Ref: 87/2010 

Today, 21 September 2010, the Committee of Independent Experts – mandated by the UN Human Rights Council to monitor and assess domestic legal procedures undertaken into alleged violations of international law committed in the context of Israel’s 27 December 2008 – 18 January 2009 offensive on the Gaza Strip – released its report.

The Committee concluded that no criminal procedures had been initiated on the Palestinian side, and that “there is no indication that Israel has opened an investigation into the actions of those who designed, planned, ordered and oversaw “Operation Cast Lead”.” In light of the failure of domestic mechanisms, it is imperative that recourse now be had to mechanisms of international criminal justice.

The Palestinian Centre for Human Rights (PCHR) conclude that Israel has proven itself genuinely unwilling to comply with its international legal obligation to conduct effective investigations, and as appropriate prosecutions, into the systematic violations of international law committed in the context of the offensive on the Gaza Strip. As detailed in ‘Genuinely Unwilling: An Update’, certain intrinsic factors of the Israeli investigative and judicial system – in particular the scope of investigations, the reliance on operational debriefings, and the central decision-making role of the Military Advocate General (MAG) – preclude effective criminal investigations. This conclusion is reinforced and underlined by the fact that there has only been one offensive-related prosecution – for the theft of a credit card – while the majority of cases have been closed.

Israel’s lack of compliance with the Committee and other UN bodies, including the UN Fact Finding Mission on the Gaza Conflict, cannot be allowed to frustrate the pursuit of justice. While, as a result of Israel’s non-compliance, the Committee did not engage in any in-depth analysis of Israel’s investigative and judicial system, it unequivocally concluded that no investigations have been conducted into those ‘most responsible’ for the allegations contained in the Report of the Fact Finding Mission, and that despite “the seriousness of the allegations, the military investigations thus far appear to have produced very little.”

Equally, the Palestinian side have failed to conduct effective criminal investigations. Palestinian procedures have not resulted in any form of accountability, and have failed to ensure victims’ legitimate right to an effective judicial remedy. In light of the reality of procedures initiated to date and the practicalities of the situation (including a divided judicial and political system) it must be concluded that no effective mechanisms are available on the Palestinian side.

Over 20 months after the end of the offensive, it is clear that both Israel and the Palestinian authorities have proven themselves unwilling and/or unable to pursue accountability, and uphold victims’ legitimate rights.

It is imperative that urgent recourse now be had to mechanisms of international criminal justice, in particular to the International Criminal Court. Those responsible for grave breaches of the Geneva Conventions and other war crimes cannot continue to be granted blanket impunity; their victims’ legitimate right to the equal protection of the law and an effective remedy cannot continue to be denied. This is the responsibility of the United Nations, in particular the Security Council, and the international community as a whole.

The Committee’s Report will be presented to the UN Human Rights Council on Monday, 27 September 2010. PCHR ask that the Human Rights Council:

1. Acknowledge and condemn the failure of all responsible parties to comply with their obligation to carry out genuine investigations in accordance with relevant UN resolutions, and the consequent need for the international community to take action to uphold victims’ rights, and ultimately to promote respect for the rule of international law through the pursuit of international criminal justice;

2. Recommend that the UN General Assembly urge the UN Security Council, acting under Chapter VII of the UN Charter, to refer the situation in Israel and the Occupied Palestinian Territory to the International Criminal Court (ICC);

3. Request that High Contracting Parties to the Geneva Conventions of 1949 comply with their legal obligation to investigate and prosecute all suspected grave breaches of the Conventions, including through the exercise of universal jurisdiction.

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