The Independent Fact-Finding Mission headed by respected jurist Richard Goldstone for the UN Human Rights Council released its Report on the Gaza conflict on September 15, 2009.
The 575-page Report reads like an indictment, describing in detail 36 specific incidents in Gaza, as well as other incidents that occurred in the West Bank and in Israel itself. The allegations include crimes against humanity and war crimes perpetrated by both the Israeli Defence Forces and the armed wing of Hamas, as well as numerous human rights violations.
The Mandate
The Mission was established pursuant to Human Rights Council Resolution S-9/1, adopted on 9 January 2009. Indeed, the wording of the resolution itself has featured in an extensive list of criticisms that have been directed at the Report in the wake of its release. The resolution clearly provided that the mandate of the Mission is limited to investigating “violations” by “the occupying Power, Israel, against the Palestinian people.” Goldstone indicated however that, at his instigation, the terms had subsequently changed to encompass investigations into violations by Hamas, which is reflected in the Report’s findings against both parties to the conflict.
Nonetheless, the Israeli Government deemed this de facto modification insufficient, stressing that the Mission remained one-sided for lack of a de jure amendment to the legal basis for the work of the Mission.
From the outset, Israel refused to co-operate with the Mission in all respects: requests for information and correspondence to the Israeli Government went unanswered, and the delegation was confined to entering the Gaza Strip through the Rafah crossing, via Egypt. The refusal to co-operate arguably represents a missed opportunity for the Government of Israel to present evidence that would contradict many of the findings, as well as claims made by Palestinian groups and individuals, or at least cast doubt on their veracity. It must be noted however, that the Report explicitly states that under no circumstances does it claim that the findings “pretend to reach the standard of proof applicable in criminal trials.”
As a result of the one-sided cooperation, in parts the Report may be said to be one-sided in that the Mission was unable to make as many definitive findings with respect to the alleged violations of international law by Hamas.
The Findings
The report found that Israel had carried out deliberate attacks on civilian objects, in attacking buildings of the Gaza authorities; that its attacks against the Gaza police were, at best, disproportionate; that it had failed to take all feasible precautions to minimize the loss of civilian life, and had carried out indiscriminate attacks; that on occasion Israel had carried out deliberate attacks against the civilian population; and that it was responsible for unlawful and wanton destruction of civilian infrastructure. The report also assessed the overall military objectives of Israel’s campaign, finding that its targeting of Hamas’ “supporting infrastructure” was particularly worrying, “as it appears to transform civilians and civilian objects into legitimate targets.” Finally, the report found that the conditions of life that Israel had produced in Gaza before, during and after the military operation constituted collective punishment, and suggested that some Israeli actions might meet the threshold of persecution as a crime against humanity.
Regarding the actions of Hamas, the report found that they were responsible for both indiscriminate attacks and deliberate attacks against the civilian population of southern Israel, and may also have carried out attacks designed to spread terror amongst the civilian population; that Palestinian armed groups in Gaza had unnecessarily exposed the civilian population to danger; and that Hamas’ use of violent measures against supporters of the rival Fatah movement was a violation of human rights.
a) Deliberate Attacks on Civilians
One of the most controversial claims in the report was that the Israeli Defence Forces deliberately made the civilian population the object of attacks, in violation of the prohibition under customary international law as reflected in article 51(2) of Additional Protocol I.
Chapter XI of the Report sets out in detail eleven such incidents, including the widely-reported attacks against houses in the Samouni neighbourhood south of Gaza City, including the January 4 shelling of a house in which 100 Palestinian civilians had gathered on instructions by the Israeli military. 21 people died in the attack.
In an article for the Jerusalem Post on September 21, Jonathan Halevi wrote there is evidence that at least three of the people in the house were affiliated with Islamic Jihad. However, even if the existence of legitimate military targets was verified, the targeting of three combatants hardly justifies shelling a house containing 100 civilians and would constitute a violation of the proportionality principle (though it would not then be a deliberate attack against civilians).
The Mission concluded that the Israeli forces must have been aware of the civilian status of the persons attacked, given that they were in control of the relevant area and had observed those persons. Israel’s response to such accusations is that the civilian deaths were collateral damage: where the Report states that Israeli fire was “intentionally directed” at civilians, it is obvious to the Israeli Government “that the civilians were not the object of attack, but rather its unintended victims.” Another Israeli Government criticism is that the Report apparently inferred that Israeli forces intentionally targeted civilians or UN facilities because the Mission lacked information to the contrary, arguing that such an approach is flawed in that it reverses the burden of proof which requires that intent be proven rather than assumed in the absence of contrary evidence.
