By Thalif Deen | Inter Press Service
UNITED NATIONS, Jan 13 (IPS) – With hundreds of civilians, mostly women and children, killed during nearly three weeks of fighting in Gaza, there is a growing demand either for an international tribunal or an international commission to investigate charges of war crimes committed by Israel.
But there are fears that any such move may be shot down by the United States, and possibly by other Western nations, which continue to politically temper their criticism of Israel despite violations of all the known international conventions protecting women, children, the wounded and the dying in war zones.
“On an inter-governmental level, the war crimes process is essentially subject to geopolitical control, which means in practice that the criminal wrongdoing of the most powerful [the U.S. government] and its closest friends [Israel] get a free pass,” Richard Falk, a professor of international law and a U.N. human rights expert, told IPS.
Despite widespread condemnation, this practice of “geopolitical impunity” is likely to shield Israel from formal scrutiny with respect to the alleged crimes of war and crimes against humanity associated with its military operations in Gaza since Dec. 27, he added.
Falk, who is the U.N. Special Rapporteur for Human Rights in the Occupied Palestinian Territories, was detained and expelled from an airport in Tel Aviv last month when he was on a U.N.-mandated assignment to probe human rights in the occupied territories.
As of Tuesday, the Palestinian death toll had risen to more than 900, mostly civilians, compared with over 10 Israelis, including those killed by Hamas’s rocket fire.
The London-based Amnesty International has asked the Security Council “to take firm action to ensure full accountability for war crimes and other serious abuses of international human rights and humanitarian law.”
The U.N. High Commissioner for Human Rights Navi Pillay told a special session of the Human Rights Council (HRC) in Geneva that accountability must be ensured for violations of international law.
“I remind this Council that violations of international humanitarian law may constitute war crimes for which individual criminal responsibility may be invoked,” she said.
At the special session Monday, the HRC adopted a resolution calling for an “urgent independent international fact-finding mission” to investigate all violations of international human rights and humanitarian law by Israel.
Asked specifically about charges of “war crimes” in Gaza, Secretary-General Ban Ki-moon refused to express his view on the unbridled killings of civilians.
“That’s something which the International Criminal Court (ICC) or other international organisations will have to determine,” he told reporters Monday, on the eve of his weeklong peace mission to the Middle East.
But the Paris-based International Federation for Human Rights (FIDH), which is calling for an international commission of investigation, points out that Israel has not ratified the statute of the ICC.
“Activating the ICC jurisdiction for these crimes implies for the U.N. Security Council to refer the situation to the ICC,” in order for the ICC prosecutor to initiate an investigation, FIDH said in a letter to the 15-member U.N. body.
But any such Security Council action will most likely be vetoed by the United States, a longstanding ally of Israel.
Besides the ICC, which was established in 2003, there have been special criminal tribunals or special courts created to prosecute war crimes or genocide in the former Yugoslavia, Rwanda, Sierra Leone, Lebanon, Cambodia and East Timor.
“There certainly should be a tribunal,” Michael Ratner, president of the New York-based Centre for Constitutional Rights, told IPS.
While it would look at war crimes committed by all parties, Hamas’s actions pale in comparison to the murders committed by Israel, he said.
“The continued impunity of Israel for crimes it has committed encourages it in perpetrating gross violations of humanitarian law,” said Ratner, who is also adjunct professor law at Columbia University.
“A tribunal is essential, [but] the United States will likely veto such a Security Counsel resolution. By doing so, it is enabling and condoning war crimes,” he warned.
Stephen Zunes, professor of politics and international studies at the University of San Francisco, said: “A strong case can be made for an investigation into war crimes committed by Israeli armed forces.”
Since the Gaza Strip is legally a non-self-governing territory, the United Nations has a particular responsibility to ensure that those guilty of war crimes are prosecuted, he added.
“Such prosecution, however, would be more appropriate if pursued through the International Criminal Court, which did not exist at the time special tribunals were set up for Yugoslavia, Cambodia and Rwanda,” Zunes told IPS.
By pursuing cases through the ICC rather than a special tribunal, it would lessen the likelihood of charges that the United Nations was once again unfairly singling out Israel for violations of international humanitarian law, he added.
Falk said “the most that we can expect are fact-finding and investigative missions” established by the Human Rights Council in Geneva (as proposed in its Special Session) and by the General Assembly (as an outcome of an upcoming Ninth Special Session).
“I think these symbolic steps are important, and they will undoubtedly be opposed by the United States and Israel, and Israel will in all likelihood not allow such initiatives to enter Gaza,” he said.
This will confirm concealment, a virtual admission of guilt, and will still enable authoritative reports and recommendations for a criminal accountability mechanism to be established, which the General Assembly has the authority to do under Article 22 of the U.N. Charter, Falk said.
There are some other possibilities for establishing legal responsibility and criminal accountability, especially well-organised civil society initiatives.
