link
By: “Mariana Rodriguez Pareja”
rodriguez@iccnow.org
‘Now the UN, and the Security Council in particular, need to act on these recommendations and ensure that justice is done.’
start by lifting the blockade…
Illustration: Carlos Latuff
Recommendations of the UN Fact Finding Mission on the Gaza Conflict:
“Mariana Rodriguez Pareja” rodriguez@iccnow.org
Thu Sep 24, 2009 11:36 am (PDT)
Dear all,
Please find below recent news coverage related to the recent launch of the Report of the United Nations Fact Finding Mission on the Gaza Conflict. The Mission was headed by Justice Goldstone and mandated by the UN Human Rights Council in April 2009 “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.”
The Mission’s report recommends that the United Nations Human Rights Council formally submit this report to the Prosecutor of the International Criminal Court.
The Mission further recommends “that upon receipt of the committee’s report the Security Council consider the situation and, in the absence of good faith investigations that are independent and in conformity with international standards having been undertaken or being under way within six months of the date of its resolution under Article 40 by the appropriate authorities of the State of Israel, again acting under Chapter VII of the Charter of the United Nations, refer the situation in Gaza to the Prosecutor of the International Criminal Court pursuant to Article 13 (b) of the Statute of the International Criminal Court.”
The report also mentioned the declaration under Article 12 (3) lodged by the Palestinian National Authority in January 2009, by which it accepts voluntarily the jurisdiction of the Court with respect to the crimes referred to in Article 5 of relevance to the situation and the application of the provisions of Part 9 and any rules thereunder concerning States Parties, pursuant to Rule 44 of the Rules of Procedure and Evidence of the Rome Statute of the ICC. The Mission considers that “accountability for victims and the interests of peace and justice in the region require that the legal determination should be made by the Prosecutor as expeditiously as possible.”
The ICC has officially opened investigations in 4 situations: DRC, Northern Uganda, Darfur, and CAR but the Prosecutor’s office is also reportedly conducting preliminary examinations in other situations, including Afghanistan, Chad, Colombia, Côte d’Ivoire, Georgia, Kenya and Palestine.
Please take note of the Coalition’s policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.
Regards,
CICC Secretariat
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I. REPORT OF THE UN FACT FINDING MISSION TO GAZA
“HUMAN RIGHTS IN PALESTINE AND OTHER OCCUPIED ARAB TERRITORIES,” Report of the United Nations Fact Finding Mission on the Gaza Conflict, 15 September 2009, http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/UNFFMGC_Report.pdf
“On April 3rd, 2009 the President of the Human Rights Council established the United Nations Fact Finding Mission on the Gaza Conflict with the mandate to ‘investigate all violations of International Human Rights law and International Humanitarian law that might have been committed at any times in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.’
…The President appointed Justice Richard Goldstone, former judge of the Constitutional Court of South Africa and former Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, to head the mission.
…The mission convened for the first time in May 2009 and conducted field research in addition to other research. Their methodology to implement the mandate was to consider any actions by all parties that might have constituted violations of international human rights law or humanitarian law.
[...] XXXI. RECOMMENDATIONS
1764. The Mission makes recommendations related to the following matters:
(i) Accountability for serious violations of International Humanitarian Law
(ii) Reparations
(iii) Serious violations of human rights law
(iv) The blockade and reconstruction
(v) The use of weapons and military procedures
(vi)The protection of human rights organizations and defenders
(vii) Follow up to the Mission’s recommendations
1765. To the Human Rights Council
[...] In view of the gravity of the violations of international human rights and humanitarian law and possible war crimes and crimes against humanity that it has reported, the Mission recommends that the United Nations Human Rights Council request the United Nations Secretary-General to bring this report to the attention of the United Nations Security Council under Article 99 of the Charter of the United Nations so that the Security Council may consider action according to the relevant Mission’s recommendations below.
The Mission further recommends that the United Nations Human Rights Council formally submit this report to the Prosecutor of the International Criminal Court.
