North Korean Refugees: The Forgotten People


Nameless North Korean refugees (Photo Courtesy of Chosun Newspaper)

By Joseph Juhn
Impunity Watch, Asia

SEOUL, South Korea – North Korean refugees who escaped the country’s authoritarian regime have many untold stories.

Sometime in July, Choi Young-hee, a woman in her 70s, offered smugglers some cash to carry her across the heavily guarded Tuman river that separates North Korea from China.

Soon, her daughter also tried to cross, but was caught and is now in a North Korean political prison, where she can potentially face hard labor, torture, or even death.

North Korea is known as one of the worst violators of human rights in the world. Seeking a better life and liberty, countless individuals attempt to flee the nation that is currently under the leadership of one of the most notorious dictators, Kim Jong-il.

Any North Korean defector who is caught face extraordinary hardships. If they are women, the story can be even worse.

Many surveys and newspaper accounts show that 90 percent of those who are able to evade Chinese border guards and police are sold and trafficked. If the refugees are captured by Chinese authorities, they are forcibly repatriated to North Korea in violation of international law, where they will be locked up in a political concentration camp for imprisonment, beatings, torture, and sometimes a public execution.

The primary motivation of the defectors arises from hunger. Congressman Chris Smith (R-New Jersey) said at the hearing held by the Tom Lantos Human Rights Commission on September 23 that this summer’s food shortages in North Korea were reportedly as bad as in the 1990s, when estimated up to 2 million people starved to death.

“I thought that once I went to China my children would not starve to death, and that is why I crossed the Tumen River, but once we arrived on the other side, what awaited us were fear of capture by Chinese security officials and forced repatriation back to North Korea,” said Ms. Mi Sun Bahng, one of North Korean refugees who eventually made it to the West and freedom.

In describing her encounter with Chinese brokers when she first crossed the river, she said, “I was separated from my children and sold for 4,000 yuan, [approximately, US$594]. What was most infuriating was that these Chinese [traffickers] called [us] North Korean defector-women ‘pigs,’ and treated us like animals.”

In a period of a few months, Ms. Bahng was “sold three times like livestock.” She managed to escape but in the course of looking for her children, she was captured by Chinese authorities and was repatriated to North Korea.

She witnessed horrors in prison. Ms. Bahng saw her inmates, who were dying of hunger, trying to catch insects, among many other things, to eat for survival.

“To this day I have unending nightmares of the people I saw there, those who would be working out in the fields and if they saw a snake or a frog would catch them and swallow them whole; there were people who would be defecating and if a piece of radish came out they would immediately wipe it on their sleeves and eat it; if there were pieces of beans or kernels of corn found in cow manure, the person who found them would consider that day to be their lucky day.”

Currently, China does not recognize the North Korean defectors as refugees and it also won’t allow the U.N. High Commissioner for Refugees (UNHCR) access to them.

For more information, please see:

The Epoch Times – North Korean Defectors Give Grim Testimony of Experiences with China – 29 September 2010

AFP – US lawmaker presses China, India over human trafficking – 30 September 2010

The Washington Times – Repatriation policy links China to rights violations – 23 September 2010

Deadly Riot in Gang-Run Prison

By R. Renee Yaworsky
Impunity Watch Reporter, South America

CARACAS, Venezuela—A deadly riot inside one of Venezuela’s overcrowded prisons has left 16 people dead and another 35 injured.  This marks the second time violence has erupted at this prison just this week alone.

According to prison official Consuelo Cerrada, the riot occurred Wednesday between rival gangs vying for power within the Tocoron prison in Aragua state, 75 miles south of Caracas.  The fighting lasted for eight hours while inmates fired automatic weapons and hurled grenades at other inmates and guards.  Local police were unable to take control of the combat until the riot began to subside of its own accord.

It is believed that the riot was sparked by the murder of a gang leader earlier this week.  Six of the wounded are still hospitalized.  Four of the injured were women relatives of inmates who were hit by stray bullets while anxiously awaiting news outside the prison.

On Monday of this week three inmates were murdered and four correctional officers were injured at the same prison in a separate display of violence.

The Tocoron prison has yet to release an official statement on the riot and inmates’ families have demanded answers; some relatives have created blockades on nearby roads to protest the lack of information.

Venezuela’s prisons are notoriously overcrowded and plagued by incessant gang violence.  About 40,000 inmates live in prisons that were constructed to hold only 15,000.

