An international war crimes tribunal on Gaza: Restoring the power of the UN General Assembly

While there can be little doubt that Israel has committed war crimes in its brutal assault against the people of Gaza, the question is how Israel can be brought to book. Previous war crimes tribunals have all been set up by the UN Security Council, but there is no prospect of such a response in this case in view of the unflinching support of the US for Israel. Gurdial Singh Nijar argues that there is a way out as it is open to the UN General Assembly to act to end this impunity.

THE recent ceasefire in Gaza has allowed an interim taking of accounts of the 22-day savagery. The mangled concrete debris of what were once Palestinian homes, mosques, schools, UN shelters, universities and numerous other structures are silent testimonies of war crimes committed yet again against a people seeking to reclaim their lost lands. They also attest to the immense tragedy of men, women and children as they were studiously murdered. The barbarity reached incredible proportions - as in Zeitun - where civilians lured to 'safe places' were then bombed repeatedly. A second holocaust committed this time by the victims of the first!

No one really questions that, on its face, the three-week orgy of killings of Palestinian civilians is a war crime. The UN Security Council Resolution 1860 of 8 January 2009 condemned the heavy civilian casualties and the deepening humanitarian crisis. As did the UN General Assembly a short while later. The UN General Assembly President accused Israel of genocide. The UN Secretary-General condemned the heavy civilian deaths.

The Geneva Convention (Part IV) has clearly been violated. Nothing can excuse the targeting of civilians: no right of self-defence ('I had to protect against the rockets') nor the necessity defence ('I had no choice'). Even if the other party does not play fair, a Party to the Convention must do so. Israel and the US are Parties to the Convention. The bottom line is: nothing can justify killing civilians. It is a crime in international law, pure and simple. 

The Israeli Prime Minister publicly apologised for the suffering caused to the Palestinian civilians. Is this sufficient exoneration for a crime against humanity? At the cusp of a new American presidency emerging from the ashes of the lowest poll-rated president of all time, there is an expectant hope yet, of a new world order built on the moral imperative that no attack of this kind should be countenanced, and that no international humanitarian law violator should ever sleep in peace.

Now, at long last, the UN Secretary-General has asked for an enquiry into the 'outrageous attack' and for the guilty to be held accountable.

In short, there must be an immediate end to impunity. How can this be achieved?

International war crimes tribunal

For this lawlessness to be checked, it is necessary to establish an international war crimes tribunal on the Israeli actions in Gaza.

Two such tribunals have been set up in the recent past: the first, in 1993, for the war crimes committed during the conflict in the former Yugoslavia; and the second, the following year, against the authors of the genocide in Rwanda.

Both these 'courts' were set up by UN Security Council resolutions - under Article 41 of the UN Charter.

In the present case, the US may be expected to veto the establishment of any tribunal, given its unstinting support for Israel. The issue then is: does the General Assembly have the power to establish a war crimes tribunal on Gaza? And more importantly, can it do so without the approval of the Security Council?

The answer is: yes.

The General Assembly (GA)

International law makes it clear that the task of ensuring peace and security in the world is not the exclusive right of the Security Council. Article 11(2) of the UN Charter explicitly endows the GA with such competence as well and allows it to make the necessary recommendations. The only limitation is that the GA cannot recommend measures while the Security Council is dealing with the same matter. This implies that it must be actually deliberating on the matter. Having merely passed a resolution without more will therefore not remove the GA's right to act.

The practice of the UN has also evolved, said the International Court of Justice (ICJ) in the 2004 Wall case, to allow the GA to '...deal in parallel (with the Security Council) on the same matter concerning the maintenance of international peace and security'. The ICJ noted the GA's broader perspective to take into consideration the humanitarian, social and economic aspects of a war.

It is suggested that this power extends to the setting up of a war crimes tribunal.

Article 22 of the UN Charter authorises the GA to establish subsidiary organisations as it may deem necessary for the performance of its duties. While the Article does not explicitly provide for the establishment of such a tribunal, neither does it exclude the right to do so. The Security Council established the Hague Tribunal for war crimes in the former Yugoslavia and the Arusha Tribunal for the crimes in Rwanda on a similar generically-worded provision - Article 41 ('may decide what measures to take not involving the use of armed force ... to give effect to its decisions'). This, said the Security Council, did not exclude the imposition of criminal responsibility on persons whose capacity for acts of aggression can only be deterred by the prospect of punishment.

Similarly, the GA has the undoubted competence to act on '... questions relating to the maintenance of international peace and security' (UN Charter, Article 11.2). And Article 18 of the Charter explicitly allows the GA to make recommendations with respect to maintenance of international peace and security by a two-thirds majority vote. These powers reinforce the right to recommend the establishment of a war crimes tribunal.

Further, the 'Uniting for Peace' resolution of the General Assembly [Resolution 377(V)] gives the General Assembly the right to act where there is no unanimity of the Security Council and this prevents the Council from carrying out its primary responsibility of maintaining peace and security. Then the General Assembly is empowered to act, including recommending collective armed intervention. This clearly implies that the Assembly also has the power to recommend a measure of a much lesser nature such as the setting up of an international war crimes tribunal.

It is submitted that these cumulative provisions empower the GA to:

*   act in parallel with the Security Council on matters relating to the maintenance of international peace and security; or

*   act, in any event, if the Security Council refuses to do so on a matter relating to the maintenance of international peace and security; and

*   make recommendations of a far reaching nature - including collective armed action; and/or

*   make recommendations of a lesser nature - including setting up a subsidiary organ such as a war crimes tribunal on Gaza.

It has already been noted that Israel's targeting of civilians is a war crime being a breach of the Geneva Convention 1949 (V). What of its initiation of the war on Gaza?

This can be justified only by Israel's right of self-defence. There must be a real threat posed to the nation of Israel by the intermittent rockets. This threat to the nation must also be imminent. More importantly, Israel's attack must not only be necessary, but proportional, to the threat from Gaza. Even then, before war is declared, it is mandatory to negotiate, conciliate, mediate, arbitrate and seek judicial settlement. Even then, the war measures must be temporary until the Security Council can take measures. The war on Gaza was initiated, continued and temporarily suspended - all entirely unilaterally by Israel in furtherance of its own agenda. It fulfilled none of the UN's mandatory preconditions. This makes it a war crime - and a clear threat to international peace. This brings it within the ambit of the GA's competence.

In any event, it is important to reassert the power of the GA to act to restore the role of the UN to stop war crimes and crimes against humanity when and where they occur, and not merely when the five permanent and undemocratically-elected Security Council members unanimously agree to act.

Already several times in the recent past, actions have been taken without the approval of either the Security Council or the GA - ostensibly in furtherance of a humanitarian cause. These actions have not met with universal approval. Attempts to justify their legitimacy have been rejected by jurists across the divide. This underlines the pressing need to restore the power of the UN. The Security Council has once again demonstrated its impotence to act. The US complicity in the war insulated Israel's acts from any deterrent and meaningful response.

Hence it is important to reassert the power of the GA. One of the first tests of its successful resurgence will be the establishment of a war crimes tribunal on Gaza. Failure will mean a return to a lawless world where might rules over right; and the horrific image of nations unbound - 'self-exempted from the delicate fabric of international law on which human survival rests'.                                             

Gurdial Singh Nijar is a Professor in the Law Faculty of University Malaya, Kuala Lumpur.

*Third World Resurgence No. 221/222, January-February 2009, pp 29-30