1766. To the United Nations Security Council
The Mission recommends:
1. That the Security Council require the Government of Israel, under Article 40 of the Charter of the United Nations:
(a) To take all appropriate steps, within a period of three months, to launch appropriate investigations that are independent and in conformity with international standards, into the serious violations of International Humanitarian and International Human Rights Law reported by the Mission and any other serious allegations that might come to its attention;
(b) To inform the Security Council, within a further period of three months, of actions taken, or in process of being taken, by the Government of Israel to inquire into, investigate and prosecute such serious violations
2. The Mission further recommends that the Security Council at the same time establish an independent committee of experts in International Humanitarian and Human Rights Law to monitor and report on any domestic legal or other proceedings undertaken by the Government of Israel in relation to the aforesaid investigations. Such committee of experts should report at the end of the six-months period to the Security Council on its assessment of relevant domestic proceedings initiated by the Government of Israel, including their progress, effectiveness and genuineness, so that the Security Council may assess whether appropriate action to ensure justice for victims and accountability for perpetrators has been or is being taken at the domestic level. The Security Council should request the committee to report to it at determined intervals, as may be necessary. The committee should be appropriately supported by the Office of the United Nations High Commissioner for Human Rights.
3. The Mission recommends that upon receipt of the committee’s report the Security Council consider the situation and, in the absence of good faith investigations that are independent and in conformity with international standards having been undertaken or being under way within six months of the date of its resolution under Article 40 by the appropriate authorities of the State of Israel, again acting under Chapter VII of the Charter of the United Nations, refer the situation in Gaza to the Prosecutor of the
International Criminal Court pursuant to Article 13 (b) of the Statute of the International Criminal Court.
The Mission recommends:
1. That the Security Council require the independent committee of experts referred to in paragraph 3 to monitor and report on any domestic legal or other proceedings undertaken by the relevant authorities in the Gaza Strip in relation to the aforesaid investigations. The committee should report at the end of the six-months period to the Security Council on its assessment of relevant domestic proceedings initiated by the relevant authorities in Gaza, including their progress, effectiveness and genuineness, so that the Security Council may assess whether appropriate action to ensure justice for victims and accountability for perpetrators has been taken or is being taken at the domestic level. The Security Council should request the committee to report to it at determined intervals, as may be necessary.
2. The Mission recommends that upon receipt of the committee’s report the Security Council consider the situation and, in the absence of good faith investigations that are independent and in conformity with international standards having been undertaken or being under way within six months of the date of its resolution under Article 40 by the appropriate authorities in Gaza, acting under Chapter VII of the Charter of the United Nations, refer the situation in Gaza to the Prosecutor of the International Criminal Court pursuant to Article 13 (b) of the Statute of the International Criminal Court.
1767. To the Prosecutor of the International Criminal Court
With reference to the declaration under article 12 (3) received by the Office of the Prosecutor of the ICC from the Government of Palestine, the Mission considers that accountability for victims and the interests of peace and justice in the region require that the legal determination should be made by the Prosecutor as expeditiously as possible. [...]“
II. CICC MEMBER PRESS RELEASES
i. “FIDH welcomes the conclusions of the Goldstone fact-finding mission”, Sept 15, 2009, Ethan Bronner contributed reporting from Jerusalem, and Taghreed el-Khodary from Gaza.
http://www.fidh.org/FIDH-welcomes-the-conclusions-of
“The fact-finding mission headed by Justice Goldstone mandated by the UN Human Rights Council in January 2009 ‘to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after’ released its report today.
According to the first conclusions of the report, it is established that Israel committed actions amounting to war crimes and possibly crimes against humanity, during its December 27-January 18 military operations in the Gaza Strip. The commission also concludes that there is evidence that Palestinian armed groups committed war crimes and possibly crimes against humanity, as well, by firing rockets into southern Israel.
FIDH and its member organizations in Israel and in the Occupied Palestinian Territory have constantly reaffirmed that the grave human rights violations should not remain unpunished and those responsible for their perpetration should be prosecuted.
FIDH recalls that international law requires that every state investigates serious human rights violations that are committed by bodies or persons acting on its behalf and prosecutes those responsible for the violations; therefore it welcomes the request by the Goldstone Commission that both parties conduct independent, impartial and transparent investigations within 6 months.
