AMNESTY INTERNATIONAL
PUBLIC STATEMENT
AI Index: MDE 15/023/2011
Date: 6 April 2011
Israeli campaign to avoid accountability for Gaza war crimes must be rejected
Recent Israeli government calls for the UN to retract the 2009 report
of its Fact-Finding Mission on the Gaza Conflict are a cynical attempt
to avoid accountability for war crimes and deny both Palestinian and
Israeli victims of the 2008-2009 conflict the justice and reparations
they deserve, Amnesty International said today.
Statements by leading Israeli politicians that Israel’s conduct in the
22-day conflict in Gaza and southern Israel has been vindicated,
following the publication of a Washington Post opinion piece by
Justice Richard Goldstone on 1 April 2011, are based on a deliberate
misinterpretation of Justice Goldstone’s comments. The international
community must firmly reject these attempts to escape accountability
and act decisively for international justice, as it has done on Libya,
Sudan and other situations where war crimes and possible crimes
against humanity have been committed.
The UN Fact-Finding Mission on the Gaza Conflict, composed of Justice
Goldstone and three other eminent international jurists, examined
violations of international humanitarian and international human
rights law committed by all sides during the 2008-2009 conflict. Its
September 2009 report echoed the findings documented by Amnesty
International, other human rights organizations and independent
observers, and called on the Israeli and Palestinian authorities to
conduct credible, independent investigations into alleged war crimes
and possible crimes against humanity within six months or face
potential UN Security Council referral to the International Criminal
Court.
The report’s recommendations concerning potential international
justice mechanisms remain unimplemented more than 18 months later,
despite the fact that the Israeli authorities and Hamas de facto
administration have both failed to conduct investigations that are
prompt, thorough, independent, impartial, and effective, as required
by the UN General Assembly.
Israeli Prime Minister Benjamin Netanyahu, Foreign Minister Avigdor
Lieberman, Defence Minister Ehud Barak, and other senior Israeli
politicians have seized on Justice Goldstone’s new statement that the
Israeli military did not intentionally target civilians during the
conflict and has conducted some investigations to call for the entire
Fact-Finding Mission’s report to be retracted – or, as Prime Minister
Netanyahu put it, “tossed into history’s trash can”. The US State
Department has supported this position, with a spokesperson saying
that the US government did not see any evidence that the Israeli
government had committed any war crimes during the conflict.
As a spokesperson for the Human Rights Council has today made clear,
comments made in an opinion piece do not provide a sufficient legal
basis for overturning a UN report that has been discussed and endorsed
by both the Human Rights Council and the General Assembly. Nor are the
self-serving calls of Israeli political leaders, some of whom were
members of the Israeli war cabinet which made the policy decisions
during Operation “Cast Lead”, the 22-day conflict in which some 1,400
Palestinians, including some 300 children, were killed by Israeli
forces. Aborting the process towards an international justice solution
would also preclude any possibility of justice or reparations for
Israeli victims of the conflict, who suffered from hundreds of
indiscriminate rockets and mortars launched into southern Israel by
Hamas’ military wing and other Palestinian armed groups in Gaza.
Amnesty International has monitored and critiqued the Israeli military
investigations into its actions during Operation “Cast Lead”, and has
condemned both the continuing failure of the Hamas authorities to
investigate alleged violations committed by Palestinian armed groups
during the conflict and the ongoing firing of indiscriminate rockets
into southern Israel.
In consequence of the failure of both the Israeli and Palestinian
sides to conduct proper independent investigations and ensure
accountability and justice for the victims, Amnesty International has
called on a range of international actors to now bring international
justice mechanisms to bear in order to meet these objectives and end
impunity.
In particular, Amnesty International has called on the General
Assembly to consider the Fact-Finding Mission’s report at its 66th
session starting in September 2011, and submit the report to the UN
Security Council with a recommendation that the latter body consider
referring the situation to the Prosecutor of the International
Criminal Court (ICC). This recommendation was also included in a
resolution passed by the Human Rights Council on 25 March 2011.
