Palestine-Israel Conflict

Recording the War Crimes

Now criminals need brought to task

by Dr Daud Abdullah
Impact International Magazine, December 2002, pp. 21-22.

It had no sound bites or punchy overtones. There was in fact an element of awkwardness in its format. Yet, the title of last month's Amnesty International report said it all. 'Israel and the Occupied territories - shielded from scrutiny: IDF violations in Jenin and Nablus'. A reading of the 80-page document imparts more than a call for scrutiny. Having corroborated all the evidences, the organisation's overriding demand was unequivocal and urgent: apply the provisions of universal jurisdiction.

In the public the Israelis were, as ever, dismissive. Behind the scenes, however, there are genuine concerns within the ruling establishment. In Britain, The Guardian reported on 12 November that senior Israeli politicians and army officers were reexamining their travel itineraries, particularly to Europe. They are, understandably, fearful of arrest and indictment for war crimes.

The atrocities committed in Jenin in April 2002 marked a watershed. The indiscriminate use of bulldozers, tanks, rockets and helicopters in a densely y populated refugee camp shocked the conscience of the world. Javier Zuniga, Amnesty International's Director of Regional Strategy declared after entering the Jenin refugee camp:

"I have been in urban environments where house to house fighting has happened: Rwanda, Nicaragua, El Salvador, Colombia, and a city struck by a massive earthquake: Mexico City. The devastation seen in Jenin camp had the worst elements of both situations. Houses not just bulldozed or dynamited but reduced almost to dust by the repeated and deliberate coming and goings of bulldozers and tanks - houses cut down the middle as by giant scissors" (Quoted in the AI report)

UN Report: Jenin is one of 27 refugee camps run by the United Nations in the West Bank and Gaza Strip. Established in 1953 to provide temporary shelter and humanitarian assistance to evicted Palestinians, it now has a population of 13,055 registered refugees. The refugee camps constitute an enduring testimony of the willful dispossession of a nation to provide living space for another.

Few Palestinians expected more than a whitewash from the UN Secretary General's report. Given its appalling disregard of war crimes committed in Sabra and Shatila (Lebanon, 1982), Amiriya (Iraq, 1991), Qana (Lebanon, 1996) and Qalae-Jangi (Afghanistan, 2001) there was no likelihood that things would be any better for Jenin. Kofi Annan's failure to get a UN fact-finding team into the Jenin camp following the Security Council Resolution 1405 (2002) was an early indicator that the principles of international humanitarian law and international human rights law would be casualties of the invasion.

Almost predictably the primary victim was the Fourth Geneva Convention (FGC). Without examining the pros and cons for the occupation, it must be emphasised that the International Committee of the Red Cross, guardian of the Geneva Conventions, in addition to a number of UM General Assembly and Security Council resolutions affirm that the Convention Relative to the Protection of Persons in the Time of War (FGC), is applicable de jure to the West Bank and Gaza Strip.

When the FGC, which is registered with the UN Secretariat, under Article 159, was signed in 1949 its authors were purportedly motivated by a desire to prevent a repetition of the kind of barbarity that occurred during the Send World War. Kofi Annan's report on recent events in Jenin and other Palestinian cities is a startling reminder of how far the world body is in complicit in perpetuating Palestinian suffering.

Written as it was 'without a visit' to the Jenin refugee camp, Annan's report of 1 August 2002 was hailed in the US and Israel because it omitted the word 'massacre' with reference to the atrocities in the camp. Whereas massacres are classified as war crimes, legal experts also concur that 'grave breaches' of the Fourth Geneva Conventions are war crimes. Article 147 cites willful killing, torture and inhuman treatment, willfully causing great suffering of serious injury to body or health, unlawful deportation or transfer of unlawful confinement of a protected person as 'grave breaches'.

All these crimes are committed on a daily basis in the occupied territories. Kofi Annan's report acknowledged that, 'the Palestinian residents of the occupied territories are 'protected persons' under the Conventions. Yet, the UN and the HCP to the Convention reneged on their treaty obligation to respect and ensure respect for the present Convention 'in all circumstances'. [Article 1]

There is nothing in the report that indicated a preparedness to invoke Article 146, which obliges the HCP to enact any legislation necessary to provide effective panel sanctions for persons committing, or ordering to be committed, any of the grave breaches of the Convention.

