Israel’s offensive on the Gaza Strip, 27 December 2008 – 18 January 2009, resulted in the killing of over 1,400 Palestinians, the overwhelming majority of whom (82%) were civilians. At least 5,300 Palestinians were also injured, and public and private property throughout the Gaza Strip was extensively targeted and destroyed. Investigations conducted by the Palestinian Centre for Human Rights (PCHR), and numerous other organisations, including the UN Board of Inquiry, the Independent Fact Finding Mission mandated by the League of Arab States, and the UN Fact Finding Mission on the Gaza Conflict (the Goldstone Mission), concluded that Israel committed numerous violations of international law, many of which give rise to individual criminal responsibility.
Israel is obliged, under both Treaty-based and Customary International Law, to conduct effective investigations into these allegations, and to prosecute those responsible. To date, Israel has proven itself unwilling to do so. PCHR emphasize that Israel is under a legal obligation to investigate all suspected violations of international law, including – but not limited to – those contained in the Goldstone Report.
On 5 November 2009, the General Assembly of the United Nations (UN) voted to endorse the Goldstone Report. The adopted Resolution called upon the Government of Israel and the Palestinians to:
“... take all appropriate steps, within a period of three months, to undertake investigations that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the Fact-Finding Mission, towards ensuring accountability and justice”.
In anticipation of the forthcoming UN General Assembly debate on the implementation of this Resolution, “Genuinely Unwilling” analyses Israel’s legal and judicial system in light of Israel’s obligations under international law. Despite Israel’s claims to the contrary, Genuinely Unwilling
concludes that Israel is unwilling to and that the Israeli system is incapable of conducting independent, credible investigations in conformity with international standards. Israel’s failure to conduct such investigations is in violation of its international legal obligations, and UN General Assembly Resolution A/Res/64/10.
While Genuinely Unwilling necessarily analyses international obligations with respect to the administration of justice, and Israel’s compliance with these obligations, PCHR notes that throughout the history of the occupation, Israel has consistently proven itself unwilling to conduct genuine investigations and prosecutions into cases of alleged violations of international law. This illegal pattern has been repeated with respect to allegations arising out of Israel’s conduct of hostilities during the offensive on the Gaza Strip. Virtually all aspects of Israel’s offensive were sanctioned, approved, and decided upon by the highest echelons of Israel’s civilian and military leadership. Any investigation must necessarily evaluate this policy, and those responsible for its formulation and implementation. Where appropriate, responsible individuals – regardless of their rank or political standing – must be held to account. As demonstrated in this report, the Israeli legal system prevents such genuine investigations.
PCHR Director Raji Sourani stated: "The Goldstone report represented an important milestone for the rule of law. It formulated the responsibility of the international community in a clear manner and specified the timeframe and implementation mechanisms needed for justice and accountability regarding the war on the Gaza Strip. This gives the international community a choice between the rule of law and the rule of the jungle. As citizens of the world, we very much hope that the relevant organs will follow the path outlined by Justice Goldstone and effectively enforce the rule of law. Peace cannot come at the expense of justice. In fact, experience has shown that lasting peace can only be achieved through total respect for the rule of law."
If victims’ rights are to be ensured, and the rule of law enforced, recourse to mechanisms of international justice – including a Security Council referral to the International Criminal Court in accordance with Chapter VII of the UN Charter, or the exercise of universal jurisdiction – is thus the essential next step.
Without enforcement of the law, Israel is free to violate international law with impunity and remain a threat to world peace; it is Palestinian civilians who suffer the horrific consequences.
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