UN HUMAN RIGHTS COUNCIL
1 – 26 March 2010
Joint written statement by Adalah - The Legal Centre for Arab Minority Rights in Israel; Addameer Prisoner Support and Human Rights Association;Al Mezan; AL-Dameer Association for Human Rights-Gaza; Al-Haq; Arab Association for Human Rights (HRA); Badil Resource Center for Palestinian Residency and Refugee Rights; International Committee of the National Lawyers Guild; Palestinian Center for Human Rights; Physicians for Human Rights-Israel; The Gaza Community Mental Health Program; The Israeli Committee Against House Demolitions; The National Center for Community Rehabilitation; Women’s Center for Legal Aid and Councelling (WCLAC).
1. The UN Fact Finding Mission on the Gaza Conflict (the Mission), determined that Israel and Palestinian armed groups committed serious violations of international human rights and humanitarian law and possible war crimes and crimes against humanity. The UN called on both parties to take all steps to launch appropriate independent investigations in conformity with international standards. In resolution S-12/1, the HRC also stressed the urgent need to ensure accountability for all violations of international law to prevent further violations.
2. Under international law, proper investigations into suspected violations of international law must be independent, impartial, effective, transparent and prompt. However, the information and material available suggest that the domestic investigations carried out by the parties to the conflict have not met these standards.
I. The State of Israel
a. Lack of legal protection for Palestinians under the Israeli legal system
3. Since 2003, the Military Advocate General (MAG) has pursued a policy of not opening criminal investigations into the killing and injury of Palestinians civilians in the OPT. The same year this policy was challenged at the Israeli Supreme Court, yet the petition remains pending.1 Available evidence indicates that the Israeli army maintains that violations of international humanitarian law and international crimes are restricted to cases of intentional attacks as opposed to reckless or negligent acts against civilians. This contradicts Israeli and international criminal law.2
4. Israel's Supreme Court upheld a 2005 law, which provides that no compensation is payable to “a citizen of an Enemy State and an activist or member of a Terrorist Organization” for damages caused during military operations since September 2000. This means that Palestinian civilians in the Gaza Strip remain barred from legal redress for the wrongdoings of Israeli soldiers during “Operation Cast Lead,” and clearly violates international law.
b. Israel’s Investigation
5. Israel’s investigations are an internal military process, which suffer from lack of independence, impartiality, effectiveness and transparency. According to the State of Israel, 150 incidents have been examined, the majority of which are examined through so–called “operational debriefings.” 36 have been referred for criminal investigation by the MAG, and many cases were closed allegedly on the basis of “lack of evidence.”3
6. Operational debriefings are a tool to review incidents and operations that are conducted by soldiers together with a superior officer, without testimony from victims or witnesses being sought. Such debriefings are confidential and not designed to identify criminal liability, but only serve operational purposes.4 No criminal investigations have been opened in the vast majority of cases despite existing prima facie evidence that international crimes were committee.
7. While the majority of the serious violations of international law committed during "Cast Lead" were a result of questionable broader policies and orders, Israel’s investigations merely address misconduct of individual soldiers, and treat all complaints as isolated incidents. To date, Israel has refused to investigate these broader policies, strategies, procedures, regulations and objectives, or the continuation of the blockade of the Gaza Strip, contrary to the Mission’s explicit recommendations.
8. MAG and the Attorney General (AG) are responsible for making decisions regarding examinations and criminal investigations. MAG provided legal advice to the army during the planning stages of the operation in Gaza and throughout its execution.5 The AG also advised on “punitive collective sanctions.” These facts call for carrying out an investigation of MAG and the AG, and should disqualify both from impartially investigating suspected violations of international law by the military.
9. Israel’s investigations raise serious doubts about their credibility. For example, the Israeli claim that the only operating flour mill in the Gaza Strip was hit by Israeli ground shells is inconsistent with documented evidence that supports the Mission’s findings that aerial bombardment caused its destruction.6
10. Only one criminal investigation has thus far led to prosecution and conviction of a soldier – and this dealing with a case for theft of a credit card. The only other disciplinary cases involved two officers who fired explosive shells into populated areas, in violation of orders from superiors. However, the Israeli Army has denied this.
c. The Blockade
11. The longstanding Israeli blockade of the Gaza Strip is designed to achieve political objectives, including compelling the Gaza population to not support Hamas. The blockade deprives the Gazan population (66% of whom are refugees) from sustenance, employment, health care, housing and water, and denies them freedom of movement and the right to leave and enter one’s country, as well as limits access to courts of law and effective remedy.7 The Mission has noted that the above could amount to persecution, a crime against humanity.8
12. HRC has acknowledged that the siege imposed on the Gaza Strip, including its closure of border crossings and cutting means of subsistence, constitutes collective punishment,9 and urged Israel to lift the blockade.10 Nevertheless, Israel continues to tighten the siege and disregard its legal obligations under international law, and HRC’s resolutions.
