Israel should face war crimes trials over Gaza

Two weeks into the Operation Protective Edge with over 583 people being killed, homes, schools and hospitals being levelled to the ground and over 100.000 people being displaced the Human Rights Council held a special session on the situation in the Occupied Palestinian Territory on July 23, 2014, in order to discuss the human rights situation in the Gaza strip. GICJ activiely participated in the meeting and held that this disproportionate use of force amounts to war crimes and must be brought to justice as it seriously violates international humanitarian law.

When on July 8, 2014, Israel launched its Operation Protective Edge against Gaza it argued that the use of force was justified by the fact that Israel “had no choice” but to defend itself against what it called the “Hamas terrorist organization in Gaza” that “is intentionally and indiscriminately threatening the lives of 3.5 million innocent men, women and children” by its rockets and that “no nation, no people and no Government could tolerate it.” Although the right to self-defense is enshrined in international law, two long-standing principles of self-defense however make the argument questionable: those of necessity and proportionality.

The principle of necessity and proportionality

Generally spoken defensive action must be necessary to adequately defend the threatened interests; and the necessary defensive action must be proportionate to the danger. Necessity implies that the use of force in self-defense must be limited to the attainment of legitimate military objectives. Proportionality implies that the retaliatory impact and/ or civilian cost must be considered. These principles intersect with other instruments of international humanitarian law providing for the protection of civilians during times of war.

“Operation Protective Edge” violates these provisions on multiple levels. Contrary to allegations of self-defense, it was the Israeli PM’s calls for vengeance on Hamas after the murder of three Israeli teens in July 2014 that set of the avalanche of violence. Without proving concrete evidence Israel blamed Hamas for the murders and promised to wreak vengeance on the movement in Gaza.  From the outset on “Operation Protective Edge” thus carried the characteristics of retaliation campaign, targeting Palestinians as a whole and the new unity government in particular. Such a campaign stands in opposition to the principle of necessity, in serious violation of the UN Charter and fundamental international law principles and thus falls under the definition of aggression.

“Operation Protective Edge” further totally undermines all principles of proportionality. Israel has to fully respect its obligations under international law including the protection of civilians and civilian infrastructure, the horrific developments in Gaza have reached intolerable heights: Israel is bombing civilian houses with people in them entire families have been buried under rubble, and streets lie in ruins. Any perceived link to Hamas serves as justification for an attack, even if it includes firing at densely populated civilian areas, with deadly results on a shocking scale.  The horrifying reality on the ground makes it impossible to further countenance the cynical use of legal terms such as “proportionality”, “discriminate” and “duty of care”.

Disproportionate use of force

Since the Israeli military launched Operation Protective Edge, countless attacks against the homes of Palestinians have been reported. According to the IDF it is enough for a person to be involved in military activity to render his home (and his neighbors' homes) legitimate military targets, without having to prove any connection between his activity and the house in which he and his family live. This interpretation is unfounded and illegal. International humanitarian law provides that a legitimate target is only a legitimate target when damaging the structure can provide a military advantage. Treating homes as legitimate targets is an unlawful, distorted interpretation of the concept amounting to war crime. The gravity of the violation is compounded when uninvolved civilians are injured.

Throughout the operation Protective Edge the harm to civilians has become excessive. Although “Israel claimed that bombings were being carried out with the “knock on the roof” procedure (whereby the military warns inhabitants previous to the attack) many times the inhabitants were not given sufficient time to leave. In other cases they refused to leave despite the warning given. In such cases, the military must not treat the houses as empty. In order to protect civilians international humanitarian law furthermore requires the military to ensure that warning are "effective". An ineffective warning breaches the military's legal obligations, with lethal results: if civilians are not given enough time to leave their homes, or if the military ignores their decision to stay, it is as though they were not warned at all. Throughout the operation Protective edge Israel has persistently been found guilty of this crime.

