Dear Foreign Minister,
The release of the report of the United Nations Fact-Finding Mission on the Gaza Conflict puts to the test the stated commitment of the European Union and its 27 member states to promote an international order where no state is above the law. The report presents overwhelming evidence that both Israel and Hamas committed violations of the laws of war - some amounting to war crimes and possible crimes against humanity - and that neither side has taken serious steps to hold perpetrators to account.
The report of the fact-finding mission, led by Justice Richard Goldstone, gives both parties a reasonable period of time to start serious investigations and lays out a step by step approach to accountability. It also recognizes the problem of impunity and suggests that international monitoring could help overcome the lack of initiative by both parties and trigger a more appropriate response. The fact-finding mission recognized that the international community has a crucial role in creating incentives to promote international justice.
In light of these findings, we ask that the EU and member states support a resolution at the UN Human Rights Council endorsing the fact-finding mission's report in its totality and its submission to the relevant bodies, including the UN Secretary-General, the Security Council and the General Assembly. An EU rejection of all or part of the report and its recommendations will give credence to those who argue that international justice is a political tool targeted at less powerful states. It will also undermine the EU's credibility on justice issues and much of the last decade's progress towards accountability for the most serious international crimes.
The initial mandate of the fact-finding mission was flawed in its one-sided approach, but the reworked mandate was expanded to appropriately address all parties to the conflict. The highly respected Justice Goldstone accepted to lead the fact-finding mission only after gaining assurances that he could look at Israel and Hamas, as well as other Palestinian armed groups, and he aggressively investigated actions by all parties.
The report firmly condemns the rocket attacks into civilian areas of Israel by Hamas and other armed groups as serious violations of international humanitarian law. They amount to war crimes and possible crimes against humanity, the report says.
The report also documents 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 the ongoing blockade of reconstruction materials and humanitarian aid.
The report found that on both sides, impunity for laws-of-war violations is the norm. As the mission's report summary notes: "There is little potential for accountability for serious violations of international humanitarian and human rights law through domestic institutions in Israel and even less in Gaza."Human Rights Watch has also documented the consistent failure of both Israel and Hamas to hold accountable military personnel who violated international humanitarian law.
Eight months after "Operation Cast Lead" in Gaza, Israel has opened a handful of military police investigations, but past experience suggests that these investigations will not meet international standards for independence and impartiality. The one criminal investigation concluded thus far resulted in the conviction and sentencing of one soldier for stealing a credit card.
As you know, Israel has an obligation under international law to investigate credible allegations of laws-of-war violations by its forces and, where violations are found, to punish those responsible. Human rights organizations, the media, the United Nations, and even Israeli soldiers who fought in the Gaza operation have reported such incidents taking place. In the absence of serious investigations and prosecutions, victims of laws-of-war violations have long been left without justice, recognition of the crimes against them, or compensation for their suffering. This is not only a violation of their right to reparation under international law, but also a breeding ground for resentment and further violence.
The EU has long recognized that promoting respect for international humanitarian law contributes to the preservation of peace and the strengthening of international security. In contrast, tolerance of impunity contributes to renewed cycles of violence by implicitly sanctioning unlawful acts and by fomenting an atmosphere of distrust that can be manipulated by leaders seeking to foment violence for their own political ends. This conflict is itself an example of the dangers of tolerating impunity.
When, as here, the parties have demonstrated a lack of will to investigate these offenses, it is up to the international community to press the states to hold perpetrators accountable. As we have seen in places such as Kenya, Burundi, and Rwanda, failing to demand accountability can contribute to the recurrence of violence. An EU abstention on a balanced follow-up resolution that endorses the fact-finding mission report in its totality and calls for appropriate action by relevant UN bodies would send the message that there will be no consequences to unlawful attacks on civilians or the destruction of civilian objects in excess of military need. Without accountability it will also be difficult for the parties to establish the degree of trust that is necessary for serious progress on peace negotiations. Experience has shown that peace without justice is often not sustainable.
In addition, a failure by the EU to call for accountability for alleged crimes will reinforce the perception already taking root in the Middle East, Africa and elsewhere that a double-standard exists regarding violations of international human rights and humanitarian law. To condemn impunity in places such as Liberia, the Democratic Republic of the Congo and Sudan, and to not do so regarding Israel will lend credence to those who seek to undermine the legitimacy of international justice institutions, which get portrayed as a tool of the powerful against the weak. The EU's credibility as a leading force for international justice also risks being seriously damaged.
On the 60th anniversary of the Geneva Conventions last month, the European Union declared that "International law, including international humanitarian law, is one of the strongest tools the international community has to maintain international order and to ensure the protection and dignity of all persons. The European Union will continue to do its utmost to promote an international order where no state or individual is above the law and no one is outside the protection of the law." Now is the time to demonstrate that the EU is truly committed to these principles, even when it is politically complicated to do so.
Human Rights Watch
EU Political Directors
Ambassadors to the EU's Political and Security Committee
Permanent representatives of EU member states to the United Nations in New York
Permanent representatives of EU member states to the United Nations in Geneva
EU member states' Ambassadors to Israel
EU member states representatives to the Palestinian Authority
EU member states' Middle East Directors
Council Working Party on Mashreq/Maghreb (COMAG)
Council Working Party on Human Rights (COHOM)
EU High Representative for the Common Foreign and Security Policy, Dr. Javier Solana
European Commissioner for Development and Humanitarian Aid, Mr. Karel De Gucht,
European Commissioner for External Relations, Ms. Benita Ferrero-Waldner
President of the European Parliament, Mr. Jerzy Buzek
Chair of the European Parliament's Development Committee, Ms. Eva Joly
Chair of the European Parliament's Subcommittee on Human Rights, Ms. Heidi Hautala
Chair of the European Parliament's Foreign Affairs Committee, Mr. Gabriele Albertini
Chair of the European Parliament's Delegation for relations with Israel, Mr. Bastiaan Belder
Chair of the European Parliament's Delegation for relations with the Palestinian Legislative Council, Mr Proinsias De Rossa