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By
John Dugard, June 17, 2009
John Dugard is a professor of law,
a former UN special rapporteur on human rights in the Occupied
Palestinian Territories, and the chairman of the Independent Fact
Finding Committee on Gaza.
President Obama's recent speech to
the Muslim World failed to address allegations that Israel committed
war crimes in Gaza. Palestinians and people throughout the region
were shocked at the firepower Israel brought to bear against Gaza's
civilians and do not want Palestinians' ongoing misery to be further
ignored. Many were surely waiting to hear from President Obama that
the way to peace does not lie through the devastation of civilian
life and infrastructure in Gaza.
To date, too little mention has
been made of investigations that show there is sufficient evidence
to bring charges of war crimes and crimes against humanity against
Israel's political and military leadership for their actions in
Gaza. Recently, two comprehensive independent reports have been
published on Gaza, and earlier this month a mission mandated by the
UN Human Rights Council, and chaired by South African Richard
Goldstone, visited Gaza to conduct a further investigation into
Israel's offensive.
On May 4 the United Nations
published the findings of an
investigation into attacks carried out by the Israel Defense Forces
(IDF) on UN premises in Gaza. Led by Ian Martin, formerly head of
Amnesty International, this investigation found Israel responsible
for wrongfully killing and injuring Palestinians on UN premises and
destroying property amounting to over $10 million in value. Although
this investigation did not address the question of individual
criminal responsibility, it is clear that the identified wrongful
acts by Israel constituted serious war crimes.
On May 7 the Arab League published
the 254-page report of an
Independent Fact Finding Committee (IFFC) it had established to
examine the legal implications of Israel's Gaza offensive. This
committee, comprising six experts in international law, criminal law
and forensic medicine from non-Arab countries, visited Gaza in
February. We concluded that the IDF had committed serious war crimes
and crimes against humanity.
As the committee's chairman, I
spent five days in Gaza along with the other experts. Our views
were deeply influenced by interviews we conducted with victims and
by the evidence of destruction of property. We were particularly
disturbed by the accounts of cold-blooded killings of civilians
committed by some members of the IDF and the Israeli military's use
of white phosphorus in densely populated areas. The devastation was
appalling and raised profound doubts in my mind as to the veracity
of Israeli officials who claimed this was not a war against the
Palestinian people.
The IFFC found that the IDF, in
killing some 1,400 Palestinians (at least 850 of whom were civilians),
wounding over 5,000 and destroying over 3,000 homes and other
buildings, had failed to discriminate between civilian and military
targets, terrorized civilians, destroyed property in a wanton manner
not justified by military necessity and attacked hospitals and
ambulances. It also found that the systematic and widespread
killing, injuring and terrorizing of the civilian population of Gaza
constituted a crime against humanity.
The IFFC investigated the question
whether the IDF was responsible for committing the 'crime of
crimes'-- genocide. Here we concluded that although the evidence
pointed in this direction, Israel lacked the intention to destroy
the people of Gaza, which must be proved for the crime of genocide.
Instead, the IFFC found that the purpose of the offensive was
collective punishment aimed at reducing the population to a state of
submission. However, the IFFC did not discount the possibility that
individual soldiers had acted with the required genocidal intent.
Israel's argument that it acted
in self-defense was rejected, inter alia, on the basis of evidence
that Israel's action was premeditated and not an immediate response
to rockets fired by militants and was, moreover, disproportionate.
The IFFC found that the IDF's own internal investigation into
allegations of irregularities, which exonerated the IDF, was
unconvincing because it was not conducted by an independent body and
failed to consider Palestinian evidence.
The IFFC also examined the actions
of Palestinian militants who fired rockets indiscriminately into
southern Israel. We concluded that these actions constituted war
crimes and that those responsible committed the war crimes of
indiscriminate attacks on civilians and the killing, wounding and
terrorization of civilians.
The past twenty years have brought
important developments in international law in respect to
accountability for international crimes. Yet Israel has possibly
secured impunity for itself by failing to become a party to the Rome
Statute of the International Criminal Court. Nevertheless, its
actions may still be judged by the court of public opinion.
A bold Obama speech on Gaza would
have ensured that the public is on notice that it's not business as
usual in Washington. Even American allies, such as Israel, should
have to answer evidence of serious international crimes. In this way,
some measure of accountability may be achieved. With an active
American push, a new view of the United States may begin to take
shape after eight years of disregard for international and domestic
law. |
