UN Security Council Should Ensure Justice for Victims
September 16, 2009
The fact-finding mission's findings of serious violations by both Israel and Hamas are a significant step toward justice and redress for the victims on both sides. Now the UN, and the Security Council in particular, need to act on these recommendations and ensure that justice is done.
Sarah Leah Whitson, Middle East director at Human Rights Watch

(Geneva) - Israel, Hamas, and relevant United Nations bodies should promptly implement the recommendations of the UN fact-finding mission led by Justice Richard Goldstone on the recent Gaza war and bring to justice those responsible for serious violations of the laws of war, Human Rights Watch said today.

The Fact Finding Mission on the Gaza Conflict, established by the UN Human Rights Council, found that both parties to the conflict were responsible for serious violations of international human rights and humanitarian law, and that they committed war crimes and possibly crimes against humanity.

"The fact-finding mission's findings of serious violations by both Israel and Hamas are a significant step toward justice and redress for the victims on both sides," said Sarah Leah Whitson, Middle East director at Human Rights Watch. "Now the UN, and the Security Council in particular, need to act on these recommendations and ensure that justice is done."

Human Rights Watch particularly urged the US government not to stand in the way of the recommended Security Council action that would for the first time address the conduct of both Israel and Hamas. The Human Rights Council alone is no substitute for the Security Council because Israel has dismissed the council as biased and because the Security Council can refer the situation in Gaza to the International Criminal Court (ICC).

"The Obama administration's pronounced new principles for human rights in the Middle East will be put to the test," Whitson said. "Washington should welcome this opportunity for the Security Council to address the actions of both sides in this conflict."

The 575-page report, released on September 15, 2009, documented serious violations of international humanitarian law by Israel, with some incidents amounting to war crimes and possible crimes against humanity, including willful killings, deliberate attacks on civilian objects, wanton destruction of civilian property, indiscriminate attacks, the use of human shields, and collective punishment against Gaza's civilian population in the form of a continuing blockade.

The report also concluded that rocket fire from Gaza by Palestinian armed groups was deliberate and calculated to cause loss of civilian life and to terrorize Israeli civilians. As such, the mission concluded, they amounted to serious war crimes and perhaps crimes against humanity.

Human Rights Watch said the UN Security Council should implement the fact-finding mission's recommendation to establish a committee of experts to monitor if and how Israel and Hamas investigate alleged violations by their own forces. In the absence of good faith investigations after six months, the Goldstone report said, the Security Council should refer the situation in Gaza to the ICC.

Investigating and prosecuting laws-of-war violations are, first and foremost, the responsibility of the parties to the conflict, Human Rights Watch said. But both Israel and Hamas have dismal records of investigating and holding accountable members of their own forces for serious laws-of-war violations.

"The record gives little reason for confidence that Israel and Hamas will conduct serious investigations into credible allegations of laws-of-war violations by their own forces," Whitson said. "That's why a Security Council-appointed committee to monitor their actions is needed, to spur genuine investigations and prosecutions."

Human Rights Watch supported the fact-finding mission's call for the Security Council to refer the Gaza conflict to the ICC, should investigations by Israel and Hamas authorities remain inadequate.

"Security Council member states should take concrete steps to ensure justice for crimes committed by all sides during the Gaza conflict," said Whitson. "International justice should not be limited to prosecuting perpetrators from states that are more vulnerable to international pressure."

The ICC, the only permanent international criminal court, is the obvious international tribunal for war crimes committed during the Gaza conflict. Israel is not a party to the ICC, but the court would have jurisdiction over crimes committed during the Gaza conflict if the UN Security Council refers the situation to the ICC, if the ICC prosecutor acts positively on a declaration by the Palestinian National Authority requesting the court's authority over crimes committed in Gaza, or if nationals of ICC member states are found to have committed war crimes on behalf of one of the parties.

Human Rights Watch called on the ICC prosecutor to make a prompt legal determination on the Palestinian National Authority request, consistent with the ICC's mandate to end impunity.

The Fact Finding Mission on the Gaza Conflict was established by the UN Human Rights Council in January. The original mandate unfairly limited the investigation to Israeli abuses, but the council president subsequently expanded the scope to include an investigation of Hamas and other Palestinian armed groups, and the Human Rights Council acquiesced in that change when it was announced by the council president. Goldstone, an eminent international jurist and former chief prosecutor of the war crimes tribunals for the former Yugoslavia and Rwanda, led the mission, pledging to look at both sides.

The fact-finding mission said it conducted 188 individual interviews, and reviewed more than 300 reports and other documentation, in addition to more than 30 videos and 1,200 photographs.

Israel refused to cooperate and did not answer questions, ostensibly because it viewed the Human Rights Council and the initial resolution establishing the fact-finding mission as biased against Israel. However, Israel has refused to cooperate with other investigations into its recent conduct in Gaza as well, suggesting a desire to avoid scrutiny. It denied visas for Goldstone's team to visit Israel, so the mission invited Israelis to testify at public hearings in Geneva.

Hamas and Palestinian authorities in the West Bank cooperated with the mission, although the report noted "a certain reluctance by the persons it interviewed in Gaza to discuss the activities of the armed groups." Goldstone's team visited Gaza, via Egypt, in early June.

"The Human Rights Council has focused disproportionately on Israel in the past, but the Goldstone report rises above politics to examine abuses by both sides accurately and professionally," Whitson said. "Israel should welcome this positive evolution in the council's treatment of the Israeli-Palestinian conflict rather than to continue trying to avoid scrutiny of its conduct in Gaza."

Human Rights Watch has reported extensively on abuses by Israel and Palestinian armed groups during what Israel called "Operation Cast Lead" from December 2008 to January 2009. Hamas and other Palestinian groups violated the laws of war by firing hundreds of Qassam and Grad rockets into civilian areas in Israel, and by shooting those rockets from densely populated areas in Gaza. Israeli violations of the laws of war included firing white phosphorus munitions into populated areas, shooting civilians who were waving white flags to convey their civilian status, targeting civilians with drone-fired missiles, and unlawfully destroying civilian property.