Nevertheless, FIDH recalls that if the parties to the conflict fail in their obligation to investigate and prosecute those responsible for the violations, then it is necessary to support the establishment of international justice mechanisms that will ensure the process of accountability, through filing complaints based on the principle of universal jurisdiction and by contributing to the International Criminal Court Office of the Prosecutor’s preliminary analyses and investigations, by submitting communications providing information on the crimes perpetrated during Operation Cast Lead.”
ii. “Israel/Gaza: Implement Goldstone Recommendations on Gaza,” Human Rights Watch (HRW), 16 September 2009
http://www.hrw.org/en/news/2009/09/16/israelgaza-implement-goldstone-recommendations-gaza
“Israel, Hamas, and relevant United Nations bodies should promptly implement the recommendations of the UN fact-finding mission led by Justice Richard Goldstone on the recent Gaza war and bring to justice those responsible for serious violations of the laws of war, Human Rights Watch said today.
The Fact Finding Mission on the Gaza Conflict, established by the UN Human Rights Council, found that both parties to the conflict were responsible for serious violations of international human rights and humanitarian law, and that they committed war crimes and possibly crimes against humanity.
“The fact-finding mission’s findings of serious violations by both Israel and Hamas are a significant step toward justice and redress for the victims on both sides,” said Sarah Leah Whitson, Middle East director at Human Rights Watch. ‘Now the UN, and the Security Council in particular, need to act on these recommendations and ensure that justice is done.’
Human Rights Watch particularly urged the US government not to stand in the way of the recommended Security Council action that would for the first time address the conduct of both Israel and Hamas. The Human Rights Council alone is no substitute for the Security Council because Israel has dismissed the council as biased and because the Security Council can refer the situation in Gaza to the International Criminal Court (ICC).
“The Obama administration’s pronounced new principles for human rights in the Middle East will be put to the test,” Whitson said. ‘Washington should welcome this opportunity for the Security Council to address the actions of both sides in this conflict.’
The 575-page report, released on September 15, 2009, documented serious violations of international humanitarian law by Israel, with some incidents amounting to war crimes and possible crimes against humanity, including willful killings, deliberate attacks on civilian objects, wanton destruction of civilian property, indiscriminate attacks, the use of human shields, and collective punishment against Gaza’s civilian population in the form of a continuing blockade.
The report also concluded that rocket fire from Gaza by Palestinian armed groups was deliberate and calculated to cause loss of civilian life and to terrorize Israeli civilians. As such, the mission concluded, they amounted to serious war crimes and perhaps crimes against humanity.
Human Rights Watch said the UN Security Council should implement the fact-finding mission’s recommendation to establish a committee of experts to monitor if and how Israel and Hamas investigate alleged violations by their own forces. In the absence of good faith investigations after six months, the Goldstone report said, the Security Council should refer the situation in Gaza to the ICC.
Investigating and prosecuting laws-of-war violations are, first and foremost, the responsibility of the parties to the conflict, Human Rights Watch said. But both Israel and Hamas have dismal records of investigating and holding accountable members of their own forces for serious laws-of-war violations.
‘The record gives little reason for confidence that Israel and Hamas will conduct serious investigations into credible allegations of laws-of-war violations by their own forces,’ Whitson said. ‘That’s why a Security Council-appointed committee to monitor their actions is needed, to spur genuine investigations and prosecutions.’
Human Rights Watch supported the fact-finding mission’s call for the Security Council to refer the Gaza conflict to the ICC, should investigations by Israel and Hamas authorities remain inadequate.
‘Security Council member states should take concrete steps to ensure justice for crimes committed by all sides during the Gaza conflict,’ said Whitson. ‘International justice should not be limited to prosecuting perpetrators from states that are more vulnerable to international pressure.’
The ICC, the only permanent international criminal court, is the obvious international tribunal for war crimes committed during the Gaza conflict. Israel is not a party to the ICC, but the court would have jurisdiction over crimes committed during the Gaza conflict if the UN Security Council refers the situation to the ICC, if the ICC prosecutor acts positively on a declaration by the Palestinian National Authority requesting the court’s authority over crimes committed in Gaza, or if nationals of ICC member states are found to have committed war crimes on behalf of one of the parties.
