Reports & Researches

The report of the UN Commission for Human Rights about the events in Gaza summer 2014

Between hope of trial and fear of escaping from punishment

(Legal reading)

The United Nations Human Rights Council established in September 2014 a Commission to investigate about all violations of international humanitarian law and international human rights law in the context of the military operations that were conducted last summer. The Committee is composed of Judge Mary McGowan Davis and Dr. Doudou Diene. The Independent Inquiry Committee of the United Nations published its results of investigation, which lasted one year in Geneva on June 22, 2015. The Committee concluded that both parties probably committed acts classified as war crimes. The Committee collected a lot of information about this fact. Judge Davis said: "The extent of the devastation and human suffering in the Gaza Strip are unprecedented and will affect future generations [1] ”; she added, "There is also a continuous fear in Israel between communities exposed to regular threat [2] ”.

The most important points in the UN report [3] :

·        Israel has not adjusted the exercise of air strikes even after discovering their disastrous effects on civilians; such a practice raises the question of whether this was part of a broader policy implicitly approved by at least senior government officials. The Commission of Inquiry expresses its concern about Israel's use of large-scale weapons to kill and injure a large area, and despite the fact that these weapons are not legally prohibited but its use in densely populated areas will likely lead to the killing of combatants and civilians without discrimination.

·        More than six thousand Israeli airstrikes, about 50 thousand artillery shells during the operation, which lasted 51 days. Result: 2251 Palestinian victims, including 1462 civilians (a third of them children), 299 women, the destruction of 1/3 of Gaza’s houses and 11231 injured. Concerning the Israeli, six civilian murdered and 67 military soldiers.

·        The hostilities also attacked civilians in Israel with great concern and disrupted their lives. Witnesses who live near the Gaza Strip talked about their troubles when they saw the shells from the windows of their living room, but they also suffered from the impossibility to access safety shelters with their children at the right time at the launch of the sirens warning them of the coming attacks. It seems that the purpose of launching thousands of rockets and mortar shells randomly against Israel is to spread terror among civilians. In addition, the Israeli army discovered 14 tunnels stretching from Gaza to Israel used to attack the soldiers during that period. The idea of the tunnels caused psychological trauma for Israeli civilians who feared attack against them at any time by the gunmen appearing from the underground.

·        Israeli authorities did not respond to repeated requests of the Commission to obtain information and permission to enter Israel and the Occupied Palestinian Land. However, the Committee received direct testimonies via Skype, remote video conference and telephone interviews. It has also interviewed face-to-face victims and witnesses from the West Bank during two visits to Jordan and listened to the attestations of families of the victims and witnesses from the Occupying State who traveled to Geneva. Furthermore, the Commission of Inquiry has conducted more than 280 confidential interviews and received about 500 written testimonies.

·        Judge Mary McGowan Davis and Dr. Doudou Diene said, "We are deeply affected by the suffering of the enormous victims and their endurance"; they added, "We hope that our report contributeseven in small extent in ending the violence." The Inquiry Committee submitted its report officially to the United Nations Human Rights Council on June 29, 2015 in Geneva.

 Attitudes regarding the report of the UN Commission on Human Rights:

·        The member of the Executive Committee of the PLO, Mustafa Barghouti, confirmed that the contents of the report of the United Nations would strengthen the Palestinian endeavor in the International Criminal Court. Barghouti said, "The contents of the report on Israel committing war crimes in Gaza strengthen our position to go to the International Criminal Court”. He added, "With regard to the part related to accuse the Palestinians of war crimes we are ready for that as well [4] ”.

·        Hamas movement in Gaza Strip welcomed the publication of the UN report on the Israeli war on the Gaza Strip last summer, considering that "condemnation" of the Hebrew State, without referring to the accusations of war crimes mentioned in the report against the movement. Fawzi Barhoum, spokesman of the movement, said, "Hamas welcomes the UN report condemning the Zionist occupation in its recent aggression on Gaza and committing war crimes”. Barhoum added, "This entails bringing its leaders before the International Criminal Court and putting an end to his crimes on our people and on Gaza [5] ”.

·        The Israeli Prime Minister described the UN report as biased and declared that Israel is defending itself against what he called a "terrorist organization" in reference to Hamas Movement. Israeli Prime Minister Benjamin Netanyahu says, "The committee that drafted the biased report was appointed by the United Nations Human Rights Council. It is called the Human Rights Council, but in fact, it does everything except tackling human rights issues. The Commission condemns Israel more than condemning Iran, Syria and North Korea altogether [6] ”.

 Israeli arguments justifying its aggression on Gaza:

1.     Israel is exercising its right of self-defense  

By virtue of the rules of international humanitarian law, the withdrawal of Israeli forces from the Gaza Strip in 2005 was incomplete; it was just a redeployment, or a partial withdrawal of the occupation forces from the territory, not an end to the situation of occupation, because this withdrawal has been limited to Turabi region and it did not cover all components of the Palestinian territory. In other term, the Palestinians did not regain their sovereignty because the Israeli occupation, after evacuation from Gaza Strip, insisted to control the air of the strip, as well as the sea, in addition to its ability to disable the separation border crossing between the Gaza Strip and the Egyptian Arab Republic.

Israel says that it has right of self-defense according to international law as defined in Article 51 of the Charter of the United Nations. However, the International Court of Justice rejected this wrong legal interpretation in its advisory opinion of 2004.

