Published @ 7.00 GMT 4/1/96

 

Today, the 3rd January 1996, a special committee of the Israeli cabinet, headed by Shimon Peres the Israeli Prime Minister and Minister of Defence, took the decision not to provide compensation for the thousands of Palestinians who were killed or injured by Israeli occupying forces during the Intifada. This is a flagrant breach of the internationally accepted principle of compensation for victims of war crimes and grave breaches. The Palestinian Centre for Human Rights expresses its strong and grave concern in response to this decision.

All occupation practices over the last 28 years have been without accountability in all aspects; this has not been changed by agreements under the peace process. The issue of compensation however, is one for which Israel cannot avoid its responsibilities. International law, custom, principle and jus cogens are explicit on this matter and provide very strict standards of behaviour and matters of compensation.

The Fourth Geneva Convention uses the term “grave breaches” which are synonymous with war crimes and lists activities which inter alia include deportation, torture, wilful killing, wilful causing of great suffering or injury to body or health, destruction or appropriation of property not justified by military necessity (Article 147); these are all acts which have been carried out as policy by Israel in the Occupied territories. Where such activities have been carried out Israel must provide effective penal sanctions for those committing such activities. Grave breaches are subject to universal jurisdiction so that individuals who are suspected of committing them can be tried by a court in any Contracting Party state (Article 146).

War crimes are defined in an exemplary list in the London Charter establishing the Nuremburg Tribunal which is generally accepted; this explicitly covers yet another crime which Israeli occupying

forces have openly carried out, that of deportation of the

-2-

civilian population or those in occupied territories.

Torture is specifically outlawed under any and all circumstances by all human rights and humanitarian instruments both international and regional, and this is in addition accepted as being jus cogens. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, or Punishment adopted in 1984 has been ratified by Israel. Although a

reservation was entered by her in relation to the jurisdiction of the Committee Against Torture and therefore there can be no ex officio investigations, this Convention provides comprehensive and explicit laws and standards for torture. These provisions have applicability in the occupied territories as these were under Israeli jurisdiction (Article 5); Israel must take all necessary measures to ensure that there is criminal liability for any individual who is found to be a perpetrator or to have complicity in carrying out torture and that perpetrators are tried and punished accordingly (Article 4); that such acts cannot be justified on the basis of a superior order (Article 2).

International instruments reaffirm the non-derogable accountability of states in regard to perpetrations of grave breaches and war crimes. In addition they re-affirm the principle of compensation for victims of such acts. The principles established by Nuremburg’s London Charter and in its judgment is considered declaratory of international law, and provides that under no circumstances can the status of the accused be pleaded as a ground for immunity from war crimes, nor can superior orders be pleaded as a defence.

Under the Fourth Geneva Convention no High Contracting Party can absolve itself of liability in regard to grave breaches (Article 148). Although Israel is Party to this instrument she has declared that they are de jure not applicable in the Occupied Territories. However many of the standards and norms of Geneva Law are widely accepted as being part of customary international law and Israel cannot derogate from these. In addition Israel has stated that she will apply their humanitarian standards and norms de facto.

The Torture Convention gives clear provision in Articles 13 and 14 that State Parties must provide redress in their legal systems for any individual who alleges they have been subjected to torture and must provide compensation and as full rehabilitation as possible, and that in the case of death entitlement shall be given to the victims’ dependents to compensation. The article adds categorically that the national law of a state cannot undermine this right of a victim.

The decision of the Israeli government affects not only cases of claims for compensation which are pending, but also those which have already been filed before the Israeli courts and those which have been in the process of litigation for several years. This decision will be an interference with the independence of the judiciary in relation to cases which are currently being litigated.

-3-

It should be borne in mind that since the Second World War Israel has been receiving compensation from Germany for crimes against humanity which it perpetrated against Jews. This principle of compensation for war crimes and crimes against humanity was strongly supported and argued for by Israel. In accordance with this principle Israel must fulfil its international obligations in regard to the breaches of international laws and principles

which it has perpetrated in the Occupied Territories.

A second important point which should be made is that this issue is “live” under the Peace Process. It is imperative that it should be dealt with not as a “package deal”, but as a specific issue itself.

The Palestinian Centre for Human Rights calls for the following:

• i) no amnesty must be given for perpetration of such crimes and breaches;

  ii) compensation must be paid to individual victims themselves, and not in a lump sum to an organisation or governing body;

  iii) the Palestinian Authority must not to accept a lump sum payment of compensation for the families of those who were killed and those who were injured or tortured during the Intifada by Israeli occupying forces;

  iv) all international, Palestinian and Israeli organisations must take prompt, effective, strong and public stance on this issue and insist that the principles and rules of international law must be adhered to;

  v) members of the Israeli Knesset whom have shocked us by their silence during the decision-making process to review their positions and to take positive stand in this regard.

The Palestinian Centre for Human Rights would like to state that the pain, suffering and oppression which the Palestinian people were subjected to by the Israeli authorities during the Intifada, cannot be evaluated in monetary terms, and that this could never be adequately compensated. However the value of the principle of compensation in itself, through which a violating state is publicly held to account for these acts and which also provides some alleviation for suffering of the victims and their families, cannot be undervalued.