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SINCE 1967 FOR PRESENTATION TO THE SPECIAL SESSION OF THE HUMAN
RIGHTS COUNCIL ON THE SITUATION IN THE GAZA STRIP, 9 JANUARY 2009
1. This statement focuses on the impact of
Israel's continuing Gaza military campaign, initiated on 27 December
2008, on the humanitarian situation confronting the 1.5 million
Palestinians confined to the Gaza Strip. In accordance with the
undertaking of the mandate, it confines its comments to issues
associated with Israel's obligations as occupying power to respect
international humanitarian law (IHL), which refers mainly to the
legal obligations contained in the Fourth Geneva Convention of 1949,
which sets forth in some detail the legal duties of Israel as the
occupying power. The essential obligations of IHL are also
considered to be binding legal duties embedded in customary
international law. This statement touches on issues of international
human rights law (IHR), as well as the implications of severe and
sustained violations of either IHL or IHR as raising issues of
international criminal law (ICL). It is also necessary to assess the
underlying Israeli security claims that the military incursion into
Gaza was a 'defensive' operation consistent with international law
and the United Nations Charter, and that no 'humanitarian crisis'
existed making the scale and nature of the military force used
allegedly 'excessive' and 'disproportionate.'
2. Although Israel has contended that it is no longer an occupying
power, due to its withdrawal of its forces from within Gaza, it is
widely agreed by international law experts that the continued
Israeli control of borders, air space, and territorial waters is of
a character as to retain Israel status legally as occupying power.
3. The quality of this report is undoubtedly diminished by the
absence of first-hand observations of the pre-existing humanitarian
situation existing in Gaza, which was to be the objective of a
mission undertaken by the Special Rapporteur to gather information
for use in making a report to the regular session of the Human
Rights Council (HRC) scheduled for March, 2009. This mission was
aborted when the Special Rapporteur was denied entry to Israel on 14
December 2008, detained for some 15 hours in a holding cell at Ben
Gurion Airport, and expelled on the next day. Such treatment of a UN
expert on mission would seem to raise serious issues for the
Organization as a whole, bearing on the duties of a member state to
cooperate, and to deal with those carrying out UN work with
appropriate dignity. It is to be hoped that the government of Israel
can be persuaded to reconsider its policy of exclusion that has
hampered the work of this mandate. This concern about exclusion has
been compounded during the period preceding the Israeli attack upon
Gaza, as well during the military operations, by denying access to
foreign journalists, a policy that has been successfully challenged
in Israeli courts, but as yet with no tangible results. As noted in
the New York Times, Israel denies media representatives access to
the humanitarian impacts of its military operations in Gaza while
encouraging journalists to view any harmful effects of the rocket
attacks on civilians in Israel. Even requests by the International
Committee of the Red Cross to investigate scenes of supposed
humanitarian abuse have so far been refused, e.g. to visit the site
of military action in the Gazan town of Zeitan that reportedly
killed by deliberate action 60 members of the Samouni family,
including several children. This issue of access is crucial for the
work of Special Rapporteurs and deserves the attention of the HRC,
and of the United Nations generally.
4. The rationale for this Special Session is the existence of a
humanitarian emergency in Gaza, a set of conditions that has been
questioned in many public settings by the Israeli foreign minister,
Tzipi Livni. Ms. Livni contends there is no need for a 'humanitarian
truce' because there is no humanitarian crisis. She asserts that
Israel has allowed shipments of food and medicine to cross the
border, but as UNRWA and other UN officials have observed, these
shipments will not alleviate hunger and nutritional difficulties
unless distribution becomes possible, which is not the case given
the war conditions prevailing in most of the Gaza Strip. To what
slight extent this dire circumstance can be addressed by the three
hour pause in combat operations announced by Israel on 7 January
remains to be seen. Beyond the immediate crisis some underlying
features should be noted: about 75% of the population lacks access
to sanitary water and has no electric power. Such conditions are
superimposed on the circumstances of Gazans resulting from the
prolonged blockade that had deteriorated the physical and mental
health, and the nutritional status, of the population of Gaza as a
whole, leaving some 45% of children suffering from acute anemia.
