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Written by The Palestinian Centre for Human Rights The Palestinian Centre for Human Rights
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Published: 14 October 2009 14 October 2009
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The Palestinian Centre for Human Rights
Daragh Murray
+00972598592385
daragh@pchrgaza.org
ENGLISH ONLY
Human Rights Council
Twelfth Special Session
Joint written statement submitted by the
Palestinian Centre for Human Rights, BADIL Resource Centre for
Palestinian Residency and Refugee Rights, Al-Haq Law in the Service of
Man, Ittijah – Union of Arab Community Based Associations, Defence for
Children International (DCI), Adalah – Legal Center for Arab Minority
Rights in Israel, non-governmental organizations in special
consultative status1
Victims’
Rights Must be Upheld: Call for the Implementation of the UN Fact
Finding Mission’s Recommendations and an End to the Illegal Annexation
of East Jerusalem, including interference with cultural and religious
sites
The need for the full endorsement of the Report by the Fact Finding Mission
On 1 October 2009, the Human Rights Council decided
to defer consideration of the report by the UN Fact Finding Mission on
the Gaza Conflict (‘Fact Finding Mission’) until its thirteenth session
in March 2010. This decision represented a failure of the Human Rights
Council to act within the full extent of its mandate to promote
“universal respect for the protection of all human rights and
fundamental freedoms for all, without distinction of any kind and in a
fair and equal manner” and to “address situations of violations of
human rights, including gross and systematic violations”.2
The
deferral was a blow to the victims of violations of international human
rights and humanitarian law, for whom justice delayed is justice denied
in the truest sense of the words. Palestinians within the Occupied
Palestinian Territory (‘OPT’) have no resort to effective judicial
remedies within Israel’s domestic legal system. The right to effective
judicial remedies is affirmed in Article 2 of the International
Covenant on Civil and Political Rights, whilst Article 26 affirms the
entitlement of protection of the law. The flawed nature of Israel’s
investigatory apparatus, and Israel’s unwillingness to genuinely
investigate allegations of criminal misconduct, have been extensively
documented and were highlighted in the report of the Fact Finding
Mission. This unwillingness to pursue justice is illustrated by Prime
Minister Netanyahu’s public statement on 12 October 2009, vowing that
Israeli soldiers and leaders will not stand trial for war crimes
committed during the Israeli offensive ‘Operation Cast Lead’.3
Evidence indicates that Israeli forces may have
committed crimes against humanity in the Gaza Strip; the crime against
humanity of persecution, manifested, inter alia, by the illegal
blockade of the Gaza Strip, continues to this day. These findings have
been confirmed by investigations conducted by a diverse range of
bodies, including Amnesty International, Human Rights Watch, the UN
Board of Inquiry, the Independent Fact Finding Mission of the Arab
League, the Office of the High Commissioner for Human Rights, and now
the Human Rights Council-mandated Goldstone Report.
Yet despite the documentation of such crimes,
neither the State of Israel nor individuals suspected of committing war
crimes have been held to account. It has been almost ten months since
the offensive and despite significant levels of international attention
no effective domestic investigations have been conducted.
In the evident absence of domestic judicial remedy,
recourse must be had to international mechanisms. The undersigned fully
endorse the Fact Finding Mission’s recommendations that the report be
submitted to the UN Security Council, if after a period of six months,
effective domestic judicial proceedings are not forthcoming. At that
point acting under Chapter VII of the UN Charter, the Security Council
must refer the situation to the Prosecutor of the International
Criminal Court, pursuant to article 13(b) of the Statute of the
International Criminal Court. Should the Security Council prove unable
to discharge its responsibilities on behalf of all Member States, then
the General Assembly should consider its responsibility for maintaining
international peace and security and take all appropriate actions to
ensure international criminal investigation.
In concert with these efforts, States Parties to the
Geneva Conventions of 1949 remain under a legal obligation to initiate
investigations in their national courts, in accordance with the
principle of universal jurisdiction, where there is sufficient evidence
of the commission of grave breaches of the Geneva Conventions.4
As recommended by the Fact Finding Mission, “[w]here so warranted
following investigation, alleged perpetrators should be arrested and
prosecuted in accordance with internationally recognised standards of
justice.” The undersigned stress the fundamental importance of
universal jurisdiction with respect to the maintenance of the rule of
law, and upholding individuals’ legitimate rights. In the absence of
effective international mechanisms, universal jurisdiction is the only
mechanism through which victims’ rights can be upheld and those
responsible for international crimes held to account.