The International Court of Justice found that according to article 51 an armed attack could be attributed to a sovereign state, but the armed attacks of Palestinians emanate from the judicial jurisdiction of Israel. Israel has the right to defend itself against rocket attacks, but must do so in accordance with the law of occupation and not according to the laws of another war. The law of occupation ensures greater protection for the civilian population. The saying «No country allows firing rockets from a neighboring country» is therefore the heart of the truth and without basis. Israel deprives Palestinians from the right to govern and protect themselves, while at the same time use the right of self-defense. This is a problem and a breach of international law, Israel has done it deliberately in order to evade responsibility.

2.     This Israeli operation caused by rocket launched from Gaza

Israel claims that the current war and previous wars against the Palestinian population in Gaza were in response to rocket fire. However, the evidence from the 2008, 2012 and 2014 refutes this claim. First, according to the Israeli Ministry of Foreign Affairs, the biggest drop in rocket attacks was through diplomatic means, not military. This shows the comparison between military Israeli attacks on Gaza Strip and the counter attacks of the Palestinian resistance.  Firing rockets is closely related to Israeli military attacks; they increase and decrease accordingly. The truces led to the imposition of greater security in the region [7] .

3.     Israel avoids targeting civilians, but Hamas aims at killing civilians

Palestinian resistance has simple weapons technology lacking any ability to target. Thus, the rocket attacks violate by nature the principle of discrimination because all attacks are random. This fact was not objected. In contrast, Israel has the military troops, which occupy the eleventh place among the most powerful armies in the world and has accurate technology. Using unmanned aircraft and an arsenal of modern weapons technology, the Israeli occupation has the ability to target individuals and thus avoid civilian casualties. Nevertheless, Israel has frequently targeted civilians as part of its military operations. This was evident in the summer 2014 war in Gaza, where 1462 civilians, third of them children were killed according to the UN report beside the injury of more than 10 thousands Palestinian civilians. This shows the Israeli barbarism in targeting civilians and violating international and humanitarian laws.

The Israelis dead were military; more than 65 soldiers were among the dead and six Israeli civilians, while on the other side we see exactly the contrary many civilian corpses. The neutral legal evaluation of firing Palestinian rockets locally manufactured will rob the Palestinian resistance the force available with difficulty and will veil it without ability to deter the occupation and stop the crimes. The international mechanisms for the protection of human rights have not contributed so far in the Palestinian human rights protection from the brutality of the occupation. There are many legal provisions calling for assistance to the population under occupation in all forms of assistance, including help resistance fighters. The realization of the rules of international humanitarian law without any curtailment or discretion will protect the Palestinian population under occupation.

4. Targeting homes, mosques, schools and use of civilians as human shields

When air raids addressed to the civilian areas targeted civilians in one of the most populated areas in the world, and that led to the death and injury of hundreds of civilians, half of them women, children and elderly, this is a war crime. The Israeli army has intended to target civilian objects several times, such as mosques, schools and television buildings. Israel rockets, which rained down on the Gaza Strip, did not distinguish between military targets and civilian objects; the Israeli warplanes bombed several civilian headquarters including the headquarters of the Civil Administration. The Israeli soldiers used systematically Palestinians as human shields by restricting Palestinian boys on the hoods of their cars engines or forced them to enter a house where a fighter is probably hiding. Even if we assume that Israel's claims are implausible, the humanitarian law obliges Israel to avoid civilian casualties «be in excessive numbers in relation with the anticipated concrete and direct military advantage». The fighting force must be met if civilians or civilian infrastructure could be identified as a target military. In case of doubt, «either place usually dedicated to civilian purposes, such as a place of worship, a house, a dwelling or a school, is being used to carry out an effective contribution to military action, it must be assumed that it is not used in such a way».

The legal assessment of the report:

1.     Human Rights Council did his duty perfectly within his powers, through establishing a fact-finding committee. The committee in turn, through the preparation of its report submitted to the Human Rights Council on June 29, 2015, will be voted on the report at the Human Rights Council next week. After approval of the report, the Human Rights Council will refer the approval to the Secretary-General of the United Nations, who in turn will forward it to the Security Council, to take the necessary actions.

2.     The adoption of this report by the Human Rights Council, and the request of the Secretary-General submitted to the Security Council to take the necessary actions, do not mean that the Security Council can refer the file to the International Criminal Court now because it needs the votes of the five states of the veto and the political interests will remain more of the principles of international justice and human rights values [8] .

3.     The General Assembly, as well as the Human Rights Council, do not have right to activate the criminal case based on this report before the International Criminal Court because article 13 of the court system has identified ways to trigger the lawsuit exclusively.

4.     The report will serve as an important legal document presented as evidence from individuals, organizations, the Palestinian Authority and the families of the victims to the Prosecutor of the International Criminal Court within its competence mentioned in Article 15 of the Rome Statute, and could be always submitted at any time as an independent proof to the National judiciary at any state, party in the fourth Geneva Convention and the UN Convention on Genocide. This report could also be used as object to claim civil indemnity for damages and cultural items protected by the World, Arab and Islam Competent Organizations.

Recommendations:

Based on the content of the UN report about the events in Gaza in summer 2014, and in clarification of the legal position of this report, we the Palestinian Association for Human Rights (witness) recommend the following:

1.     Call the Attorney General of the International Criminal Court Fatun Bensouda to open an investigation after examining the Israeli crimes.

2.     Invite human rights organizations to file a lawsuit before the International Criminal Court about the Israeli crimes committed against the Palestinian families as individual prosecution.

3.     Invite the signatories of the Geneva Convention to strongly support the work of the International Criminal Court with respect to the occupied Palestinian territory for the application of law and the validity of his power and to hold accountable the perpetrators of war crimes.

4.     Invite Palestine to open an internal investigation of the allegations contained in the UN report on violations may have been committed by the Palestinian resistance.