According to Venezuelan Prison Watch, an organization against prison violence, over 220 inmates died in the country’s substandard prisons in just the first quarter of 2010 alone.  Gangs in Venezuela’s prisons battle over control of the cellblocks and the trade of weapons and drugs.

Earlier this month thousands of prisoners throughout the country protested poor prison conditions and human rights violations by guards by joining a hunger strike.

The Inter-American Commission of Human Rights has asked Venezuela to increase security and protect the human rights of inmates in the country’s prisons.

For more information, please see:

AP-16 inmates killed in prison riot in Venezuela-30 September 2010

Gather-Gang Battle in Venezuela Prison: Ten Dead-30 September 2010

Americas Quarterly-Gun Battle Grips Venezuelan Prison-30 September 2010

BBC-Ten die in Venezuela prison gang battle-29 September 2010

Croatia Limits Humans Rights Of The Mentally Disabled

By Ricardo Zamora
Impunity Watch Reporter, Europe

ZAGREB, Croatia – The conclusion of a recent human rights report suggests that the Croatian government is forcing individuals with intellectual or mental disabilities to live in institutions which deprive them of their privacy, autonomy, and dignity.  The government has failed to provide alternative care options as promised to the European Union and the United Nations, according to Human Rights Watch.

The report, “Once You Enter, You Never Leave: Deinstitutionalization of Persons with Intellectual or Mental Disabilities in Croatia,” reveals the lives and living conditions endured by over 9,000 intellectually or mentally disabled people living in these institutions.

“Imagine always having to ask permission to leave the place where you live, having no privacy to take a shower, and no chance to decide what to eat or when to go to bed,” said Amanda McRae, fellow with the Europe and Central Asia division at Human Rights Watch and the author of the report.  “This is the reality for thousands of people living in institutions in Croatia,” she added.

While community-based programs in other countries show effectiveness in offering disabled persons a better quality of life than those living in institutions, Croatia has resisted in implementing such programs.  This resistance runs contrary to its position among the first countries to ratify the UN Convention on the Rights of Persons with Disabilities.  The UN Convention expressly provides disabled persons the basic right to live in the community.  The report recommends that Croatia replace institutions with community-based programs in order to remain consistent with the Convention’s provisions.

“Real leadership on this issue will require a serious and sustained commitment to provide community-based housing and support for people with disabilities,” said McRae.

While up to 30 percent of persons live in these institutions by choice, Human Rights Watch cautions that such a choice is meaningless due to the lack of alternative options.

There are currently over 4,000 people with mental disabilities residing in institutions within Croatia.  While there are some community-based programs for the mentally disabled, there are only sufficient resources to support 16 people.  Similarly, while 5,000 people with intellectual disabilities are institutionalized, community-based resources for the intellectually disabled are able to support only 250 people.

The Croatian government plan for deinstitutionalization is part of its preparations for EU membership.  However, those plans have not yet been made public.  In the meantime, the number of institutionalized people continues to grow.

For more information, please see:

The Open Society Mental Health Initiative – Living Proof: The Right to Live In The Community – September 27, 2010

Human Rights Watch – Croatia: Locked Up, Limited Lives – September 23, 2010

UNHCR – Croatia: Unfulfilled Promises to Persons With Disabilities – September 8, 2010

Still no justice for victims of Guinea stadium massacre

By Polly Johnson
Impunity Watch Reporter, Africa

Relatives weep after learning the fates of their loved ones at the 2009 Guinea massacre. (Photo Courtesy of HRW).
Relatives weep after identifying the body of a loved one in 2009. No one has been prosecuted for the horrific crimes that took place at the Conakry massacre. (Photo Courtesy of HRW).

CONAKRY, Guinea – Families of the victims of the September 28, 2009 massacre in Conakry, in which junta troops murdered, raped, and tortured protesters at a political rally at Conakry’s biggest stadium, leaving one hundred and fifty seven dead, were unable to gather at the stadium to mark the one-year anniversary.

One year ago, thousands of peaceful protestors gathered at the Conakry stadium to protest the continued military rule of then-leader Captain Moussa Dadis Camara. Unable to suppress the rally, armed guards, anti-riot police, and militia in civilian clothes sealed the exits and opened fire on the protestors in the packed stadium. In addition to the murders, hundreds of women were raped at the stadium and others were detained for rape later. Protesters were illegally arrested and brutally tortured. In an attempt to hide the evidence, armed forces buried the bodies in mass graves.

