Tag Archives: international humanitarian law

“Gaza Strip is not occupied,” says Israel’s Supreme Court, as Gaza is thrown into darkness

I just read the Ahmed decision by the Supreme Court of Israel. This case involves a petition filed in 2007 by the Palestinians against the State of Israel regarding the reduction of fuel supplies and electricity to the Gaza Strip.  Recently, the American Friends Service Committee prepared a short description of the problem here.

In 2005, Israel removed its settlers and soldiers from the Gaza Strip. The Supreme Court concluded that “Israel no longer has effective control over what happens in the Gaza Strip” and so “Israel does not have a general duty to ensure the welfare of the residents of the Gaza Strip or to maintain public order in the Gaza Strip according to the laws of belligerent occupation in international law.”

The Supreme Court ruled in favor of Israel, in part because

(1) Israel asserts it is monitoring the fuel supplies and electricity delivery to the Gaza Strip to meet the humanitarian needs of the people in Gaza;

(2) Israel says that the Palestinian officials have the capability to manage the load reduction;

(3) it’s better that the parties negotiate between themselves regarding the issue of fuel delivery and electricity; and

(4) there is a big distinction between the parties — one is fighting in the name of the law (Israel) and the other is fighting against the law (terrorists = Hamas).

Quick Facts • Less than half–only 45 percent—of Gaza’s power needs are now being met. Rolling blackouts leave residents with only six to eight hours of power each day. • Since 2013, the Gaza power plant has operated at less than half capacity. The plant regularly has to shut down, due to fuel shortages caused by Israeli restrictions on importing fuel. • Since 2010, at least 29 people—24 of them children— have died in Gaza from fires or suffocation directly linked to power outages. • Over 70 percent of Gaza households have access to piped water for only six to eight hours once every two to four days, because of the limited power supply.

I find the Ahmed decision troubling for several reasons:

(1) The Supreme Court’s rather cursory conclusion that Israel does not occupy the Gaza Strip. No occupation = no duty under the international laws of belligerent occupation. This conclusion appears to have been reached without arguments proffered by the parties on this very important issue, and almost as a side note to the court’s decision.

(2) The Supreme Court’s characterization of the parties in the case — one is law-abiding and fighting to preserve the law, while the other is a terrorist organization fighting against the law — demonstrates the inherent bias and lack of judicial neutrality that permeates the decision. The Supreme Court also demonstrates its lack of objectivity when it cites with approval Israel’s statement that the Palestinians are capable of managing the load reduction so as not to harm hospitals, etc., while dismissing without discussion the contrary arguments made by the Palestinians.

(3) While the Supreme Court acknowledges that Israel has a responsibility to meet the “essential humanitarian needs of the civilian population” in Gaza, it doesn’t provide any guidance about what constitutes “essential humanitarian needs” and appears to defer to Israel’s assertion that the State recognizes its responsibility and will monitor the delivery of electricity and fuel so as to meet its responsibility. (That must be cold comfort to the civilians sitting in the dark on a cold winter night in Gaza, or to the children who have died in house fires due to the candles.)

(4) The issue of the nexus between Israel’s rationale for reducing the electricity and fuel to Gaza seems to be accepted carte blanche by the Court without any critical examination. Israel says its “decision to limit the supply of fuel and electricity to the Gaza Strip was made in the framework of the State’s operations against the ongoing terrorism.” Doesn’t Israel have a duty to show the Court a nexus —- that the reduction of electricity and fuel has some measurable impact on reducing the terrorism (rockets)? If there is no nexus, then isn’t it fair to say that Israel’s actions, in fact, constitute collective punishment against the civilian population?

• Hospitals provide only limited services because they rely on generators, which produce insufficient and unstable electrical supplies that can damage sensitive equipment. • Up to 90 million liters of untreated sewage are discharged into the Mediterranean Sea each day in part due to electrical and fuel shortages. • Schools often function without electricity, leaving students in the dark, making many educational activities impossible, and negatively affecting students’ learning environments. • Businesses and industry can’t function without reliable electrical supplies, increasing unemployment and further destabilizing the Gaza economy.

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The Israeli Occupation Comes to the UN Security Council

Hagai El-Ad’s address in a special discussion about settlements at the United Nations Security Council on October 14, 2016

(The following transcript and short videos are located on the Btselem website.

Members of the Security Council,

Ladies and Gentlemen,

Before I begin, I would like to express my deep thanks for this unique opportunity of speaking at this distinguished forum and engaging with the members of the UN Security Council.

What I’m about to say is not meant to shock you. It is, however, meant to move you.

For the past 49 years – and counting – the injustice known as the occupation of Palestine, and Israeli control of Palestinian lives in Gaza, the West Bank, and East Jerusalem, has become part of the international order. The first half-century of this reality will soon be over. On behalf of B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories, I implore you today to take action. Anything short of decisive international action will achieve nothing but ushering in the second half of the first century of the occupation.

Ladies and Gentlemen,

What does it mean, in practical terms, to spend 49 years, a lifetime, under military rule? When violence breaks out, or when particular incidents attract global attention, you get a glimpse into certain aspects of life under occupation. But what about the rest of the time? What about the many “ordinary” days of a 17,898-day-long occupation, which is still going strong? Living under military rule mostly means invisible, bureaucratic, daily, violence. It means living under an endless permit regime, which controls Palestinian life from cradle to grave: Israel controls the population registry; Israel controls work permits; Israel controls who can travel abroad – and who cannot; Israel controls who can visit from abroad – and who cannot; in some villages, Israel maintains lists of who can visit the village, or who is allowed to farm which fields. Permits can sometimes be denied; permits must always be renewed. Thus with every breath they take, Palestinians breathe in occupation. Make a wrong move, and you can lose your freedom of movement, your livelihood, or even the opportunity to marry and build a family with your beloved.