That criticism was directed at Paragraph 809 of the Report, which states that the Mission found that “in none of the cases reviewed were there any grounds which could have reasonably induced the Israeli armed forces to assume that the civilians attacked were in fact taking a direct part in the hostilities and had thus lost their immunity against direct attacks.”
Pursuant to Article 51(3) of Additional Protocol I, civilians enjoy immunity from attack “unless and for such time as they take a direct part in hostilities.” As such, immunity is presumed unless there exists evidence to rebut that presumption. However it is clear that the Report was not implying that the requisite intent is to be presumed. Rather, it appears from a reading of the preceding paragraphs that the Mission considered that it had established that the attacks were intentional, but then considered whether there was a basis for absolving the Israeli army on the basis that the persons attacked were not protected persons. The Report instead found that that there was no evidence available to show that those persons were not entitled to protection. Thus, their targeting was illegal.
b) Human Shields
Although the Mission charged Hamas with exposing the civilian population to danger, it did not find evidence against it for using human shields. According to Israel, evidence of Hamas’ use of human shields is found in the public statement by Mr. Fathi Hammad, a Hamas official, who reportedly stated that Hamas “created a human shield of women, children, the elderly and the mujahideen, against the Zionist bombing machine.” Despite the Government claiming that other overwhelming evidence of Hamas’ use of human shields exists, the Report states unequivocally that “the Government of Israel has not identified any such cases” with regard to the military operations that began on 27 December 2008, nor did the Mission receive any reports of such incidents from other sources.
The Report cites a lack of evidence to provide an answer to the question as to whether the presence of Hamas fighters among the civilian population was achieved with the necessary, specific intent of shielding the combatants from counter-attack. This was despite the Report citing an interview reported by the NGO International Crisis Group that was conducted with three Palestinian combatants in January 2009 in which the fighters reportedly stated that rockets and mortars were launched in close proximity to homes and alleyways “in the hope that nearby civilians would deter Israel from responding.” The Report was far more categorical in asserting that Israeli soldiers used Palestinians as human shields. The Mission investigated four incidents in which the Israeli military forced Palestinian civilian men at gun point to enter houses ahead of the Israeli soldiers to find Palestinian combatants who were suspected of hiding.
c) Perfidy
One of these incidents also gave rise to the charge of perfidy, defined by Article 37 of Additional Protocol 1 as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” One Palestinian human shield was forced to use a megaphone to call on the combatants inside a house to surrender on the grounds that ICRC was present, and therefore they could safely hand themselves over.
However, another example of perfidy is also the feigning of civilian or non-combatant status. Despite citing numerous reports of Hamas fighters not always dressed in a way that distinguished them from civilians, the Mission found no evidence that Palestinian combatants mingled with the civilian population with the intention of shielding themselves from attack, despite citing one report which said that after the destruction caused by the Israeli air strikes at the beginning of Operation Cast Lead, members of the Hamas military wing, the al-Qassam Brigades, abandoned military dress and patrolled streets in civilian clothes. Goldstone did not consider perfidy in relation to these incidents. The reports received by the Mission led it to conclude that it was likely that the Palestinian armed groups did not at all times adequately distinguish themselves from the civilian population among whom the hostilities were being conducted. But because it found no evidence that members of Palestinian armed groups engaged in combat whilst dressed as civilians, it could not find that Hamas violated of the obligation not to endanger the civilian population in this respect.
The Report cites reports on the military operations by NGOs, which suggest that in general members of Palestinian armed groups did not wear military uniforms, but also mentioned that the Israeli Government has failed to produce visual or other evidence to support its allegation that Palestinian combatants mingled routinely with civilians with the intention of shielding themselves from attack.
d) Destruction of Mosques
The Report stated clearly that it also focused on allegations that Palestinian fighters had launched attacks from within civilian areas and from protected sites, such as mosques, to determine whether the alleged conduct might have constituted a violation by the Palestinian armed groups of their obligation of care to prevent harm to the civilian population.
The laws of armed conflict permit the deliberate destruction of property under certain circumstances. Article 52 of Additional Protocol I sanctions such attacks, but only on “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction … offers a definite military advantage.”