Both the United Nations and the International Criminal Court deemed the crimes that occurred during the massacre as crimes against humanity.

The massacre stemmed from Guinea’s political structure. The army, which had at that time grown to a body of over thirty thousand men, ruled the country. In 2008, army captain Camara seized power and became leader of the military regime known as the Conseil National pour la Democratie et le Development (CNDD), which planned the attack in advance, according to HRW.

Camara was wounded in an assassination attempt last December and has been incapacitated since. General Sekouba Konate has been leading the transition until the election of a civilian president

Current presidential candidate Cellou Dalein Diallo said that if he were elected president, he would consider putting in place a Truth and Reconciliation Commission, “not necessarily to punish people but to condemn the really barbaric acts that were committed and which should be completely banned from our armed forces and the police.” Diallo was badly beaten himself in the massacre and treated for broken ribs.

The country has made important strides in the past year. The military is less visible. There are hopes that the October elections will bring democratic rule to the country.

But the perpetrators of the massacre are still free, and, according to HRW, the only way to break the cycle of impunity in Guinea is to bring the perpetrators to justice.

“While the mothers, fathers, spouses, and children of those murdered one year ago still grieve for their loved ones, the people who planned, perpetrated, and tried to cover up this atrocious act remain free men,” said senior West Africa researcher at HRW Corinne Dufka.

“The new government should waste no time in tackling the vicious cycle of violence and impunity that created the conditions for massacres like the one last year,” Dufka said. “Strengthening the judiciary and ensuring that those responsible for the 2009 violence are behind bars is a very good place to start.”

For more information, please see:

AFP – Guinea presidential hopeful seeks massacre truth commission – 28 September 2010

AFP – A year after Guinea massacre, culprits still free – 27 September 2010

Associated Press – Guinea massacre victims’ families unable to gather – 28 September 2010

BBC – Did Guinea democracy activists give their lives in vain? – 27 September 2010

Bloomberg – Guinea Failing to Prosecute Massacre Perpetrators, Human Rights Watch Says – 27 September 2010

Human Rights Watch – Guinea: One Year On, No Justice for Bloody Stadium Massacre – 27 September 2010

Poland Urged To Investigate Detainee’s Treatment In CIA Prison

By Christina Berger
Impunity Watch Reporter, Europe

WARSAW, Poland — The Open Society Justice Initiative urged Polish prosecutors last week to investigate the treatment of Abd al-Rahim al-Nashiri, the man accused of planning the 2000 attack on the USS Cole, at a CIA prison located in Poland. Amrit Singh, a senior legal officer with Open Society Justice Initiative, stated that al-Nashiri was the first CIA detainee to take legal action in Poland and expressed hope that Poland would launch a serious investigation into the treatment of detainees in their country in a continuing “quest for accountability.”

Al-Nashiri’s lawyers in Poland and the U.S. have made similar statements concerning their claim that Poland should do what they assert the U.S. refuses to. ”The American justice system has failed Mr. al-Nashiri,” said Nancy Hollander, al-Nashiri’s lawyer in the United States. ”The U.S. government has yet to provide any accountability for the illegal imprisonment or horrific torture to which U.S. agents have subjected him for almost a decade. Therefore, we are seeking to intervene in the investigation in Poland in the hopes that a court finally will recognize the injustice he has suffered.”

In response, the Polish government said that state prosecutors are already broadly investigating Poland’s possible role in the CIA’s global prison network. Jerzy Mierzewski, a prosecutor in Warsaw, stated that al-Nashiri’s petition does not necessarily require a separate investigation, but could be scrutinized as part of his office’s broader investigation.

Al-Nashiri claims he was imprisoned without a court proceeding, smuggled across borders, and then tortured in a manner violating the “most basic rules of the Geneva Convention.” He is still detained in Guantanamo today.

According to the AP, former U.S. intelligence officials speaking on the condition of anonymity have confirmed that al-Nashiri was taken to Poland’s CIA prison–code-named “Quartz”–before it was shut down in late 2003. Aleksander Kwasniewski, Poland’s president from 1995-2005, claims he was unaware of a CIA prison in Poland and Leszek Miller, Poland’s former prime minister, has denied that a CIA prison in Poland ever existed.

