Ref: 06/2010
On 5 November 2009, the General Assembly of the United Nations (UN) voted to endorse the Report of the UN Fact Finding Mission on the Gaza Conflict (the Goldstone Report), which investigated violations of international law committed during Israel’s offensive on the Gaza Strip between 27 December 2008 and 18 January 2009. The adopted Resolution called upon the Government of Israel and the Palestinians “to undertake investigations that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the Fact-Finding Mission, towards ensuring accountability and justice”. The three-month timeframe for investigation stipulated by this decision ended today, 5 February 2010.
The Palestinian Centre for Human Rights (PCHR) expresses grave concern regarding the credibility of investigations carried out by Israel and the Palestinian authorities in Ramallah and Gaza. PCHR conclude that such investigations fail to meet the required international standards, and note that States become internationally accountable when they fail to take appropriate investigative action. PCHR further expresses its surprise at the remarks of UN Secretary General Ban Ki Moon in his evaluation of the results of these inquiries.
PCHR notes that the investigations carried out by Israeli authorities do not, in any way, fulfill the demands of customary international law, the Goldstone Report, or UN General Assembly Resolution A/Res/64/10. Like numerous other national and international human rights organizations, PCHR believes that the Israeli system – as it relates to Palestinian victims of Israeli violations – does not meet the necessary international standards with respect to the effective administration of justice. The hierarchical nature of the military, the ineffective manner in which investigations are conducted, the lack of civilian oversight – as epitomized by the wide margin of discretion awarded by the Israeli Supreme Court – and the ineffectiveness of such oversight when it does occur, all combine to fundamentally frustrate the pursuit of justice.
PCHR emphasize that military investigations (often referred to as operational probes, or command investigations), which form the vast majority of investigations opened to-date, are inappropriate and legally inadequate; they cannot conduct the required investigations of senior military and civilian personnel. As representatives of the victims, PCHR has first-hand experience of the Israeli investigations conducted and has represented a significant number of the witnesses who were asked to testify: PCHR considers the Israeli investigation mechanism entirely inadequate with respect to the demands of international law. PCHR emphasize that only 150 investigations have been opened, of which only 36 were criminal investigations; 7 of these criminal investigations have already been closed for ‘lack of evidence’. PCHR alone submitted 450 criminal cases. Only two officers and one soldier have been found to have made mistakes and, in general, the finding of all investigations thus far conducted is that Israel acted ‘in accordance with the law’. It is evident that accountability cannot be pursued through the Israeli legal system. This conclusion is in line with PCHR’s long-standing experience as well as that of Israeli and international human rights organizations.
PCHR further expresses its surprise at UN Secretary-General Ban Ki Moon’s response to these investigations. Ban reportedly stated that “no determination can be made on the implementation of the resolution by the parties concerned”; despite the fact that Resolution A/Res/61/10 explicitly called for the Secretary-General to “report on the implementation of the present resolution”. Mr. Ban did not express any concern regarding the evident problems arising from the lack of an independent, credible, impartial civilian investigation committee and over the lack of progress to-date. As representatives of the victims of the atrocities committed during the Israeli attacks on Gaza in December 2008 and January 2009, PCHR is shocked and appalled by this lack of responsibility. The Secretary General has the duty to ensure, through UN mechanisms, accountability for perpetrators of war crimes and redress for their victims. If he has any doubt regarding the credibility of the methods or results of the investigations – which he should, due to the fact that Israel did not establish an independent, civilian investigation committee with powers of criminal prosecution – these should be communicated in his report to the General Assembly, which should then refer the issue to the Security Council. .
PCHR also notes that the UN previously committed a grave error of judgment when it accepted $10.5 million from Israel as compensation for the bombing of UN headquarters, storage facilities, and schools in Gaza without any further legal repercussions. Through this step, targeted destruction of UN institutions was effectively recognized as ‘collateral damage’, while those responsible escaped accountability.
PCHR affirms that both the authorities in the Gaza Strip and in the West Bank have failed to conduct the required investigations, and have thus violated the terms of the General Assembly Resolution. PCHR has conducted numerous consultations with both authorities in an effort to encourage them to comply with the demands of the Goldstone Report, the General Assembly Resolution, and the rule of international law.
On 16 October 2009, the government in the Gaza Strip announced that it would begin investigations, a decision welcomed by PCHR. Unfortunately, after this, no reports were received regarding the activities of this committee, although a statement was given regarding the conclusion of investigations. The findings were submitted to the UN High Commissioner of Human Rights and published on 4 February. PCHR has reviewed the report and found it to be disappointing; it merely confirmed that the government in Gaza has failed to establish an credible, impartial investigation committee to lead an inquiry into the allegations of the Goldstone Report.
The government in Ramallah announced the establishment of a Commission of Inquiry in January. The efforts came far too late and exhibited a lack of professionalism. The investigation of war crimes committed in Gaza is impossible from the West Bank as a result of the current political split and the establishment of such a Commission merely pays lip service to the rule of law. For both Palestinian governments, this represents a very serious missed opportunity and such politically irresponsible behavior can only result in the undermining of the efforts exerted by the UN Fact-Finding Mission. PCHR appeals to the governments in Ramallah and Gaza to assume the responsibility they have to project the rights of the Palestinian victims.
In light of Israel’s proven unwillingness to conduct genuine investigations, and the Palestinian Authorities’ non-compliance, resort must be had to mechanisms of international justice. The General Assembly should request the Security Council, acting under Chapter VII of the UN Charter, to refer the situation in the occupied Palestinian territory to the International Criminal Court. Concurrently, the High Contracting Parties to the four Geneva Conventions (1949) must fulfil their obligation to search for persons alleged to have committed grave breaches of the Geneva Conventions, and to bring such persons, regardless of their nationality, before their own courts.
The Goldstone Report represented an important landmark in the fight for human rights and the rule of international law in the occupied Palestinian territory, primarily as a result of its specific accountability-focused recommendations. It is essential that the recommendations of this Report are implemented. The international community cannot continue to allow Israel to act as a State above the law, as it did following the International Court of Justice’s 2004 Advisory Opinion on The Wall.
PCHR affirms that enforcement and respect for the rule of law are essential prerequisites in the pursuit of a just and sustainable peace.
Links:
Israeli Response to The Goldstone Report
The Gaza Government’s Response to The Goldstone Report (Arabic Version )