In an open letter to Israeli Prime Minister Ariel Sharon on 31 January 2002, the Secretary General of the International Commissions of Jurists (ICJ), Louise Doswald-Beck, pointed out that customary international law presumes that on occupied population will resist, including by the use of violence. In the event, the purpose of the law is to protect the civilian population under occupation and limit the conduct of the occupier in responding to violent resistance.

With regard to the Occupied West Bank and Gaza, there are no legal provisions for targeted attacks (assassinations), preemptive strikes or unlimited reprisals. On the contrary, the conduct of indiscriminate attacks affecting civilian population or civilian objects in the knowledge that such an attack will cause excessive loss of life, injury to civilian or damage to civilian objects all fall under the category of war crimes [1]. Israel's invasion of the Jenin camp is an odious example of this category of war crime. Annan simply deplored the attack and reminded Israel of its legal and moral responsibility to avoid the loss of civilian life.

The UN report reflected a disregard of Palestinian rights that has become a familiar feature, it chose to react to war crimes committed against a 'protected people' with apologies, platitudes and tokenism none of which will bring the victimised any closer to the restoration of their basic rights.

Enter Amnesty: The International Amnesty report of November 2002 could not have come at a more poignant time in history. Its publication almost coincides with the 54th anniversary of the Universal Declaration of Human Rights, adopted on 10 December 1948 by the General Assembly of the United Nations (without dissent).

Earlier in the year the organisation made public its consternation when the Belgian Appeals Court decided on 26 June 2002 to halt the case brought by 23 Palestinian refugees and Lebanese nationals against Ariel Sharon and other Israeli officials involved in the Sabra and Shatila massacre. After withdrawing an arrest warrant for Yerodia Ndomasi, the former foreign minister of the Congo in February 2002 on the ground that he was a serving defense minister at the time of the alleged crime, the Belgian court had effectively set the stage to drop the case lodged against Sharon in June 2001.

In the aftermath, Amnesty International expressed 'extreme dismay' with this restrictive interpretation of the law. It recalled that when the Belgian parliament enacted the 1993 law providing for universal jurisdiction over war crimes it intended to provide Belgian courts with the full extent of jurisdiction over crimes permitted under international law.

In its latest report on the Occupied Palestinian territories, Amnesty observed that Israel continues to violate its treaty obligations under the FGC. 'These abuses continue with impunity', it affirms. The human rights organisation, accordingly, had some specific recommendations for the international community and the US government in particular: to ensure that Israel complies with its legal obligations as an occupying power. And 'to bring to justice anyone suspected of war crimes, crimes against humanity'.

As if to walk the extra mile which Annan was reluctant to do, Amnesty affirmed that all High Contracting Parties to the Geneva Conventions have a particular obligation, under Article 146 of the Fourth Geneva Convention, 'to search for persons alleged to have committed or to have ordered to be committed grave breaches, and to bring such persons, regardless of their nationality or the place where the act took place, to justice before its courts or to hand over such person from trial to another state party to the Convention'.

While the report recognises the built-in obstacles that impede justice within the International Criminal Court, it does make a strong case for international jurisdiction. The Rome Statute specifies that the ICC can only exercise jurisdiction over crimes occurring on the territory of a state party, or crimes involving an accused who is a national of a state party.

Since Israel is not a signatory, the chances of bringing its officials before the ICC remains virtually nil. Another obstacle is the argument that Palestine is not a recognised independent state and until such time that it signs the relevant instruments of international law it cannot pursue justice independently.

Despite these obstacles, Amnesty maintains there is still a way forward. It is through special tribunal such as was established for the former Yugoslavia and Rwanda based on the provisions of the FGC.

Reference
[1] F. Lamb, International legal responsibility for the Sabra and Shatila Massacre (Montreuil:1983), p.34

Dr Daud Abdullah is a researcher at the Palestinian Return Center, London.