Meanwhile, ever present, are the settlements and the settlers. They are Israeli citizens living, ostensibly, in a first-world democracy, that somehow exists only for them, beyond the borders of their country. This ever-expanding venture, its illegality notwithstanding, is to be found everywhere throughout the West Bank and East Jerusalem. Settlements encompass the built-up areas as well as the generous allocations of land around them, meant for future expansion or “special security zones”; they mean checkpoints for Palestinians, and bypass roads for settlers; they mean the Separation Barrier; and finally, they mean the fragmentation of Palestine into hundreds of isolated communities, floating – or rather I should say, slowly sinking – in a sea of Israeli domination. Who could possibly deserve to endure such conditions for half a century?

Ladies and Gentlemen,

Almost all aspects of this reality are considered legal by Israel. Israel’s control of Palestinian lives is unique in the careful attention the occupying power gives to the letter of the law, while strangling its very spirit. The occupation has so perfected the art of watering down International Humanitarian Law and Human Rights Law as to render them virtually meaningless. Once military lawyers, State Attorneys and Supreme Court justices are done masterfully chiseling out legal opinions, all that remains is raw injustice.

Show me a dead Palestinian whose killing must be explained away to ensure impunity, and there you will find a learned opinion by the Military Advocate General. Show me the 100,000 Palestinians ignored and neglected on the other side of the Separation Barrier built inside East Jerusalem, and I will remind you that even this glaring injustice has been pre-approved by Israel’s High Court of Justice.

Show me a plot of Palestinian land you wish taken over, and the Civil Administration will come up with the appropriately tailored legal mechanism – of course, it must all be legal! – to achieve that end: military training zones, nature reserves, archeological sites and, above all, declaring thousands of acres “State Land” – what “State” exactly? All these are successfully used in order to forcibly displace Palestinians and justify denying them access to running water or the power grid. Of course, such Israeli actions aren’t successful 100% of the time. That would be too transparent. So once in a long while, maybe once a decade, a low-ranking soldier might be put on a show trial; and once in a blue moon a master plan for a Palestinian village will be approved. These extraordinary cherry-picked rarities provide useful distractions from the big picture.

In order to uphold the guise of legality, Israel applies “due process” in just about everything: to potentially force-feed hunger strikers, as recently approved by the High Court; to routinely approve and renew administrative detention orders, or extend prolonged imprisonment without trial, of hundreds of Palestinians; to demolish the homes of the families of Palestinians who perpetrated attacks – yes, that too has happened hundreds of times, with due process and a seal of approval by the High Court. Since the year 2000, more than 4,400 Palestinians have lost their homes in this way.

Yes, Israel has professional lawyers, attorneys and judges. It is, indeed, a highly “professional” occupation. We have had plenty of time to work towards a more perfect occupation. But you don’t need to be a lawyer in order to recognize injustice. Look at the occupation and all the legal pretense surrounding it, and call it for what it is: a legal guise for organized state violence.

Ladies and Gentlemen,

Israel has systematically legalized human rights violations in the occupied territories through the establishment of permanent settlements, punitive home demolitions, a biased building and planning mechanism, taking over Palestinian land and much, much more. Israel’s military law enforcement system – if one can call it that – routinely whitewashes hundreds of cases in which Palestinians were killed or abused.

Here are some figures: Israel has declared 20% of the West Bank “State Land”; Israel “generously” allows Palestinians to build on one-half of one percent of Area C, the 60% of the West Bank placed “temporarily” under Israeli control a generation ago; over the past decade, Israel has demolished some 1,200 Palestinian homes in the West Bank, excluding East Jerusalem, thereby rendering homeless over 5,500 people, half of them minors; East Jerusalem figures would raise these by roughly another 50%; in April 2016 there were about 7,000 Palestinians in Israeli custody, a quarter of them individuals remanded for the duration of their military court proceedings, and roughly 10% administrative detainees. One final figures: in a quarter of the 740 plus complaints referred by B’Tselem to the military authorities since 2000, no investigation was even opened; in another half, the cases were eventually closed with no action taken; and only in 25 cases, were indictments served. And get this: during that time, the military authorities have physically lost track of 44 cases – more than the 25 cases that went to court. Israel insists that all of this is legal, under both Israeli law and international law.

It is not.

But this fact is of little practical significance in terms of keeping Israel from carrying on implementing its policies because, regrettably, international law lacks any effective enforcement mechanisms. And so, Israeli policies are implemented and advanced with ever greater domestic support. Despite broad international agreement – including previous Security Council resolutions – that the settlements are illegal, the only measurable change in this area is the growing number of settlements, of settlers, and of Palestinians living in their shadow, facing demolitions or displacement.

Ladies and Gentlemen,

B’Tselem has worked for 27 years to document and publish violations of human rights in the occupied territories, to analyze and interpret data, and advocate locally and internationally on these issues. We are not advocating for any specific political outcome: we are fighting human rights violations. In fact, we realize how Israel has effectively used the “peace process” itself to buy time – a great deal of time – while it further establishes more facts on Palestinian ground. B’Tselem’s mission to tell the Israeli public about the ways in which the state oppresses Palestinians will continue as long as the occupation does. We were and will always remain relentless in this effort, for it is our basic moral obligation. But after so many years, one has to draw certain conclusions. Moral principles alone will not be enough. Israel will not cease being an oppressor simply by waking up one day and realizing the brutality of its policies. Decades of false pretexts and genuine fears, economic interests and political dogma, have come together to prevent that eventuality, while too few convincing reasons to change course were presented. And globally?