As of July 22 the Palestinian fatalities have risen to over 580, among them over 479 civilians including more than 120 children and many times extinguishing entire families, including six children of the the Kaware’ family home in Khan Yuni, 8 members of al-Haj family killed in Khan Yunis refugee camp an at least 24 members of the Abu Jamaa family were killed in an F-16 strike on their home in. What was left of the home was a crater. It took the family 12 hours to dig out the 24 bodies. One of the at least 24 members killed was still in diapers.

Massacre in Shujaiya

The disproportionality of the use of force is especially visible since July 17, 2014 when Israel launched a ground operation. On Sunday 20, 2014, in one of Gaza's poorest and most crowded neighbourhoods named Shujaiya the Israeli military forces committed a bloodshed with at least 100 civilians killed as Israeli troops advanced in the residential neighborhood and battered the area with heavy artillery fire and constant airstrikes. Even hospitals and mosques came under attack.

Nevertheless Israel rejected a 3 hour humanitarian ceasefire requested by the ICRC on Sunday 20 to allow help to injured & deaths in Shujaia.  Ambulances that did eventually brave the shelling to try and rescue people came under fire. One of them took a direct hit, killing the paramedic inside. A TV correspondent was also killed. Such indiscriminate attacks are in serious violation of international law, amounting to war crimes. A hospital is not a military target and may not be targeted even after it is evacuated. Israel did even not shrink back from the use of white phosphorus in densely populated civilian residential areas. When white phosphorus lands on skin it burns deeply through muscle and into the bone and has serious long term effects. It is far past time that the international community takes firm and swift action to stop the bloodshed. ‬

As of 22 July 2014 it is estimated that over 100.000 people have fled their homes. The number of internally displaced hosted by UNRWA has already exceeded the equivalent figure during “Cast Lead operation” in 2008-9, which was the deadliest escalation recorded in Gaza since 1967.  Nevertheless and despite international calls for restraint Israel insists that Protective Edge will not cease until the Hamas’ infrastructure is destroyed, whatever it takes. The unacceptability of the Israeli military operation from a moral and legal perspective must be brought to an end and the international community must not fail to put all possible pressure on the leading geopolitical actors.

Ever since this latest major military operation against Gaza started on July 8, Israel has been guilty of war crimes. The overwhelming evidence supports basic Palestinian allegations that Israel is guilty of aggression in violation of the UN Charter and in flagrant violation of its obligations under the Geneva Conventions to protect the civilian population. Israel is further guilty of using excessive and disproportionate force against a defenseless society. Such crimes amount to crimes against humanity and must be brought to justice.  Therefore the international community should indict the criminal acts and constant violations of international law committed by the State of Israel, its aiders and abettors as well as its high level officials along with its chiefs of staff and their predecessors.

Conclusion and requests

The Israel policy of collective punishment violates the fundamental rules of international law and contravenes the basic customary moral standards by punishing people for the misdeeds of others. No country in the world should get away easily with slaughter, destruction and repression such as the war crimes systematically committed by Israeli against the people in Gaza and the West Bank. The world must stop being a mute spectator in view of these crimes, daunted by the cynical exploitation of continuing guilt about the past. Israel is in consistent and grievous breach of the Geneva Conventions. What should the international community do about it?

GICJ requested the Human rights Council to

•    Impose an immediate cease fire without any delay in order to protect innocent civilians
•    Conduct an independent international investigation on the repeated Israeli assaults on the Gaza strip and the targeting and killing of civilians
•    Bring all responsible officials of the aforementioned war crimes to the International Criminal Court

Oral statement delivered by GICJ

The aforementioned concerns and demands were reflected in an oral statement delivered by GICJ jointly with the General Arab Women Federation and EAFORD during the debate following the opening statements by the High Commissioner Navi Pillay, the Assistant Secretary-General for Humanitarian Affairs Statement, the Acting Director for Legal Affairs of the United Nations Relief and Works Agency, and the Special Rapporteur on Palestine.