Interference in the supply of medicines and health equipment, and
border closures, had made it impossible for many Gazans to receive
or continue treatment for life-threatening conditions. It was also
reliably concluded that up to 80% of Gaza was living under the
poverty line, that unemployment totals approached 75%, and that the
health system was near collapse from the effects of the blockade.
This set of conditions certainly led impartial international
observers and civil servants to an uncontested conclusion that the
population of Gaza was already experiencing a humanitarian crisis of
grave magnitude prior to 27 December.
5. The use of force by an occupying power against the security
threats emanating from a population under occupation is permissible
within the constraints set by international law. Israel claims that
its current military campaign is reasonable and necessary given the
scale and severity of the rocket attacks directed at Israeli
civilian populations living in the South Israel towns of Sderot and
Ashdod, and attributed to Hamas. There are several issues that would
need to be resolved in evaluating this claim that have not been
adequately discussed to date in either diplomatic settings or by the
media.
6. It should be pointed out unambiguously that there is no legal (or
moral) justification for firing rockets at civilian targets, and
that such behavior is a violation of IHR, associated with the right
to life, as well as constitutes a war crime. At the same time, the
nature of the offense must be evaluated with the context of its
occurrence, including the relevance of the temporary ceasefire that
had held since June 2008 until seriously disrupted by a lethal
Israeli attack on Palestinian militants in Gaza on 4 November 2008.
For the year prior to 27 December, not a single Israeli death
resulted from rockets fired from Gaza. Further, since June of 2008 a
ceasefire had been observed by both sides, with some infractions
taking place, but without altering the willingness of both sides to
uphold the ceasefire. During this period Israel had been expected to
lift, or at least ease the blockade that had imposed severe
hardships on the entire population of Gaza, especially through
restraints on the supply of food, medicine and medical equipment,
and fuel, but failed to do so. The acute harm done to civilian Gaza
has been repeatedly pointed out by leading UN officials on the
ground, including the commissioner-general of the UN Relief and
Works Agency (UNRWA) that is most directly engaged with the daunting
task of meeting the humanitarian needs of Gazans.
7. This blockade in effect for a period of 18 months was unlawful, a
massive form of collective punishment, and as such in violation of
Article 33 of the Fourth Geneva Convention, and also a violation of
Article 55, which requires that the occupying power ensure that the
civilian population has sufficient food and that its health needs
are addressed. Such blockade does not alter the unjustifiable
character of the rocket attacks, but it does suggest two important
conclusions from a legal perspective: first, that the scale of
civilian harm resulting from Israeli unlawful conduct was far
greater than that of Palestinian unlawful conduct; secondly, that
any effort to produce a sustainable ceasefire should ensure that
Israel as well as Hamas respect IHL, which most concretely means
that interferences with the access of goods for the maintenance of
normal civilian life must end, and cannot be reestablished as a
retaliatory measure if some sort of rocket attack occurs in the
future. Similarly, if Israel should impose such constraints in the
future, it would not provide any legal cover for resumed rocket
attacks or other forms of Palestinian violence directed at Israeli
civilians. There are some difficulties in attributing responsibility
for all rocket attacks to Hamas. There are independent militias
operating in Gaza, and even prior to Hamas, governing authorities
were unable to prevent all rocket firings despite their best efforts
to do so.
8. The Israeli military campaign was also justified by Israeli
leaders as an 'inevitable' and 'unavoidable' response to the
persistence of the rocket attacks. Here again it is important to
examine the factual setting of Israel's justifications, which go to
the reasonableness of such action and its defensive character. Most
accounts of the temporary ceasefire indicate that it was a major
Israeli use of lethal force on November 4, 2008 that brought the
ceasefire to a de facto end, leading directly to increased frequency
of rocket fire from Gaza. It is also relevant that Hamas repeatedly
offered to extend the ceasefire, even up to ten years, provided that
Israel would lift the blockade. These diplomatic possibilities were,
as far as can be assessed, not explored by Israel, although
admittedly complicated by the contested legal status of Hamas as the
de facto representative of the Gazan population. This has legal
relevance, as a cardinal principle of the UN Charter is to make
recourse to force a matter of last resort, making it obligatory for
Israel to rely in good faith on nonviolent means to end rocket
attacks.
