Since the fighting in Gaza ended on January 19, there has been a growing chorus of voices calling for an investigation into war crimes that may have been committed during the conflict. The head of the UN relief agency for the Palestinian territories, Karen AbuZayd, requested that the Security Council investigate “apparent contraventions of international law, including direct attacks on UN personnel and facilities.” The Arab League and the African Union also asked that the Security Council open an investigation into Israeli military actions, while UN Secretary General Ban Ki-moon said that the UN would itself investigate Israel’s attacks against its facilities.
The new US Ambassador to the United Nations, Susan Rice, said in her maiden speech to the Security Council that the United States expected Israel “will meet its international obligations to investigate and we also call upon all members of the international community to refrain from politicizing these important issues.” She added that Hamas also appeared to be guilty of violating international law “through its rocket attacks against Israeli civilians in southern Israel and the use of civilian facilities to provide protection for its terrorist attacks.” Amnesty International and Human Rights Watch also called for an independent international investigation into possible war crimes on both sides.
Israel has been accused of committing war crimes including collective punishment, targeting civilians and disproportionate attacks in violation of the Fourth Geneva Convention. Hamas is alleged to have launched indiscriminate attacks against Israeli territory and is accused of deliberately used the civilian population as human shields by using infrastructure such as schools and hospitals to launch attacks.
One of the most serious war crimes allegations has been the widespread and repeated use of white phosphorus shells in densely populated civilian areas. Indeed Amnesty International has said that one of the places worst-affected by white phosphorus was the UN Relief and Works Agency (UNRWA) compound that was bombed by Israel two weeks ago. Hundreds of civilians had taken refuge inside the building. “I am just appalled,” said UN Secretary-General Ban Ki-Moon upon his visit to the smouldering UN facility. “Everyone is smelling this bombing still. It is still burning. It is an outrageous and totally unacceptable attack against the United Nations. I have protested many times, and am today protesting in the strongest terms, and am condemning it. I have asked for a full investigation and to make those responsible people accountable.” After initially denying the use of such weapons, the Israeli Defence Forces now say that the incident is the subject of an internal investigation.
The IDF is also alleged to have targeted ambulances and medical crews attempting to reach the wounded, prevented the evacuation of wounded civilians and killed civilians who were trying to escape by carrying white flags, attempted to bulldoze houses with civilians inside, used indiscriminate force in civilian areas and targeted schools, hospitals and supply convoys.
If the allegations are proven, all the incidents would constitute breaches of the Geneva conventions or the customary law of armed conflict.
According to the Israeli Foreign Ministry, “these claims of war crimes are not supported by the slightest piece of evidence.”
Even if there was strong, credible evidence of war crimes committed by Israeli or Hamas forces – and despite the existence of international courts and tribunals and a growing body of international criminal law – there are several obstacles to ensuring accountability for some of the most serious crimes.
How might those responsible for committing war crimes in Gaza be held accountable in our current system of international justice?
The International Criminal Court
The ICC can only assume jurisdiction to investigate and conduct a trial if the crime is committed by the national of a state that is a party to the Court, on the territory of a state party, or by referral from the UN Security Council.
There is a legal argument that the piece of land known as the Gaza Strip is part of the territory of the State of Israel. However there is one major problem, which excludes the first and second options: Israel has not signed the Rome Statute. Palestine is not recognised as a State and might face problems in attempting to ratify the Statute, even if it wished to (see further discussion below under ‘The Question of Palestinian Statehood’).
ICC Prosecutor Luis Moreno-Ocampo initially ruled out any possibility of the ICC having jurisdiction over the alleged crimes in Gaza, stating that the Court would only have jurisdiction if “Tel Aviv voluntarily accepted the court’s jurisdiction” or if “it is referred to the court by the United Nations Security Council.” Given the general reluctance of the United States – a Permanent Member with the power of veto and a strong ally of Israel – to support Resolutions that are against the interests of Israel, such a referral would be highly unlikely. There is a precedent Security Council referral however: in relation to the situation in Darfur. Although Sudan was and is not a signatory to the Statute, the Security Council exercised its Chapter VII powers and gave the ICC jurisdiction over possible crimes committed in Darfur. As was the case in relation to Darfur, a referral in this case would be highly significant, even in the absence of a likelihood of arrest or trial.
