An independent fact-finding committee calls for the prosecution of Israeli political leaders and members of the military

30 May 2009

An independent fact-finding committee (IFFC) established by the League of Arab States (LAS) to investigate and report on violations of human rights and international humanitarian law arising out of Israel’s offensive in Gaza from 27 December 2008 to 18 January 2009, code named Operation Cast Lead, has submitted a report to the LAS in which it finds that there is sufficient evidence to substantiate prosecutions of the Israel Defense Forces (IDF) for war crimes and crimes against humanity. The report also finds that the Israeli political leadership is responsible for such crimes.

The IFFC, comprising of Professor John Dugard (South Africa, Chairman), Professor Paul de Waart (the Netherlands) , Judge Finn Lynghjem (Norway), Advocate Gonzalo Boye (Chile / Germany), Professor Francisco Corte Real (Portugal) and Ms Raelene Sharp (Australia: Rapporteur), bases its findings on a visit to Gaza, during which it interviewed victims and witnesses of the conflict and visited sites of destruction, and on official publications of the Israeli government and NGO’s operating in the Territory. This evidence showed convincingly that the IDF had failed to distinguish between military and civilian targets in killing over 1,400 Palestinians (of which at least 850 were civilians, including 300 children and 110 women) and wounding over 5,000, and in destroying over 3,000 homes, damaging a further 11,000 and destroying or damaging hospitals, mosques, schools, factories, businesses, UN properties and government buildings.

On the basis of these facts and information collected in Gaza the IFFC found that the IDF had committed four separate war crimes:

• Indiscriminate and disproportionate attacks on civilians;
• Killing, wounding and terrorizing civilians;
• Wanton destruction of property not justifiable on grounds of military necessity; and
• Attacks on hospitals and ambulances and obstruction of the evacuation of the wounded.

The IFFC also found that the IDF had committed crimes against humanity in that it had committed acts of murder, persecution and inhumane acts as part of a widespread and systematic attack on a civilian population.

The IFFC examined the firing of rockets by Palestinian militants from Gaza during the conflict, which had caused the death of four Israeli civilians and wounded 182, and traumatized the population of Southern Israel . It found that the evidence showed that these militants were responsible for the commission of the war crimes of indiscriminate attacks on civilians; and the killing, wounding and terrorization of civilians.

The weaponry used by the IDF in Operation Cast Lead was examined by the IFFC, which found that Israel had used white phosphorus in violation of international law by using it as an incendiary weapon in densely populated neighbourhoods.

The IFCC considered the internal investigation conducted by the IDF which found that that the IDF had acted in accordance with the requirements of international law in the course of Operation Cast Lead . It rejected the conclusions of this investigation on the grounds that it was not an independent investigation, that it failed to consider most of the allegations made against the IDF and that it had not had regard to Palestinian sources. While the IFFC was prepared to accept that some buildings destroyed had been used to store munitions and that the Palestinians had on occasion used civilians as human shields, this could not explain or justify the heavy loss of life and injury and the massive destruction of property.

The IFCC considered the question whether the IDF had committed acts of genocide in the course of its offensive. Here it found that while IDF actions met some of the requirements for the crime of genocide, Israel lacked the necessary special intention to destroy in whole or in part a national or ethnical group as required by the Genocide Convention because its operation had been motivated by an intention to collectively punish the people of Gaza in order to compel the population to reject Hamas or subdue the population into a state of submission. The IFCC rejected Israel ’s claim that it had acted in self-defence as Israel ’s actions failed to satisfy either the legal or the factual requirements for this defence.

The IFCC made a number of recommendations to the LAS. It recommended that the LAS should:

1. endorse the request of the Palestinian Authority that the commission of war crimes and crimes against humanity in Gaza be investigated and prosecuted by the International Criminal Court;
2. request the Security Council of the United Nations to refer the situation in Gaza to the International Criminal Court as it had done in the case of Darfur with a view to prosecution of those responsible for war crimes and crimes against humanity;
3. request the General Assembly of the United Nations to ask for an advisory opinion from the International Court of Justice on the legal consequences of Operation Cast Lead; and
4. recommend to states which recognize the principle of universal jurisdiction for international crimes that they prosecute Israeli political and military leaders for the commission of war crimes and crimes against humanity.