Ref: 15/2010

Israel’s offensive on the Gaza Strip, 27 December 2008
– 18 January 2009, resulted in the killing of over 1,400 Palestinians, the
overwhelming majority of whom (82%) were civilians. At least 5,300 Palestinians
were also injured, and public and private property throughout the Gaza Strip
was extensively targeted and destroyed. Investigations conducted by the
Palestinian Centre for Human Rights (PCHR), and numerous other organisations,
including the UN Board of Inquiry, the Independent Fact Finding Mission
mandated by the League of Arab States, and the UN Fact Finding Mission on the
Gaza Conflict (the Goldstone Mission), concluded that Israel committed numerous
violations of international law, many of which give rise to individual criminal
responsibility.

Israel is obliged, under both Treaty-based and
Customary International Law, to conduct effective investigations into these
allegations, and to prosecute those responsible. To date, Israel has proven
itself unwilling to do so. PCHR emphasize that Israel is under a legal obligation
to investigate all suspected violations of international law, including – but
not limited to – those contained in the Goldstone Report.

On 5 November 2009, the General Assembly of the United
Nations (UN) voted to endorse the Goldstone Report. The adopted Resolution
called upon the Government of Israel and the Palestinians to:

“… take all appropriate steps, within a period
of three months, 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”.

In anticipation of the forthcoming UN General Assembly
debate on the implementation of this Resolution, “Genuinely Unwilling” analyses
Israel’s legal and judicial system in light of Israel’s obligations under
international law. Despite Israel’s claims to the contrary, Genuinely Unwilling
 

concludes that Israel is unwilling to and that the
Israeli system is incapable of conducting independent, credible investigations
in conformity with international standards. Israel’s failure to conduct such
investigations is in violation of its international legal obligations, and UN
General Assembly Resolution A/Res/64/10.

 While Genuinely
Unwilling necessarily analyses international obligations with respect to the
administration of justice, and Israel’s compliance with these obligations, PCHR
notes that throughout the history of the occupation, Israel has consistently
proven itself unwilling to conduct genuine investigations and prosecutions into
cases of alleged violations of international law. This illegal pattern has been
repeated with respect to allegations arising out of Israel’s conduct of hostilities
during the offensive on the Gaza Strip. Virtually all aspects of Israel’s
offensive were sanctioned, approved, and decided upon by the highest echelons
of Israel’s civilian and military leadership. Any investigation must
necessarily evaluate this policy, and those responsible for its formulation and
implementation. Where appropriate, responsible individuals – regardless of
their rank or political standing – must be held to account. As demonstrated in
this report, the Israeli legal system prevents such genuine investigations.

PCHR Director Raji Sourani stated: “The Goldstone
report represented an important milestone for the rule of law. It formulated
the responsibility of the international community in a clear manner and
specified the timeframe and implementation mechanisms needed for justice and
accountability regarding the war on the Gaza Strip. This gives the
international community a choice between the rule of law and the rule of the
jungle. As citizens of the world, we very much hope that the relevant organs
will follow the path outlined by Justice Goldstone and effectively enforce the
rule of law. Peace cannot come at the expense of justice. In fact, experience
has shown that lasting peace can only be achieved through total respect for the
rule of law.”

If victims’ rights are to be ensured, and the rule of
law enforced, recourse to mechanisms of international justice – including a
Security Council referral to the International Criminal Court in accordance
with Chapter VII of the UN Charter, or the exercise of universal jurisdiction –
is thus the essential next step.

Without enforcement of the law, Israel is free to
violate international law with impunity and remain a threat to world peace; it
is Palestinian civilians who suffer the horrific consequences.

Download the report here.

Download PCHR’s submission to the 13th session of the Human Rights
Council here.