The Mission examined one incident involving a mosque but found no evidence to support the Israeli assertion that it was used for the storage of weapons or any military activity by Palestinian armed groups. The Israeli Government counter-claims that there is overwhelming evidence to the contrary and that there are “widespread reports of the use of mosques to hide weaponry and terrorist activity.” Yet the Mission did consider photographs in a paper submitted by the Israeli Government allegedly showing the launching of rockets “from within or near residential buildings, including schools, mosques and hospitals” but at the same time it revealed that the Government conceded that many of them refer not to the December 2008 – January 2009 period, but to previous alleged instances of firing of rockets from Gaza. The Mission also saw pictures of Israeli soldiers in a room amid weaponry, including anti-tank weapons, which were alleged to have been taken upon discovery of a weapons cache in a Jabaliyah mosque during the military operations. But it noted there is no indication of which mosque in Jabaliyah the pictures allegedly refer to, nor of the date on which the weapons cache was found and the pictures taken.
e) Attacks on Gaza Police
Around 240 Gaza policemen - over one sixth of the total number of Palestinian casualties - were killed by Israeli forces. The view of the Government of Israel is that the police as an institution, or a large part of the policemen individually, are part of the Palestinian military forces in Gaza. The Report specifically addressed whether Hamas policemen were civilians or combatants.
Under international humanitarian law, members of law-enforcement agencies are considered part of the civilian population, unless they have been incorporated into the armed forces of a party to the conflict. The Mission found insufficient evidence that Hamas police had been so incorporated. On the other hand, regarding the military operations, the Israeli Government has alleged that “Hamas intended to, and did, in fact, employ its internal security forces for military activities during the Gaza Operation” and that the “collective role of the Gaza ‘police’ as an integral part of Hamas armed forces is supported by the fact that many Gaza ‘policemen’ were also members of the al-Qassam Brigades.”
Indeed, if individual members of a law-enforcement agency are members of an armed group, they are to be individually classified as combatants - and therefore not immune from attack – but according to the Mission this does not deprive the whole police force of its status as a civilian law-enforcement agency.
And individual members of a law-enforcement agency, like any civilians, may not be targeted “unless and for such time as they take a direct part in hostilities.” The Mission found that the policemen killed on 27 December 2008 cannot be said to have been taking a direct part in hostilities. Thus, they did not lose their civilian immunity from direct attack as civilians on this ground.
The Mission accepted that even if there were some policemen who were also members of the armed forces, the attack of 27 December 2008 was in violation of the principle of proportionality as reflected in Additional Protocol I, which prohibits launching attacks “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”
The Report made these findings despite the admission by Hamas police chief Jamal al-Jarrah that “the police took part in the fighting alongside the resistance,” a statement in Israel’s report: The Operation in Gaza – Factual and Legal Aspects, as well as the admission of police spokesperson Islam Shahwan who that the police had been given orders “to face the [Israeli] enemy.” But in the Report, the Mission quoted al-Jarrah, who stated that “the role of the police is to solve problems of the population, combat drug trafficking, arrest criminals.” The Mission also interviewed Islam Shahwan, who told them that the policemen killed on December 27 were serving policemen, who had been taking a three-week course and who were, at the time of the strike, doing “morning sport exercise.”
Prosecution and Punishment
Little if any action is taken by Israeli authorities to investigate, prosecute and punish violence against Palestinians by settlers and members of security forces, declares the Report. Predicting that this situation of impunity will continue unabated, the Report impliedly suggests that Israel is unlikely to launch “genuine, impartial and independent” investigations into the potential war crimes and has indicated the Mission’s support for individual countries to invoke their “universal jurisdiction” laws to “investigate violations of grave breach provisions of the Geneva Convention of 1949, prevent impunity and promote international accountability.”
US State Department Spokesman Ian Kelly expressed the US Government’s concern at this recommendation, one that calls for involvement outside the Human Rights Council and in national courts of countries not party to the conflict. This call represents a serious threat to any State whose forces have been engaged in defending it, according to the Israel Ministry of Foreign Affairs, “since it encourages foreign states to put its soldiers on trial, even when the State itself takes efforts to enforce international humanitarian law by its own domestic mechanisms.” This position is in spite of the invocation of universal jurisdiction by the Israeli Supreme Court in the case against Holocaust architect Adolf Eichmann for crimes against humanity.
