EU must End its Silence on Justice and Accountability for Gaza

Gaza Strip, Impunity/Accountability, International Human Rights Law (IHRL), International Humanitarian Law (IHL), Israel / OPT, Statement

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Six months since Israel’s military operation “Protective Edge” in the Gaza Strip, the EU and its Member States remain silent on Israel’s persistent disregard for international law and the culture of impunity that has become the hallmark of the Israeli-Palestinian conflict.

Israel’s 51-day military operation left the Gaza Strip and its 1.8 million inhabitants devastated. During this operation various NGOs documented widespread violations of international humanitarian law (IHL) and international human rights law (IHRL), including indiscriminate attacks on civilians, disproportionate use of force and collective punishment. The deliberate targeting of civilians and civilian objects – including paramedics, ambulances, journalists, police, houses, schools, health facilities, and water and sewage infrastructures – led to a staggering death toll of more than 2,200 deaths, at least 74% of whom were civilians, including more than 554 children and at least 290 women. Today, Israel’s unlawful closure continues to hamper the reconstruction of the Gaza Strip and access to construction materials, making it impossible for it to recover, leaving tens of thousands of Palestinians homeless and without adequate shelter during extreme weather conditions. The closure has been in place for 8 years and amounts to collective punishment. Meanwhile, the Gaza Reconstruction Mechanism brokered by the UN has failed to enable the necessary construction and reconstruction work and has effectively institutionalised the illegal closure.

Israeli violations of IHL and IHRL extend beyond Gaza to the West Bank and the Palestinian Arab citizens of Israel. During its parallel military operation codenamed “Operation Brother’s Keeper”, Israel carried out extensive house raids and mass-arrests across the West Bank, resorting to excessive use of force and punitive house demolitions[1]. Meanwhile, Palestinian Arab citizens of Israel faced numerous discriminatory state practices, including racist statements and incitement by Israeli officials, the repression of freedom of opinion and expression through unfair and arbitrary arrests, and the excessive use of force against demonstrators.

Since the end of the military operations, Israel has continued to flout its international obligations in the Occupied Palestinian Territory (OPT) while also placing mounting pressure on the rights of its Palestinian Arab citizens. Despite international condemnation, Israel has continued to expand its illegal[2] settlements in the West Bank, including East Jerusalem. Amidst mounting tensions and demonstrations, Israel’s excessive use of force against civilians has led to several unlawful killings, including the killing of the Palestinian Minister Ziad Muhammad Ahmed Abu ‘Ain on 10 December 2014. Meanwhile, the government proposed a series of “temporary measures” aimed at further eroding Palestinian-Arab citizenship rights and entrenching discriminatory practices into the law.

In the face of these serious violations of IHL and IHRL, including alleged war crimes and possible crimes against humanity, Israel remains unwilling to credibly investigate or prosecute perpetrators under its domestic judicial system. Despite the Military Advocate General’s (MAG) opening of investigations into “exceptional” cases during operation “Protective Edge”, these investigations are unable to ensure accountability as they fail to comply with international standards of independence, impartiality, thoroughness, promptness, effectiveness and transparency, and are essentially aimed at investigating operational aspects. This is illustrated by the closure of recent cases without any criminal investigation and the lack of indictments in cases related to previous operations. The systemic flaws in Israel’s domestic apparatus perpetuating this culture of impunity have been confirmed by the UN Human Rights Committee’s concluding observations on the fourth periodic report of Israel and have led leading Israeli human rights organizations to stop cooperating with Israel’s current investigation mechanisms.

Israel also continues to deny Palestinian victims the right to effective remedy provided under international law[3] including by denying them access into Israel to attend their own court hearings. A case in point of the erosion of the rule of law is the recent rejection by Israel’s Supreme Court of a petition submitted on behalf of Gaza residents seeking entry into Israel to pursue compensation claims. While recognizing the blatant conflict of interest – in being both the defendant and the authority approving entry into Israel – the Supreme Court’s decision calls for compliance with and endorses a procedure that denies Gaza residents access to Israeli courts and violates their fundamental human rights.

Israel’s unwillingness and inability to conduct independent and credible investigations through its current domestic mechanisms underscores the importance of independent international investigations and international justice. In this context, EMHRN deplores Israel’s denial of entry of the UN Independent Commission of Inquiry to the OPT, a decision reminiscent of Israel’s decision to deny access to the UN Fact Finding mission following Operation Cast Lead in 2009 and to all UN Special Rapporteurs on the situation of human rights in the Palestinian territories since 2007. This severely compromises the ability of the Commission of Inquiry to effectively accomplish its mandated mission and erodes the key principles of transparency and accountability.

EMHRN deeply regrets the EU’s silence on accountability and implicit opposition to Palestine’s ICC accession. This undermines the legitimacy of fundamental human rights and international law, fuels the conflict and hinders the achievement of a sustainable peace.

In line with the EU’s own principles, a sustainable peace cannot be built on a foundation of impunity and must be grounded upon respect for IHL and IHRL. In light of this, EMHRN welcomes the decision of the ICC Prosecutor to open a preliminary examination into the situation in Palestine. EMHRN further condemns the statement by the Israeli Foreign Minister suggesting that Israel would not cooperate with the Court and instead request that States Party of the EU no longer fund the Court. EMHRN reminds Israel that it is obliged to cooperate with the Court in the context of preliminary examinations initiated under Article 12(3) despite the fact that it has not ratified the Statute. EMHRN also reminds the EU Member States, as parties to the Court, of their legal obligation to cooperate fully with the Court[4] and their commitment to call for cooperation and respond to non-cooperation with the ICC whenever this occurs or is impending.

In light of this, EMHRN calls on the EU and its Member States to:

– In line with the EU’s 2011 Council Decision on the ICC and its 2009 IHL Guidelines, support Palestine’s accession to the ICC, support the Court in fulfilling its mandate independently and without obstruction, and cooperate with it in any future case, in line with its international obligations;

– Call upon Israel to fully cooperate with the preliminary examinations of the Court and respond to non-cooperation;

– Condemn Israel’s decision to withhold the tax revenues it collects on behalf of the Palestinian Authority as a breach of its IHL obligations as an Occupying Power and as a form of collective punishment;

Publicly support the UN Commission of Inquiry, including through a public statement, and urge Israel to cooperate with and grant members of the Commission ac

[1] Destruction of private property is a clear violation of Art. 53 of the Fourth Geneva Convention (GCIV) (see also Art. 46, Hague Regulations). Furthermore, punitive home demolitions amount to collective punishment
[2] Settlements are a violation of Article 49 of the Fourth Geneva Convention
[3] The duty to pay compensation for the damages resulting from acts committed by Occupying forces is enshrined in Article 91 of Additional Protocol I to the Geneva Conventions. This right is also enshrined in Article 8 of the Universal Declaration of Human Rights and Article 2 of the International Covenant on Civil and Political Rights (ICCPR).
[4] In accordance with Article 86 of the Rome Statute