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International legal order put to the test as mass killings of civilians in the Gaza Strip persist

Submitted by on 02/01/2009 – 12:36 amOne Comment

Not a word is spared (sadly not always by the right actors) at these very moments as the Gaza Strip, maintained under siege with an intense humanitarian crisis, is incurring unremitting air strikes from the Israeli occupation forces. At these very moments, Israel’s air force releases additional missiles on houses in heavily populated residential areas in the Gaza Strip. It is the sixth day of Israel’s large scale military operation on the Strip under the name of “Cast Lead” and more than 428 have been reported dead and 2,100 injured in the Gaza Strip. The  graphic images speak for themselves (see also The Guardian’s report here).

The underlying question is what is the international legal order to do at the face of this familiar challenge to its validity? One would think that the international legal system has known of a sufficient number of historical precedents for which it has come to develop a solid set of legal enforcement mechanisms at its dispense? Here at these very moments, once again, the international legal order is put to the test whilst at its mercy sit hundreds of thousands of Palestinians residents of the Gaza Strip.

On 31 December 2008, UN Secretary General submitted a statement to the Security Council during the emergency meeting convened by Libya noting as follows:

“I am profoundly troubled that the call of this Council, issued nearly four days ago, for an end to the violence has gone unheeded. I wish to underline in the strongest possible terms the world’s call for an immediate ceasefire that is fully respected by all parties. This must be achieved now. The parties must step back from the brink. All this violence must end. As a result of the crisis and violence, conditions for 1.5 million people in Gaza today are nothing short of terrifying.”

The UNRWA headquarters in Gaza issued an appeal to the international community to afford aid that would allow the agency to provide essential health supplies, food, cash assistance, materials for housing repair and fuel.

The United Kingdom has openly expressed its condemnation with the atrocities taking place in the Gaza Strip. Gordon Brown held that the situation in the Gaza Strip is a “humanitarian crisis” and called for an immediate ceasefire. The most proactive reaction has come from the British business sector with British telecommunications firm FreedomCall that has in recent days announced the termination of its cooperation with Israel’s MobileMax due to the operation in Gaza. Apart from these solemn appeals from one country, a great part of the western world is maintaining a silent gaze.

Nevertheless, in this very light, the EU continues the preparations to upgrade its existing relations with Israel in order to give it even more privileged access to European institutions. Despite the EU’s recent ‘Statement on the Situation in the Middle East’, there has yet to be an official statement bringing the process to a halt until further notice, or better yet, in accordance with the EU’s legal obligations under both its own human rights mandate as well as the member states’ obligations under international law, a suspension of its relations with Israel are ordered demanding the cessation of Israel’s grave violations of international law as a Belligerent occupant of the Palestinian territories.

The air strikes generate the gravest of all violations of international humanitarian law. Professor Richard Falk, UN Special Rapporteur on the Palestinian territories occupied since 1967 notes that these violations include collective punishment in some of the most densely populated areas in the region; they violate the most fundamental principle of IHL, that of distinction between combatants and civilians; and the indiscriminate nature of these attacks, as well as the objective to pursue a vulgar display of force in a severely disproportionate manner violates the rules of law enshrined in the Geneva Conventions to which Israel is a party. Various actors have called upon the international community, namely the High Contracting Parties to the Geneva Convention, to immediately intervene to stop such crimes, and stand up to their obligation “to ensure respect” under article 1 common to the Conventions, and article 146 to search for and prosecute those who are responsible for perpetrating grave breaches of the Convention, as such breaches constitute “grave violations” according to article 147 to the Additional Protocol I, and some even “war crimes” under article 8 of the Rome Statute of the ICC.

It cannot be emphasized enough that only recently the Winograd Commission, established in the shadow of the military operations in Lebanon during the war in 2006, upheld that it condemns heavily the indiscriminate targeting of non-military objectives during these attacks admitting to the Israeli military’s many failures during those operations. HRW’s detailed accounts highlight the parallels in the incursions on the Gaza Strip with the targeting of civilians in Israel’s war with Lebanon in 2006 in some of the bombings so far. Other actors receiving information from fieldworkers on the ground note other instances where precautions were not taken either at the intelligence level or even by the commander ordering the attack, in a case shown in official footage from the Israeli air force a truck was bombed containing oxygen tanks and not rockets.

The establishment of an International Criminal Tribunal for Israel (ICTI) is certainly the means that would achieve the enforcement of international law in the region, serving not only for reconciliation but further a tool for transitional justice and reconstruction and notably a deterrent for Israeli leaders and top generals who continue to commit war crimes against the Palestinians, inter alia. Boyle notes, “The United Nations General Assembly must immediately establish an International Criminal Tribunal for Israel (ICTI) as a “subsidiary organ” under U.N. Charter Article 22. The ICTI would be organized along the lines of the International Criminal Tribunal for Yugoslavia (ICTY), which was established by the Security Council”, he notes. Clearly, the power of a UNGA resolution is not to be compared with that of the UNSC, but  since the United States maintains a deadlock on the latter there is no solution in sight.

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General Romeo Dallaire, who was sent on a UN peacekeeping mission to Rwanda in 1993 to witness a genocide, wrote the following, as he described the impotence that haunts him to day, “I know there is a God because in Rwanda I shook hands with the devil… I will never stop mourning for all those Rwandans who placed their faith in us.”

It is to be seen whether this will remain to be another UN failure or whether the international community will stand up to its obligations under international law and  the most basic pillar of the mandate of the UN Charter by taking all the necessary measures to bring to a halt the ongoing mass killings of civilians.

Last 5 posts by Valentina Azarov