Human Rights Watch called on the ICC prosecutor to make a prompt legal determination on the Palestinian National Authority request, consistent with the ICC’s mandate to end impunity.
The Fact Finding Mission on the Gaza Conflict was established by the UN Human Rights Council in January. The original mandate unfairly limited the investigation to Israeli abuses, but the council president subsequently expanded the scope to include an investigation of Hamas and other Palestinian armed groups, and the Human Rights Council acquiesced in that change when it was announced by the council president. Goldstone, an eminent international jurist and former chief prosecutor of the war crimes tribunals for the former Yugoslavia and Rwanda, led the mission, pledging to look at both sides.
The fact-finding mission said it conducted 188 individual interviews, and reviewed more than 300 reports and other documentation, in addition to more than 30 videos and 1,200 photographs.
Israel refused to cooperate and did not answer questions, ostensibly because it viewed the Human Rights Council and the initial resolution establishing the fact-finding mission as biased against Israel. However, Israel has refused to cooperate with other investigations into its recent conduct in Gaza as well, suggesting a desire to avoid scrutiny. It denied visas for Goldstone’s team to visit Israel, so the mission invited Israelis to testify at public hearings in Geneva…”
III. MEDIA REPORTS
i. “Israel Rejects Call for Gaza Inquiry”, Isabel Kershner; 16 September 2009, http://www.nytimes.com/2009/09/17/world/middleeast/17gaza.html?em
“Israeli officials on Wednesday bluntly dismissed one of the main recommendations of the United Nations fact-finding mission’s report on the three-week war in Gaza last winter: a call for the Israeli government to begin an independent investigation of ’serious violations’ of international humanitarian and human rights law, including evidence of war crimes, during the military campaign.
Mark Regev, a spokesman for the Israeli prime minister, Benjamin Netanyahu, said that the internal military investigations into the Israeli Army’s conduct in Gaza already under way were ‘a thousand times more serious’ than the investigation just completed by the United Nations mission led by Richard Goldstone, a respected South African judge.
…The report, released on Tuesday, says that if no appropriate independent inquiry gets under way in Israel within six months, the United Nations Security Council should refer the matter to the prosecutor of the International Criminal Court. It made a similar recommendation for Palestinian authorities, calling for an inquiry into evidence of war crimes committed by Palestinian armed groups firing rockets into Israel.
Ahmed Yousef, a senior adviser to the Hamas government in Gaza, said the local authorities would investigate the relevant cases in the report. …”
ii. “Barak aide: Goldstone Report on Gaza war encourages terror”, by Roni Sofer for Y News, 16 September 2009, http://www.ynetnews.com/articles/0,7340,L-3777530,00.html
“Defense minister’s aide says findings of UN probe into IDF offensive ‘reward terror,’ while senior Hamas figure calls report ‘politically imbalanced’
…The United Nations said the investigation led by former South African judge Goldstone concluded that ‘Israel committed actions amounting to war crimes, possibly crimes against humanity,’ during its Dec. 27-Jan. 18 military operations in the Palestinian territories.
The global body said the report ‘concludes there is also evidence that Palestinian armed groups committed war crimes, as well as possibly crimes against humanity,’ by firing rockets into southern Israel.
The report accuses Israel of violating international law and possibly committing war crimes during Operation Cast Lead. Similar accusations, however, are also made regarding Hamas – the report condemns the groups’ rocket fire on Israel, as well as IDF soldier Gilad Shalit’s captivity, which the report said does not coincide with conventions meant to ensure treatment of prisoners of war.
… The prime minister intends to study the 575-page report – and its possible repercussions – thoroughly; especially those pertaining to possible UN and International Crimes Court (ICC) actions.
Jerusalem’s main concern at this time is that a report by a seemingly ephemeral, biased body, will harm international relations. Netanyahu wished to refute the report completely….”
iii. “Evidence of Israel, Hamas war crimes in Gaza: U.N.,” by Louis Charbonneau” for The Washington Post, 15 September 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/09/15/AR2009091501272.html
“Both the Israeli army and Palestinian militants committed war crimes, and possibly crimes against humanity, during the December-January Gaza war, the United Nations charged on Tuesday.
