UN fact-finding investigation into war crimes in Gaza is warranted and necessary Commentary
UN fact-finding investigation into war crimes in Gaza is warranted and necessary
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Will Youmans [Fellow, Palestine Center]: "The announcement by the UN Human Rights Council (UNHRC) of the formation of a UN fact-finding mission to investigate alleged war crimes during the Israeli offensive in the Gaza Strip earlier this year is both warranted and necessary. The appointment of the eminent jurist, South African judge Richard Goldstone, the chief UN prosecutor for the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, came after a widespread call for the United Nations to take seriously the allegations about, as well as the applicability of international law to, Israel's actions.

The inquiry will also look into possible war crimes committed by Hamas and other Palestinian parties that intentionally targeted civilians. The UN Human Rights Council president Martin Uhomoibhi said the fact-finding mission would deal with all violations." While high-profile rocket attacks on Israeli communities left little question of direct targeting, the Israeli blockade on media access to Gaza along with the government's insistence to be taking every step necessary to avoid civilian casualties denied outside observers the opportunity to evaluate Israel's conduct.

Specifically, an investigation will have to look into whether Israel met its obligations under international law. One of the primary treaties governing the laws of war and military occupation is the Fourth Geneva Convention. It protects civilians in times of war and under any military occupation by a foreign power. Article 3 expressly forbids violence to life and person, hostage-taking, outrages upon personal dignity and denying people of certain aspects of fair trials.

In the months since the cessation of the attack, numerous allegations of Israeli misconduct emerged. An impartial, fact-finding investigation is justified by the gravity of the allegations, the high proportion of civilian casualties, and the failure of the Israeli government to seriously investigate them. Despite Israel's opposition to the investigation, the international community's credibility depends on decisive action. There are too many documented instances that could constitute prima facie violations for the international body to not investigate.

The fact-finding mission will be looking into a conflict that left behind a considerable number of civilians. According to the Israeli military's estimates, they killed 1166 Palestinians, 709 (60%) of whom were "terror operatives." If the remaining 40% were civilians, this implies a 3 to 2 ratio of militant to civilian deaths. While there is no numerical trigger, such a proportion should necessarily raise questions into the extent by which the military avoided civilian casualties. The United Nations special rapporteur, Richard Falk, relayed different estimates in a report to the UNGA: Of the 1434 Palestinians killed, 960 (67%) were civilians, including 121 women and 288 children.

For Falk, the question of proportionality is not the central question. His report states, "recourse to force was not legally justified given the circumstances and diplomatic alternatives available, and was potentially a crime against peace." It calls for an "expert inquiry" that also considers appropriate accountability. This should not be a controversial expectation. Even one critic who accused Falk of downplaying Israel's self-defense argument agreed that it "should be investigated thoroughly."

While Palestinian accounts are bountiful, the release of soldier's testimonies made such an investigation requisite. A leading Israeli newspaper, Ha'aretz, published the personal stories of a group of Israeli fighters who graduated from the Yitzhak Rabin pre-military preparatory course at Oranim Academic College in Tivon. In summary, the report announced, "Israeli forces killed Palestinian civilians under permissive rules of engagement and intentionally destroyed their property." An Israeli military investigation closed on the subject, finding no criminal activities and dismissing the soldiers' stories in the news reports as "hearsay."

In a New York Times oped, George Bisharat outlined six possible areas of war crimes. He argued that Israel deliberately attacked civilian targets. This is only permissible when it makes "an effective contribution to military action." Israeli military officials described a strategy of a generalized attack on non-military institutions. One general said, "We are hitting not only terrorists and launchers, but also the whole Hamas government and all its wings." Israeli military spokeswoman, Maj. Avital Leibovich, declared "anything affiliated with Hamas" as "a legitimate target."

Bisharat listed sites the Israeli military destroyed or damaged: "mosques, hospitals, factories, schools, a key sewage plant, institutions like the parliament, the main ministries, the central prison and police stations, and thousands of houses."

There is more evidence of broad destruction of residential areas. The International Committee of the Red Cross (ICRC) released videos exposing the extent of the damage. According to the ICRC, patches of the Gaza "were wiped out, leaving the people who lived there without homes." They found that "10,000 houses have been partially or completely ruined because of the Israeli operation."

There is also strong evidence that Israel directly targeted specially protected classes of persons, medical workers and police.

A team of five international medical experts sponsored by the Israeli branch of Physicians for Human Rights and the Palestinian Medical Relief Society interviewed 44civilians and health workers in Gaza. Their report presents evidence that Israeli troops attacked Palestinian medical workers to prevent them from helping wounded people. The team gathered "individual cases in which soldiers had been within seeing, hearing and speaking distance of their victims for significant stretches of time" and had "denied wounded people access to lifesaving medical care, or even shot at civilians at short range."

This corroborated earlier ICRC accusations that Israel intentionally delayed ambulances and denied them safe access in at least one instance. In a statement, ICRC said it believes "the Israeli military failed to meet its obligation under international humanitarian law to care for and evacuated the wounded." However, Dominik Stillhart, ICRC deputy director of operations, said this was for the ICC, not the ICRC, to adjudicate. The ICC, however, lacks jurisdiction since Israel is not a ratified signatory to the Rome Statute. The ICC could gain jurisdiction if the case were referred by the UN Security Council. Without a proper, formal and fair investigation, it is impossible for any such case to proceed.

Professor John Dugard, the former U.N. special rapporteur on human rights in the Occupied Palestinian Territory and visiting distinguished professor of law at Duke University, spoke recently at the Palestine Center. He described the "opening salvo," in which Israel killed fifteen policemen as a potential transgression of international law. He said, "Israelis view policemen as militants whereas in fact policemen are, under international law, classified as civilians." Professor Dugard has visited Gaza twice each year since 2001 and previously "witnessed evidence of horrendous bombings and killings and house destructions." "But," he added, "the most recent attack surpassed all the others."

A National Lawyers Guild delegation to Gaza issued a detailed report [PDF file] suggesting violations of the following areas of international law: the principle of distinction, the principle of proportionality, the obligation to provide medical care and the prohibition on attacking medical facilities and personnel.

The UN team must also consider Israeli policies since the offensive as well. Prior to the hostilities, during, and since, Israel has maintained a blockade of Gaza. By systematically denying food and medicines to the civilians, Israel is undermining prohibitions against collective punishment, such as Article 33 of the Fourth Geneva Convention. The embargo banned such staples as lentils, tea and pasta, as noted by two American Congressmen who visited Gaza. Falk named the embargo as a "massive violation of the Fourth Geneva Convention."

The UN Human Rights Council president Martin Uhomoibhi elaborated on the rationale for the inquiry. "The ultimate purpose of the council," he said, "will not be served if that mandate does not allow for the establishment of an independent and impartial fact-finding mission…that would gain the credibility of all sides." Given the United Nations' role as the leading institution embodying international law, there are simply too many serious allegations of war crimes violations to not instigate such an investigation."

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