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.