In an unexpected turn of events however, Moreno-Ocampo told the media this week that in response to various petitions by Palestinian lawyers he was examining the ways in which the Court could have jurisdiction over crimes committed on Palestinian territory – in particular the Gaza Strip which Israel on its own admission no longer occupies – on the basis that Palestine is a de facto state. “It’s very complicated,” admitted Moreno-Ocampo. “It’s a different kind of analysis I am doing. It may take a long time but I will make a decision according to law.”
A precedent was set by Ivory Coast, the first non-state party to lodge a declaration with the Court accepting its jurisdiction over war crimes committed on its territory from September 2002. It was a signatory to the Rome Statute but had not ratified it. Palestinian lawyers argue that the Palestinian National Authority should be allowed to refer the cases in Gaza on this same ad hoc basis, despite the fact that the Palestinian territory is not internationally recognised as a state.
An Ad Hoc Tribunal
Some commentators have suggested the establishment of an ‘ad hoc’ international criminal tribunal, in the spirit of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), with jurisdiction over crimes committed in the territory of Israel. The ICTY and ICTR were each established by the Security Council, acting under its Chapter VII powers which allow it to determine the existence of any threat to the peace, breach of the peace, or act of aggression, and to make recommendations or decide on measures to be taken.
Again, given the state interests of the veto-wielding members of the Security Council, a Resolution establishing an ad hoc tribunal is unlikely to be accepted, despite the fact that there might be grounds for a determination by the Council that the situation in the Gaza Strip constitutes a threat to international peace and security.
However, under international law, the task of ensuring peace and security in the world is not the exclusive right of the Security Council.
The General Assembly also has the competence – under Article 11(2) of the UN Charter – to make necessary recommendations in the interests of maintaining international peace and security.
There have been calls from some human rights groups and individuals for the UN General Assembly to use its powers under Article 22 of the UN Charter to establish a special tribunal to investigate and punish alleged war crimes in Gaza: an International Criminal Tribunal for Israel (ICTI). Article 22 allows the General Assembly to “establish such subsidiary organs as it deems necessary for the performance of its functions.”
“If there were the political will there could be an ad-hoc tribunal established to hear allegations of war crimes,” Richard Falk, the UN’s Special Rapporteur on the Palestinian Territories, has said. “This could be done by the general assembly acting under article 22 of the UN charter which gives them the authority to establish subsidiary bodies.” The invocation of Article 22 could also enable a GA Resolution creating an investigative body to gather information on possible war crimes on the territory of Israel. The disadvantage of this course of action however is that there would be no obligation upon Israel or any other State to co-operate.
Domestic Prosecutions and Universal Jurisdiction
In theory, the first obligation to investigate and prosecute those who violate international humanitarian law lies with the country whose forces are responsible for any war crime. However, there appears little chance that either Israel of Hamas will seek to prosecute their own fighters.
Equally, either side could seek prosecute any captured member of the opposing forces for violations of international law, though they would be required by the Geneva Conventions to offer all appropriate due process guarantees, and neither Israel nor Hamas recognize the legitimacy of each other’s institutions.
More likely is the prospect that suspects could be prosecuted by a third country under the principle of universal jurisdiction. Those accused of committing war crimes are generally most concerned about being served with a warrant while present in a foreign country, rather than being extradited by their home country.
Universal jurisdiction is the competence of a national court to arrest and prosecute individuals accused of committing war crimes in other countries, even if neither the suspect nor the victim are nationals of the country where the court is located.