II. The Palestinian Authorities
13. Information available on the investigations carried out by the Palestinian authorities provides no evidence of compliance with required international standards. The de facto government in Gaza issued a statement asserting that rocket attacks against Israel were directed only at military targets, a claim disproved by all available evidence. In the West Bank, the responsible Palestinian authority has equally failed to comply with the requirements of the recommendations of the Report, its action to date being limited to the appointment of an investigatory committee.
III. The Role of the UN and International Community
14. Mechanisms listed in the Mission’s recommendations call attention to the responsibilities of the parties to the conflict as well as to those of other actors, such as UN bodies and States. In resolution S-12/1, HRC called upon all concerned parties, including UN bodies, to ensure implementation of the Mission’s report in accordance with their respective mandates.
15. Nevertheless, the UN and international community have failed in exerting effective pressure on the parties to achieve accountability and justice for the victims. This is demonstrated by the failure of the domestic investigations; the reluctance of the Security-Council to address the Report and establish an independent committee of experts to monitor investigations; the disinclination of the Secretary-General to assess the implementation of the Mission’s report by the parties to the conflict;11 and the non-establishment of an escrow fund by the UNGA for Palestinian victims.12
In light of the above, we urge the HRC to:
1.Call on Israel to immediately lift the blockade on the occupied Gaza Strip;
2.Use all means at the HRC’s disposal to hasten the process of accountability and achieve justice for the victims as indicated in the Mission’s Report;
3.Call upon the GA to establish an independent committee of experts on international law and criminal investigations to monitor and assess the effectiveness and genuineness of domestic investigations carried out by the parties to the conflict;
4.Call upon the GA to establish an escrow fund for Palestinian victims;
5.Continue to review the implementation of the Mission’s Report;
6.Recommend the Government of Switzerland, in its capacity as depositary of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (GCIV), to promptly undertake necessary steps to reconvene the Conference for the High Contracting Parties on measures to enforce the GCIV in the OPT.
Follow-up on the Goldstone Report, UN, New York - in November 2009, the UN General Assembly had endorsed the report of the Fact Finding Mission on the Gaza Conflict (“Goldstone Report”) and called upon the Israeli and the Palestinian sides to conduct investigations into the serious violations of international human rights and humanitarian law in line with the Goldstone recommendations. Since then, Israel has not implemented investigations in conformity with international standards, and the Palestinian authorities have equally failed to comply with the requirements of the UN. In February 2010, three of the six months alloted to the domestic investigations had lapsed and an initial assessment was due by the UN Secretary-General. The latter, however, failed to assess the measures carried out by the parties of the conflict, and the General Assembly decided to extended the period for the investigations at the domestic level for another five (instead of the initial three) months.1
Follow-up on the Goldstone Report, HRC, Geneva - on 22 March 2010, the UN Human Rights Council (HRC), which originally dispatched the Goldstone Mission, also convened a follow-up session on the implementation of the Goldstone Mission’s recommendations. Badil, together with 14 NGOs,2 lobbied the Council inter alia to: (1) Use all means at its disposal to hasten the process of accountability and achieve justice for the victims as indicated in the Mission’s Report; (2) Call upon the GA to establish an independent committee of experts to monitor and assess the effectiveness and genuineness of domestic investigations carried out by the parties to the conflict; (3) Call upon the GA to establish an escrow fund for Palestinian victims as called for in the Goldstone Report; and (4) Continue to review the implementation of the Mission’s Report.3 The Human Rights Council eventually passed a resolution calling upon the High Commissioner to explore and determine the appropriate modalities for the establishment of an escrow fund for the provision of reparation to the Palestinian victims. Moreover, the Council decided to establish a committee of independent experts in international humanitarian and human rights law to monitor and assess any domestic, legal or other proceedings undertaken by both parties to the conflict.4
HRC resolution on Israel’s violations in the OPT - Badil, together with PCHR and WACLAC, intervened with another oral statement on ongoing forced internal displacement and dispossession of the Palestinian population, while emphasizing that the land confiscation, settlement expansion, house demolition, forced evictions and the construction of the Wall are measures used by the Israeli occupying power to illegally change the demographic composition in the OPT. The Human Rights Council condemned Israel’s continued construction of settlements in the OPT, including East Jerusalem, and reaffirmed that settlements, the separation Wall, as well as demolition of homes and evictions are illegal under international law and constitute an obstacle to the peace and threaten to make a two state solution impossible. Moreover, it demanded Israel to “immediately stop its illegal decision to demolish a large number of Palestinian houses in East Jerusalem, including in the neighborhood area of Al-Bustan in Silwan, and the evacuation of Palestinian families in the Sheikh Jarrah area of East Jerusalem, which is resulting in the displacement of more than two thousand resident Palestinians of East Jerusalem.”5