Goldstone has also asked that the UN Security Council set up a mechanism to monitor whether the Israeli government and the Hamas administration investigate the crimes within a set period of six months. If they do not, Judge Goldstone has said that the Security Council should refer his findings to the International Criminal Court (ICC) Prosecutor.
Referring to a Palestinian declaration purporting to accept the jurisdiction of the International Criminal Court, the Report also allows for the possibility that “The Prosecutor may determine that for the purposes of Article 12, paragraph 3, under customary international law, Palestine qualifies as ‘a state’.” But even without such a determination and despite Israel not being a signatory, there is a possibility for Israeli military officers with dual citizenship to be brought within the Court’s jurisdiction if the country of their second nationality is a State Party.
In this respect, Newsweek reported on September 21 that ICC Prosecutor Luis Moreno-Ocampo was considering an investigation into whether Lt. Col. David Benjamin, a reserve officer in the Israeli military who is a dual Israeli-South African citizen, could be held responsible for war crimes. In August, South African-based NGOs The Media Review Network and the Palestinian Solidarity Alliance asked the South African National Prosecuting Authority (NPA) to investigate charges of crimes against humanity and war crimes against South African citizens who participated in Israel’s offensive in Gaza, and asked Ocampo to take up the case if the NPA declined.
At the debate before the UN Human Rights Council on September 29, some European nations cautiously welcomed the Report, but diplomats have made clear they don’t support all of its findings and are critical of the way in which the document was compiled. The US also criticised the Report as well as the suggestion that the allegations be taken up by the Security Council, with US Assistant Secretary of State Michael H. Posner stating that “We disagree sharply with many of the report’s assessments and its recommendations and believe it to be deeply flawed.”
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Related Links:
Report of the United Nations Fact Finding Mission on the Gaza Conflict (PDF)
United Nations Human Rights Council
September 25, 2009
Initial Response to Report of the Fact Finding Mission on Gaza (PDF)
Israel Ministry of Foreign Affairs
September 24, 2009
Analysis: Blocking the Truth behind the Gaza war
By Jonathan Halevi
The Jerusalem Post, September 21, 2009
ICC Prosecutor May Charge Israeli with War Crimes
By Dan Ephron
Newsweek, September 21, 2009
The UN Gaza Report and Its Critics
By Katherine Iliopoulos
The Independent Fact-Finding Mission headed by respected jurist Richard Goldstone for the UN Human Rights Council released its Report on the Gaza conflict on September 15, 2009.
The 575-page Report reads like an indictment, describing in detail 36 specific incidents in Gaza, as well as other incidents that occurred in the West Bank and in Israel itself. The allegations include crimes against humanity and war crimes perpetrated by both the Israeli Defence Forces and the armed wing of Hamas, as well as numerous human rights violations.
The Mandate
The Mission was established pursuant to Human Rights Council Resolution S-9/1, adopted on 9 January 2009. Indeed, the wording of the resolution itself has featured in an extensive list of criticisms that have been directed at the Report in the wake of its release. The resolution clearly provided that the mandate of the Mission is limited to investigating “violations” by “the occupying Power, Israel, against the Palestinian people.” Goldstone indicated however that, at his instigation, the terms had subsequently changed to encompass investigations into violations by Hamas, which is reflected in the Report’s findings against both parties to the conflict.
Nonetheless, the Israeli Government deemed this de facto modification insufficient, stressing that the Mission remained one-sided for lack of a de jure amendment to the legal basis for the work of the Mission.
From the outset, Israel refused to co-operate with the Mission in all respects: requests for information and correspondence to the Israeli Government went unanswered, and the delegation was confined to entering the Gaza Strip through the Rafah crossing, via Egypt. The refusal to co-operate arguably represents a missed opportunity for the Government of Israel to present evidence that would contradict many of the findings, as well as claims made by Palestinian groups and individuals, or at least cast doubt on their veracity. It must be noted however, that the Report explicitly states that under no circumstances does it claim that the findings “pretend to reach the standard of proof applicable in criminal trials.”
As a result of the one-sided cooperation, in parts the Report may be said to be one-sided in that the Mission was unable to make as many definitive findings with respect to the alleged violations of international law by Hamas.