9. It is also important under international law to determine the
extent to which the reliance on force is proportionate to the
provocation and necessary for safeguarding security. Here, too, the
Israeli arguments seem unpersuasive. As mentioned above, the rocket
attacks, although unlawful and potentially dangerous, had caused
little damage, and no loss of life. To mount a major military
campaign against an essentially defenseless society already gravely
weakened by the blockade accentuates the disproportion of reliance
on modern weaponry in combat situations where military dominance was
largely uncontested.
It seems significant that Palestinian casualty totals at this time
are estimated to be 640 killed, some 2800 wounded, included many
critically, with civilian victims set at about 25% by qualified
observers. In contrast, according to the latest reports, four
Israeli soldiers have died, apparently all as a result of 'friendly
fire,' that is by Israeli firepower wrongly directed. The
one-sidedness of casualty figures is one measure of disproportion.
Another is the scale of devastation and the magnitude of the
attacks. It is obvious that the destruction of police facilities, as
well as many public buildings, in crowded urban settings represents
an excessive use of force even if Israeli allegations are accepted
at face value. As discrediting as is the reliance on
disproportionate force, is the lack of connection between the
alleged threat associated with Gaza rockets and the targets of the
Israeli attacks, giving added weight to the claims that the Israeli
use of force is a form of 'aggression' prohibited by international
law, and certainly excessive in relation to criteria of
'proportionality' and 'necessity.'
10. There have also been a variety of allegations made by qualified
observers of Israeli reliance on legally unacceptable targets and on
legally dubious weaponry that violate the customary international
law prohibition on weapons and tactics that are 'cruel' or cause
'unnecessary suffering.' Among the targets viewed as unlawful under
IHL: Islamic University, schools, mosques, medical facilities and
personnel (including ambulances). Among weapons that are legally
dubious under IHL: phosphorous gas in shells and missiles that burn
flesh to the bone; dense insert metal explosives (so-called DIME)
that cut victims to pieces, and raise risk of cancer for survivors;
depleted uranium associated with deep-penetrating, so–called 'bunker
buster' bombs used against Gaza tunnels, possibly causing radiation
sickness for anyone exposed over a period of centuries.
11. This dimension of 'unnecessary suffering' associated with the
Israeli campaign has an important feature that has not been given
attention. In many contemporary situations of warfare large number
of civilians seek to escape from harm by moving away from immediate
danger, becoming 'internally displaced persons' or 'refugees.' But
Israel through its rigid control of exit, directly and indirectly,
has denied the civilian population of Gaza the option of becoming
'refugees,' never an option of choice, but reflective of
desperation. Its denial tends to lend credibility that the
population of Gaza is essentially imprisoned by Israeli occupation
policy. From the perspective of IHL this foreclosure of a refugee
option for Gazans is a serious aggravation of the dangers posed for
a civilian population, and underscores the gravity of the
humanitarian crisis that has existed in Gaza since 27 December.
Since the military campaign this situation has dramatically
worsened. The comment by a Red Cross spokesperson in Gaza City is
expressive of the general understanding: "The size of the operations
and the size of the misery on the ground is just overwhelming…"
12. From the perspective of the Mandate for oPt the following
recommendations seem worthy of the attention at this Special
Session:
(1) To request restoring access for Special Rapporteur to the
occupied Palestinian territories as an essential feature of UN
monitoring role;
(2) To seek General Assembly initiatives with respect to
investigating allegations of war crimes;
(3) To propose long-term truce based on cessation of rocket
launchings from Gaza and unconditional lifting of blockade;
(4) To request an Advisory Opinion from the International Court of
Justice to assess the legal status of Israeli control in Gaza
subsequent to Israeli 'disengagement' in 2005. |
