On 20 July 2015, Ardi Imseis was invited to brief the United Nations Security Council Arria-formula meeting on the occasion of the one-year anniversary of Israel’s 2014 offensive against the Gaza Strip. Excerpts of his address appear below:
I would like to begin by expressing my gratitude to the Permanent Missions to the United Nations of Malaysia and the Hashemite Kingdom of Jordan for extending an invitation to me to address you.
The humanitarian impact of the 2014 hostilities on the people of Gaza was immense by any measure: over 2,250 Palestinians killed, including at least 1,462 civilians, of which more than 550 were children; close to 500,000 people displaced at the height of the hostilities, with approximately 100,000 remaining internally displaced, their homes destroyed or severely damaged and uninhabitable.
Public infrastructure, including schools and hospitals, suffered heavy damage, affecting nearly every aspect of daily life. Alarmingly, this included the bombardment and abuse of United Nations premises, inviolable as a matter of international law, resulting in the death of at least 42 Palestinians, including 16 children, and the injury of 230 others who had taken shelter there. While far less in scope and scale, Israelis too suffered, with 72 killed, among them five civilians, including one child.
While much more can and has been said about the humanitarian impact of the 2014 hostilities on Gaza…I have chosen to focus on the matter of accountability under international law, and what the Council and its members can do to address the root causes of what is, by now, one of the longest running conflicts on the agenda of the United Nations.
In this regard, the conclusions and recommendations of the latest Independent Commission of Inquiry on Gaza are a good reference point. After documenting “substantial information pointing to serious violations” of international humanitarian law and human rights law by Israel and, to a much lesser extent, Palestinian armed groups, including possible war crimes, the Commission urged “all those concerned to take immediate steps to ensure accountability, including the right to an effective remedy for victims” (para. 74). In this context, the Commission recommended that “the parties should cooperate fully with the preliminary examination of the International Criminal Court and with any subsequent investigation that may be opened” (para. 82). It also called upon the parties to promptly establish “credible, effective, transparent and independent accountability mechanisms” (para. 83).
While much can be said of the obligations of Israel and the Palestinians vis a vis the 2014 Gaza conflict and its aftermath, matters of economy along with the nature of this occasion compel me to focus on some of those of the international community, including as raised by the Commission of Inquiry.
It is trite to point out that the Council is fully empowered to address the situation in Gaza through any number of measures, including through the adoption of binding decisions under the Charter. This could conceivably include in a decision requiring Member States to cooperate to bring Israel’s blockade of Gaza to an end, or indeed, its prolonged military occupation of Palestine altogether. At the very least, this would trigger obligations of Member States not to recognize as lawful the situation created by Israel’s internationally wrongful acts in occupied Palestine, nor render aid or assistance in maintaining that situation. In addition, the Council could also take decisions requiring Member States to sever economic, diplomatic, and other relations with Israel until it complies with its decisions. The Council could also take a decision requiring all Member States, including Israel, to appropriately prosecute or extradite persons alleged to have perpetrated war crimes arising out of the 2014 Gaza conflict or to otherwise cooperate with the work of the International Criminal Court in that respect.
These are but a few examples of what the Council could theoretically do to address the appalling situation in Gaza, the facts of which speak for themselves. Of course, what is required is neither new law nor new facts, but rather the existence of sufficient will among Council members to act in unison in line with the purposes and principles of the Charter. And despite differences of opinion that may exist within the Council, there is ample precedent to go on.
Take for example the Council’s consistent pronouncements on the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, or the illegality of Israeli settlements in the OPT, or the illegality of Israel’s annexation of East Jerusalem. Each of these are contained to varying degrees in Security Council resolutions 252 (1968), 298 (1971), 446 (1979), 452 (1979) and 465 (1980), among others. What some of these resolutions demonstrate is that even where a Council member may disagree with the majority of the Council, use of an abstention (and in the case of a permanent member, an abstention over a veto) can offer an effective means of registering such disagreement without frustrating the will of the Council as it seeks to discharge its solemn legal obligations under the Charter.
