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Statement on Gaza to the Human Rights Council

Richard Falk, TFF Associate


March 23, 2009




1. This statement supplements the report, dated 18 February 2009, prepared in response to the request contained in HRC Resolution S-9 for an assessment of the international law issues presented by the Israeli military operations in Gaza covering the period 27 December 2008-18 January 2009. It will not repeat the findings contained in that earlier report except to highlight certain conclusions that bear directly on the overall situation of the Palestinian Occupied Territories as perceived from the perspective of fundamental human rights. The following bullet statement of findings is as follows:
• confirmed figures compiled by the respected human rights organization in Gaza, Palestinian Centre for Human Rights indicate that the following Palestinian casualties resulted from the 22 day military assault: 1,434 dead, including 960 civilians (288 children, 121 women), 239 police officers, and 235 militants or fighters. The Palestinian Ministry of Health has confirmed that 5,303 Palestinians were wounded, including 1,606 children and 828 women.[See Press Release, PCHR, 12 March 2009] The ratio of civilian casualties to military casualties strongly suggests a failure on the part of Israel to respect the fundamental legal obligation to conduct military operations permitting the distinction between military and civilian targets. To the extent that the combat zone was so densely populated by civilians, 53% of Gaza’s population being children, it meant that there was no lawful way to carry out the Israeli military operations with the types of weaponry relied upon. During the combat period there were 13 Israeli deaths, 200 wounded, both by rockets fired across the border into Israeli territory and by resistance efforts inside Gaza. Only three deaths resulted from rocket fire, which was also unlawful as inherently indiscriminate, but again the ratio of Israeli military to civilian casualties is 4:1 military personnel as victims, and the overall ration of deaths 1,434:13 is suggestive of the one-sidedness of the military encounter, and the basis for challenging the legality of initiating a military assault with modern weaponry against an essentially defenseless society;
• this indictment of Israeli tactics is strongly reinforced by a feature of the military operations that is unique in contemporary warfare: namely, coercively confining the Gazan civilian population to the combat zone during the Israeli military operations effectively denied the Palestinians in Gaza a refugee option; it is notable that those living in Gaza with foreign passports were given the possibility of leaving the Gaza Strip, suggesting an anti-Palestine, anti-Arab vindictiveness; such a war policy should be treated as a distinct and new Crime Against Humanity, and should be formally recognized as such, and explicitly prohibited;
• this allegation of vindictiveness is reinforced by the widespread eyewitness reports of racist graffiti written on the walls of private dwelling places in Gaza, as well as such hostile acts as urinating and defecating in homes with functioning bathrooms. In the Zeytoun district of Gaza where 27 members of the Samouni family were killed in their houses  Israeli soldiers left behind typical messages with a hateful content directed at the Palestinian people, not their military adversary, including the following: “Die you all,” “Make war not peace,” “Arabs need to die,” “There will be a day when we kill all the Arabs,” “A good Arab is an Arab in the grave,” “peace now, between Jews and Jews, not Jews and Arabs.” [For a strategic formulation of the political roots of such hate speech see the writings of Arnon Soffer, an academic geographer, who was influential advisor to Ariel Sharon, “ Ruthie Blum, ”It’s the Demography, Stupid,” Jerusalem Post, 21 May 2004.] As the noted Israeli journalist, Amira Hass has written in Haaretz: “Not all the soldiers wrote graffiti, but the comrades and commanders of those who did neither stopped them nor erased what they had scrawled…They felt free to write what they did because they—like the pilots and operators of the missile-bearing drones—knew they had received from their government and commanders a free hand to attack a civilian population...What they wrote on the walls reflects their understanding of the spirit of their mission.” [Haaretz, 17 March 2009]

