The conflict in Gaza, law and justice

Press review – week from January 12 to 16, 2009

Sending Israel before a court of justice for war crimes is the goal of a growing number of civil society associations, journalists and politicians in the world.

The Jordan Times reports that Jordanian human rights watchdogs, NGOs and international law experts have decided to press ahead with motions against Israel for war crimes in Gaza to be filed with international courts. National Centre for Human Rights (NCHR) Chairman, Mr. Badran, said the civil society associations’ actions would be organized in three steps. The first will be to pressure UN Security Council member states, the human rights council and other countries signatory to international human rights conventions “to hold Israeli leaders accountable for the unjustified use of excessive force against civilians in Gaza”. The formation of a grassroots court to try Israeli leaders for their responsibility for Gaza’s situation has also been decided. Besides, in the long run, Mr Badran plans to form a special ad hoc committee tasked with documenting the Israeli crimes to be used as evidence before the ICJ. If it is reasonable to wonder about the scope of these initiatives, such a mobilization of civil society in a society where it is rarely emphasized, must be highlighted.
In Le Monde, after the registration of a complaint in front of the International Court of Justice (ICJ) against Israel for « war crimes » in Gaza on the behalf of 90 French organizations on Wednesday, Mr. Gilles Devers, the lawyer who wrote the complaint explains such an initiative. Two specificities have been highlighted in this case: the disproportionate aspect of the Israeli offensive and the nature of the damages caused to the population and civil goods. However, such an approach in front of the ICJ raises a problem: the Hebrew State did not ratified the treaty establishing the Court. Therefore, a condemnation for war crimes could be obtained in only three cases. Israeli soldiers involved in massacres, considered as war crimes, and having a double nationality could be sued. Another option would be the seisin of the ICJ prosecutor by the UN Security Council if the council assesses that such crimes endanger the international order. Finally, the UN can decide to create special courts for Israeli war crimes, which is rather unlikely to occur, according to Mr. Devers. Besides, these associations have decided to commit at the EU level by asking a law appeal to the first instance court for the European community against the signature of the deepening of the EU/Israel association agreement.
According to the Guardian, the judicial solution should have been chosen since 2004, as diplomacy has been inefficient. To the journalist, if the UK and the other EU member States had complied with their international obligations, as clearly set out in the advisory opinion of the international court of justice in July 2004, « this crisis could have been nipped in the bud at the outset ». The 2004 advisory opinion, dealing with the construction of the Israeli wall on the occupied Palestinian territory, asked Israel, among other recommendations, to stop its violations of international law and the building of the wall and asked to signatory States not to recognize such an illicit situation.

In addition of being accused of « war crime », Israel is now also the subject of complaints for its violation of humanitarian law. On this issue, NGOs and international organizations seem to agree.

Going further in the indictment of Israel, the United Nations expert on human rights in the Palestinian territories, Richard Falk has called on the United Nations « to use the standard of responsibility to protect a civilian population that is collectively punished by policies that amount to a crime against humanity « in a press release. In parallel, Mr. Falk confirmed that it is the responsibility of the ICC to investigate the responsibility of Israeli leaders and their possible charge for violation of the international law. The spokesman for the Israeli Foreign Ministry Ygal Palmor reacted to this press release by questioning the credibility of Mr. Falk and considering his statement as « anti-Israeli propaganda. »
The EU Development Commissioner Louis Michel, talking about the humanitarian law, explained that « The first obligation for an occupying power is to safeguard people’s lives, to protect them, feed them and care for them. This is obviously not the case.  »
This was also noted at a press conference at the United Nations, given by humanitarian organizations active in Gaza. According to Mr. Bailey of Oxfam, since 20 June 2007, the Israeli authorities have only allowed a minimum of humanitarian aid to enter Gaza. Addressing the legal aspects of the conflict, Ms. Whitson of Human Rights Watch said that the closure of Gaza was a collective punishment, illegal under international law. As a result, she accused Egypt of complicity in this collective punishment of Gaza’s inhabitants since the country has contributed to this situation by closing its border.

Another testimony is the one conveyed by the delegation of European parliamentarians back from Gaza, among them the vice president of Parliament, Luisa Morgantini, who declared to the international community « Justice and the European dream of seeing human rights as universal rights are dying ». MP Triantaphyllides Kyriacos described Gaza as « the biggest open-air prison in the world. » The European Parliament adopted on Thursday a resolution -thanks to an overwhelming majority-calling for a negotiated truce that should be guaranteed by a mechanism set up by the international community coordinated by the Quartet and the Arab League and which could include the dispatch of a multinational mission. The Assembly asks the Israeli authorities to allow an unimpeded access to humanitarian assistance in Gaza and ensure a continuous and adequate delivery of aid through humanitarian corridors. The resolution calls on Israel to fulfill its obligations under international law and international humanitarian law and Hamas to stop firing rockets and assume its responsibilities by engaging in a political process to restore Inter-Palestinian dialogue and participate in ongoing negotiations.
However, the EU’s ability to make its requests heard by the Hebrew State should not be overestimated. According to Le Figaro, while a large number of infrastructures financed by the EU and representing several tens of millions of euros have been for years systematically destroyed by Israel, all attempts at a legal action against the Hebrew State have failed, because of the opposition from Germany, the Czech Republic or the Netherlands.

Associations, politicians, NGOs, journalists, scholars: almost all acknowledge and denounce violations of international law and humanitarian law in Gaza. Now, after public condemnations, calls for peace, newspaper articles and demonstrations, legal proceedings are or will be launched against the State of Israel, its leaders or soldiers. However, in an unstable international environment where most democracies, traditional allies of Israel, remained silent over the escalation of violence in Gaza, it is reasonable to wonder about the outcome of these efforts.