For more information, please see:

WARSAW BUSINESS JOURNAL — Prosecutors to investigate ‘CIA torture’ in Poland — 24 September 2010

AFP — USS Cole suspect wants probe of CIA sites in Poland — 22 September 2010

AP — Poles Urged to Probe CIA Prison Acts — 21 September 2010

VOICE OF AMERICA– Rights Group Seeks Polish Probe of CIA Detainee’s Treatment — 21 September 2010

New Peruvian Law Could Violate Human Rights

By Patrick Vanderpool
Impunity Watch Reporter, South America

Peruvian Citizens Protest Irrigation Project (Photo courtesy of www.chamiradio.org)
Peruvian Citizens Protesting Lack of Water (Photo courtesy of www.chamiradio.org)

LIMA, Peru – A plan by the Peruvian government to expand agriculture by diverting water from small villages near Machu Picchu to the Arequipa region of Peru is being met with staunch resistance. 

In anticipation of the public outcry regarding this irrigation project, the Peruvian government recently passed a law allowing for the use of military force during times of civil unrest, including demonstrations.  But many fear that protesters’ rights are in jeopardy because of the new law.

The law states that, should the military commit any illegal act in the process of its deployment; these will be dealt with in military courts, which are generally considered neither impartial nor independent.

This military court stipulation is contrary to international human rights law, which calls for human rights violations to be tried in civilian courts.

Just weeks ago, demonstrators clashed with police in the town of Espinar, leaving one person dead and forty-four additional people injured.  The conflict began when Peruvians took to the streets to rally against the irrigation project, claiming that it would leave Espinar without water.

Guadalupe Marengo, Deputy Americas Director at Amnesty International, said that using the military during these protests could put the protesters at a real risk of acts of excessive force committed against them with impunity.

The city of Cuzco was recently shut down for 48-hours during a general strike to show support for the protestors in Espinar.  The strike included transportation stoppages, a student walk-out of schools in the area, and additional clashes with armed Peruvian law enforcement officials.  Although the military has not yet been deployed to quell the happenings in Cuzco, many fear that they soon will be and the results will be deadly.

Marengo also stated that “[p]ast use of the military for law enforcement purposes in Peru has resulted in grave human rights abuses, which to this day remain in impunity. It should be seriously reconsidered.”

The Peruvian government has gone ahead with the irrigation project despite two judicial rulings suspending the tender process and ordering an environmental impact assessment.

For more information, please see:

Bikyamasr- Risk of Rights Violations during Peru Water Protests – 26 September 2010

World War 4 Report – Peru: General Strike against Irrigation Project Shuts Down Cusco – 26 September 2010

Planetizen – Irrigation Project Spurs Protests in Peru – 22 September 2010

The New York Times – Clash over Peru Irrigation Project Kills One – 17 September 2010

War Crimes Prosecution Watch, Vol. 5, Issue 13 – September 27, 2010

Volume 5, Issue 13 – September 27, 2010

INTERNATIONAL CRIMINAL COURT

Central African Republic & Uganda

Darfur, Sudan

Democratic Republic of the Congo (ICC)

Kenya

AFRICA

International Criminal Tribunal for Rwanda

Special Court for Sierra Leone

EUROPE

European Court of Human Rights

Court of Bosnia & Herzegovina, War Crimes Chamber

International Criminal Tribunal for the Former Yugoslavia

Domestic Prosecutions In The Former Yugoslavia

MIDDLE EAST AND ASIA

Extraordinary Chambers in the Courts of Cambodia

Special Tribunal for Lebanon

Bangladesh International Crimes Tribunal

War Crimes Investigations in Burma

NORTH AND SOUTH AMERICA

United States

TOPICS

Terrorism

Piracy

REPORTS

NGO Reports

UN Reports

TRUTH AND RECONCILIATION COMMISSIONS

General

  • Thailand

◦                                   Bangkok Post: Peace Panel Adviser on Truth, Justice and the Way Forward

  • The Solomon Islands

◦                                   Solomon Star : RSIPF Strives for a Positive Future

◦                                   Solomon Star: Sikua: Positive Response to Police Early Retirement Scheme

  • Nepal

◦                                   The Himilayan : NHRC Expresses Concern

  • Honduras

◦                                   UN News Centre: Honduras: Ban Renews Support for Reconciliation Moves After Last Year’s Coup

Truth and Reconciliation Commission of Liberia

COMMENTARY AND PERSPECTIVES

War Crimes Prosecution Watch is a bi-weekly e-newsletter that compiles official documents and articles from major news sources detailing and analyzing salient issues pertaining to the investigation and prosecution of war crimes throughout the world.  If you do not want to receive future issues of War Crimes Prosecution Watch, please email warcrimeswatch@pilpg.org and type “unsubscribe” in the subject line.