• the unlawful blockade of Gaza, which had been in place for 18 months prior to the 27 December attacks has been continued in the period since a ceasefire was separately declared by the two antagonistic parties, and constitutes a continuing collective punishment of the entire population of Gaza that directly contravenes Article 33 of Geneva IV; the insistence by Israeli officials, including the Prime Minister, that the blockade will be maintained until a captured Israeli soldier, Gilad Shalit, is returned is not legally relevant, and is an inappropriate bargaining tactic; to continue the blockade, given the weakened physical and mental health of the Gazan population, appears also to be grounds for alleging a grave breach of international humanitarian law that should entail criminal accountability for those responsible for establishing and continuing the blockade;
• the delivery of humanitarian aid to the people of Gaza, who are experiencing life threatening and health deteriorating conditions continues to be hampered by the blockade, but also by the refusal of donor countries and Israel to deal with the actual administrative realities that currently exist in Gaza;
• it is notable that there have been numerous calls for organs of the United Nations to confirm or refute war crimes allegations arising from the Israeli military operations in Gaza, and that the Chief Prosecutor of the International Criminal Court has been actively considering whether he has the legal authority to carry out an investigation pursuant to a Declaration formally submitted on 21 January 2009 by the Palestinian National Authority (PNA), using the following language: “Declaration recognizing the Jurisdiction of the International Criminal Court==In conformity with Article 12, paragraph 3 of the Statute of the International Criminal Court (ICC), the Government of Palestine hereby recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.” The Office of the Prosecutor has made a press statement reporting that since 27 December 2008 it had received 213 communications on the situation in the Palestinian Territories submitted by individuals and NGOs as authorized by Article 15 of the Rome Treaty, as well as the Declaration from the PNA, specifically saying that “The Office will carefully examine all relevant issues related to the jurisdiction of the Court, including whether the declaration by the PNA accepting the exercise of jurisdiction by the ICC meets statutory requirements..” A letter distributed by Amnesty International has been sent on 16 March 2009 to the UN Secretary General calling for a “prompt, independent and impartial” investigation of war crimes associated with the Israeli military operation in Gaza, but including allegations of unlawful conduct on the part of Hamas. The letter says that the 16 signatories, including former chief prosecutor for the international criminal tribunals for former Yugoslavia and Rwanda, Richard Goldstone, and Nobel laureate Archbishop Desmond Tutu, declared that they were “shocked to the core” by the events in Gaza. They insisted that “the world must vigilantly demand respect for these standards [in the Geneva Conventions] and investigate and condemn their violations.” In calling upon the UN to establish a commission of inquiry, it also urged that the scope of inquiry not be limited to damage endured by the attacks on UN facilities. In addition, other respected human rights organizations, such as Human Rights Watch, have called on the European Union to initiate an investigation into specified war crimes allegations directed at both the government of Israel and Hamas.
• along these lines the government of Iran has asked Interpol to issue arrest warrants for the apprehension of 15 top Israeli political and military leaders, including Prime Minister Ehud Olmert, Foreign Minister Tzipi Livni, and Defense Minister Ehud Barak, who are charged with war crimes associated with the Gaza military operations. [Associated Press dispatch, 2 March 2009]. These charges resulted from a special judicial body established in Iran to investigate war crimes allegations. As yet, there has been no response from Interpol. Several additional governments have urged that steps be taken by the United Nations to investigate war crimes charges, and if confirmed to establish mechanisms to impose accountability; on a civil society level the Bertrand Russell Foundation in Brussels has announced its intention to proceed with a citizens tribunal that would pass symbolic judgment on the war crimes allegations;
• the public reaction to the Israeli military operations has led to a global reaction that has taken the form of an upsurge in civil initiatives that can be comprehended as part of a worldwide boycott and divestment campaign that has taken diverse forms; this development amounts to waging “a legitimacy war’ against Israel on the basis of its failure to treat the Palestinian people in accord with international human rights law and international humanitarian law. It has in part responded to a call for solidarity issued by the Palestinian Campaign for the Academic and Cultural Boycott of Israel.[the scope of this struggle is depicted in ; the range of American activities can be found in the report entitled “U.S. Campaign for the Academic & Cultural Boycott of Israel,”]



In assessing the unlawfulness or criminality of Israeli occupation policies and practices it is important to make greater use of the 1977 Additional Protocol I that relates in comprehensive detail to the protection of civilians in International Armed Conflicts. It seems clear that sustained Israeli military action in occupied Palestinian Territory is a species of international armed conflict. Article 1(4) of Protocol I extends coverage to “situations in which peoples are fighting against colonial domination and alien the exercise of their right of self-determination.”  Further, Protocol I is widely understood by international law specialists to be expressive of international customary law, and thus binding whether or not a party has formally adhered to the treaty instrument. The fact that Israel has not signed or ratified Protocol I is from this perspective legally irrelevant. Articles 48-60 specify in useful detail the overall legal obligation of international humanitarian law with respect to the civilian population in the event that force is used by the occupying power.