Six-and-a-half years ago US Vice President Joe Biden warned that “the status quo is not sustainable”. Clearly he was at least six-and-a-half years too early in voicing such a warning. The “status quo” – that ever progressing vector of Israeli interests at the expense of Palestinian rights – has proven not merely sustainable, but in fact thriving.

Almost exactly a year ago the European Union embarked on a six-month “structured dialogue” with Israel, seeking to end administrative home demolitions in Area C. Six months later, the dialogue was going nowhere and demolitions were on the rise, yet the EU decided – to extend the dialogue. If an unprecedented number of demolitions goes hand-in-hand with an unlimited timetable for international dialogue, why stop demolitions?

Clearly, the occupation is internationally sustainable. It is so, because so far the world refuses to take effective action.

Recent years have made that realization even more painful. Israel’s long-term project to maximize its benefits from Palestinian land while minimizing the nuisance of Palestinian presence there has become even more palpable than perhaps ever before. Admittedly, even just half a day spent in the West Bank has long been more than enough to realize the permanence sought for the enterprise that Israeli governments right, center, and left have been advancing there since 1967. Similarly, retired Israeli officials have openly said so – most recently it was put quite simply by a former OC Central Command who said: “The army is there because the State of Israel has no intention of leaving.” But now that Israeli leaders currently in office, from the Prime Minister down, have been skipping the lip-service in real time and openly admitting this – with such a level of official clarity – it seemed that surely, finally, there would be implications. Was one naïve to have that expectation?

Perhaps. While unprecedented clarity in Israeli language has narrowed the divide between Israeli actions and the empty rhetoric on negotiations and diplomacy, the global response to it was, well, yet another report. Demolitions have been stepped up, making 2016 the worst year on record in this sphere. I feel compelled to ask: how many more Palestinian homes must be bulldozed before the realization sinks in that words that are not backed up by action do no more than indicate to Israel that it may carry on?

Ladies and Gentlemen,

The realization of human rights need not wait any longer. Palestinians have the right to life and dignity, the right to determine their own future. These have all been delayed for far too long – and justice delayed is justice denied.

As Martin Luther King Jr taught us, “we know through painful experience that freedom is never voluntarily given by the oppressor”. So the reality facing the international community is this: absence of action not only effectively gives the oppressor a license to proceed without having to suffer too many repercussions, but also gives the oppressor the power to decide when will be the right time to start considering alternatives. “Wait,” demands Israel, “now is not the right time”. But “‘Wait’ has almost always meant ‘Never’,” responds Martin Luther King Jr. “The time is always right to do what is right.” That time is now: the time to, at long last, take action. The UN Security Council has more than just power: you have a moral responsibility – and a real opportunity – to act with a sense of urgency, before we reach the symbolic date of June 2017 and the second half of that first century begins, to send to the world, to Israelis and to Palestinians, a clear message, backed by international action: Israel cannot have it both ways. You cannot occupy a people for fifty years and call yourself a democracy. You cannot violate the rights of millions and claim international perks justified by hollow words about commitment to shared human rights values.

Israel is a sovereign country established through international legitimacy granted through a historic decision by this very institution in 1947. I am a citizen of that country. It is my homeland. For most of my country’s existence, the world has allowed it to occupy another people. I have lived my entire life, every single day of it, with that reality. Millions of Israelis and Palestinians know no other reality. We need your help. Fifty years of “temporary” occupation are too long for even a single person on this planet to accept such a contradiction in terms. The rights of Palestinians must be realized; the occupation must end; the UN Security Council must act; and the time is now.

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U.N. Commission makes recommendations — is anyone listening?

Now that Obama has a veto-proof Congress in favor of his Iran nuke deal, I’m wondering how Netanyahu is going to spin this. Will he dig in his heels and rant about this treachery? Or will he try to rebuild bridges between Israel and the U.S.?

Given Bibi’s response in June to the recommendations of the Independent U.N. Commission of Inquiry charged with investigating Israel’s so-called Operation Protective Edge, I suspect Netanyahu lives in a bubble — a bubble of his own reality untouched by contrary evidence.

The Israeli government’s response to the U.N. report was also predictable.

It is regrettable that the report fails to recognize the profound difference between Israel’s moral behavior during Operation Protective Edge and the terror organizations it confronted. This report was commissioned by a notoriously biased institution, given an obviously biased mandate.

The State of Israel has never taken any U.N. recommendations to heart, so it’s unlikely there will be a change of heart in 2015.

676.        The persistent lack of implementation of recommendations – made by previous commissions of inquiry, fact-finding missions, United Nations treaty bodies, special procedures and other United Nations bodies, in particular the Secretary-General and OHCHR – lies at the heart of the systematic recurrence of violations in Israel and the Occupied Palestinian Territory. 

Israel is the recalcitrant child who rejects authority figures and refuses to take any responsibility for his own predicament.

recalcitrant child

The U.N. recommendations are quite rational. Hopefully, the adults in the community of nations will take note and recognize that these reasonable recommendations must be implemented to avert another humanitarian crisis in Gaza.

677.     The commission calls upon all parties to fully respect international humanitarian law and international human rights law, including the main principles of distinction, proportionality and precaution, and to establish promptly credible, effective, transparent and independent accountability mechanisms. The right of all victims to an effective remedy, including full reparations, must be ensured without further delay. In this context, the parties should cooperate fully with the preliminary examination of the International Criminal Court and with any subsequent investigation that may be opened.

The Palestinians are pressing the International Criminal Court to investigate Israel for war crimes in Gaza and for continued settlement expansion in the West Bank. Israel

678.    The commission also calls upon Israelis and Palestinians to demonstrate political leadership by both refraining from and taking active steps to prevent statements that dehumanize the other side, incite hatred, and only serve to perpetuate a culture of violence.

