Ref: 11/2010

On 26 February
2010, the General Assembly of the United Nations will debate the implementation
of the Report of the UN Fact Finding Mission on the Gaza Conflict (the
Goldstone Report). An Arab-sponsored draft resolution requests that all parties
be given a further five months to conduct investigations.

The Palestinian
Centre for Human Rights (PCHR) strongly criticizes the time-limit contained in
this resolution. As it stands this resolution grants impunity to those accused
of committing serious violations of international law. In endorsing such a
resolution the United Nations would effectively turn its back on international
law, and the victims of last years offensive on the Gaza Strip.

PCHR stresses
that investigations conducted to-date by both Israel and the Palestinian
authorities have been ineffective, and have failed to comply with international
law. As noted in Genuinely
Unwilling: Israel’s Investigations into Violations of International Law
including Crimes Committed during the Offensive on the Gaza Strip, 27 December
2008 – 18 January 2009, Israel’s investigative and judicial system
is fundamentally biased against Palestinians. Investigations conducted by
Israel fail to comply with international standards, while the judicial system
fails to adhere to international standards relating to the effective
administration of justice.

Effective
investigations and prosecutions are thus an impossibility within the current
Israeli system. Israel has repeatedly shown that it is unwilling to conduct
genuine investigations, and efforts have been made to ensure that those accused
of serious violations of international law are not held to account. Israel is
internationally accountable for this failure to conduct genuine investigations.

Given this
reality, a further five months cannot lead to effective investigations. The adoption
of the draft resolution will merely prolong a situation of impunity, and deny
victims legitimate and fundamental human rights, including the right to an
effective judicial remedy and the equal protection of the law.

The obligation to investigate serious
violations of international law is a component of customary international law,
and one of the core elements of States’ duty to guarantee human rights. In
order to be effective such investigations must meet two core requirements, they
must be conducted promptly and impartially. As noted by the Inter-American
Court of Human Rights, in Del Caracazo, investigations which persist for a long
period of time, without those responsible for gross violations of human rights
being identified or punished, constitute “a situation of serious impunity
and […] a breach of the State’s duty.” As eloquently noted by Justice
Goldstone, justice delayed is justice denied.

The most significant aspect of the Goldstone
Report lays in its recommendations, which set out explicit and detailed
accountability mechanisms. The Report specified an initial six month
time-frame; after this period, if investigations were not forthcoming, the Fact
Finding Mission recommended that recourse be had to international justice,
including the International Criminal Court. Extending this time limit by a
further period of five months equates to killing the very heart of the Report.

Given Israel‘s unwillingness to conduct
genuine investigations, and the Palestinian authorities’ inability, it is
essential that recourse be had to mechanisms of international justice. Rather
than prolonging the prevalent situation of impunity, the General Assembly
should request that the Security Council, acting under Chapter VII of the UN
Charter, refer the situation in Israel
and the occupied Palestinian territory to the International Criminal Court.

Concurrently, all States must fulfill their
obligation to investigate and prosecute those accused of serious violations of international
law before their own courts, in accordance with the principle of universal
jurisdiction.

Impunity cannot be allowed to prevail. Those
accused of serious violations of international law, which include grave
breaches of the Geneva Conventions and crimes against humanity, must be held to
account. Victims’ rights must be upheld