ICC Should Decide on Gaza Conflict Investigation

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.

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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.

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