I think #678 is a very important recommendation, but I haven’t seen any evidence that either side acknowledges or takes it seriously.  Bruce Katz, co-founder of Palestinian & Jewish Unity, was recently interviewed on Press TV — see here.http://presstv.ir/Default/embed/426545

Katz: There is nothing surprising and it is absolutely inhuman but it is part of the overall process of dehumanization that the Palestinians have suffered at the hands of Israel’s successive apartheid governments and the Netanyahu government simply seems to be the worst of all. Obviously you can only do what they have done to the Palestinians in Gaza, if you consider them to be subhumans which is exactly what the Israeli officials believe and that was reflected just recently by a statement coming from Moshe Ya’alon who is Israel’s defense minister; he as a matter of fact threatened Iran with a nuclear attack that would rival Nagasaki and Hiroshima [attacks]. He also said in that statement that he would kill as many children in Iran as in Gaza.

The remaining recommendations from the U.N. Independent Commission of Inquiry address Israel, Palestine and the international community.

679.    The commission calls upon the Government of Israel to conduct a thorough, transparent, objective and credible review of policies governing military operations and of law enforcement activities in the context of the occupation, as defined by political and military decision-makers, to ensure compliance with international humanitarian law and human rights law, specifically with regard to:

       (a)           The use of explosive weapons with wide-area effects in densely populated areas, including in the vicinity of specifically protected objects;

       (b)           The definition of military objectives;

       (c)           The tactics of targeting residential buildings;

       (d)           The effectiveness of precautionary measures;

       (e)           The protection of civilians in the context of the application of the Hannibal directive;

       (f)            Ensuring that the principle of distinction is respected when active neighbourhoods are declared “sterile combat zones”;

       (g)           The use of live ammunition in crowd control situations.

680.   The review should also examine mechanisms for continuous review of respect for international humanitarian law and human rights law during military operations and in the course of law enforcement activities in the context of the occupation.

In June, Israel exonerated itself over the killings of the four Bakr children on the Gaza beach. Does anyone have any hope that Israel can investigate itself?

681.    The commission further calls upon the Government of Israel:

       (a)           To ensure that investigations comply with international human rights standards and that allegations of international crimes, where substantiated, are met with indictments, prosecutions and convictions, with sentences commensurate to the crime, and to take all measures necessary to ensure that such investigations will not be  confined to individual soldiers alone, but will also encompass members of the political and military establishment, including at the senior level, where appropriate;

       (b)           To implement all the recommendations contained in the second Turkel report, in particular recommendation no. 2 calling for the enactment of provisions that impose direct criminal liability on military commanders and civilian superiors for offenses committed by their subordinates, in line with the doctrine of command responsibility;

       (c)           To grant access to Israel and the Occupied Palestinian Territory for, and cooperate with, international human rights bodies and non-governmental organizations concerned with investigating alleged violations of international law by all duty bearers and any mechanisms established by the Human Rights Council to follow up on the present report;

       (d)           To address structural issues that fuel the conflict and have a negative impact on a wide range of human rights, including the right to self-determination; in particular, to lift, immediately and unconditionally, the blockade on Gaza; to cease all settlement-related activity, including the transfer of Israel’s own population to the occupied territory; and to implement the advisory opinion rendered on 9 July 2004 by the International Court of Justice on the legal consequences of the construction of a wall in the Occupied Palestinian Territory;

       (e)           To accede to the Rome Statute.

682.    The commission calls upon the State of Palestine:

       (a)           To ensure that investigations into violations of international humanitarian law and international human rights law, including international crimes, by the Palestinian Authority, the authorities in Gaza and Palestinian armed groups, where substantiated, comply with international human rights standards and that full accountability is achieved, including through criminal proceedings;

       (b)           To accelerate efforts to translate the declarations on Palestinian unity into tangible measures on grounds that would enable the Government of national consensus to ensure the protection of human rights and to achieve accountability for victims.

683.    The commission calls upon the authorities in Gaza and Palestinian armed groups:

       (a)           To respect the principles of distinction, proportionality and precaution, including by ending all attacks on Israeli civilians and civilian objects, and stopping all rocket attacks and other actions that may spread terror among the civilian population in Israel;

       (b)           To take measures to prevent extrajudicial executions and eradicate torture, cruel, inhuman and degrading treatment; to cooperate with national investigations aimed to bring those responsible for violations of international law to justice; and to combat the stigma faced by families of alleged collaborators.

684.    The commission calls upon the international community:

       (a)           To promote compliance with human rights obligations, and to respect, and to ensure respect for, international humanitarian law in the Occupied Palestinian Territory and Israel, in accordance with article 1 common to the Geneva Conventions;

       (b)           To use its influence to prevent and end violations, and to refrain from encouraging violations by other parties;

       (c)           To accelerate and intensify efforts to develop legal and policy standards that would limit the use of explosive weapons with wide-area effects in populated areas with a view to strengthening the protection of civilians during hostilities;

       (d)           To support actively the work of the International Criminal Court in relation to the Occupied Palestinian Territory; to exercise universal jurisdiction to try international crimes in national courts; and to comply with extradition requests pertaining to suspects of such crimes to countries where they would face a fair trial.

685.   The commission recommends that the Human Rights Council consider conducting a comprehensive review of the implementation of the numerous recommendations addressed to the parties by its own mechanisms, in particular relevant commissions of inquiry and fact-finding missions and explore mechanisms to ensure their implementation.

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Day #17 – July 23, 2014 – Speaking out in Geneva

On 23 July 2014, the Geneva International Center for Justice delivered an oral statement during the 21st Special Session of the Human Rights Council, addressing the Human Rights situation in Palestine. GICJ stated that the right to self-defense had repeatedly been abused by Israel in order to justify its systematic reprisals against Palestinians and demanded an immediate ceasefire for the “Operation Protective Edge,” the establishment of an urgent and independent commission of inquiry and for all responsible to be brought to the International Criminal Court.