The Report of the Fact Finding Mission also
highlighted the reparations owed to the people of the Gaza Strip by
Israel. Israel is responsible for the internationally wrongful acts it
committed; its victims are entitled to reparation. This reparation will
not erase the reality of the acts committed, but it will help to
rebuild lives and livelihoods. Today, almost ten months after the end
of the offensive, the Gaza Strip remains as it did on 18 January.
Reconstruction is impossible as a result of the Israeli-imposed illegal
blockade, a form of collective punishment which indiscriminately
affects each of Gaza’s 1.5 million inhabitants, frustrates any
semblance of ‘normal’ life and fundamentally undermines basic human
dignity.
Israel, the Occupying Power, must accept
responsibility for its internationally wrongful acts; it “is under an
obligation to make full reparation”5
for any injury caused by its wrongful actions. In light of its legal
obligations, Israel must first acknowledge its financial obligations
with respect to reparations, and second ensure the provision of all
necessary reconstruction materials and equipment. In this regard, the
undersigned call for the lifting of the illegal blockade, and support
the Fact Finding Mission’s recommendation that an escrow fund be
established by the General Assembly to be used to pay adequate
compensation to Palestinians who have suffered loss and damage as a
result of unlawful acts attributable to the State of Israel.
All civilians are legitimately entitled to the full
protection of the rule of law, without discrimination. All those
suspected of being involved in the perpetration of war crimes, grave
breaches of the Geneva Conventions or crimes against humanity, whether
Israeli or Palestinian, must be investigated and prosecuted in
accordance with international law; victims’ rights to an effective
judicial remedy must be upheld. The significance of access to justice
and appropriate international action in this regard is not restricted
to the Palestinian and Israeli peoples. Human rights and the rule of
law are universal. In order to retain their fundamental significance
and relevance they must be applied without discrimination or political
bias.
The context of Operation Cast Lead: Israel’s Occupation of the OPT
Operation Cast Lead occurred in the context of
Israel’s longstanding occupation of Palestinian land. The illegal
Israeli blockade on the Gaza Strip has not been lifted, resulting in
the non-entry of necessary food supplies, medical and hospital objects
as well as severe restrictions on the movement of Palestinians. In the
West Bank, the unlawful activities of the occupation are intensifying
in the form of the continuing illegal annexation of East Jerusalem by
means of ‘administrative’ demolitions of Palestinian homes and the
systematic policy of denying Palestinians in East Jerusalem building
permits. Furthermore, current illegal settlements are expanding and new
ones are being constructed in the OPT, resulting in the illegal seizure
of Palestinian land and settler violence which necessarily undermine
Palestinians’ self-determination.
Neither the sanctity of Holy sites nor cultural
heritage sites in East Jerusalem have escaped the negative effects of
the occupation. Relentlessly, Israel digs and excavates under the holy
site of the Al-Aqsa Mosque and violates the freedom of religion by
restricting Palestinians’ access to their Holy sites.
The Human Rights Council must yet again remind
Israel of its obligations under international humanitarian and human
rights law, which Israel continue to violate systematically. The Human
Rights Council must vigorously ensure the protection and respect of
international humanitarian and human rights law by putting forward
recommendations to the UN General Assembly to ensure lasting compliance
with international law. The endorsement by the Human Rights Council of
the entirety of the report by the Fact Finding Mission can also serve
as authoritative statement that accountability cannot be negotiated on
and that impunity is no longer tolerated.
Furthermore, the report is an authoritative document
which demands practical implementation, and the Human Rights Council
must take all necessary steps in this regard. International law must be
the foundation for any peaceful resolution of the conflict in the
region. It is our firm belief that implementation of the report’s
recommendations and its demand for justice through accountability
facilitates the attainment of a fair, genuine and sustainable peace:
there can be no peace without justice.
For the sake of providing justice for all victims,
we urge the Member States of the Human Rights Council and the
international community as a whole to set aside political agendas and
reaffirm their commitment to the universal applicability of
international humanitarian and human rights law.