Lobbying against PLO/PA deferral of the Falk Report - another item scheduled for discussion by the Human Rights Council was the periodical report of Prof. Richard Falk, UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories occupied since 1967.6 Shockingly, this report was removed from the agenda of the Council following the request of the Permanent Observer of Palestine to the UN in Geneva. In his report, Professor Falk supported the full implementation of the recommendations of the Goldstone Mission’s report, yet he addressed some of the shortfalls in the findings of that report. For instance, he criticized the Mission for failing to make a finding of aggression in Israel’s act of launching the attack on the Gaza Strip, and that it took for granted the dubious proposition that Israel was entitled to act against the Gaza Strip in self-defense. Falk also questioned whether the rather restrictive legal framing of the fact-finding mission’s inquiry was suitable for this one-sided or asymmetric encounter, in which the Palestinian side lacked any substantial weaponry to defend itself against one of the world’s most powerful armies, while Israel defined its military targets as extending to the civilian infrastructure of the Gaza Strip. Falk also urged the members of the Human Rights Council to convey to their governments a call for the implementation of the Goldstone report in relation to the exercise of universal jurisdiction. In addition, he addressed Israeli settlement activities in the OPT and its impact on the enjoyment of human rights and the continuing blockade of Gaza.
Professor Falk’s courage in upholding human rights is exceptionally prominent in the two final sections of the report. The first of these is one in which he called upon those engaged in the peace process to muster the will to address the Palestinian refugee question and uphold the rights of Palestinian refugees. The second is one in which he called on the members of the Human Rights Council to consider the Campaign for Boycott, Divestment and Sanctions (BDS) as a means of implementing human rights, including the right of self-determination, and to provide guidelines for such campaign.
Instead of supporting the Special Rapporteur’s report and lobby state members to endorse its recommendations, the PLO representative to the UN lobbied for the deferral of the report to the June 2010 session for reasons that can at best be described as incoherent. A letter signed by almost twenty NGOs was sent to President Mahmoud Abbas expressing concern about the PLO’s stance regarding the Falk report. It also called upon the PLO to withdraw its request for deferral.7 Similar letters were sent to the members of the PLO Executive Committee and the Secretary-General of the Palestinian Legislative Council.
In addition, Badil, together with twelve Palestinian and international NGOs, sent letters to each member state of the Human Rights Council, the Council’s President, and the High Commissioner expressing concern over the removal of the Special Rapporteur’s Report, and stressing the urgent need to defend the independence of UN Special Procedures. The letter asked the member states to act immediately to ensure that the report be kept on the Council’s agenda. Without the support of the PLO representative, however, the civil society request and concerns were ignored, and the Council did not discuss the report.
Mamilla petition and BADIL side-event at the HRC - on 18 March 2010, Badil organized a side-event to the Human Rights Council’s session in Geneva’s Palais des Nations titled Palestinian cultural rights and religious freedoms in light of Israel’s persistent violations of international law. The main purpose of the side-event was to raise awareness and lobby the seventy governmental and NGO delegates who attended the side-event, includeding the Palestinian Deputy Ambassador, the Israeli Ministry of Foreign Affairs special envoy to the session of the Human Rights Council, the Ambassador of the League of Arab States, as well as the ambassadors of Greece and Egyptian and Saudi Arabian diplomats.
Professor Georges Abi-Saab, Honorary Professor of International Law at the University of Geneva, was one of the panelists, and spoke about the status of Jerusalem in international law and ways to make the HRC more effective in addressing Israeli violations of cultural and religious right. Ms. Huda Al-Imam, Director of the Center for Jerusalem Studies at Al-Quds University shared her personal experience in Jerusalem and addressed the denial of cultural and religious freedoms under Israeli occupation, presenting the cases of Al-Haram Al-Ibrahimi, Al-Haram Al-Sharif and the Mamilla Cemetery. The third panelist was Ms. Rania Madi, Badil’s representative in Geneva, who used her detailed knowledge of the Human Rights Council and related legal instruments and processes to place religious and cultural issues in the broader human rights context, linking them to the question of displaced persons, evictions, protection of refugees and the Judaization of Jerusalem. During the presentations, Badil presented a slide-show of 100 new and captioned photographs of settlers roaming through Haram al Sharif under military escort (immodestly dressed in some cases), flags over the city walls, tunneling, the new Hurva Synagogue and other settler outposts in the old city, preventing worshipers from reaching holy sites.
