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
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'
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
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)