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Day #10 – July 16, 2014 – The four Bakr boys

Boys at beach

On July 16, 2014, the IDF killed four Palestinian children playing on the beach, Ismael Mohammed Bakr, 9; Ahed Atef Bakr, 10; Zakaria Ahed Bakr, 10; and Mohammed Ramez Bakr, 11. By this date, more than 200 Palestinians had been killed, including 43 children, in Israel’s so-called “Operation Protective Edge.”

Newsweek reported: Journalists from NBC News witnessed the attack and say that the children were playing soccer with journalists on the beach just moments before the shelling. Three other children survived but were wounded, one critically. Zakaria’s father told NBC News, “He was my only son…. He died with his cousins, they all died together.”

The U.N. Independent Commission of Inquiry examined the killing of the Bakr boys.

630.        Case study: One of the criminal investigations closed by the MAG (Military Advocate General) without further legal proceedings had looked into the killing of four children on 16 July 2014. The boys had been playing on a breakwater near the port in Gaza City, when they were hit by two missiles fired by Israeli forces from the air. According to the 11 June 2015 update of the MAG, the MPCID (Military Police Criminal Investigations Division)  investigation found that the incident took place in an area, located on the breakwater, that was known to be a compound belonging to Hamas naval forces and was “utilized exclusively by militants”. MPCID investigators learnt that an intelligence assessment indicated that operatives would gather in the compound to prepare for military activity against the IDF. Aerial surveillance then identified figures running into the compound, who were believed to be militants, and were not identified as children. On the basis of the investigation, the MAG concluded that “the attack process…accorded with Israeli domestic law and international law requirements”.

The (U.N. Independent Commission of Inquiry) also examined the killing of the four boys. Based on its own investigation, the commission found strong indications that the IDF failed in its obligations to take all feasible measures to avoid or at least minimize incidental harm to civilians. According to the International Committee of the Red Cross, “[i]n order to avoid the erroneous or arbitrary targeting of civilians entitled to protection against direct attack, it is…of particular importance that all feasible precautions be taken in determining whether a person is a civilian and, if so, whether he or she is directly participating in hostilities.” International humanitarian law provides that, in case of doubt, the person in question must be presumed to be a civilian and therefore protected against direct attack. In relation to targeting decisions, the determination of civilian status “will have to take into account, inter alia, the intelligence available to the decision maker, the urgency of the situation, and the harm likely to result to the operating forces or to persons and objects protected against direct attack from an erroneous decision.”

632.        In its evaluation of whether these criteria had been met in this specific case, the commission considered the following elements. Firstly, the boys were aged between 9 and 11 years, and were therefore small in stature in comparison to the size of an average adult. Secondly, there were no IDF soldiers in the area, as the ground operations had not commenced, nor were there any other persons in imminent danger, thus calling into question the urgency of launching the strike. From the information available, it would appear that the IDF could have more exhaustively verified whether those being targeted were taking a direct part in the hostilities or were members of armed groups with a continuous combat function. Thirdly, the compound was located in the centre of a city of almost 550,000 residents, between a public beach and an area regularly used by fishermen, and was visible from nearby hotels, where international journalists were staying. It could therefore not be ruled out that civilians, including children, might be present. These factual elements suggest that by assuming that the individuals were members of armed groups merely on the basis of their presence in a particular location, the IDF reversed the presumption of civilian status. In addition, the commission is concerned that the MAG appears to have validated this incorrect application of international humanitarian law.

633.        Concerning the investigation itself, the MAG explained that testimony was gathered from a large number of soldiers, and supplemented by video footage, media images and affidavits of 3 Palestinian witnesses. International journalists and other eyewitnesses, including Palestinians, do not appear to have been questioned, despite many persons having witnessed the incident. This raises questions about the thoroughness of the investigation.

 

Amir-Schiby-Bakr-Boys-CF

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UN Commission Finds Possible War Crimes – Next Step ICC

Rumor has it that the United Nations Human Rights Council (HRC) will have an opportunity to vote tomorrow (July 3, 2015) on a Resolution supporting the Report of the Independent Commission of Inquiry on the 2014 Gaza Conflict. The United States is an HRC member, and I’m making calls to the White House and State Department today urging our support. The Administration has already signaled its opinion that nothing further should be done with the UN report.

One year following the brutal 2014 Operation Protective Edge, and people in Gaza are still waiting for reconstruction to begin, for some healing, if possible. They certainly don’t want to be forgotten.

Palestinian child's drawing in Gaza

Palestinian child’s drawing in Gaza

The U.N. Report generated considerable criticism, although most readers only look for facts to support their predetermined ideas or bias, with objectivity in short supply. Instead, we find confirmation bias operating like a software program quietly beneath the surface, behind our active thought processes, so we don’t even recognize it’s there.

“What is my bias?” I ask myself.

I must have been wearing my super-duper law professor goggles when I read the U.N. Report because I kept thinking “this would make a wonderful syllabus for a law school class focused on international humanitarian and human rights law.”  The summary of the applicable laws, the presentation of the facts, the description of the “reasonable person standard” and how the law is applied to the facts —- it was all there.

A reasonable and ordinarily prudent person would have reason to believe that such an incident or pattern of conduct had occurred. (A lower standard than is required in criminal trials.) (para. 19)

With methodological detail, the Commissioners even “schooled” Israel’s Military Advocate General on using proper investigative techniques (para. 630-633) and corrected the drafter of the IDF Code of Ethics that the new term “enemy civilian” does not exist in international law.