Amnesty International also urged the ICC Prosecutor to seek a legal
determination from the Pre-Trial Chamber on whether an investigation
could be launched on the basis of a 2009 declaration by the
Palestinian Authority accepting the Court’s jurisdiction over crimes
committed on the Palestinian territories. Finally, we have
consistently called for national authorities of other states to
exercise universal jurisdiction over war crimes committed during the
2008-2009 Gaza conflict, just as we urge states to exercise universal
jurisdiction over war crimes in other conflicts where the domestic
authorities are unwilling or unable to act.
Background
In a personal op-ed, Justice Goldstone contrasted the investigations
conducted by the Israeli military into alleged violations by Israeli
forces with the Hamas de facto administration’s failure to investigate
alleged violations by Palestinian armed groups in Gaza. He also
commented that the Israeli military investigations indicate that
civilians in Gaza “were not intentionally targeted as a matter of
policy” by Israeli forces. The op-ed is available at:
http://www.washingtonpost.com/opinions/reconsidering-the-goldstone-report-on-israel-and-war-crimes/2011/04/0
While Justice Goldstone’s comments question one of the Fact-Finding
Mission’s conclusions – that certain Israeli attacks during Operation
“Cast Lead” intentionally targeted civilians – the op-ed in no way
constitutes a retraction of the entire Fact-Finding Mission report.
The other three members of the UN Fact-Finding Mission have not issued
similar public comments questioning any of the report’s conclusions.
The Fact-Finding Mission report examined 11 incidents in which Israeli
forces launched direct attacks against civilians that resulted in
civilian deaths, and found that in these incidents, “the conduct of
the Israeli armed forces constitutes grave breaches of the Fourth
Geneva Convention in respect of wilful killings and wilfully causing
great suffering to protected persons and, as such, give[s] rise to
individual criminal responsibility.” Justice Goldstone’s op-ed
mentions only one of these incidents, an Israeli attack on 5 January
2009 which killed 21 members of the al-Sammouni family, which is the
subject of an ongoing Israeli military investigation. Assessing
whether specific Israeli attacks on civilians during the conflict were
deliberate is extremely difficult because the Israeli military has not
released the evidence that would allow independent parties to evaluate
its conclusions. Amnesty International has not argued that the Israel
Defense Forces (IDF) targeted Palestinian civilians “as a matter of
policy”, but rather that IDF rules of engagement and actions during
the conflict failed to take sufficient precautions to minimize
civilian casualties. Justice Goldstone’s recent comments do not
dispute this assessment.
Amnesty International, the Fact-Finding Mission, and other human
rights organizations documented many other serious violations by
Israeli forces, including war crimes, during the conflict. These
include indiscriminate attacks and the use of weapons such as white
phosphorus and flechettes in civilian areas; wanton destruction of
civilian property and infrastructure; attacks on UN facilities,
medical facilities and personnel; and the use of Palestinian civilians
as “human shields”. While the Israeli authorities have investigated
some of these incidents, all the investigations have been conducted by
the Israeli military, and overseen by the Military Advocate General
Corps, the same body which was responsible for providing legal advice
to the IDF during Operation “Cast Lead”.
As noted in the recent report of the UN Committee of Independent
Experts appointed to monitor and assess the investigations, Israel has
failed to investigate the actions of “those who designed, planned,
ordered and oversaw Operation Cast Lead”, the Israeli military
investigations have lacked transparency, and more than one third of
the incidents highlighted by the Fact-Finding Mission are still
“unresolved or unclear”. To date, only four Israeli soldiers have been
indicted on criminal charges relating to Operation “Cast Lead”, and
only one has served prison time for credit card theft.
Amnesty International’s own assessment of the Israeli investigations
concurred with the Committee of Independent Experts’ report. More than
two years after the conflict, there is no way for objective, impartial
observers to view Israel’s investigations as adequate, independent, or
effective in bringing perpetrators of alleged violations to justice.
The Committee of Independent Experts’ report, released on 18 March
2011, is available at:
http://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A.HRC.16.24_AUV.pdf
Amnesty International’s latest assessment of the Israeli and
Palestinian investigations into the Gaza Conflict, released on 18
March 2011, is available at:
http://www.amnesty.org/en/library/info/MDE15/018/2011/en