The Findings
The report found that Israel had carried out deliberate attacks on civilian objects, in attacking buildings of the Gaza authorities; that its attacks against the Gaza police were, at best, disproportionate; that it had failed to take all feasible precautions to minimize the loss of civilian life, and had carried out indiscriminate attacks; that on occasion Israel had carried out deliberate attacks against the civilian population; and that it was responsible for unlawful and wanton destruction of civilian infrastructure. The report also assessed the overall military objectives of Israel’s campaign, finding that its targeting of Hamas’ “supporting infrastructure” was particularly worrying, “as it appears to transform civilians and civilian objects into legitimate targets.” Finally, the report found that the conditions of life that Israel had produced in Gaza before, during and after the military operation constituted collective punishment, and suggested that some Israeli actions might meet the threshold of persecution as a crime against humanity.
Regarding the actions of Hamas, the report found that they were responsible for both indiscriminate attacks and deliberate attacks against the civilian population of southern Israel, and may also have carried out attacks designed to spread terror amongst the civilian population; that Palestinian armed groups in Gaza had unnecessarily exposed the civilian population to danger; and that Hamas’ use of violent measures against supporters of the rival Fatah movement was a violation of human rights.
a) Deliberate Attacks on Civilians
One of the most controversial claims in the report was that the Israeli Defence Forces deliberately made the civilian population the object of attacks, in violation of the prohibition under customary international law as reflected in article 51(2) of Additional Protocol I.
Chapter XI of the Report sets out in detail eleven such incidents, including the widely-reported attacks against houses in the Samouni neighbourhood south of Gaza City, including the January 4 shelling of a house in which 100 Palestinian civilians had gathered on instructions by the Israeli military. 21 people died in the attack.
In an article for the Jerusalem Post on September 21, Jonathan Halevi wrote there is evidence that at least three of the people in the house were affiliated with Islamic Jihad. However, even if the existence of legitimate military targets was verified, the targeting of three combatants hardly justifies shelling a house containing 100 civilians and would constitute a violation of the proportionality principle (though it would not then be a deliberate attack against civilians).
The Mission concluded that the Israeli forces must have been aware of the civilian status of the persons attacked, given that they were in control of the relevant area and had observed those persons. Israel’s response to such accusations is that the civilian deaths were collateral damage: where the Report states that Israeli fire was “intentionally directed” at civilians, it is obvious to the Israeli Government “that the civilians were not the object of attack, but rather its unintended victims.” Another Israeli Government criticism is that the Report apparently inferred that Israeli forces intentionally targeted civilians or UN facilities because the Mission lacked information to the contrary, arguing that such an approach is flawed in that it reverses the burden of proof which requires that intent be proven rather than assumed in the absence of contrary evidence.
That criticism was directed at Paragraph 809 of the Report, which states that the Mission found that “in none of the cases reviewed were there any grounds which could have reasonably induced the Israeli armed forces to assume that the civilians attacked were in fact taking a direct part in the hostilities and had thus lost their immunity against direct attacks.”
Pursuant to Article 51(3) of Additional Protocol I, civilians enjoy immunity from attack “unless and for such time as they take a direct part in hostilities.” As such, immunity is presumed unless there exists evidence to rebut that presumption. However it is clear that the Report was not implying that the requisite intent is to be presumed. Rather, it appears from a reading of the preceding paragraphs that the Mission considered that it had established that the attacks were intentional, but then considered whether there was a basis for absolving the Israeli army on the basis that the persons attacked were not protected persons. The Report instead found that that there was no evidence available to show that those persons were not entitled to protection. Thus, their targeting was illegal.
b) Human Shields
Although the Mission charged Hamas with exposing the civilian population to danger, it did not find evidence against it for using human shields. According to Israel, evidence of Hamas’ use of human shields is found in the public statement by Mr. Fathi Hammad, a Hamas official, who reportedly stated that Hamas “created a human shield of women, children, the elderly and the mujahideen, against the Zionist bombing machine.” Despite the Government claiming that other overwhelming evidence of Hamas’ use of human shields exists, the Report states unequivocally that “the Government of Israel has not identified any such cases” with regard to the military operations that began on 27 December 2008, nor did the Mission receive any reports of such incidents from other sources.