But where the Council is unable to act due to lack of a sufficient majority unimpeded by the veto of a permanent member, the recommendations of the Commission of Inquiry remind us that that does not signal an end of the matter. As High Contracting Parties to the Geneva Conventions of 1949, all Members of the Council, indeed all Member States of the UN, are under independent legal obligations to not only respect, but to ensure respect, for the terms of those Conventions. This includes the legal obligation, under article 146 of the Fourth Geneva Convention, to pass laws at the domestic level that criminalize the commission of grave breaches of the Convention (all war crimes under international law), and also to locate and try persons suspected of having committed or ordered the commission of such offences. Under article 147 of the Convention, these include willful killing, torture or inhuman treatment; willfully causing great suffering or serious injury to body or health; unlawful deportation or transfer or unlawful confinement of a protected person; the taking of hostages; and the extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
This is, in part, what the Commission of Inquiry intimated when it recommended that members of the international community “exercise universal jurisdiction to try international crimes in national courts,” and “comply with extradition requests pertaining to suspects of such crimes to countries where they would face a fair trial” (para. 89).
It is well to recall that the principle of universal jurisdiction was first used by the Supreme Court of Israel in litigation involving Israel’s prosecution of Nazi war criminal Adolf Eichmann in 1961. Today, a growing number of High Contracting Parties, including a number of Council members, have enacted or begun to enact domestic legislation empowering their courts to invoke universal jurisdiction, in some degree or another, in accordance with their obligations under the Fourth Geneva Convention. These mechanisms should be examined closely with a view to employing them to ensure a measure of accountability for war crimes committed during the 2014 Gaza conflict.
Since at least the imposition of Israel’s blockade in 2007, the issue of Gaza has attracted a great deal of attention, all of it warranted. Nevertheless, one cannot discuss the issue of Gaza in isolation from the rest of what is unfolding in the remainder of occupied Palestine. This was a matter not lost on the Commission of Inquiry in its consideration of the issues before it. Nor should it be a matter lost on any of us today.
Israel’s occupation of the West Bank, including East Jerusalem, and the Gaza Strip has presented some of the most considerable challenges to the international system in the post-1945 era. The advent of the UN Charter was meant to herald a new world order based on peaceful resolution of disputes, suppression of acts of aggression, and development of friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. Nevertheless, whether in breach of the general prohibition on the use of force, the unlawful acquisition of territory through the threat or use of force, the prolonged violation of a peoples’ right to self-determination, or the systematic settler colonialism at its root, the illegality of Israeli practices in occupied Palestine – of which these are but a representative sample – demonstrate that the question of Palestine triggers legal principles that go well beyond the relatively narrow positions of each of its immediate protagonists. Rather, the principles at play are of such fundamental import to the maintenance the international system as such that each State has an interest in ensuring against their violation. Put simply, the situation in occupied Palestine is about more than merely the place and its people; it is about the maintenance of the international rule of law as we know it.
Having regard to the reasons behind the very establishment of the UN Charter system, and the promulgation of the 1949 Geneva Conventions, helps bring this point into sharp relief. For centuries prior to the interwar years, the use of force in international relations was a perfectly legitimate tool of statecraft, “policy by other means,” as von Clausewitz put it. Likewise, the right of conquest of territories occupied as a result of such use of force was considered axiomatic. Of course, this all imploded during World War II, with consequences that need not be recalled in full. Suffice to say, as a result of these events, including the despicable treatment of civilian populations subject to foreign military occupation in central Europe during the war, the UN Charter was promulgated, affirming the prohibition of the use of force in international relations, along with its corollary prohibiting the acquisition of territory through the threat or use of force. Likewise, the Fourth Geneva Convention was promulgated prohibiting, among other things, collective penalties, forcible transfer of protected persons, and the transfer by an occupying power of its civilian population into the territory it occupies. Indeed, as a matter of international law, occupation is meant to be a temporary condition, with sovereignty never vesting in the occupant but rather in the people occupied. By all objective accounts, these were the principles that underscored the foundation of the UN Charter system. And by all objective accounts, including those of the United Nations, these are the principles that are under direct threat in occupied Palestine.
As we consider how to respond to the situation in occupied Palestine following Israel’s 2014 offensive against the Gaza Strip, it is respectfully submitted that the Council keep these considerations foremost in mind.