“One of the most elementary principles of international humanitarian law is the obligation to distinguish between combatants and civilians; however it never establishes different categories of civilians. The commission reiterates that a civilian is a civilian regardless of nationality, race or the place where he or she lives.” (para. 395)

Commissioners Davis and Diene, each highly qualified for the difficult task assigned to them, stuck to the facts without hyperbole or exaggeration.

Mary McGowan Davis (USA) and Doudou Diene (Senegal)

Mary McGowan Davis (USA) and Doudou Diene (Senegal)

Many advocates on both sides (Israel & Palestine) were not pleased with the UN Report, as I posted earlier.  Perhaps they were expecting something different or didn’t understand the role and responsibilities of this Commission. Davis and Diene were not appointed to be judge and jury, and were certainly not going to render a verdict or deliver justice. They were appointed as an investigative team to ferret out the facts, and to ensure that the voices of all victims were heard. (para.6) 

Although Israel denied them access to Gaza, and refused to cooperate with the investigation, the Commission conducted more than 280 confidential interviews on both sides, reviewed more than 500 written submissions, including satellite imagery, expert weapons analyses, video file & photos. (para. 14)

What follows are some snippets from the U.N. Report that I wish had been highlighted in the mainstream media, but were not.

  • The Commission found that Israel has “effective control” over Gaza. (para. 30) Despite Israel’s assertions that it evacuated Gaza in 2005, and thus the Gaza Strip is no longer occupied territory, the Commission disagreed.
  • Israel claims that the international human rights (IHR) laws and international humanitarian laws (laws of war) are mutually exclusive and so the IHR do not apply to Gaza, but the Commission didn’t buy that notion for a second. (para. 39-40)
  • In a breath of fresh air, the Commission noted that the International Court of Justice (ICJ) has observed that the “existence of a ‘Palestinian people’ is no longer in issue.  The right of self-determination is part of the ‘legitimate rights’ of the Palestinian people.” (para. 42)
  • Some commentators have criticised the U.N. Report for not establishing the proper “context” and for equating the State of Israel with its nemesis and archrival Hamas. The Commission, however, placed the hostilities in the context of the prolonged occupation, an increasing number of rocket attacks on Israel and no “political prospects for reaching a solution to the conflict that would achieve peace and security for Palestinians and Israelis and realize the right to self-determination of the Palestinian people.” The Commission also noted Israel’s blockade since 2007 is strangling the people in Gaza (para. 53-54) and that the impact of the 2014 war cannot be assessed separately from the blockade. (para. 598). The Commission asserted that the Gaza Reconstruction Mechanism established in September 2014 is not a substitute for lifting the blockade. (para. 599).
  • Some commentators have objected to the Report’s perceived “balance” and “evenhandedness” as if both sides experienced equal levels of trauma and loss, and both sides were equally to blame. The facts are duly catalogued and speak for themselves — the number of casualties on either side, the number of buildings and neighborhoods destroyed, the numbers of whole families killed, and the types of weapons used by the IDF and militants — and no one can set this Report down believing there was any equivalency between Israel and Gaza in Operation Protective Edge. (paras. 59 – 215) More than 1,500 Palestinian children were orphaned. (para. 594). Almost 800 women were widowed last summer. (para. 596). 18,000 homes were destroyed, and an estimated 80,000 homes and properties need to be rehabilitated. (para. 576) One hospital and 5 clinics were destroyed in Gaza. Fifteen hospitals and 51 clinics were damaged. (para. 591). 209 schools in Gaza were damaged or destroyed, 3 universities were directly hit by Israeli strikes, while eight sustained collateral damage, 274 kindergartens were damaged and 11 were destroyed. (para. 585)  During the hostilities, approximately 1/2 million Palestinians were displaced (28% of the population in Gaza) (para.577) and more than 300,000 Palestinians took shelter in 85 UNRWA schools thinking they were safe havens, only to find that Israel attacked these shelters 7 times, killing between 44 and 47 people, including 14 children and 4 women. (para. 421) 63 water facilities were damaged and 23 were completely destroyed. 60% of the sewage treatment plants, along with 27% of the pumping stations were destroyed. (para. 584) Contrary to one critical headline, the UN Report was not attempting to hide massive Israeli war crimes behind ‘balance’ smokescreen.
  • Regarding the notorious tunnels between Gaza and Israel that Americans heard so much about on TV last summer, the Commission said it doesn’t know what the purpose of the tunnels might have been but noted that during the time period under investigation, they were only used to attack military targets. (para. 108) The IDF uncovered 32 tunnels. (para.562)
  • The IDF launched more than 6,000 airstrikes on Gaza, 142 families had 3 or more family members killed in the same incident because of the destruction of residential buildings. (para. 111) The testimony of many families was provided in their own words. (para. 117). “A significant % of civilians in Gaza killed during the conflict died inside their home as a direct result of air-strikes or artillery shelling of their neighborhoods, making attacks on houses a key feature of the conflict. These strikes may have constituted military tactics reflective of a broader policy, approved at least tacitly by decisionmakers at the highest levels of the Government of Israel.” (para. 243)
  • Israel demolished several neighborhoods in the Gaza Strip beginning with Beit Hanoun on July 18-19 and  Shuja’iya on July 19-20. (para. 251 – 299) and Khuza’a from July 20 – August 1. (para. 300  et seq) The Commission concluded that razing entire areas in Khuza’a indicates that the IDF carried out destruction that were not required by military necessity, and was carried out unlawfully and wantonly, possibly a war crime. (para. 340)  “The vast scale of destruction may have been adopted as tactics of war.” (para.418)

