The situation in Gaza should be referred to the International Criminal Court (ICC), Amnesty International said today (9 March), as it called on the Human Rights Council to pass a resolution that would pave the way for the UN Security Council to make such a referral.

The UN Security Council’s swift action to refer the situation in Libya to the ICC Prosecutor contrasts markedly with its unwillingness so far to address the situation of the Gaza conflict, said Amnesty.

Amnesty International this week handed over a petition to Sihasak Phuangketkeow, President of the UN Human Rights Council, calling on the Council to take this crucial step later this month to ensure international justice for victims of the 2008-2009 conflict in Gaza and southern Israel.

Amnesty International UK Campaign Manager Kristyan Benedict said:

“The victims of the Gaza conflict have been demanding justice for over two years. Those demands have been totally ignored by the Israeli and Hamas authorities. Neither has seriously investigated credible allegations of war crimes.

“It’s now time for the international community to step in and insist on justice and accountability.

“Victims of the conflict must not be ignored any more. The member states of the UN Human Rights Council have a clear opportunity to do the right thing and ensure the situation in Gaza ends up at the ICC.”

On 21 March, the Human Rights Council will consider the second report of a Committee of Independent Experts which it mandated to assess the Israeli and Palestinian investigations into serious violations of international law committed by Israeli forces and Palestinian armed groups during the 22-day conflict. The UN Fact-Finding Mission on the Gaza Conflict, headed by Justice Richard Goldstone, found in September 2009 that the violations committed by both sides included war crimes and possibly crimes against humanity. It recommended that the Israeli authorities and the relevant authorities in the Gaza Strip be required to investigate serious violations of international humanitarian and human rights law reported by the Mission. If the authorities failed to conduct independent investigations meeting international standards within six months, the Mission recommended that the UN Security Council refer the issue to the International Criminal Court.

The previous report of the Committee of Independent Experts, issued in September 2010, concurred with Amnesty International’s continuing assessment that the investigations conducted by both the Israeli authorities and the Hamas de facto administration have failed to meet the required international standards of independence, impartiality, thoroughness, effectiveness and promptness. Failing to take account of the victims’ right to justice, the Human Rights Council merely voted to renew the Committee’s mandate for another six months and requested it to report again at the Council’s 16th session, which began on 28 February 2011.

Both Israeli and Hamas authorities have been given adequate time and opportunity to ensure justice for the victims, yet they are both failing to do so. An international justice solution must now be found. Amnesty International is therefore urging the Human Rights Council to adopt a resolution at its 16th session that:

- condemns the failure of the Israeli authorities and Hamas de facto administration to conduct credible, independent investigations or prosecute perpetrators of violations;
- refers the September 2010 report and the upcoming report of the Committee of Independent Experts to the UN General Assembly, and urges the General Assembly to call on the UN Security Council to refer the situation in Gaza to the ICC;
-notes that the ICC Prosecutor has yet to request a determination from the Pre-Trial Chamber on whether the ICC has jurisdiction to investigate war crimes committed during the Gaza conflict, pursuant to a declaration accepting ICC jurisdiction submitted by the Palestinian Authority in January 2009, and requests him to do so urgently; and
- calls on states to fulfil their duty to investigate and prosecute crimes committed during the conflict before their national courts by exercising universal jurisdiction.

The consistent application of international legal standards and the application of international justice mechanisms, in all situations where war crimes have been committed and the domestic authorities are unable or unwilling to act, is important for the credibility of the UN Human Rights Council, General Assembly and Security Council.

Background
Operation “Cast Lead”, Israel’s 22-day military offensive on the Gaza Strip which ended on 18 January 2009, killed 1,400 Palestinians, a majority of whom were civilians, injured thousands and left thousands more homeless. Hamas’ military wing and other Palestinian armed groups fired rockets and mortars into southern Israel indiscriminately, killing three Israeli civilians. Ten Israeli soldiers were also killed during the conflict.

Israel’s investigations into specific incidents have been conducted by the Israeli military, and the Israeli authorities have shown no indication of bringing high-level military or civilian officials to account for the policy decisions which led to serious violations of international law during the conflict. Incidents that the Israeli military has failed to investigate or where investigations have been closed without leading to prosecutions include attacks against civilians with precision weaponry; attacks on civilian property and infrastructure and UN facilities; attacks on medical facilities and personnel; and the indiscriminate use of white phosphorus. Although four Israeli soldiers have been prosecuted on criminal charges in three incidents, thus far only one Israeli soldier has been sentenced to prison in connection with the conflict after being convicted of credit card theft.

The Hamas de facto administration has failed to undertake credible investigations into violations committed by Palestinian armed groups, and has shown no intention of prosecuting those responsible for violations and war crimes, including the firing of indiscriminate rockets into Israel.

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