In this op-ed, ICTJ's President David Tolbert expresses concern about the new "Reconciliation...
The report by the United Nations Fact Finding Mission on the Gaza Conflict has reaffirmed the importance of justice in the pursuit of sustainable peace in Israel and the Occupied Palestinian Territory.
Released September 15, 2009, the 575-page report (PDF) documents violations of international law by Israeli security forces, Hamas and other armed groups, and the Palestinian Authority. Some of those violations, the Fact Finding Mission concluded, may constitute war crimes or crimes against humanity. The report finds that the task of holding alleged Israeli and Palestinian violators to account belongs to their national institutions and authorities. None of the parties in the area have yet met that standard.
If those authorities fail to make genuine, independent efforts, the international community, through such bodies as national or international courts, must take action. ICTJ calls on Israel and authorities in the Gaza Strip to proceed immediately with independent investigations into the serious breaches of international human rights and humanitarian law identified by the Mission.
ICTJ believes the report is a strong reminder that as the international community seeks to restart bilateral Israeli/Palestinian negotiations, there must be a foundation of justice. The longstanding culture of impunity has been a significant contributor to over 15 years of failed peacemaking in the area.
While previous UN commissions were vulnerable to criticism for seemingly partisan mandates, the Mission led by eminent jurist Richard Goldstone had authority to investigate violations by any and all parties to the conflict and thus offer a broad range of findings.
In the course of its investigations, the Mission found evidence that Israeli forces committed serious violations of international humanitarian law. The alleged violations include the failure to take feasible precaution in launching attacks; failure to respect the principle of distinction, in particular attacks on civilians; the prohibited use of certain weapons; the use of human shields; arbitrary detention; and wanton destruction of property. It also found evidence of violations such as the deliberate destruction of food supply installations, water sanitation systems, health care facilities, police stations and residential houses. The Mission also addressed the multi-year blockade which the Israeli authorities have imposed on Gaza, and Israel's systematic policy of progressive isolation and deprivation of the Gaza Strip. A number of the incidents which the Mission investigated constitute war crimes or possibly crimes against humanity.
In inquiries not directly related to the Gaza conflict, the Mission also documented violations of international human rights and humanitarian law relating to the Israeli treatment of Palestinian detainees in the West Bank, and the repression of criticism among the Israeli population by Israeli authorities.
The report also addressed violations by Palestinian armed groups, notably the repeated firing of rockets and mortars into southern Israel. It found that the firing of such rockets, which cannot be aimed with sufficient precision and therefore fail to distinguish between military targets and the civilian population, constitute war crimes and possibly crimes against humanity. When launched into civilian areas, with no intended military target, the rocket firings constitute a deliberate attack against the civilian population.
Beyond the conflict, the Mission documented the killing of political opponents, as well as the detention and ill-treatment of opposition figures by Gaza authorities as well as by the Palestinian Authority in the West Bank.
Thanks to its findings, the Mission has created a much-needed opportunity for accountability. It has made extensive recommendations - for investigation and prosecution, truth-seeking efforts, and reparations - to address the justice crisis in the area and build a long-lasting peace.
The Mission calls first on the UN Human Rights Council to request that the Secretary-General refer the matter to the Security Council. The Security Council is called upon to monitor Israel and Hamas' efforts to launch appropriate investigations, and in the absence of good faith endeavours after six months, to refer the situation to the International Criminal Court. It calls, too, for the General Assembly to establish an escrow fund to be used to pay compensation to the victims.
The recommendations are grounded on the premise that national institutions and authorities should investigate and prosecute violations by their own side. However, much like the principle of complementarity found in the Rome Statute, if these bodies do not perform those tasks, the report recognizes that recourse should be found in international arenas.
Acknowledging the need to address the justice crisis in the area, ICTJ recommends the following:
While Israeli authorities have undertaken several inquiries, the Mission questioned Israel's willingness to carry out genuinely independent investigations adhering to those principles. Inquiries into breaches of international humanitarian law have been conducted solely by the military, investigators did not conduct interviews with victims or witnesses, and investigations have been unduly delayed by which time key evidence is lost. The Mission was also unconvinced that any meaningful investigations have taken place by the Palestinians.
Those investigating alleged violations must ensure that the findings of such bodies are made public and are independent of the military or political parties. Investigators must be empowered to consult with victims, witnesses and alleged perpetrators; and authorized to refer matters for judicial action if appropriate. Such actions would be critical in ensuring credibility rather than a continuation of past failings.
While acknowledgement has been made of compensation owed for damage done to UN structures, the violations were not limited to those facilities. Compensation and restitution must be provided promptly and to all victims regardless of identity. As part of the establishment of the escrow fund, Israel and the international community should ensure that contributions are made to the fund.
While the violations that occurred during the most recent fighting were extreme, it was not the first time that Gaza has been subject to widespread destruction or that southern Israel has been the target of rockets. Reparations may both reassure those on the ground that the rebuilding is not merely a respite, and be a guarantee against repetition.
The 194 States that are parties to the Geneva Conventions should proactively search for individuals alleged to have committed grave breaches and to bring them before their own courts, regardless of the nationality of the individual. This is a matter of obligation, not negotiation.
A strong program of action to ensure that Palestinian and Israeli victims have access to justice is a critical step towards peace in the area. Such an approach will help build the confidence of those on the ground that peace will be based on rule of law. Peacemakers should not sidestep these issues but should incorporate them into a strategy for peace in the region.
ICTJ strongly believes the burden is now on the parties and the international community to move from words into action.
Date of military operations
December 27, 2008 to January 18, 2009
The Mission reported that 13 Israelis and more than 1,400 Palestinians were killed.
Mandate of the Mission
"To investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after."
Richard Goldstone, Head of Mission. Former judge of the Constitutional Court of South Africa; former prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda.
Christine Chinkin. Professor of International Law at the London School of Economics and Political Science; member of the high-level fact-finding mission to Beit Hanoun (2008).
Hina Jilani. Advocate of the Supreme Court of Pakistan; former Special Representative of the Secretary-General on the situation of human rights defenders; member of the International Commission of Inquiry on Darfur (2004).
Colonel Desmond Travers. Former Officer in Ireland's Defence Forces; member of the Board of Directors of the Institute for International Criminal Investigations.
The Mission conducted three field visits during the course of its work, two to Gaza, and one to Amman, Jordan. Staff members supporting the Mission were also deployed on the ground as part of the assessment. Israeli authorities refused to cooperate with the Mission, preventing it from meeting with officials, and from travelling to Israel to meet with victims or to visit incident sites. This also precluded the members from entering the West Bank to meet with officials or victims there. Palestinian authorities in both Gaza and the West Bank cooperated with the Mission.
The Mission organized public hearings to enable victims, witnesses and experts to tell their stories. Hearings were held June 28-29 in Gaza City, and July 6-7 in Geneva.
For more on the UN Fact Finding Mission on the Gaza Conflict, visit its website.