A 575-page report by a fact-finding mission organized by the Geneva-based U.N. Human Rights Council called on both sides to thoroughly investigate the allegations. Israel did not cooperate with the investigation.
‘The mission concluded that actions amounting to war crimes, and possibly in some respects crimes against humanity, were committed by the Israel Defense Force,’ U.N. investigator Richard Goldstone told reporters.
The report also said rockets fired by Palestinian militants into Israel where there were no military targets would also constitute war crimes, and perhaps crimes against humanity.
… Goldstone, a noted South African jurist, recommended that the U.N. Security Council call on Israel to fully investigate possible crimes committed by its forces. His report made clear that Palestinian authorities should do the same regarding crimes committed by Palestinian fighters.
The probes should be ‘independent and in conformity with international standards’ and establish a committee of human rights experts to monitor any such proceedings in Israel and the Palestinian territories.
If either Israel or the Palestinians fail to do so, then the 15-nation council should refer the situation in Gaza to the prosecutor of the International Criminal Court in The Hague, the report said…”
iv. “U.S. Rejects U.N. Proposal to Compel War Crimes Probes of Gaza Conflict”, by Colum Lynch for The Washington Post; 17 September 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/09/17/AR2009091704278.html
“Susan E. Rice, the U.S. ambassador to the United Nations, rejected a U.N. proposal to compel Israel and Hamas, the Islamist movement that controls the Gaza Strip, to conduct credible investigations into war crimes during last winter’s war in Gaza or face possible prosecution by an international prosecutor.
Richard Goldstone, a South African judge who headed a U.N. fact-finding mission probing abuses in Gaza, accused the two sides Tuesday of unlawfully targeting civilians during the conflict. Goldstone’s four-member team recommended that the U.N. Security Council instruct the combatants to investigate excesses within their own ranks and if they fail to comply, authorize the Hague-based International Criminal Court to do it.
Rice said that violations of human rights in Gaza should be addressed by the U.N. Human Rights Council, which created Goldstone’s panel in April, and not by the Security Council, which has the authority to authorize an international probe….”
IV. UN MEDIA BRIEFING
“UN – Daily Press Briefing – Gaza, Responsibility to Protect, Human Rights Council, Migration, Children and Armed Conflict, Timor-Leste, DRC”, 15 September 2009, http://www.isria.com/pages/16_September_2009_30.php
The following is a near-verbatim transcript of September 15’s noon briefing by Marie Okabe, Deputy Spokesperson for the Secretary-General, and Jean-Victor Nkolo, Spokesperson for the President of the General Assembly.
“[...]…Gaza:
‘The first of the press conferences that happened earlier today, the United Nations fact-finding mission on the Gaza conflict, released its findings today in New York. The mission, headed by Justice Richard Goldstone, was mandated by the Human Rights Council to ‘investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after’.
Since its establishment, the Secretary-General has encouraged and supported the mission and called on all parties to cooperate fully in its work. He believes that accountability for violations of international human rights and humanitarian law is essential both to the protection of human dignity and to the quest for sustainable peace. The mission will formally present its report to the Human Rights Council on 29 September. And earlier today, Justice Goldstone had a telephone conversation with the Secretary-General to inform him of its broad contents and of his intention to release the report. The Secretary-General commended Justice Goldstone for his leadership and independence.”
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CICC’s policy on the referral and prosecution of situations before the ICC:
The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC’s trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.
Communications to the ICC can be sent to:
ICC
P.O. Box 19519
2500 CM the Hague
The Netherlands
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Mariana Rodriguez-Pareja
Senior Spanish Communications Officer
Communications Section
NGO Coalition for the International Criminal Court (CICC)
Coalición de ONG por la Corte Penal Internacional (CCPI)
Together for Justice: Civil society in 150 countries advocating for a fair, effective and independent ICC. For more information, visit our new website at www.iccnow.org or www.togetherforjustice.org and participate in our blog at www.iccnow.org/blog
October 1, 2009 Posted by Elias
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