He pointed out that one model would be the tribunal process associated with the Iraq War, with sessions in some 20 countries, and a culminating Iraq War Tribunal held in Istanbul, Turkey in June 2005.
“There exists the political climate to organise such a tribunal process for Gaza, and it will have worldwide resonance.”
In the course of such a democratically conceived grassroots tribunal process, there would also be an opportunity to consider the implications of the U.S. role in providing vast military assistance and unconditional diplomatic support to Israel, as well as to consider the relative passivity of Europe, Arab neighbours, and others, he added.


United Nations Relief and Works Agency (UNRWA) employees hold a U.N. flag stained with red paint during a protest in the West Bank city of Hebron against Israel’s offensive in Gaza January 12, 2009. (Reuters/Nayef Hashlamoun/West Bank)


Israel Is Committing War Crimes
January 13, 2009Hamas’s violations are no justification for Israel’s actions.
By GEORGE E. BISHARAT | The Wall Street Journal, January 10, 2009
Israel’s current assault on the Gaza Strip cannot be justified by self-defense. Rather, it involves serious violations of international law, including war crimes. Senior Israeli political and military leaders may bear personal liability for their offenses, and they could be prosecuted by an international tribunal, or by nations practicing universal jurisdiction over grave international crimes. Hamas fighters have also violated the laws of warfare, but their misdeeds do not justify Israel’s acts.
The United Nations charter preserved the customary right of a state to retaliate against an “armed attack” from another state. The right has evolved to cover nonstate actors operating beyond the borders of the state claiming self-defense, and arguably would apply to Hamas. However, an armed attack involves serious violations of the peace. Minor border skirmishes are common, and if all were considered armed attacks, states could easily exploit them — as surrounding facts are often murky and unverifiable — to launch wars of aggression. That is exactly what Israel seems to be currently attempting.
Israel had not suffered an “armed attack” immediately prior to its bombardment of the Gaza Strip. Since firing the first Kassam rocket into Israel in 2002, Hamas and other Palestinian groups have loosed thousands of rockets and mortar shells into Israel, causing about two dozen Israeli deaths and widespread fear. As indiscriminate attacks on civilians, these were war crimes. During roughly the same period, Israeli forces killed about 2,700 Palestinians in Gaza by targeted killings, aerial bombings, in raids, etc., according to the Israeli human rights group B’Tselem.
But on June 19, 2008, Hamas and Israel commenced a six-month truce. Neither side complied perfectly. Israel refused to substantially ease the suffocating siege of Gaza imposed in June 2007. Hamas permitted sporadic rocket fire — typically after Israel killed or seized Hamas members in the West Bank, where the truce did not apply. Either one or no Israelis were killed (reports differ) by rockets in the half year leading up to the current attack.
Israel then broke the truce on Nov. 4, raiding the Gaza Strip and killing a Palestinian. Hamas retaliated with rocket fire; Israel then killed five more Palestinians. In the following days, Hamas continued rocket fire — yet still no Israelis died. Israel cannot claim self-defense against this escalation, because it was provoked by Israel’s own violation.
An armed attack that is not justified by self-defense is a war of aggression. Under the Nuremberg Principles affirmed by U.N. Resolution 95, aggression is a crime against peace.
Israel has also failed to adequately discriminate between military and nonmilitary targets. Israel’s American-made F-16s and Apache helicopters have destroyed mosques, the education and justice ministries, a university, prisons, courts and police stations. These institutions were part of Gaza’s civilian infrastructure. And when nonmilitary institutions are targeted, civilians die. Many killed in the last week were young police recruits with no military roles. Civilian employees in the Hamas-led government deserve the protections of international law like all others. Hamas’s ideology — which employees may or may not share — is abhorrent, but civilized nations do not kill people merely for what they think.
Deliberate attacks on civilians that lack strict military necessity are war crimes. Israel’s current violations of international law extend a long pattern of abuse of the rights of Gaza Palestinians. Eighty percent of Gaza’s 1.5 million residents are Palestinian refugees who were forced from their homes or fled in fear of Jewish terrorist attacks in 1948. For 60 years, Israel has denied the internationally recognized rights of Palestinian refugees to return to their homes — because they are not Jews.
Although Israel withdrew its settlers and soldiers from Gaza in 2005, it continues to tightly regulate Gaza’s coast, airspace and borders. Thus, Israel remains an occupying power with a legal duty to protect Gaza’s civilian population. But Israel’s 18-month siege of the Gaza Strip preceding the current crisis violated this obligation egregiously. It brought economic activity to a near standstill, left children hungry and malnourished, and denied Palestinian students opportunities to study abroad.
Israel should be held accountable for its crimes, and the U.S. should stop abetting it with unconditional military and diplomatic support.
George E. Bisharat is a professor at Hastings College of the Law in San Francisco.
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