Info Service on Health Issues (March 09/04)
Rights Expert Calls for Expert Inquiry into Gaza War Crimes
widespread calls for an investigation into the recent conflict in Gaza, the Special Rapporteur on the situation of human rights
in the Palestinian territories, Richard Falk has proposed an expert
inquiry to report on the allegations of war crimes associated with the
Israeli military operations in Gaza.
recommendation is in a report (A/HRC/10/20) to the tenth session of
the Human Rights Council.
following story is reproduced with permission from South-North Development
Monitor (SUNS) #6666, 24 March 2009.
Rights expert calls for expert inquiry into Gaza
By Kanaga Raja, Geneva,
23 March 2009
calls for an independent investigation into the recent conflict in Gaza,
a UN human rights expert has recommended the establishment of a procedure
for conducting an expert inquiry from the perspective of the role of
the UN Human Rights Council into allegations of war crimes associated
with the Israeli military operations in Gaza.
The recommendation is in a report (A/HRC/10/20) by Mr Richard Falk,
the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, to the tenth session of the Human Rights
Noting the widespread calls for an investigation of the allegations
of war crimes associated with the recent encounter in Gaza, the rights expert proposed an expert inquiry
to report on the implications of available evidence for international
humanitarian law, especially the implications of war crimes of apparent
Such a report should also take into account the specific undertakings
of the Human Rights Council. In contemplating such an inquiry, it is
important that several factors be considered, including the preliminary
question as to the applicable body of international law, and the concluding
question regarding the availability of mechanisms of accountability.
The inquiry should be conducted by three or more respected experts in
international human rights law and international criminal law, the rights
The report of the Special Rapporteur focuses on the main international
law and human rights issues raised by Israel military
operations commencing on 27 December 2008 and ending on 18 January 2009.
In his report, Falk challenges the widespread emphasis on whether Israeli
force was disproportionate in relation to Palestinian threats to Israeli
security, and focuses on the prior question of whether Israeli force
was legally justified at all. He concludes that such recourse to force
was not legally justified given the circumstances and diplomatic alternatives
available, and was potentially a "crime against peace".
The Special Rapporteur also gives relevance to the pre-existing blockade
which was in massive violation of the Fourth Geneva Convention, suggesting
the presence of war crimes and possibly crimes against humanity.
He considers the tactics pursued during the attacks by both sides, condemning
the firing of rockets at Israeli civilian targets, and suggests the
unlawfulness of disallowing civilians in Gaza
to have an option to leave the war zone to become refugees, as well
as the charges of unlawful weapons and combat tactics.
He recommended that an expert inquiry into these matters be conducted
to confirm the status under international law of war crimes allegations,
and to consider alternative approaches to accountability.
The Special Rapporteur also recommended action in response to the denial
of entry to him on 14 December 2008. He said that he was detained in
a facility close to Ben Gurion
Airport, then expelled from
the day after.
Such a refusal to cooperate with a United Nations representative, not
to mention the somewhat humiliating treatment accorded (detention in
a locked and dirty cell with five other detainees and excessive body
search), has set an unfortunate precedent with respect to the treatment
of a representative of the United Nations Human Rights Council, and
more generally of the United Nations itself, he said.
This precedent should be seriously challenged for the sake of both the
mandate and more broadly, to ensure that in future, Member States accord
appropriate respect and cooperation with official United Nations missions
and activities, he said, adding that one possible form of challenge
would be to seek an advisory opinion from the International Court of
Justice as to the applicability of the Convention on the Privileges
and Immunities of the United Nations.
The Special Rapporteur was of the view that the most important legal
issue raised by an investigation of the recent military operations concerns
the basic Israeli claim to use modern weaponry on a large scale against
an occupied population living under the confined conditions that existed
This involves trying to establish whether, under the conditions that
existed in Gaza,
it is possible with sufficient consistency to distinguish between military
targets and the surrounding civilian population.
"If it is not possible to do so, then launching the attacks is
inherently unlawful, and would seem to constitute a war crime of the
greatest magnitude under international law. On the basis of the preliminary
evidence available, there is reason to reach this conclusion."