The exercise of universal jurisdiction is required under States’ treaty obligations through the Grave Breaches provisions of the Geneva Conventions which require every state that is party to the Conventions “to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts” or to hand them over for prosecution in another country.
Authorities in Israel are concerned that countries may use this provision to bring what Israel regards as politically motivated charges against its nationals. And Israeli Prime Minister Ehud Olmert stated last week that “the commanders and soldiers that were sent on the task in Gaza should know that they are safe from any tribunal and that the State of Israel will assist them in this issue and protect them as they protected us with their bodies during the military operation in Gaza.”
In 2001, a war crimes suit against Israeli Prime Minister Ariel Sharon was filed in Belgium’s highest court by Palestinian survivors of a 1982 refugee camp massacre in Lebanon. The court dismissed the case for lack of a legal basis. Belgium rolled back its universal jurisdiction law in 2003 after foreigners started filing a series of genocide and war crimes complaints against foreign leaders including former US Secretary of State Colin Powell.
Spain currently holds the status as the favoured state for the application of universal jurisdiction. Spanish investigative judge Fernando Andreu recently decided to investigate Israeli officials and IDF officers in relation to the 2002 assassination of Hamas kingpin Salah Shehadeh. However its ability in this respect may soon be limited if a law that limits the National Court to trying cases with links to Spain is passed.
Ironically, Israel used the concept of ‘universal jurisdiction’ to arrest and try Nazi war criminal Adolf Eichmann in the Israeli Supreme Court in 1962. Of course, the option of exercising universal jurisdiction over Hamas leaders suspected of war crimes is open to Israel today.
A significant ‘gap’ exists in the ability to bring to justice individuals persons accused of committing the most serious international crimes – genocide, crimes against humanity and war crimes – in situations that do not fall under the jurisdiction of existing international courts. This so called ‘impunity gap’ means that there is an argument for a critical role for national courts to take action through the exercise of ‘universal jurisdiction.’
The International Court of Justice
The International Court of Justice has the ability to hear disputes between states or render advisory opinions on legal questions. It is not a criminal court and as such does not have the competence to try individual suspects.
As Palestine is not recognised as a state, it is unable to seek a Judgment against Israel in the International Court of Justice. However, the UN General Assembly has under Article 96 of the Charter the power to request the International Court of Justice (ICJ) to give an ‘advisory opinion’ on any legal question. The General Assembly is reportedly considering making such a request.
According to The Guardian, a Foreign Office source confirmed that the United Kingdom would consider backing calls for a reference to the ICJ. “It’s definitely on the table,” the source said. “We have already called for an investigation and are looking at all evidence and allegations.”
Israel has already been found by the ICJ to have violated its obligations in international law by the 2004 Advisory Opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory which had been requested by the General Assembly. Israel rejected the Court’s finding, which found the wall being constructed in the Palestinian territories to be a violation of Israel’s obligations under international humanitarian law,
ICJ Advisory Opinions have no binding force and as such their enforcement is said to be rather difficult. In any case, even in the case of a ‘binding’ judgment rendered between State parties to a legal dispute, the single sanction envisaged under Article 94 of the UN Charter can operate only when the Security Council P-5
“agree to decide upon measures to be taken to give effect to the judgment”.
The Question of Palestinian Statehood
These problems raise the spectre of Palestinian statehood. If the territory known as the Gaza Strip and the West Bank formed the constituent parts of a recognised Palestinian state, the Palestinian entity would have the potential to be accepted as Member State of the United Nations and also the ability to become a State Party to the ICC Statute or accept its jurisdiction in a given case. This would allow the ICC to assume jurisdiction over crimes committed by officials of both Israel and Hamas, though the Court could only prosecute future crimes committed after the date of Palestinian ratification of the treaty.