The Report cites a lack of evidence to provide an answer to the question as to whether the presence of Hamas fighters among the civilian population was achieved with the necessary, specific intent of shielding the combatants from counter-attack. This was despite the Report citing an interview reported by the NGO International Crisis Group that was conducted with three Palestinian combatants in January 2009 in which the fighters reportedly stated that rockets and mortars were launched in close proximity to homes and alleyways “in the hope that nearby civilians would deter Israel from responding.” The Report was far more categorical in asserting that Israeli soldiers used Palestinians as human shields. The Mission investigated four incidents in which the Israeli military forced Palestinian civilian men at gun point to enter houses ahead of the Israeli soldiers to find Palestinian combatants who were suspected of hiding.
c) Perfidy
One of these incidents also gave rise to the charge of perfidy, defined by Article 37 of Additional Protocol 1 as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” One Palestinian human shield was forced to use a megaphone to call on the combatants inside a house to surrender on the grounds that ICRC was present, and therefore they could safely hand themselves over.
However, another example of perfidy is also the feigning of civilian or non-combatant status. Despite citing numerous reports of Hamas fighters not always dressed in a way that distinguished them from civilians, the Mission found no evidence that Palestinian combatants mingled with the civilian population with the intention of shielding themselves from attack, despite citing one report which said that after the destruction caused by the Israeli air strikes at the beginning of Operation Cast Lead, members of the Hamas military wing, the al-Qassam Brigades, abandoned military dress and patrolled streets in civilian clothes. Goldstone did not consider perfidy in relation to these incidents. The reports received by the Mission led it to conclude that it was likely that the Palestinian armed groups did not at all times adequately distinguish themselves from the civilian population among whom the hostilities were being conducted. But because it found no evidence that members of Palestinian armed groups engaged in combat whilst dressed as civilians, it could not find that Hamas violated of the obligation not to endanger the civilian population in this respect.
The Report cites reports on the military operations by NGOs, which suggest that in general members of Palestinian armed groups did not wear military uniforms, but also mentioned that the Israeli Government has failed to produce visual or other evidence to support its allegation that Palestinian combatants mingled routinely with civilians with the intention of shielding themselves from attack.
d) Destruction of Mosques
The Report stated clearly that it also focused on allegations that Palestinian fighters had launched attacks from within civilian areas and from protected sites, such as mosques, to determine whether the alleged conduct might have constituted a violation by the Palestinian armed groups of their obligation of care to prevent harm to the civilian population.
The laws of armed conflict permit the deliberate destruction of property under certain circumstances. Article 52 of Additional Protocol I sanctions such attacks, but only on “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction … offers a definite military advantage.”
The Mission examined one incident involving a mosque but found no evidence to support the Israeli assertion that it was used for the storage of weapons or any military activity by Palestinian armed groups. The Israeli Government counter-claims that there is overwhelming evidence to the contrary and that there are “widespread reports of the use of mosques to hide weaponry and terrorist activity.” Yet the Mission did consider photographs in a paper submitted by the Israeli Government allegedly showing the launching of rockets “from within or near residential buildings, including schools, mosques and hospitals” but at the same time it revealed that the Government conceded that many of them refer not to the December 2008 – January 2009 period, but to previous alleged instances of firing of rockets from Gaza. The Mission also saw pictures of Israeli soldiers in a room amid weaponry, including anti-tank weapons, which were alleged to have been taken upon discovery of a weapons cache in a Jabaliyah mosque during the military operations. But it noted there is no indication of which mosque in Jabaliyah the pictures allegedly refer to, nor of the date on which the weapons cache was found and the pictures taken.
e) Attacks on Gaza Police
Around 240 Gaza policemen - over one sixth of the total number of Palestinian casualties - were killed by Israeli forces. The view of the Government of Israel is that the police as an institution, or a large part of the policemen individually, are part of the Palestinian military forces in Gaza. The Report specifically addressed whether Hamas policemen were civilians or combatants.
Under international humanitarian law, members of law-enforcement agencies are considered part of the civilian population, unless they have been incorporated into the armed forces of a party to the conflict. The Mission found insufficient evidence that Hamas police had been so incorporated. On the other hand, regarding the military operations, the Israeli Government has alleged that “Hamas intended to, and did, in fact, employ its internal security forces for military activities during the Gaza Operation” and that the “collective role of the Gaza ‘police’ as an integral part of Hamas armed forces is supported by the fact that many Gaza ‘policemen’ were also members of the al-Qassam Brigades.”
Indeed, if individual members of a law-enforcement agency are members of an armed group, they are to be individually classified as combatants - and therefore not immune from attack – but according to the Mission this does not deprive the whole police force of its status as a civilian law-enforcement agency.