Although much attention has been properly devoted to the desperate situation confronting occupied Gaza, it is crucial to take note of prospective unlawful developments on the occupied West Bank and East Jerusalem that appear to have a serious, and perhaps, a decisive negative bearing on the prospects of achieving peace between the Palestinians and Israelis, and deliberately obstruct the exercise of the right of self-determination on the part of the Palestinian people:
• the respected Israeli NGO, Peace Now, has issued a report in March 2009 that details plans for extensive expansion of existing settlements including 73,302 housing units of which 5,722 are in East Jerusalem, and the rest in the West Bank. According to their assessment, 15,156 housing units have been approved, and approximately 8,950 have already been built. An additional 58,000 applications for approval are pending, but treated as in planning stage. On the basis of calculating 4 persons per house, this expansion plan would add as many as 300,000 to the settler population now estimated to be between 450,000 and 475,000.  It is also revealing that the maps showing the expansion indicate settlement construction on both sides of Israel’s security wall located on West Bank territory. The Peace Now report is based entirely on data published on the official Israeli government website based on information from Israel’s Ministry of Housing.[Report available in English and Arabic from Peace Now website] Such persistence in settlement activity is inconsistent with Article 49(6) of Geneva IV, as well as with pledges made by the Israel Government to the Quartet, and at the Annapolis meeting of December 2007. Despite these pledges, in 2008 the settler population (not including East Jerusalem) increased by 4.7% (three times faster than the Israeli population increase inside Israel), with the number of new structures in West Bank settlements increasing 69% beyond the settlement growth in 2007, disclosing a pattern of not only expansion, but accelerated expansion. The general consensus is that no Israeli government, even if so inclined, would be able to reverse this settlement process, and so it raised the fundamental question as to how possibly could a viable independent Palestinian sovereign state be established on the currently occupied Palestinian territories. This pessimism is deepened as a result of the outcome of the recent national elections in Israel. It appears that Benjamin Netanyahu will be the next prime minister of Israel, and he is on record as opposing the establishment of a Palestinian state and in favor of the ‘natural expansion’ of existing settlements;
• also of concern is a recorded record of increasing settler violence directed at the Palestinian population and their property in the West Bank. According to the Israeli human rights organization B’tselem there were 429 incidents of settler violence in 2008, which represents a 75% increase over 2007;
• there is also continuing concern about the use of excessive force by Israeli Occupying Forces in the West Bank, especially in response to non-violent demonstrations against the construction of the security wall. B’Tselem reports that 42 Palestinian residents of the West Bank were killed during 2008 by Israeli security forces, and that despite suspicious circumstances almost none of these incidents were investigated, and there were very few prosecutions for abuse, and almost no convictions. There were also more than 250 Israeli incursions into Palestinian communities on the West Bank, and some 653 Palestinians arrested. Such oppressive Israeli occupation policies occurred despite the virtual absence of any major incidents of Palestinian violent resistance recorded during 2008 in the West Bank. There have been some isolated occurrences of Palestinian violence against the Israeli security presence;
• there are a variety of concerns about the Palestinian future in East Jerusalem, and allegations that Israel is engaged in a subtle, but cumulatively very efficient, process of ‘ethnic cleansing’ to ensure Jewish demographic dominance of the whole of Jerusalem. A variety of practices have elicited Palestinian complaints, and seem validated by independent observers, including the near completion of the security wall cutting through East Jerusalem, and far inside Occupied Palestine if measured from the Green Line, the expansion of settlements, the demolition of Palestinian homes on the grounds of the absence of a building permit that is virtually impossible to obtain, discriminatory taxing provisions, reduced issuance of working permits, and stricter enforcement of residence requirements that separate families living partly in the West Bank. Particular concern, leading to protests and demonstrations, has been expressed in relation to the proposed demolition of 88 Palestinian homes in the Silwan neighborhood of East Jerusalem scheduled for later in 2009. The overall effect of these measures, as applied over a period of years, if not halted and reversed, will effectively isolate East Jerusalem from the West Bank, which understood together with steps aimed at the de-Palestinization of the city are what lend weight to allegations of ethnic cleansing, and should arouse the concern of the United Nations, and especially the HRC.


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