In Shuja’iya, at about 3.30 p.m., Salem Shamaly, a local resident who had joined a group of international volunteers while searching for his missing cousin, was killed. As the volunteers were crossing a small alley, they heard a shot. The group immediately divided into two and took cover at opposite ends of the alley. Shortly afterwards, Salem Shamaly moved out of the area where he was taking cover and was shot. As he lay injured on the ground, he was shot twice again and killed. This incident was recorded on video. (para. 280)

  • Netanyahu has made Israel’s case for the morality of the Gaza campaign, but “morality” flew the coop when the IDF refused to allow Red Cross ambulances access to help victims, or in the case when the ambulance was permitted to enter but not allowed to leave and so rescue workers had to carry the injured victims out on their shoulders. (para. 332)  The IDF was clearly targeting ambulances (para. 459) and eyewitness testimony described the death of one ambulance driver. (para. 458)  In Khuza’a, a family was forced to leave Ghalia Abu Reda, a 70-year-old woman in a wheelchair, behind as they fled their home. Before shooting her in the head at close range, an IDF soldier posted a photo on Twitter showing the soldiers offering this old woman water. Family members later saw her picture on Twitter. (para. 333)
  • The IDF said that 5000 tons of munitions were supplied last summer.(para. 408) The Commission shared its concern about the explosive power of the weapons and the amount of ordnance used, and noted that it represented a 533% increase over the ordnance used during Operation Cast Lead in (2008-2009) on Gaza. (para. 409). At least 7,000 explosives wait to be recovered in Gaza. (para.575)
  • The U.N. Commission also examined events in the West Bank last summer, noting the murder of 3 Israeli teens (para.503) and the vicious murder of the Palestinian teen, Mohammad Abu Khdeir, (para.505). Israel’s Operation Brother’s Keeper included mass arrests, (para. 509) administrative detentions doubled last summer, (para. 513) approximately 1,400 houses were raided, (para. 519), punitive home demolitions (para.526) and there were serious restrictions on movement. (para.524). Between June 12 and August 26, 2014 — 27 Palestinians were killed in the West Bank, including 5 kids, with over 3,100 injured. (para.533)  A well-known civil society activist was killed by a sniper in the Hebron area with IDF snipers stationed on rooftops. (para.536)

RECOMMENDATIONS:

The take-away message — accountability is the key.

The track record for holding anyone accountable is dismal. Following Operation Cast Lead (2008-09), 52 investigations were opened, 3 were prosecuted, resulting in 4 convictions, not against the most serious violations. Operation Pillar of Defense (Nov. 2012) did not result in any criminal investigations. (para.650) 

A year following Operation Protective Edge, the only indictment has been for a relatively minor offense of theft while Israel has closed its criminal investigation into killing the 4 Bakr boys on the Gaza beach. (para.633)

Left to its own devices, Israel hasn’t shown itself capable of conducting credible investigations in the past, and prefers to obfuscate, discredit the U.N., find generals from other countries to bless its conduct of Operation Protective Edge, and weave its Orwellian tale about “enemy civilians” and being the “most moral army in the world.”

The Commission is concerned that impunity prevails across the board for violations of international humanitarian and human rights law allegedly committed by the IDF, whether it be in the context of active hostilities in Gaza, or the killings, torture and ill-treatment of Palestinians in the West Bank. (para.644)

Among the recommendations that jump out at me:

  • The U.N. Commission asks “both sides to refrain from making statements that dehumanize the other side, incite hatred and only serve to perpetuate a culture of violence.” (para.678)
  • Israel should implement the Turkel recommendations, an initiative of the State of Israel two years ago following the Mavi Marmara killings. I want to learn more about the Turkel recommendations. (para.662)
  • The State of Palestine acceded to the Rome Statute January 1, 2015 which gives the International Criminal Court (ICC) jurisdiction to investigate and prosecute potential war crimes. Palestine also acceded to 7 of 9 core human rights treaties and one substantive protocol. The State of Israel has not acceded to the Rome Statute — it should. (para. 658, 659, 660, 681) Although Israel’s position is that its own internal investigation precludes an ICC investigation, I don’t agree. (para.661) The subject of another blog post.

Rumor has it that the next stop in securing justice for the victims is the ICC. The U.N. Commission’s Report will undoubtedly be an important part of the ICC’s deliberations.

Dahlia Scheindlin’s and Natasha Roth’s commentary “The oddity of finding hope while investigating war crimes” (July 1, 2015) is one of the best I’ve read about the U.N. Report. In it, Commissioner Diène summed up the investigation: “We have heard testimonies from people who have lost relatives, yet have expressed a very deep feeling for the suffering of the other side.” He went on: “The father of Mohammed Abu Khdeir told me that many Israelis came to his house to express their solidarity [after the murder of his son]. …On the other side, the [Israeli] mother of a 4-year-old child that was killed [by a Palestinian rocket] expressed very emotionally her deep thoughts for mothers on the Palestinian side. There was a human side to this war that was not really perceived by the outside world.”

…And that is what international human rights law and

humanitarian law is all about … the people!

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Filed under Gaza, Israel, Israel Defense Forces, Occupation, People, Politics, United Nations, Video

The U.N. Report on 2014 Gaza War – What do you see?

We see what we want to see.

(Those 7 small words explain everything.)

Whether it’s the Pope’s Encyclical on Care for Our Common Home, or the U.S. Supreme Court’s decision about Same-Sex Marriage, or the Report of the Independent Commission of Inquiry on the 2014 Gaza Conflict, we read them with our own biases and expectations, finding exactly what we thought we would find in each.

The psychologists call it confirmation bias.

Confirmation bias is a phenomenon wherein decision makers have been shown to actively seek out and assign more weight to evidence that confirms their hypothesis, and ignore or underweigh evidence that could disconfirm their hypothesis.