On the basis of available reports and statistics, said Falk, it is possible
to draw the important preliminary conclusion that, given the number
of Palestinian civilian casualties and degree of devastation of non-military
targets in Gaza, the Israelis either refrained from drawing the distinction
required by customary and treaty international law or were unable to
do so under the prevailing combat conditions, making the attacks impossible
to reconcile with international law.
The rights expert highlighted some results of the military operation
-- A total of 1,434 Palestinians were killed. Of these, 235 were combatants.
960 civilians reportedly lost their lives, including 288 children and
121 women. 239 police officers were also killed; the majority (235)
in air strikes carried out on the first day. 5,303 Palestinians were
injured, including 1,606 children and 828 women (namely 1 in every 225
Gazans was killed or injured, not counting mental injury, which must
be assumed to be extensive);
-- Homes and public infrastructure throughout Gaza, especially in Gaza
City, sustained extensive damage, including several United Nations facilities;
an estimated 21,000 homes were either totally destroyed or badly damaged;
-- A total of 51,000 people were internally displaced in makeshift shelters
that provided minimal protection, while others fled to homes of friends
and relatives that seemed slightly safer.
"There is no way to reconcile the general purposes and specific
prescriptions of international humanitarian law with the scale and nature
of the Israeli military attacks commenced on 27 December 2008."
Falk's report noted that the Israeli attacks with F-16 fighter bombers,
Apache helicopters, long-range artillery from the ground and sea were
directed at an essentially defenceless society of 1.5 million persons.
As recent reports submitted to the Council by the rights expert emphasized,
the residents of Gaza were particularly vulnerable to physical and mental
damage from such attacks as the society as a whole had been brought
to the brink of collapse by 18 months of blockade that restricted the
flow of food, fuel, and medical supplies to sub-subsistence levels and
was responsible, according to health specialists, for a serious overall
decline in the health of the population and of the health system.
"Any assessment under international law of the attacks of 27 December
should take into account the weakened condition of the Gazan civilian
population resulting from the sustained unlawfulness of the pre-existing
Israeli blockade that violated articles 33 (prohibition on collective
punishment) and 55 (duty to provide food and health care to the occupied
population) of the Fourth Geneva Convention."
The report said that in the context of protecting Israeli society from
rockets fired from Gaza, the evidence overwhelmingly supports the conclusion
that the ceasefire in place as of 19 June 2008 (it was effectively terminated
on 4 November) had been an effective instrument for achieving this goal,
as measured by the incidence of rockets fired and with regard to Israeli
The report said that records also show that, during the ceasefire, it
was predominantly Israel
that resorted to conduct inconsistent with the undertaking, and Hamas
The report includes a graph, based on Israeli sources, that points to
the number of Palestinian rockets and mortar shells fired each month
in 2008. The period of the ceasefire stretches from 19 June to its effective
termination on 4 November.
The rate of rocket and mortar fire by the Palestinians were 241 in January,
257 in February, 196 in March, 145 in April, 149 in May, 87 in June,
1 in July, 8 in August, 1 in September, 1 in October, 126 in November
and 98 in December.
The report cites the authors of a study, based on the data displayed
in the graph, concluding that "the ceasefire was remarkably effective;
after it began in June 2008, the rate of rocket and mortar fire from
Gaza dropped to almost zero, and stayed there
for almost four months."
The experience of the temporary ceasefire demonstrates both the willingness
and the capacity of those exerting control in Gaza
to eliminate rocket and mortar attacks, said Falk. He added that beyond
this, records show that, during the ceasefire, it was predominantly
Israel that resorted to conduct inconsistent
with the undertaking, and Hamas that retaliated.
Citing the study, the report said that during a longer period, from
2000 to 2008, it was found that, in 79% of the violent interaction incidents,
it was Israel that broke
the pause in violence. In the course of events preceding the attacks
of 27 December, the breakdown of the truce followed a series of incidents
on 4 November in which Israel killed a Palestinian in Gaza, mortars
were fired from Gaza in retaliation, and then an Israeli air strike
was launched that killed an additional six Palestinians in Gaza.
