Open Letter to the High Commissioner for Human Rights, Ms. Navanethem Pillay, calling for the referral of the situation in the Occupied Palestinian Territories to the International Criminal Court

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Geneva, August 5, 2014

Madame High Commissioner,

Alkarama deplores that since the launch of the 'Operation Protective Edge', over 1700 Palestinians have been killed, over 70% of which are civilians, of whom 377 are children and 196 are women, according to the United Nations Office for the Coordination of Humanitarian Affairs. On the other hand, 67 Israeli were killed, including 64 soldiers, and unfortunately three civilians.

We particularly condemn the indiscriminate and disproportionate targeting of civilians, which has been documented, as well as the attacks against civilian objects, including hospitals, UN schools and residential buildings and other locations that are known to gather an extensive number of civilians. Israel, as an occupying power, must ensure the safety of the occupied population, respect their right to life and abide by the principle of precaution in the choice of methods of attack so as to avoid civilian casualties according to International Humanitarian Law (IHL) principles. It is clear that the means of the attacks chosen by Israel against the most densely populated area in the world are undoubtedly and prima facie excessive in relation to the concrete and direct military advantage anticipated and thus disproportionate.

We wish to recall the customary law rule of proportionality in attack which states that "launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited." There can be no doubt around the fact that air strikes conducted on civilian shelters, including UN facilities, schools, hospital and ambulances as well as mosques and power plants should not be considered as proportional to any kind of direct military advantage anticipated by the Israel Defence Forces (IDF).

This failure to abide by the above-mentioned principles enshrined in international human rights law and humanitarian law are clearly amounting to war crimes. We do argue that Israel, having one of the most powerful army in the world endowed with advanced technology in intelligence gathering can without doubts find ways to achieve its military objectives without causing such a disproportionate loss among civilians. Proportionality requires a selection of tactics, weapons and targets that will minimise civilian losses, and numerous IDF operations show at least their recklessness if not their willingness to select tactics that are deadly for the civilians. The strikes seem to be carried out without taking into consideration the question of whether the prior warning given to the population is effective and the "roof knocking" method to warn civilians constitutes a deliberate attack on them and should be considered per se a threat to their lives.

Furthermore, the living conditions of civilians deprived from basic needs such as electricity, clean water, food and medicine as a result of both the operation and the blockade are rendered even more inhumane by the absence of a safe corridor through which people can flee to secure places. Indeed, the Palestinians are unfortunately unable to do so, given that all the borders are closed both on the Israeli and the Egyptian sides. These elements make it impossible to justify the targeting of the only places that are supposed to remain safe for civilians, namely UN buildings, especially when the same Israeli forces previously requested civilians to seek shelter in these very facilities in order to remain safe.

Given these circumstances, the attacks launched by the IDF obviously do not and cannot discriminate between civilians and combatants. Contrarily to what Israel has been arguing these elements should not be interpreted as relieving the IDF from their international legal obligations but rather as an additional proof that these excessive casualties are fully known before striking, thus confirming that they are intentional. What is more, these attacks that result in massive civilian losses and the destruction of entire civilian neighbourhoods are part of a well known military strategy, endorsed by the Israeli State and its legal policy concerning conflicts that take place in urban areas with dense civilian populations. This policy is entitling the IDF to treat the entire Gaza area as a legitimate target and bombard it via air strikes or artillery shelling. A study of international law and State practice shows clearly the constant and consensual rejection as well as the outlawing of such an approach. We thus think that there is no doubt about the legal characterisation of such attacks as war crimes according to Article 8 of the Rome Statute of the International Criminal Court (ICC Statute).

These elements show that no bona fide expectation that the attacks on civilians and civilian objects including of humanitarian nature would make any relevant and proportional contribution to any lawful and reasonable military or political objective. We wish to add that if it is proven that the objective of the Israeli government is precisely to cause extensive damage on Palestinians civilians – and it should be noted that a significant number of Israeli civilian and military officials are publicly calling for such a thing –, that would constitute a crime against humanity according to Article 7 of the ICC Statute.

In light of the above, we urge you to complement the establishment of the Independent, International Commission of Inquiry for the Occupied Palestinian Territory on 23 July by its paramount counterpart that is international criminal responsibility for the widespread, systematic and gross violations of international human rights law and humanitarian law arising from the Israeli military operations.

Moreover, whatever the outcome of such an endeavour may be, every legal step taken in order to ensure accountability is valuable per se and constitutes a legal and moral obligation for those who have the capacity to act. Indeed, investigation on such crimes will remain incomplete without a serious prospect of prosecution. It will not only provide impunity to those who should be held accountable, it is also a serious threat to the respect of international law in current and future conflicts and facilitates the repetition of such crimes. We recall that 'Operation Protective Edge' is the third major offensive in six years, and that despite UN recommendations, including that of the 2009 UN Fact-Finding Mission, and the repeated calls for investigations into crimes committed in the OPTs, no step has been taken as to ensure bringing the perpetrators of these recurring crimes to justice.

Lastly, the absence of an efficient and independent Israeli mechanism for conducting inquiries that meet international standards has been decried many times by numerous human rights organisations and makes such an endeavour even more compelling. In this regard, we recall that the essence of the International Criminal Court is to bring justice when a nation is unwilling to try suspects of war crimes. We wish to recall that the will of the Palestinian authority to join the ICC as a member State should not be hindered anymore by the doubts surrounding the statehood of Palestine, since the UN General Assembly upgraded its status to a non member observer State by resolution 67/19 of 4 December 2012.

We therefore urge you to, in your capacity of High Commissioner for Human Rights and person of high moral standing, call upon the Security Council to refer the situation in the Occupied Palestinian territories to the International Criminal Court, as you had done for the Libyan and Syrian situations, taking into account the evidence that point out to the commission of war crimes.

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