ICC Should Decide on Gaza Conflict Investigation

ICC should decide on Gaza conflict investigation

http://www.amnesty.org/en/news-and-updates/icc-urged-decide-gaza-conflict-investigation-2010-09-27

27 September 2010

Amnesty International has urged the International Criminal Court (ICC) to decide on whether it can investigate alleged war crimes and crimes against humanity committed during the 2008-9 conflict in Gaza and southern Israel.

The Human Rights Council must make the same call after it considers today a report by a committee of independent experts highlighting the continuing failures of both the Israeli and Hamas authorities to investigate violations of international law that were documented more than a year ago by a UN fact-finding mission headed by Judge Richard Goldstone.

“Both Israeli and Hamas authorities have been given adequate time and opportunity to ensure justice for the victims, yet they are both failing to do so,” said Widney Brown, Senior Director of International Law and Policy, Amnesty International. “An international justice solution must now be found.”

Neither Israel nor the Palestinian Authority (PA) has ratified the Rome Statute. However, in January 2009, the PA declared that it accepted the ICC’s jurisdiction over all crimes committed in the territory of Palestine since July 2002.

If that declaration is valid, under the ICC’s rules it would cover all crimes committed during the conflict, both in Gaza and in southern Israel.

“Victims have waited long enough,” said Widney Brown. “It’s now time the ICC Prosecutor sought a decision on whether the Palestinian declaration submitted in 2009 allows him to act. If the Pre-Trial Chamber determines that the ICC has jurisdiction, the Prosecutor should open an investigation into crimes committed by both sides during the Gaza conflict, without delay.”

Amnesty International has called on national authorities of all states to investigate and prosecute crimes committed in the Gaza conflict before their national courts on behalf of the international community, said Widney Brown, noting that all states can prosecute war crimes and crimes against humanity – regardless of where they are committed.

Amnesty International also urged the Human Rights Council to:

  • recognize the failure of the investigations conducted by Israel and the Hamas de facto administration to comply with international law and standards;
  • call on states to investigate and prosecute crimes committed during the conflict before their national courts by exercising universal jurisdiction;
  • refer the Committee’s report to the UN General Assembly – and request that Ban Ki-moon, UN Secretary-General, place the report before the Security Council.

Campaign for International Justice
Amnesty International
1 Easton Street
London WC1X 0DW
United Kingdom
www.amnesty.org/en/international-justice

Pressure Building Over Sudan Referendum

By Laura Hirahara
Impunity Watch Reporter, Africa

Southern Sudanese marching in support of the referendum. Photo courtesy Christian Science Monitor
Southern Sudanese marching in support of the referendum. Photo courtesy Christian Science Monitor

KHARTOUM, Sudan- The referendum previously scheduled for January 9, 2011 in Sudan regarding the southern region’s succession is now in question, leading many to fear a return to the pre-2005 bloodshed that lasted over two decades and killed 2 million Sudnese, many from starvation.  Preparations for the vote are behind schedule and the voting rules that would determine who is to vote are still not in place.  President Omar al-Bashir has stated that the elections will be free and fair but many are accusing him of deliberately stalling.  Because the Southern Sudan region holds a majority of the oil fields, earlier this month U.S. Secretary of State Hilary Clinton said the “inevitable” vote for succession is a “ticking time bomb”.  Clinton’s statements reflect the concern that the North will not give up control of their oil interests without conflict.

Creating even more tension is the apparent intimidation of southern Sudanese living in the northern region.  Kamal Mohamed Obeid, Sudan’s Information Minister has stated that if the South votes for succession, any southern Sudanese living in the north will no longer enjoy the rights and privileges of citizenship in the north.  Sudan People’s Liberation Movement’s (SPLM) spokesperson, Yien Matthew Chol, said,

The NCP is making such a statement because they think that is going to coerce southerners to vote for unity. […] They have started treating southerners badly. Starting from five months ago, and now in Khartoum, you can never speak about separation. You will find yourself either disappearing, or in detention, or jailed. So, speaking about separation and the right of determination, as enshrined in the agreement, is something that the NCP sees now as a taboo.

