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.
Peace and Justice Post 
Gaza: the world looks away
February 12, 2009If the IDF and Hamas have breached the laws of war, they must be held to account, to set down a marker for future conflicts
On top of the dreadful casualties from Israel’s 22-day war in Gaza, we should add a further serious injury. It is longer-lasting and threatens the lives and wellbeing of very many people in the future. In the Israel/Palestine conflict, we are seeing a terrible undermining of international law and the principle that armies should adhere to minimum standards of humane behaviour, even during the heat of battle.
If they fall below this minimum, they should, according to the laws of war, be held responsible for their war crimes – first, by their own superiors or courts, but, if necessary, by other nations or international courts. This principle – of accountability, even in war – is now in a critical condition as the standards are being ignored by Gaza’s warring parties. Then, it’s being assailed afresh by pugnacious and irresponsible remarks from leaders in the region.
Both sides endangered civilian lives during the conflict, but obviously the behaviour of Israel was massively more destructive. There were reports from Amnesty International of Israeli Defence Forces units commandeering Palestinian homes, forcing families to remain in a ground-floor room while then using the property as a military operations point. In other words, Palestinian families were used as human shields or, at the very least, were exposed to quite unacceptable risk.
Hamas is also accused of using local civilians as human shields, but since this excuse was used for every Israeli attack on civilian targets, we must await objective reports on whether this allegation is true. Even more shockingly, evidence has been growing of the IDF’s use of white phosphorous shells in residential areas – a clear war crime in exposing civilians to horrendous deep-burn injuries that have shocked and bewildered burns unit doctors in Gaza’s overrun hospital wards. Moreover, as the new BBC Panorama programme on Gaza asks, was the colossal destruction of roads, houses, factories, farms and ordinary civilian infrastructure right across the Gaza Strip (creating what an Amnesty researcher called “total devastation“) an act of “wanton destruction” and therefore itself a war crime.
It is true that virtually every conflict has involved atrocious deeds and virtually every armed force, however professional, has lapsed into barbarity. Senior military figures and their apologists will regularly seek to excuse these actions as occurring in the “heat of the moment” or because of the “tremendous pressure of conflict”, but it is notable in the House of Commons that it was MPs with a military background who were most shocked by the use of white phosphorus.
It’s depressing but predictable that, as things stand, with little word from the UN security council, no one looks likely to be held responsible for the wiping out of hundreds of civilian lives in the three-week Gaza war. This abrogation of responsibility doesn’t just let down civilians in Israel and Palestine; it lets down people all over the world. And it is not just the Bush administration that won’t apply the Geneva convention in the occupied Palestinian territories.
The UK and the EU are equally collusive in Israel’s grave breaches of international law and, as human rights lawyer Phil Shiner has pointed out, have taken no action to uphold the opinion of the International Court of Justice that held the route of the wall and the settlements a complete breach of the Geneva convention. The convention requires all high contracting parties (those who have signed and ratified it) to take action to enforce it. The UK and the EU have taken no such action and, instead, plan to upgrade the EU relationship with Israel, which already extends privileged trade access in a treaty containing conditionalities on human rights which are not invoked. By failing to uphold these standards in the occupied territories, our governments are undermining the whole structure of international law.
Adding further insult to international law in the aftermath of Israel’s massive military campaign is the strident post-conflict tone. Prime minister Ehud Olmert has recently threatened a “disproportionate” response to continuing Palestinian rocket attacks – precisely what international humanitarian law forbids and what Israel already stands accused of having engaged in.
The international criminal court’s prosecutor Luis Moreno-Ocampo recently confirmed that he is assessing whether the court has jurisdiction over war crimes committed in Gaza. But, in fact, the right way forward is for the security council to fulfil the role envisaged for it when the international criminal court was set up. It was anticipated that some international crimes would not be dealt with when the suspects were from states not party to the Rome Statute.
Instead of establishing ad hoc tribunals, as in Rwanda and former Yugoslavia, it was provided that the security council should have power to refer cases to the ICC. This was done in the case of Darfur and surely should be done in the case of Gaza.
Last November, I saw for myself the damage wrought by Israel’s 19-month blockade of Gaza, and with this battered territory now a scene of almost biblical destruction, of course I understand that humanitarian aid and reconstruction are a priority.
However, the UN security council shouldn’t turn a blind eye to wanton destruction and war crimes either. ICC cases against Israel and Hamas will prove explosive, but it’s my firm belief that it will also set down a marker for future conflict in the Middle East, as well as more widely in the world – from Sri Lanka to Burma to Zimbabwe.
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Tags:Amnesty International reports, blockade of Gaza, civilian lives, Hamas, international law, Israeli Defence Forces, Israeli war in Gaza, laws of war, UN security counci, white Phosphorous shells
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