In the same vein, Badil endorsed the petition led by the US Center for Constitutional Rights that called for urgent action on human rights violations in Ma’man Allah (Mamilla) Cemetery in Jerusalem by Israel. This petition is a response to the ruling of the Israeli Supreme Court that the construction of the “museum of tolerance” on Mamilla Cemetery was lawful, thereby allowing the excavation of ancient tombs and removal of hundreds of human remains from part of the historic cemetery.8 The UN Human Rights Council expressed its grave concern regarding the above and called upon Israel to immediately desist from such illegal activities therein.9
1. UNGA, Follow-up Report of the United Nations Fact-Finding Mission on the Gaza Conflict (II), A/64/L.48, 23 February 2010.
2. Adalah - The Legal Centre for Arab Minority Rights in Israel; Addameer Prisoner Support and Human Rights Association;Al Mezan; Al-Dameer Association for Human Rights-Gaza; Al-Haq; Badil Resource Center for Palestinian Residency and Refugee Rights; Arab Association for Human Rights (HRA); Defence for Children International (DCI) - Palestine Section; International Committee of the National Lawyers Guild; Palestinian Centre for Human Rights (PCHR); Physicians for Human Rights- srael; The Gaza Community Mental Health Program; The Israeli Committee Against House Demolitions; The National Center for Community Rehabilitation; and Women's Center for Legal Aid and Counseling (WCLAC).
3. Badil and others, More than One year after "Operation Cast Lead": Distressing Lack of Accountability and Justice for the Victims of the Conflict, Joint Oral and Written Statements to the Human Rights Council, March 2010.
4. UNHRC, Follow-up to the report of the United Nations Independent International Fact-Finding Mission on the Gaza Conflict, A/HRC/13/L.30, 22 March 2010.
5. UNHRC, The Grave Human Rights violations by Israel in the Occupied Palestinian Territory, including East Jerusalem, A/HRC/13/L.29, 19 March 2010.
6. UNHRC, Report of the Special Rapporteur on the Situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, A/HRC/13.53, January 2010.
7. Badil and others, The Palestinian Position regarding the UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories occupied since 1967 A/HRC/13/53, A letter to President Mahmoud Abbas, 25 February 2010 (in Arabic).
8. HCJ 52/06., Al Aqsa Association for tge Development of the Assets if the Muslim Waqfin the land of Israel ltd. V. The Simon Wiesenthal Center Museum Corp., 29 October 2008.
9. UNHRC, The Grave Human Rights violations by Israel in the Occupied Palestinian Territory, including East Jerusalem, A/HRC/13/L.29, 19 March 2010.
Decision of Palestinian Leadership and International Pressure an Insult to the Victims
Statement of Palestinian Civil Society Responding to Deferral on Goldstone Recommendations Endorsement, issued by:
Adalah * Addameer * Aldameer * Al Haq * Al Mezan * Arab Association for Human Rights * Badil * Civic Coalition for Jerusalem * DCI-Palestine * ENSAN Centre * ITTJIAH * Independent Commission for Human Rights * Jerusalem Legal Aid and Human Rights Centre * Palestinian Centre for Human Rights * Ramallah Centre for Human Rights Studies * Women’s Centre for Legal Aid and Counselling *
Badil Statement, 2 October 2009 – The recommendations of the UN fact finding mission to the Gaza Strip headed by Judge Richard Goldstone represented a golden opportunity for the Human Rights Council, the Security Council, the General Assembly, and all member states – particularly the United States and the European Union – to exercise their moral and legal obligations to hold Israel accountable for its crimes committed during its 2008-2009 war against Gaza. Yet the official Palestinian position calling for the postponement of the vote to endorse the report's recommendations now hamstrings these opportunities. In so doing, it has undermined the principle of international legitimacy as a basis to resolve the Palestinian issue and prevents the Palestinian victims of this assault from achieving redress.
1. Scope of Palestinian Displacement 2008
The Palestinian refugee and IDP population described here comprises the total estimated number of Palestinians and their descendants whose “country of origin” is the former Palestine (now divided into Israel and the OPT), who have been displaced within or outside the borders of this area, and who do not have access to voluntary durable solutions and/or reparation, including the right to return to their homes of origin and the right to repossess their properties.
Joint written statement submitted to the U.N. Human Rights Council, Twelfth Session
14 September - 2 October 2009
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law
Adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005
European Parliament, Brussels
August 30-31 2007
Realizing the inalienable rights of the Palestinian People:
60 years is enough! End the dispossession; bring the refugees home!
January: London Round Table Conference reopens.
February: British Foreign Secretary Ernest Bevin proposes variant of Morrison-Grady federal plan at London Conference and to Jewish Agency. Arab delegates and Jewish Agency reject proposal.
Bevin announces British submission of Palestine problem to United Nations.