Many are warning that if Sudan fails to hold the referendum on time and with transparency the consequences could reach farther than the country itself, creating instability in the entire region.  Organizations like Oxfam are pushing for aid groups to assist Sudan in preparing for the vote.  U.S. President Barack Obama has offered his support, stating that the Sudanese leaders who work to avoid conflict will be rewarded with improved relations with the United States, “even working to lift sanctions if leaders fulfill their obligations.  […But to those] who flout their responsibilities … there must be consequences.”

For more information, please see;

BBC- Barrack Obama Presses for Peaceful Sudan Referendum– 25 September, 2010

VOA- Southern Sudanese Intimidated in North, Says SPLM Spokesmas– 26 September, 2010

CNN- Obama, World Leaders Address Sudan Referendum at UN Summit– 24 September, 2010

Spain Still Opposed To Investigating Franco-Era War Crimes

By Christina Berger
Impunity Watch Reporter, Europe

GENEVA, Switzerland – A representative from Spain told the UN Human Rights Council on Tuesday that they would not be investigating alleged war crimes committed during the Francisco Franco dictatorship in accordance with an amnesty law passed by the Spanish government in 1977.  Mexico had called on Spain in May at the Human Rights Council to punish those responsible for crimes committed during the Franco-era and provide the victims with a remedy.

The request from Mexico followed the controversy last April when high-profile Spanish judge, Baltasar Garzón, was ordered to stop investigating the crimes committed during the 1936-1951 Spanish Civil War for lack of jurisdiction.  Garzón was later suspended by the Spanish Supreme Court for overstepping the bounds of his authority, and he currently faces trial for investigating war atrocities without jurisdiction.  His appeal was rejected in early September.

International human rights groups made oral statements this week at the Human Rights Council, arguing against charging Garzón and petitioning Spain to provide redress to the victims of war crimes committed during the civil war.

Amnesty International strongly objected to charging a judge who launched his own investigation and urged Spain to “ensure that no amnesty law is applied to crimes against humanity.”

Human Rights Watch said to the council, “Spain is finally prosecuting someone in connection with the crimes of  the Franco dictatorship and the Spanish Civil War.  Unfortunately, the defendant in the case is Baltasar Garzón, the judge who sought to investigate those crimes.”

Human Rights Watch also pointed out that governments have a duty to afford victims of human rights abuses with “an effective remedy – including justice, truth, and adequate reparations.”  The human rights group believes Spain should repeal the 1977 amnesty law that prevents investigation into all crimes “of a political nature” committed prior to 1976.

No one has ever been held accountable for the deaths and forced disappearances of more than 100,000 people during the Franco regime between 1936 and 1951.

For more information, please see:

HUMAN RIGHTS WATCH – Statement on Spain at the Human Rights Council – 24 September 2010

ABC – Spain rejects calls for probes into Franco-era crimes – 22 September 2010

KYERO – Spain Rejects Calls to Investigate Franco War Crimes – 22 September 2010

AP – Spanish judge indicted over Civil War probe loses on appeal – 7 September 2010

DEUTSCHE PRESSE-AGENTUR Spain’s Supreme court confirms case against judge over Franco probe – 7 September 2010

BBC – Argentine court reopens Franco probe – 4 September 2010

Time for International Justice Solution for Gaza Conflict Victims

AMNESTY INTERNATIONAL
PUBLIC STATEMENT
AI Index: MDE 15/021/2010

23 September 2010

As the Human Rights Council prepares to consider next Monday, 27 September, a report by a UN Committee of Independent Experts into domestic investigations into the 22-day conflict in Gaza and southern Israel which ended on 18 January 2009, Amnesty International calls on the UN body to seek an international justice solution for the victims.

The report issued earlier this week supports Amnesty International’s evaluation that the domestic investigations carried out by both the Israeli government and the Hamas de facto administration in Gaza into alleged violations of international law committed by both sides have failed to meet the required international standards of independence, impartiality, thoroughness, effectiveness and promptness.

Israel’s investigations, undertakenand overseen by the military, including some involved in the military operation in Gaza, have lacked independence, appropriate expertise and transparency. At least 65 military probes have been closed without opening criminal investigations; they include probes into Israeli attacks on UN facilities, civilian property and infrastructure, medical facilities and personnel, attacks using white phosphorus and other attacks in which many civilians were killed and injured.

In Gaza, the Hamas de facto administration has failed to mount credible investigations into alleged violations by its forces and other Palestinian armed groups, including the firing of indiscriminate rockets into Israel that killed three civilians and injured others during the conflict.