Points in favour of Palestinian statehood include the fact that province is territorially contiguous. It is generally accepted that the territory of a state does not have to be fixed and determinate: Israel does not have fixed and permanent borders and yet it is considered a state. Secondly, the present-day population of Palestine reflects a ‘permanent’ situation. Points against Palestinian statehood are, firstly, that it does not have an effective governmental authority. The Palestinian National Authority has not been in a position to exercise the whole range of governmental powers within the territory. Secondly, the territories are not economically independent from Israel.
Kosovo has been recognised by most powerful Western states, despite the fact that at the time of the first expressions of recognition, it was administered by NATO and the UN, and was not economically independent. This development demonstrates increasing flexibility in the criteria for state recognition and illustrates the significant role of politics – rather than law – in the recognition of states.
As for UN Membership however – and as in the case of Kosovo – a veto by a Permanent Member of the Security Council is sufficient to bar the admission of Palestine.
There are several legal options available for securing accountability for possible war crimes committed in the impoverished and war-torn territory known as the Gaza Strip. The deterrent effect of potential international criminal convictions against Israeli and Hamas leaders and military personnel would arguably reduce their criminal activities on these territories and may serve as a vital element of strategies for peace and security in the region.
However it is clear that the most significant obstacles to attaining justice for crimes committed in Gaza are of the political kind. The exercise of universal jurisdiction – by those states with the political will to do so – constitute a looming threat as evidenced by recent reports that that Israeli army has refused to divulge the names of battalion commanders. The value of investigations by a wide range of international organisations, human rights bodies and by the Israeli Government cannot be underestimated, yet it is important that war crimes committed by Hamas are also exposed.
Whilst it is important that the international community must work towards eliminating the culture of impunity in relation to the atrocities that have occurred in Gaza, the West Bank and Israel, this very debate has highlighted the importance of the ongoing project of Palestinian statehood in the context of international justice. Yet the biggest obstacle to Palestinian statehood is an effective government, a project that has suffered a further setback as a result of the latest offensive, during which police stations, government buildings and other infrastructure that are essential to effective control over the territory were destroyed. The dispute between Hamas and the Palestinian Authority government in the West Bank also presents an obstacle to any claim that the Palestinian territories have an effective government.
The Palestinian National Authority could follow in the steps of Ivory Coast and lodge a declaration accepting the ICC’s jurisdiction in relation to alleged war crimes in Gaza, despite the fact that Palestine is not recognised as a state. The ICC does not have any mechanism by which it can decide which entities qualify as states.
Such a course of action would have serious ramifications for both accountability and state recognition. If nothing else, even if the declaration is rejected, the mere attempt as a means of attaining justice for atrocities committed in Palestine would highlight the urgency of an international political and diplomatic effort to create the conditions precedent for a more widespread recognition of Palestine as a state. If the declaration is accepted, it would highlight the disadvantages of Palestinian statehood from the perspective of Israel, since a Palestine state would then be able to ratify the ICC Statute and have allegations of Israeli war crimes brought before the Court.
The question of Palestinian statehood aside, it is left to other States with the necessary political will and the appropriate legislation to initiate criminal proceedings against those suspected of war crimes.
Given that political and diplomatic efforts have proven futile or inadequate, some progress towards peace in the region may be achieved if the decisions and events that have claimed thousands of lives and livelihoods are exposed – and as far as possible – remedied by the international justice system.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Prosecutor looks at ways to put Israeli officers on trial for Gaza ‘war crimes’
By Catherine Philp and James Hider
The Times, February 2, 2009
Spain’s probe of Israelis presents legal quandary
By Paul Haven
Associated Press, January 31, 2009
Israel must investigate charges of crimes in Gaza: US
By Louis Charbonneau
Reuters, January 29, 2009
Israel/Gaza: International Investigation Essential
Human Rights Watch
January 27, 2009
Time for Accountability in Gaza and Southern Israel
January 26, 2009
UN Secretary-General’s Statement to the Security Council on the Situation in the Middle East
UN News Centre
January 21, 2009