Ref: 29/2011

In
light of the media debate and confusion triggered by Justice Richard
Goldstone’s 1 April opinion piece in the Washington
Post, the Palestinian Centre for Human Rights (PCHR) wishes to highlight a
few key issues regarding the current status of the UN
Fact-Finding Mission’s Report, and the search for accountability in the
aftermath of Israel’s 27 December 2008 – 18 January 2009 offensive on the Gaza
Strip.

PCHR
represent 1,046 victims of the offensive, and have submitted 490 criminal
complaints to the Israeli authorities on behalf of these individuals.

As
noted by Justice Goldstone, the UN Fact-Finding Mission was not a judicial
body. Rather, it was a fact-finding mission mandated to conduct initial
investigations on the ground, and to make recommendations on this basis. The
Mission found sufficient evidence to indicate the widespread commission of war
crimes, and possible crimes against humanity. This finding was consistent with
the result of investigations conducted by other organisations, including PCHR,
Amnesty
International, Human Rights
Watch, the UN Board of Inquiry, and the Fact-Finding
Mission of the Arab League.

Appropriately,
and consistent with the requirements of international law, the Fact-Finding Mission recommended that these allegations be
investigated. The Mission noted that if
domestic authorities failed to conduct effective investigations, the
International Criminal Court became the most appropriate forum to investigate
these serious charges. Responsibility would thus fall on the Security Council to activate the
jurisdiction of the International Criminal Court, in accordance with
Article 13(b) of the Court’s statute. According to the timeline established by
the Mission, this referral should have
taken place approximately one year ago. The Security Council took such
action most recently with respect to the current situation in Libya.

The
most serious allegations regarding Israel’s conduct of hostilities during the
offensive relate to the direct targeting
of civilians, widespread indiscriminate attacks, the choice of targets and methods of combat,
and the extensive destruction of public
and private infrastructure, including the total or partial (rendered
uninhabitable) destruction of 7,872 civilian housing units. A few significant
cases in this regard include the attack on UNRWA headquarters, the attack on
Fakhoura school, the Abdul Dayem case, the Al-Daia case, the Abu Halima case,
and the attack on Arafat Police compound. Policies including those related the
conduct of hostilities, the choice

of
targets, the use of white phosphorous, and the artillery bombardment of
civilian areas may also give rise to individual criminal responsibility. None
of these cases have been effectively addressed, and have not been
‘reconsidered’ by Justice Goldstone.

International law clearly requires that
allegations of international crimes, as detailed in the Fact-Finding
Mission’s Report and elsewhere, must be
subject to genuine investigation, and if appropriate, those responsible
prosecuted.

International
jurisprudence has consistently identified four components essential to
conducting a genuine investigation.[1] An
investigation must be: effective
(capable of leading “to the identification and punishment of those responsible”[2],
and “undertaken in a serious manner and not as a mere formality preordained to
be ineffective”[3]); independent (based on, inter alia, “the existence of guarantees
against outside pressures”,[4]
specifically “the persons responsible for the injuries and those conducting the
investigations should be independent of anyone implicated in the events”[5]); prompt;[6]
and involve an element of public
scrutiny.[7]
Significantly, the whole operation must also be analysed, and not merely the
immediate specifics of any one incident; the overall plan and its
implementation must be analysed.[8]

In the over two years that have passed since the offensive, all parties have failed to conduct
investigations complying with these standards. Most recently, the UN
Committee of Independent Experts mandated to monitor Israel and the
Palestinians’ domestic investigations found that “there is no indication that Israel has opened investigations into those
who designed, planned, ordered and oversaw ‘Operation Cast Lead’.” The
Committee also noted significant problems with respect to the role of the
Military Advocate General.

The
overwhelming majority of investigative
procedures initiated by Israel have been closed on reaching the IDF’s apparently preordained
conclusion that:
“[t]hroughout the fighting in Gaza, the IDF operated in accordance with international
law.”

In
the over two years since Operation Cast Lead one Israeli soldier has served 7.5
months in jail for the theft of a credit
card and two others received three
month suspended sentences for using a child as a human shield. These three
convictions, and the ongoing trial of a fourth soldier, have been the only
concrete judicial outcomes from Israeli investigations. It is noted that these indictments fail to reflect the
gravity of the actual crimes committed, as does the exceptionally lenient
sentence in the human shields case.

PCHR
have concluded
that the Israeli investigative system as
a whole, including as this relates to civilian supervision, is flawed, either
in law, in practice, or both.

In
light of the domestic systems now proven inability and unwillingness to conduct
genuine investigations, it is imperative
and appropriate that these allegations be investigated by the International
Criminal Court. On 25
March 2011, the Human Rights Council made precisely this recommendation,
recommending that the General Assembly submit the UN Fact-Finding Mission’s
Report to the Security Council, to consider referring the situation in the
occupied Palestinian territory to the International Criminal Court

The current debate must focus on the relevant
core issues. Significant evidence indicates that widespread war crimes were
committed in the context of Operation Cast Lead. These have not been subject to
genuine judicial scrutiny. This situation must be remedied by a referral to the
International Criminal Court.

All political considerations must be put aside,
and the rule of international law upheld. There is no
basis to retract or reconsider the Report of the UN Fact-Finding Mission on the
Gaza Conflict. The equal application of
the law is the very least that victims on all sides deserve. Justice
Goldstone will hopefully join the call of the Human Rights Council, supported
by human rights NGOs globally, in asking the Security Council to refer the
situation in Israel and the Occupied Palestinian Territory to the International
Criminal Court.

All
parties to the events in the region must be held to universal standards so that
the law proves capable of protecting civilians from future atrocities, and so
that those victims of past crimes can finally achieve accountability and
justice.