More than one year has passed since the UN Fact-Finding Mission on the Gaza Conflict, headed by Judge Richard Goldstone, identified allegations of grave violations of international law, including war crimes and possible crimes against humanity, committed by both sides and recommended that the government of Israel and the relevant authorities in the Gaza Strip be given six months to undertake good faith investigations.

Amnesty International considers that the domestic authorities have been given more than adequate time and opportunity to ensure justice for victims. Their failure to do so requires an international justice solution.

Although neither Israel nor the Palestinian Authority have ratified the Rome Statute of the International Criminal Court (ICC), on 22 January 2009, the Palestinian Minister of Justice on behalf of the Palestinian Authority (PA) submitted a declaration to the ICC accepting its jurisdiction over crimes “committed on the territory of Palestine since 1 July 2002.” The declaration would potentially cover all crimes documented in the Fact-Finding Mission report in both Gaza and Israel.

Irrespective of the status of the ICC’s jurisdiction, Amnesty International notes that under international law all states can and should investigate and prosecute crimes committed during the conflict before their national courts by exercising universal jurisdiction over crimes under international law.

Amnesty International is therefore calling on the Human Rights Council to:

  • recognize the failure of the investigations conducted by Israel and the Hamas de facto administration to comply with international standards;
  • call on the ICC Prosecutor urgently to seek a determination by the Pre-Trial Chamber on whether the ICC has jurisdiction over the Gaza conflict;
  • call on states to investigate and prosecute crimes committed by both sides during the conflict before their national courts by exercising universal jurisdiction;
  • refer the Committee’s report to the Council’s parent body, the General Assembly; and
  • request that the UN Secretary-General place the report before the Security Council.

Background

The UN Committee of Independent Experts was established by Human Rights Council resolution 13/9 adopted on 25 March 2010. It was chaired by Professor Christian Tomuschat, an international jurist and expert on international human rights and international humanitarian law, and also included Judge Mary McGowan David, a former justice of the Supreme Court of the State of New York and consultant for the ICC and the International Criminal Tribunal for Rwanda, and Param Cumaraswamy, a jurist and human rights expert. The Committee met Palestinian bodies charged with carrying out investigations in both the West Bank and Gaza, but the government of Israel refused to co-operate with it.

On 21 September 2010 the Committee of Independent Experts released an advanced version of their report (available at:http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.50_AEV.pdf). Christian Tomuschat summarized the report’s finding by saying that the investigations by the Israelis and Palestinians “remain incomplete in some cases or fall significantly short of meeting international standards in others”

The Committee challenged both the impartiality and transparency of the Israeli investigations. It was not clear to the Committee how many of the 36 specific incidents documented in the UN Fact-Finding Mission’s report of September 2009, including some alleged to involve war crimes, Israel had actually investigated. The Committee also noted that, to date, the Israeli investigations had resulted in just one conviction (relating to credit card fraud) and three indictments, all of which involve low-ranking soldiers. In addition, the Committee concluded that Israel had not conducted investigations into decision-making at the highest levels about the design and implementation of the Gaza operations.

The Committee also robustly criticized the investigations undertaken by the Hamas de factoadministration in Gaza noting that these did not serious address the recommendations of the UN Fact-Finding Mission and dealt inadequately with the firing of indiscriminate weapons into southern Israel by Palestinian armed groups.

Finally, the Committee made a generally positive evaluation of investigations conducted by the Independent Investigation Commission established by the PA into violations of international human rights law by public officials in the West Bank, but noted that these had yet to result in any criminal proceedings. The PA was not a party to the 22-day conflict and the Commission was not able to investigate the firing of indiscriminate weapons into southern Israel by Palestinian armed groups in Gaza.

According to the Rome Statute, the ICC has the power to exercise its jurisdiction over persons for the most serious crimes of international concern, including war crimes and crimes against humanity. If the ICC determines that it is unable to act on the PA’s declaration, the UN Security Council has the ability to refer the situation to the ICC Prosecutor.

On 26 February 2010 the UN General Assembly called on the Secretary-General to report to it within a period of five months on the Israeli and Palestinian investigations. However, neither of the reports released by the Secretary-General on 26 July and 11 August constituted a substantive assessment of the domestic investigations.

International Justice Project
Amnesty International
1 Easton Street
London WC1X 0DW
United Kingdom