Pope Francis is either meddling in politics, or he’s the best thing since sliced bread. Justice Kennedy and four of his breathren on the bench who ruled that same-sex couples have the right to marry, have either dealt a blow to our Constitution or they’ve advanced liberty and equality in our country.

And how was the U.N. Independent Commission’s Report received?

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If people read all 217 pages (I did), they will find alot of substance (summarized in a follow-up blog post). However, the swift reactions to the report were nearly as telling as the evidence gathered by the U.N. Commission. There were those who condemned it, others praised it, and a few wished to ignore it. But everyone found what they were looking for.

  • Israeli officials tried to preempt the U.N. Commission’s Report by releasing their own report a few days earlier. “Israel predicts the new report from the United Nations will be a hatchet job. Prime Minister Benjamin Netanyahu said Sunday that anyone who wants to read ‘the truth’ should download the Israeli report. ‘Whoever wants to automatically — and without foundation — blame Israel, let them waste their time with the U.N. Human Rights Council report,’ he said.” Netanyahu probably didn’t appreciate the irony in his words — automatically jumping to conclusions, as he was, without seeing the U.N. Report. (Israel says war in Gaza was moral and deaths are the fault of Hamas, Washington Post, June 14, 2015, William Booth).
  • When the U.N. Report was released, Israeli officials appeared “particularly stung by its lumping together of the Israeli army with its arch enemy, Hamas.” … “Any fair inquiry into armed conflict must always draw a distinction between the aggressor and the side asserting its right to self-defense,” Dore Gold, director general of Israel’s Foreign Ministry, said in an interview. “The fact that the United Nations report fails to distinguish between Israel and Hamas is one of its most central flaws.” (U.N. report on Gaza: Israel, Hamas may both have committed war crimes, The Washington Post, June 22, 2015, William Booth and Ruth Eglash)
  • The Washington Post summarized the “United Nations’ rather even-handed approach,” including links to other reports and opinions, but ended with a cautionary note that the U.N. Report would likely be added to the “growing case file at the International Criminal Court” which could place Israeli leaders alongside heinous fugitive war criminals such as Uganda guerrilla Joseph Kony, further deepening Israel’s growing international isolation. (The U.N. report on Israel’s Gaza War: What you need to know, Washington Post, June 22, 2015, Ishaan Tharoor)
  • What was the official U.S. government position?  Predictably, we echoed our good friend, Israel, and concluded the U.N. Report was biased from the start. Asked during a press conference if the State Department is reading the report, John Kirby, the State Dept. spokesperson responded: “Certainly we’re reading it. But as I also said yesterday, we challenge the very mechanism which created it. And so we’re not going to have a readout of this. We’re not going to have a rebuttal to it. We’re certainly going to read it, as we read all UN reports. But we challenge the very foundation upon which this report was written, and we don’t believe that there’s a call or a need for any further Security Council work on this.” (John Kirby, Spokesperson, Daily Press Briefing, Washington, DC, June 23, 2015)
  • An opinion piece in The Guardian castigated the U.N. Commission’s Report for failure to establish the context of the conflict. Naturally, the context the author wanted to see was his own version of history. (The U.N. is preserving the Israeli occupation, The Guardian, June 26, 2015, Ari Shavit opinion)
  • The New York Times published an opinion piece by a retired British Army colonel who warned that the U.N. Report is “flawed and dangerous” and will “provoke further violence and loss of life.” (The U.N.’s Gaza Report is Flawed and Dangerous, The New York Times, June 25, 2015, Richard Kemp opinion). The author had earlier testified before the U.N. Independent Commission of Inquiry. Just to be even-handed, let’s see if The New York Times publishes an opinion piece by the parents of the four Bakr boys killed on the beach in Gaza.

Boys at beach

  • Norman Finkelstein, a controversial scholar and critic of the Israeli occupation, also found much to criticise in the U.N. Report. In an online Q&A, Finkelstein wrote: “A huge gap existed between the descriptions compiled in the report and the concomitant legal analysis in each section. The descriptions were graphic and compelling, but the legal analysis seemed to minimize Israel’s accountability. The reader senses that the person writing the legal analysis (probably [Judge Mary McGowan] Davis) was straining to be “fair,” to the point that it became unserious.” (UN report on Gaza war is ‘tepid,’ ‘unserious,’ and exhibits ‘anti-Muslim bigotry’. Mondoweiss, June 27, 2015)
  • The New York Times Editorial Board concluded that “It’s unrealistic to expect Hamas to follow international law but Israel has a duty, and should have a desire, to adjust its military policies to avoid civilian casualties and hold those who failed to do so accountable.” (War Crimes and the Gaza War, The New York Times, June 23, 2015, The Editorial Board)

In the report released on Monday by the UN commission of inquiry on the 2014 Gaza war, one passage stands out. “Palestinian and Israeli children were savagely affected by the events. Children on both sides suffered from bed-wetting, shaking at night, clinging to parents, nightmares and increased levels of aggressiveness.” Those words are a reminder that, in all the positioning and spinning that follows a report of this kind, the heart of the matter is the human cost, usually paid by the most vulnerable.

The death toll of last summer’s violence was lopsided – with more than 2,200 Palestinians and 73 Israelis killed – but the UN report strains to understand the Israeli as well as Palestinian narrative behind those numbers.

Both sides like to claim the moral advantage, even while locked in a vicious conflict. If they really believe that, then they must bring those accused of grave crimes to justice.

Some found the U.N. Report provocative, inciteful or perhaps insightful, destructive, courageous, newsworthy, or a waste of time —- but each found the truth he/she was looking for.

A summary of the U.N. Report and “my” conclusions

follow in the next blog post.

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Filed under Gaza, Hamas, Israel, Israel Defense Forces, Media, People, United Nations