mission, to be appointed by the President of the Council, to investigate all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission";

Based on Mr Goldstone’s own declared intentions of impartiality and professionalism, the President of the Human Rights Council accepted to broaden the mandate of the fact-finding mission.
On 3 April 2009, he established the international independent Fact Finding Mission with the mandate "to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after."

"It is in the interest of all Palestinians and Israelis that the allegations of war crimes and serious human rights violations related to the recent conflict on all sides be investigated", Justice Goldstone stated upon his appointment.

Several FIDH member organizations in Israel and the OPT have testified before the "Commission" in the course of its mission.

BT’selem, in a coalition with Physicians for Human Rights and Hamoked, released a position paper in which, after stressing the need for laying the foundations for local and international justice mechanisms for purposes of accountability, they encourage Israel and the Palestinians to establish impartial and independent local investigations and justice mechanisms for the Gaza offensive. However, due to Israel’s past record of impunity when holding investigations into its own violations, it is necessary that independent international bodies be asked to observe these processes, in order to ensure their transparency and proper enforcement and their conformity with principles of International Humanitarian Law.
Therefore, the organizations call upon both Israelis and Palestinians to:
hold independent, impartial and transparent investigations locally; to prosecute, in accordance with due process standards and independent and transparent local justice mechanisms, those responsible for law of war violations; and to compensate the victims.
Support, and work for the creation of, a dedicated international mechanism to support, monitor and report on the parties’ efforts to conduct thorough, impartial and credible investigation into allegations of such law of war violations and to prosecute those responsible.
If the parties to the conflict fail in their obligation to investigate and prosecute laws of war violations, to support the establishment of international justice mechanisms that will ensure the above process of accountability.

OHCHR:

A report was submitted by the Office of the UN High Commissioner for Human Rights to the Human Rights Council in August 2009. This is the first periodic report by the OHCHR mandated by Council resolution S-9/1 in which the Council requested the High Commissioner "to report on the violations of human rights of the Palestinian people by the occupying power, Israel, by submitting period reports of the Council.
In her conclusions and recommendations entitled "the need for accountability", the High Commissioner stresses that "prima facie evidence indicates that serious violations of international humanitarian law as well as gross human rights violations occurred during operation "Cast lead". .."While these violations are of deep concern in their own right, the nearly total impunity that persists for such violations (regardless of the responsible duty bearer) is of grave concern, and constitutes a root cause for their persistence.

In this context, the High Commissioner made the following recommendations:

All allegations of violations of international humanitarian law and human rights violations during the Gaza military operations must be investigated by credible, independent and transparent accountability mechanisms, taking fully into account international standards on due process of law. Equally crucial is upholding the right of victims to reparation. All parties concerned, as well as States and the international community as a whole, should render full support and cooperation to all such accountability efforts. The High Commissioner stresses in particular the need for full cooperation with and support to the ongoing work of the independent fact-finding mission mandated by the Human Rights Council and headed by Justice Richard Goldstone;

In the wider OPT context, addressing the persisting impunity for human rights and international humanitarian law violations committed by all parties is vital for preventing a further deterioration of the human rights situation. In particular, reported instances of arbitrary detentions, torture and ill-treatment and extra judicial executions should be investigated. A key obstacle in this regard is the widespread recourse to military justice systems, which do not meet international standards of due process, by all parties. This should be curtailed;

There can be no lasting peace without respect for human rights and without accountability for human rights violations.

Arab League:

For the first time a fact-finding mission was mandated by the Arab League, conducted by very-high level international experts in international Humanitarian and Human Rights law. FIDH was consulted prior to the mission in order to suggest experts, which it did through its member organization the Palestinian Center for Human Rights in Gaza.
The Independent Fact Finding Committee on Gaza to the League of Arab States was established in February 2009 with the tasks of investigating and reporting on violations of human rights law and international humanitarian law during the Israeli military offensive against Gaza from 27 December 2008 to 18 January 2009 and collecting information on the responsibility for the commission of international crimes by both parties during the operation. The Committee comprised Professor John Dugard (South Africa: Chairman), Professor Paul de Waart (Netherlands), Judge Finn Lynghjem (Norway), Advocate Gonzalo Boye Chile/Germany), Professor Francisco Corte-Real (Portugal: forensic body damage evaluator) and Ms Raelene Sharp, solicitor (Australia: Rapporteur).

The Committee remained in Gaza from 22 to 27 February. The programme for its visit was organized by the Palestinian Centre for Human Rights, which provided logistical support to the Committee. The Committee met with a wide range of persons, including victims of operation Cast Lead, witnesses, members of the Hamas Authority, doctors, lawyers, businessmen, journalists and members of NGOs and United Nations agencies. It visited the sites of much of the destruction, including hospitals, schools,universities, mosques, factories, businesses, police stations, government buildings, United Nations premises, private homes and agricultural land.

The Committee collected a wealth of information from many sources, including the websites of the Israeli Foreign Ministry and Israel Defense Forces (IDF), Israeli newspapers and NGO reports, the reports of Palestinian and international NGOs, United Nations publications, Palestinian official documents and the testimony of witnesses to the conflict. On three occasions, the Committee wrote to the Government of Israel requesting its co-operation. Such letters were faxed to the Government in Israel and later delivered to the Israeli embassies in the Netherlands and Norway. The Committee received no response to its requests for co-operation, which compelled it to rely on official websites, publications and the media for information about the Israeli perspective.

After establishing the facts, the report focuses widely on the accountability of those responsible for grave violations of human rights of international humanitarian law and the remedies to the violations.
The set of recommendations includes recommendations to:

The UN: requesting the SC to refer the situation to the prosecutor of the ICC

The High contracting parties of the GC: to take action under Article 146 of the Fourth Geneva Convention to ensure that those suspected of having committed grave breaches of the Convention under Article 147 be investigated and prosecuted.

The Arab League member is urged to encourage the states to prosecute persons responsible for the international crimes identified in the mission’s Report before their national courts (where universal jurisdiction statutes so permit).

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