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25 March 2009
Third World Network

UN: Rights Expert Calls for Expert Inquiry into Gaza War Crimes

Joining widespread calls for an investigation into the recent conflict in Gaza, the Special Rapporteur on the situation of human rights in the Palestinian territories, Richard Falk has proposed an expert inquiry to report on the allegations of war crimes associated with the Israeli military operations in Gaza.

The recommendation is in a report (A/HRC/10/20) to the tenth session of the Human Rights Council.

The following story is reproduced with permission from South-North Development Monitor (SUNS) #6666, 24 March 2009.

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United Nations: Rights expert calls for expert inquiry into Gaza war crimes
By Kanaga Raja, Geneva, 23 March 2009

Joining widespread calls for an independent investigation into the recent conflict in Gaza, a UN human rights expert has recommended the establishment of a procedure for conducting an expert inquiry from the perspective of the role of the UN Human Rights Council into allegations of war crimes associated with the Israeli military operations in Gaza.

The recommendation is in a report (A/HRC/10/20) by Mr Richard Falk, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, to the tenth session of the Human Rights Council.

Noting the widespread calls for an investigation of the allegations of war crimes associated with the recent encounter in Gaza, the rights expert proposed 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, the rights expert recommended.

The report of the Special Rapporteur 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.

In his report, Falk 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 recommended 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.

The Special Rapporteur also recommended action in response to the denial by Israel of entry to him on 14 December 2008. He said that he 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, he said.

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, he said, adding that 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.

The Special Rapporteur was of the view 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."

On the basis of available reports and statistics, said Falk, 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.

The rights expert highlighted some results of the military operation as follows:

-- A total of 1,434 Palestinians 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 on 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);

-- 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; and

-- 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.

"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."

Falk's report noted that 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 rights expert 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."

The report said that 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 (it was effectively terminated on 4 November) had been an effective instrument for achieving this goal, as measured by the incidence of rockets fired and with regard to Israeli casualties sustained.

The report said that records also show that, during the ceasefire, it was predominantly Israel that resorted to conduct inconsistent with the undertaking, and Hamas that retaliated.

The report includes a graph, based on Israeli sources, that points to the number of Palestinian rockets and mortar shells fired each month in 2008. The period of the ceasefire stretches from 19 June to its effective termination on 4 November.

The rate of rocket and mortar fire by the Palestinians were 241 in January, 257 in February, 196 in March, 145 in April, 149 in May, 87 in June, 1 in July, 8 in August, 1 in September, 1 in October, 126 in November and 98 in December.

The report cites the authors of a study, based on the data displayed in the graph, concluding that "the 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."

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, said Falk. He added that beyond this, records show that, during the ceasefire, it was predominantly Israel that resorted to conduct inconsistent with the undertaking, and Hamas that retaliated.

Citing the study, the report said that during a longer period, from 2000 to 2008, it was found that, in 79% 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."

Furthermore, noted Falk, Hamas leaders have repeatedly and formally proposed extending the ceasefire, including for long periods.

The continuing refusal of Israel to acknowledge Hamas as a political actor, based on the label of "terrorist organization" has obstructed all attempts to implement human rights and address security concerns by way of diplomacy rather than through reliance on force, said Falk.

The rights expert concluded that 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.

The contention that the use of force by Israel was "disproportionate" 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."

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, said Falk.

In an unprecedented belligerent policy, said the report, 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. 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.

Refugee denial under these circumstances of confined occupation is an instance of "inhumane acts", 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.

Calling for an expert inquiry, the Special Rapporteur said that 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.

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, said the report.

"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."

In conclusion, the Special Rapporteur insisted 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."