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January 14, 2009

Gaza Killings Trigger Call for War Crimes Probe

by Thalif Deen

With hundreds of civilians, mostly women and children, killed during nearly three weeks of fighting in Gaza, there is a growing demand either for an international tribunal or an international commission to investigate charges of war crimes committed by Israel.

But there are fears that any such move may be shot down by the United States, and possibly other Western nations, which continue to politically temper their criticism of Israel despite violations of all the known international conventions protecting women, children, the wounded, and the dying in war zones.

"On an inter-governmental level, the war crimes process is essentially subject to geopolitical control, which means in practice that the criminal wrongdoing of the most powerful [the U.S. government] and its closest friends [Israel] get a free pass," Richard Falk, a professor of international law and a UN human rights expert, told IPS.

Despite widespread condemnation, this practice of "geopolitical impunity" is likely to shield Israel from formal scrutiny with respect to the alleged crimes of war and crimes against humanity associated with its military operations in Gaza since Dec. 27, he added.

Falk, who is the UN special rapporteur for human rights in the Occupied Palestinian Territories, was detained and expelled from an airport in Tel Aviv last month when he was on a UN-mandated assignment to probe human rights in the occupied territories.

As of Tuesday, the Palestinian death toll had risen to more than 900, mostly civilians, compared with over 10 Israelis, including those killed by Hamas' rocket fire.

The London-based Amnesty International has asked the Security Council "to take firm action to ensure full accountability for war crimes and other serious abuses of international human rights and humanitarian law."

The UN High Commissioner for Human Rights Navi Pillay told a special session of the Human Rights Council (HRC) in Geneva that accountability must be ensured for violations of international law.

"I remind this Council that violations of international humanitarian law may constitute war crimes for which individual criminal responsibility may be invoked," she said.

At the special session Monday, the HRC adopted a resolution calling for an "urgent independent international fact-finding mission" to investigate all violations of international human rights and humanitarian law by Israel.

Asked specifically about charges of "war crimes" in Gaza, Secretary-General Ban Ki-moon refused to express his view on the unbridled killings of civilians.

"That's something which the International Criminal Court [ICC] or other international organizations will have to determine," he told reporters Monday, on the eve of his week-long peace mission to the Middle East.

But the Paris-based International Federation for Human Rights (FIDH), which is calling for an international commission of investigation, points out that Israel has not ratified the statute of the ICC.

"Activating the ICC jurisdiction for these crimes implies for the UN Security Council to refer the situation to the ICC," in order for the ICC prosecutor to initiate an investigation, FIDH said in a letter to the 15-member UN body.

But any such Security Council action will most likely be vetoed by the United States, a long-standing ally of Israel.

Besides the ICC, which was established in 2003, there have been special criminal tribunals or special courts created to prosecute war crimes or genocide in the former Yugoslavia, Rwanda, Sierra Leone, Lebanon, Cambodia, and East Timor.

"There certainly should be a tribunal," Michael Ratner, president of the New York-based Center for Constitutional Rights, told IPS.

While it would look at war crimes committed by all parties, Hamas' actions pale in comparison to the murders committed by Israel, he said.

"The continued impunity of Israel for crimes it has committed encourages it in perpetrating gross violations of humanitarian law," said Ratner, who is also adjunct professor law at Columbia University.

"A tribunal is essential, [but] the United States will likely veto such a Security Counsel resolution. By doing so, it is enabling and condoning war crimes," he warned.

Stephen Zunes, professor of politics and international studies at the University of San Francisco, said: "A strong case can be made for an investigation into war crimes committed by Israeli armed forces."

Since the Gaza Strip is legally a non-self-governing territory, the United Nations has a particular responsibility to ensure that those guilty of war crimes are prosecuted, he added.

"Such prosecution, however, would be more appropriate if pursued through the International Criminal Court, which did not exist at the time special tribunals were set up for Yugoslavia, Cambodia, and Rwanda," Zunes told IPS.

By pursuing cases through the ICC rather than a special tribunal, it would lessen the likelihood of charges that the United Nations was once again unfairly singling out Israel for violations of international humanitarian law, he added.

Falk said "the most that we can expect are fact-finding and investigative missions" established by the Human Rights Council in Geneva (as proposed in its Special Session) and by the General Assembly (as an outcome of an upcoming Ninth Special Session).

"I think these symbolic steps are important, and they will undoubtedly be opposed by the United States and Israel, and Israel will in all likelihood not allow such initiatives to enter Gaza," he said.

This will confirm concealment, a virtual admission of guilt, and will still enable authoritative reports and recommendations for a criminal accountability mechanism to be established, which the General Assembly has the authority to do under Article 22 of the UN Charter, Falk said.

There are some other possibilities for establishing legal responsibility and criminal accountability, especially well-organized civil society initiatives.

He pointed out that one model would be the tribunal process associated with the Iraq War, with sessions in some 20 countries, and a culminating Iraq War Tribunal held in Istanbul, Turkey, in June 2005.

"There exists the political climate to organize such a tribunal process for Gaza, and it will have worldwide resonance."

In the course of such a democratically conceived grassroots tribunal process, there would also be an opportunity to consider the implications of the U.S. role in providing vast military assistance and unconditional diplomatic support to Israel, as well as to consider the relative passivity of Europe, Arab neighbors, and others, he added.

(Inter Press Service)

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    Thalif Deen has been Inter Press Service's U.N. Bureau Chief since 1992. A
    former Information Officer at the U.N. Secretariat and a one-time member of
    the Sri Lanka delegation to the General Assembly sessions, he is currently
    editor of the Journal of the Group of 77, published in collaboration with
    IPS. A Fulbright-Hayes scholar, he holds a Master's degree in Journalism
    from Columbia University in New York.

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