Full text of the statement

Thank you Mr President,

Mr President, over the years the right to self-defense has repeatedly been abused by Israel in order to justify its systematic reprisals against Palestinians. Two long-standing international principles however expose this argument as fallacy: those of necessity and proportionality.

Contrary to the official pretext, it was the Israeli PM’s public calls for revenge along with his openly declared goal to destroy the newly formed Palestinian unity government that set of the recent avalanche of violence. Operation Protective Edge therefore must be seen as a pure act of aggression, in direct violation of the United Nations Charter and this is only the last in a series of similar offenses.

“Operation Protective Edge” further lacks all sense of proper proportionality. Despite international law provisions, thousands of civilian homes have become military targets, with or without relation to military activity. Such acts remain war crimes, even if bombings are carried out with previous warnings. The gravity of such violation is compounded when innocent civilians are injured. 

As of today the Palestinian fatalities have risen to over 600, among them hundreds of civilians. Entire families have been extinguished; children on the beach killed, hospitals and fisher boats come under shelling, hence turning alleged self-defense into cold-blood murder. The indiscriminate brutality has become especially visible since the beginning of Israel’s ground operation.

In the Shejaiya over 100 civilians were murdered in only one day. Ambulances that tried to rescue the injured came under attack and even a humanitarian ceasefire requested by the ICRC was rejected by Israel, the very same country that this morning blamed the Palestinians for not accepting a truce offering. 

Mr President, the Israel policy against the Palestinians in Gaza violates the fundamental rules of international law and contravenes the basic customary moral standards. Such atrocities must be prosecuted as crimes against humanity. We call on this Council to strongly condemn the indiscriminate attacks against Palestinian civilians, demand an immediate cease fire without any delay, establish an urgent and independent commission of inquiry and ensure that all responsible will be brought to the International Criminal Court.

Thank you

Resolution

At the end of the session the Human Rights Council adopted resolution A/HRC/S-21/L.1 with a majority of 29 votes in favor, 1 nay and 17 abstentions. The resolution expressed grave concern at the lack of implementation of the recommendations by the Fact-Finding Mission on the Gaza Conflict of 2009, noting also that no progress had been made since on 9 July 2004 the International Court of Justice had ruled that the wall in the Occupied Palestinian Territory (oPt) is contrary to international law and must be halted immediately.

The resolution further noted the systematic failure by Israel to carry out genuine investigations in an impartial, independent, prompt and effective way, as required by international law, on violence and offences carried out against Palestinians by the occupying forces and settlers and to establish judicial accountability over its military actions and emphazied the obligations of Israel to ensure the safety of the Palestinians and that noting Israel wilfullingly rejected its obligations in this regard.

Concerning the massive Israeli military operations since 13 June 2014 it was deplored that the disproportionate attacks against Palestinians had resulted in grave violations of human rights, including the most recent Israeli military assault on the Gaza Strip, which was described as the latest in a series of military aggressions and actions of mass closure, mass arrest and the killing of civilians.

Welcoming the establishment of the Palestinian unity Government Strongly, the Human Rights Council condemned the failure of Israe to end the prolonged occupation of Palestine, as it also slammed the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations carried out in the oPt since 13 June 2014 and the latest Israeli military assault on the occupied Gaza Strip.

The attacks, by air, land and sea, have involved disproportionate and indiscriminate attacks, the Council stated, including aerial bombardment of civilian areas, the targeting of civilians and civilian properties in collective punishment contrary to international law, and other actions, including the targeting of medical and humanitarian personnel, that may amount to international crimes.

The Council finally demanded that Israel must cease its military assaults and fully ends the closure of the Gaza Strip and decided to urgently establish a Commission of Inquiry into human rights violations in the oPt to investigate all violations of international humanitarian law and international human rights law in the oPt and the Gaza Strip, in the context of the military operations conducted since 13 June 2014, whether before, during or after, and make recommandations  on accountability measures to ensure that those responsible are to be held accountable, as well as on ways and means to protect civilians against any further assaults.