And individual members of a law-enforcement agency, like any civilians, may not be targeted “unless and for such time as they take a direct part in hostilities.” The Mission found that the policemen killed on 27 December 2008 cannot be said to have been taking a direct part in hostilities. Thus, they did not lose their civilian immunity from direct attack as civilians on this ground.
The Mission accepted that even if there were some policemen who were also members of the armed forces, the attack of 27 December 2008 was in violation of the principle of proportionality as reflected in Additional Protocol I, which prohibits launching attacks “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”
The Report made these findings despite the admission by Hamas police chief Jamal al-Jarrah that “the police took part in the fighting alongside the resistance,” a statement in Israel’s report: The Operation in Gaza – Factual and Legal Aspects, as well as the admission of police spokesperson Islam Shahwan who that the police had been given orders “to face the [Israeli] enemy.” But in the Report, the Mission quoted al-Jarrah, who stated that “the role of the police is to solve problems of the population, combat drug trafficking, arrest criminals.” The Mission also interviewed Islam Shahwan, who told them that the policemen killed on December 27 were serving policemen, who had been taking a three-week course and who were, at the time of the strike, doing “morning sport exercise.”
Prosecution and Punishment
Little if any action is taken by Israeli authorities to investigate, prosecute and punish violence against Palestinians by settlers and members of security forces, declares the Report. Predicting that this situation of impunity will continue unabated, the Report impliedly suggests that Israel is unlikely to launch “genuine, impartial and independent” investigations into the potential war crimes and has indicated the Mission’s support for individual countries to invoke their “universal jurisdiction” laws to “investigate violations of grave breach provisions of the Geneva Convention of 1949, prevent impunity and promote international accountability.”
US State Department Spokesman Ian Kelly expressed the US Government’s concern at this recommendation, one that calls for involvement outside the Human Rights Council and in national courts of countries not party to the conflict. This call represents a serious threat to any State whose forces have been engaged in defending it, according to the Israel Ministry of Foreign Affairs, “since it encourages foreign states to put its soldiers on trial, even when the State itself takes efforts to enforce international humanitarian law by its own domestic mechanisms.” This position is in spite of the invocation of universal jurisdiction by the Israeli Supreme Court in the case against Holocaust architect Adolf Eichmann for crimes against humanity.
Goldstone has also asked that the UN Security Council set up a mechanism to monitor whether the Israeli government and the Hamas administration investigate the crimes within a set period of six months. If they do not, Judge Goldstone has said that the Security Council should refer his findings to the International Criminal Court (ICC) Prosecutor.
Referring to a Palestinian declaration purporting to accept the jurisdiction of the International Criminal Court, the Report also allows for the possibility that “The Prosecutor may determine that for the purposes of Article 12, paragraph 3, under customary international law, Palestine qualifies as ‘a state’.” But even without such a determination and despite Israel not being a signatory, there is a possibility for Israeli military officers with dual citizenship to be brought within the Court’s jurisdiction if the country of their second nationality is a State Party.
In this respect, Newsweek reported on September 21 that ICC Prosecutor Luis Moreno-Ocampo was considering an investigation into whether Lt. Col. David Benjamin, a reserve officer in the Israeli military who is a dual Israeli-South African citizen, could be held responsible for war crimes. In August, South African-based NGOs The Media Review Network and the Palestinian Solidarity Alliance asked the South African National Prosecuting Authority (NPA) to investigate charges of crimes against humanity and war crimes against South African citizens who participated in Israel’s offensive in Gaza, and asked Ocampo to take up the case if the NPA declined.
At the debate before the UN Human Rights Council on September 29, some European nations cautiously welcomed the Report, but diplomats have made clear they don’t support all of its findings and are critical of the way in which the document was compiled. The US also criticised the Report as well as the suggestion that the allegations be taken up by the Security Council, with US Assistant Secretary of State Michael H. Posner stating that “We disagree sharply with many of the report’s assessments and its recommendations and believe it to be deeply flawed.”
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Related Links:
Report of the United Nations Fact Finding Mission on the Gaza Conflict (PDF)
United Nations Human Rights Council
September 25, 2009
Initial Response to Report of the Fact Finding Mission on Gaza (PDF)
Israel Ministry of Foreign Affairs
September 24, 2009
Analysis: Blocking the Truth behind the Gaza war
By Jonathan Halevi
The Jerusalem Post, September 21, 2009
ICC Prosecutor May Charge Israeli with War Crimes
By Dan Ephron
Newsweek, September 21, 2009
Related posts: