Statement issued on 24 June 2015 by Toby Cadman
On 22 June 2014, the United Nations Independent Commission of Inquiry on Gaza (COI) released its final report, concluding that Israeli authorities committed serious violations of international humanitarian law and international human rights law during the 2014 conflict.
According to the Report, Israeli military authorities are alleged to have carried out more than 6,000 air strikes in Gaza, a substantial part of them directed towards densely populated areas and residential areas during night-time. These indiscriminate attacks posed a great threat to the civilian population, resulted in a large number of casualties, caused disproportionate destruction and affected specifically protected objects, such as medical facilities and shelters.
Israeli authorities have failed to provide enough information to justify why the attacks on these areas, which are predominantly of a civilian nature, would be justified by military necessity. As a matter of fact, although the number of civilian victims continued to escalate with the attacks, the Israeli authorities failed to revise their military strategy, which, according to the COI, could constitute evidence of a broader policy “approved at least tacitly by decision-makers at the highest levels of the Government of Israel”.
Moreover, the report holds that Israeli authorities failed to take all necessary steps within their power to minimize the number of civilian casualties. According to the COI, the system implemented to warn Palestinian civilians of a future attack was inadequate as, in several occasions, the time given between the warning and the strike was insufficient to escape. The COI also reports that several families did not have any place to be evacuated given the widespread nature of the Israeli shelling, the overcrowding of safe places, and the poor conditions of the shelters, which were also target of several attacks.
The inadequacy of the warning system is especially relevant in this case, as the Israeli Defence Forces (IDF) intended to create sterile combat zones in which the people remaining in the area after an attack had been warned “would no longer be considered civilians and thus benefit from the protection afforded by their civilian status”.
Several Israeli soldiers who provided testimony to the organization “Breaking the Silence” confirm this policy. As a matter of fact, a Staff Sergeant from the Mechanized Infantry testified that there was “no such thing there as a person who is uninvolved. […] No vehicle is supposed to be there – if there is one, we shoot at it. Anything that’s not ‘sterile’ is suspect. There was an intelligence warning about animals. If a suspicious animal comes near, shoot it”.
The COI finds that the Israeli policies of systematically attacking densely populated civilian areas and depriving citizens from their civilian status just for staying in an area that had been the object of a warning, violate the international humanitarian law principles of distinction, precaution and proportionality, and therefore, could be constitutive of war crimes.
This conclusion is in line with the legal submission jointly prepared by 9 Bedford Row International, the Arab Organisation for Human Rights in the UK and the Hemaya Centre for Human Rights in Gaza and submitted to the COI detailing credible accounts that war crimes were committed by the State of Israel and the IDF during Operation Protective Edge calling for a credible international investigation into the military operation and to hold those responsible for violations of the laws and customs of war to be held criminally liable before a competent court of law.
The findings of the COI are a first step towards ensuring accountability in the Occupied Palestinian Territories, but there is still a long way to achieve the path of justice. Israeli domestic investigations on the responsibility of the military officers lost all credibility earlier this month, when the Military Advocate General closed the investigation file of the death of four Palestinian children playing on a beach, which precluded “any further legal proceedings –criminal or disciplinary– to be taken against those involved in the incident”. This decision evinces the partial character of the Israeli proceedings and explains why the COI’s report calling upon the Israeli authorities to “to enhance the independence and impartiality of the Military Advocate General”. Further, the failure by the Israeli authorities to hold those military commanders responsible before an independent and impartial court of law further demonstrates the need for the Prosecutor of the International Criminal Court in The Hague to formally open, without further delay, a criminal investigation into Operation Protective Edge.
Given the Israeli policy of impunity towards its own Defence Forces, and the improbability of the establishment of a hybrid or an ad-hoc international tribunal for this case, it is now all the more necessary to support for the ICC Prosecutor to carry through her pledge to the Palestinian people and hold those Israeli political and military leaders that bear individual criminal responsibility accountable before the international court. The findings of the COI should encourage and provide the ICC Prosecutor with a proper basis to open a formal investigation that will eventually lead to a judicial process before the ICC.
A judicial process in the ICC would be a great opportunity not only to achieve justice and accountability in an area where human rights and human dignity have been obviated for so long; but also to lead a process of reconciliation that could put an end to the enduring policies of retaliation, help ease the 60-years-long conflict and open a period of transition that could bring stability and full and indiscriminate respect for human rights in the region.
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