Israel & the International Criminal Court

Report of the UN Human Rights Council 2019 Gaza “Commission of Inquiry”

Excerpts from the Report

Among other things, the report contains the following:
  • The report claims that the purpose of the protests were intended to be "fully peaceful" and ignores Hamas's stated intentions to "take down the border and ... tear their hearts from their bodies."

    "22. On 7 January 2018, Ahmed Abu Artema, a 34-year-old Palestinian poet and journalist, posted on Facebook the idea of a non-violent march at the separation fence, to draw attention to General Assembly resolution 194 and to the dire humanitarian situation in Gaza. In the post, ending #GreatMarchofReturn, he wrote, 'what if 200,000 demonstrators marched peacefully and broke through the fence east of Gaza and entered a few kilometres into the lands that are ours, holding the flags of Palestine and the keys to return, accompanied by international media, and then set up tents inside and established a city there.'
    ...
    24. A higher national committee and 12 subcommittees were subsequently established to organize and oversee the planning of the march... While the members of the committee held diverse political views, they stated that their unifying element was the principle that the march was to be 'fully peaceful from beginning to the end' and demonstrators would be unarmed."

  • It emphasizes the "festive" atmosphere at various tents set up a distance from the border, but ignores the fact that Israel never targetted the tents. It also never mentions the many grenades and improvised explosive devices used by violent rioters at the "festive" protests.

    "41. Demonstrators congregated at five main demonstration sites. The atmosphere was initially festive, with activities in tents including poetry readings, seminars, lectures and cultural and sporting activities."

  • It provides a list of names of some of the people killed, and does not mention when they are a member of terror organizations. It identified one person as a "mechanic" but did not mention that he was a member of the armed wing of Hamas.

    "44. The killings and injuries on 30 March investigated by the commission included:
    ...
    • Naji Abu Hojayeer (24)
    Naji, a mechanic from the Bureij refugee camp, was killed with a shot to the abdomen by Israeli forces as he stood wrapped in a Palestinian flag, 300 m from the separation fence."

  • It minimizes the threat of incendiary balloons, and does not even mention that explosive devices were also attached to the balloons with the attempt to maximize the threat to Israel.

    "47. ... From April, some demonstrators flew kites or balloons carrying burning rags or coals wrapped in chicken wire towards Israel, damaging Israeli property, including agricultural land."

  • It claims that the violence was not directed or coordinated by "armed groups," ignoring evidence that these activities were in fact directed by members of Hamas's armed wing who were not dressed in uniform during the riots but were identified as Hamas members after the fact.

    "48. Some activities, such as the launching of incendiary kites, cutting barbed wire or tyre burning, began to be organized by self-declared 'units', some of them through their own Facebook pages. The commission found no evidence to suggest that they were directed or coordinated by armed groups."

  • It claims that Israel intentionally shot children. It does not mention that Hamas used women and children as human shields to place burning tires to create a path to the border fence, knowing that, in reality, Israel does not target women and children and that they would be protected.

    "68. Several children were recognizable as such when they were shot. The commission finds reasonable grounds to believe that Israeli snipers shot them intentionally, knowing that they were children."

  • It expresses "some concerns" about the ruling of the Israeli Supreme Court approving the Israeli Defense Forces' rules of engagement, but does not explain how a soldier in a democratic state is supposed to act when told by the highest legal court that his actions are legal, but the Commission of Inquiry has "concerns."

    "107. The commission found that responsibility for unlawful deaths and injuries lay primarily on two fronts... Second, those who drafted and approved the rules of engagement. While the Supreme Court of Israel approved the rules, the commission has significant concerns about the status of 'main inciters', which does not exist in international law; indeed, its use undermined the threshold of 'imminent threat to life' for the use of potentially lethal force."

  • It provides recommendations to the Government of Israel and to the "de facto authorities in Gaza" but does not specifically provide recommendations to Hamas. It does not recommend that Hamas stop instigating Palestinians to breach the border.

    "119. The commission recommends that the Government of Israel:
    (a) Refrain from using lethal force against civilians, including children, journalists, health workers and persons with disabilities, who pose no imminent threat to life;
    (b) Ensure that the rules of engagement:
    (i) Do not authorize lethal force against 'main inciters' as a status; and ensure that the rules permit such force only as a last resort, where the person targeted poses an imminent threat to life or directly participates in hostilities;
    (ii) Prohibit targeting persons based solely on their actual or alleged affiliation to any group, rather than their conduct.
    120. The commission recommends that the de facto authorities in Gaza stop the use of incendiary kites and balloons."

  • It advocates the prosecution of Israelis responding to national security threat to Israeli's borders for "war crimes" and "crimes against humanity."

    "106. Violations of international law, such as those committed by the Israeli security forces and set out in the present report, give rise to State responsibility on the part of the State of Israel. Israel has an obligation to investigate alleged violations of international human rights law and international humanitarian by its security forces and, where appropriate, to prosecute those deemed responsible. Victims of human rights violations are entitled to remedies, including equal and effective access to justice and adequate, effective and prompt reparation, including compensation, and guarantees of non-repetition.
    107. The commission found that responsibility for unlawful deaths and injuries lay primarily on two fronts. First, those who employed lethal force, assisted with or authorized it to be deployed in specific instances, in the absence of an imminent threat to life or where the victim was not directly participating in hostilities; this includes snipers, spotters and/or commanders on site. Second, those who drafted and approved the rules of engagement...
    108. While some deaths may have been examined by the Israel Defense Forces' internal 'fact-finding assessment', criminal investigations were opened in only five cases, including the deaths of four children. The commission's findings suggest strongly that other killings and gunshot injuries appeared factually similar and therefore also warrant criminal investigation.
    ...
    113. Certain violations of international law attract individual criminal responsibility and are prosecutable in both domestic and international courts.
    114. During armed conflict or occupation, international humanitarian law prohibits, inter alia, wilful killing and wilfully causing great suffering. Unless undertaken lawfully in self-defence, intentionally killing a civilian not directly participating in hostilities is a war crime. The commission found reasonable grounds to believe that individual members of the Israeli security forces, in the course of their response to the demonstrations, killed and gravely injured civilians who were neither directly participating in hostilities nor posing an imminent threat.
    115. If committed in the context of a widespread or systematic attack directed against a civilian population pursuant to or in furtherance of a State or organizational policy, serious human rights violations may also constitute crimes against humanity. Murder and 'other inhumane acts' that cause great suffering or serious injury qualify as such violations. In the course of the investigation, the commission found serious human rights violations that may constitute crimes against humanity.
    ...
    117. The commission is aware of an ongoing preliminary examination by the International Criminal Court of alleged crimes committed in the Occupied Palestinian Territory, including East Jerusalem, since 13 June 2014, and requests the High Commissioner to refer the present report and relevant information upon which it is based to the Office of the Prosecutor.
    ...
    Recommendations
    ...
    126. The commission recommends that the United Nations High Commissioner for Human Rights manage the dossiers on alleged perpetrators, to be provided to national and international justice mechanisms, including the International Criminal Court, undertaking credible and independent investigations into alleged international crimes and violations.
    127. The commission recommends that States Members of the United Nations consider imposing individual sanctions, such as a travel ban or an assets freeze, on those identified as responsible by the commission.
    128. The commission recommends that States parties to the Geneva Conventions and/or to the Rome Statute carry out their duty to exercise criminal jurisdiction and arrest persons alleged to have committed, or who ordered to have committed, the international crimes described in the present report, and either to try or to extradite them."