In other words, "the breakdown of the ceasefire seems to have been
mainly a result of Israeli violations, although this offers no legal,
moral or political excuse for firing of rockets aimed at civilian targets,
which itself amounts to a clear violation of international humanitarian
Furthermore, noted Falk, Hamas leaders have repeatedly and formally
proposed extending the ceasefire, including for long periods.
The continuing refusal of Israel to acknowledge Hamas as a political
actor, based on the label of "terrorist organization" has
obstructed all attempts to implement human rights and address security
concerns by way of diplomacy rather than through reliance on force,
The rights expert concluded that the Palestinian side adhered to the
ceasefire, with relatively few exceptions, and relied on violence almost
exclusively in reactive modes, while Israel failed to implement its
undertaking to lift the blockade and seems mainly responsible for breaking
lulls in the violence by engaging in targeted assassinations and other
violent and unlawful provocations, most significantly by its air strike
on 4 November 2008.
The contention that the use of force by Israel was "disproportionate"
should not "divert our attention from the prior question of the
unlawfulness of recourse to force. If for the sake of argument, however,
the claim of self-defence and defensive force is accepted, it would
appear that the air, ground, and sea attacks by Israel were grossly
and intentionally disproportionate when measured against either the
threat posed or harm done, as well as with respect to the disconnect
between the high level of violence relied upon and the specific security
goals being pursued."
did little to disguise its deliberate policy of disproportionate use
of force, thereby acknowledging a refusal to comply with this fundamental
requirement of international customary law, said Falk.
In an unprecedented belligerent policy, said the report, Israel refused to allow the entire civilian population
with the exception of 200 foreign wives, to leave the war zone during
the 22 days of attack that commenced on 27 December. All crossings from
Israel were kept
closed during the attacks, except for rare and minor exceptions. By
so doing, children, women, sick and disabled persons were unable to
avail themselves of the refugee option to flee from the locus of immediate
harm resulting from the military operations of Israel.
This condition was aggravated by the absence of places to hide from
the ravages of war in Gaza,
given its small size, dense population and absence of natural or man-made
Refugee denial under these circumstances of confined occupation is an
instance of "inhumane acts", during which the entire civilian
population of Gaza was subjected to the
extreme physical and psychological hazards of modern warfare within
a very small overall territory.
Calling for an expert inquiry, the Special Rapporteur said that it is
important that an inquiry in the context of the military operations
initiated on 27 December 2008 and continuing until 18 January 2009,
evaluate the allegations on both sides, including the issues of alleged
criminality associated with both the decisions of the Government of
Israel to launch the attacks and initiate a ground invasion of Gaza,
as well as the circumstances surrounding the firing of rockets by Palestinian
It is further recommended that the underlying claim of Israel that it
was acting in self-defence be evaluated in relation to the contention
that such an attack violated Article 2 paragraph 4 of the Charter of
the United Nations and amounted to an act of aggression under the circumstances,
and whether the reliance on disproportionate use of force or the inherently
indiscriminate nature of the military campaign should be treated as
a criminal violation of international customary and treaty law.
Alleged crimes associated with legally dubious use of weaponry such
as white phosphorous (which burns through clothing, sticks to skin and
burns flesh to the bone), flachette bombs (which expel razor-sharp darts),
and Dense Inert Metal Explosives (DIME) bombs (causing intense explosions
in a small area and body parts to be blown apart) should also be investigated,
said the report.
"None of these weapons is, per se, explicitly banned by international
law, but there is considerable support for the view that their use in
dense urban areas where civilians are known to be or are habitually
present would be a war crime."
In conclusion, the Special Rapporteur insisted that Israeli security
and the realization of the Palestinian right of self-determination are
fundamentally connected, and that the recognition of this aspect of
the situation suggests the importance of an intensified diplomatic effort,
respect by all parties of relevant international law rights, and implementation
of the long deferred Israeli withdrawal from occupied Palestine as initially
prescribed by the Security Council in its resolution 242 (1967).
"Until such steps are taken, the Palestinian right of resistance
within the limits of international humanitarian law and Israeli security
policy will inevitably clash, giving rise to ever new cycles of violence."
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