Adalah submits report to UN Commission of Inquiry on Gaza
This week, Adalah submitted its report to the UN Commission of Inquiry on the 2014 Gaza conflict. The report contributes to the Commission's work which, despite all the obstacles placed before it, is gathering facts and evidence on the 51-day War on Gaza and speaking with victims in order to seek the truth and accountability for severe violations of international humanitarian and human rights law (IHL and IHRL).
Today the media reported that Prof. Bill Schabas, the Chairman of the UN Commission of Inquiry, resigned from his post due to a past PLO consultancy. Adalah hopes that Prof. Schabas' resignation will not postpone the Commission's important work, and that its report will be submitted as planned to the UN Human Rights Council on 23 March 2015.
Adalah's report assesses two key aspects of Israeli law and practice relevant to the work of the UN Commission: (1) Israel’s investigatory mechanisms into the conduct of its military during armed conflicts and its progress with investigations into “Operation Protective Edge”, and (2) the availability of civil tort compensation remedies before Israeli courts available to Palestinians, who were harmed by the Israeli military.
Severe flaws in Israel's investigatory mechanisms
Adalah argued in its report that, to date, Israel’s investigations into its 2014 Operation Protective Edge fall far short of the international standards of independence, impartiality, effectiveness, promptness and transparency. In addition, there is still no war crimes legislation in the domestic Israeli criminal law, and no Israeli penal law imposing direct criminal liability on military commanders and political leaders for IHL and IHRL violations. Israeli government officials such as Defense Minister Moshe Ya’alon have also made statements against the opening of investigations into the war. Israel’s probes are thus likely to lead, as they did in the past, to a lack of criminal investigations, prosecutions, and punishment of perpetrators of serious IHL and IHRL violations against Palestinians in Gaza.
Israel's failures to effectively investigate are in fact a persistent pattern. In 2009, the UN Fact-Finding Mission on the Gaza Conflict, known as the Goldstone Mission, raised serious doubts about Israel’s willingness to carry out genuine investigations concerning Operation Cast Lead as required by international law. The Mission also found that the Israeli system presents inherently discriminatory features that have proven to make the pursuit of justice for Palestinian victims very difficult. Further, in 2013, Israel's government-appointed Turkel Commission issued 18 recommendations that illustrated serious shortcomings in Israel’s investigatory mechanisms. However, even the Commission's recommendations do not fully comply with the international standards of the duty to investigate. Finally, although two years have passed since the issuance of the Turkel report, Israel has implemented almost none of the recommendations, despite its commitment to do so.
The report also showed that the Israeli Supreme Court has consistently refused to intervene in the Military Advocate General's (MAG) decisions not to open any investigations into Israeli military operations. The Court has never issued any order to the MAG to open a criminal investigation or to indict any individual regarding alleged suspicions of the commission of war crimes in Gaza. The Court has also never set forth any guidelines under which a criminal investigation should be opened in cases involving alleged IHL violations.
Deliberate obstacles to deny Gazans right to civil remedies in Israeli courts
Adalah's report also examined the numerous barriers placed by Israel on Palestinian residents of Gaza to prevent them from pursuing civil compensation lawsuits in Israeli courts for injuries that resulted from attacks by the Israeli military. These barriers to civil remedies include, among others, banning Palestinians in Gaza from entering Israel, restricting the statute of limitations period, and imposing high financial guarantees, all of which are nearly insurmountable for Gazans. Israel has enacted new legislation that imposes bans and restrictions on Palestinians in order to exempt itself from compensating Palestinians for injuries that resulted from military attacks.
Adalah's report highlighted the severe conflict of interest in the Israeli military's dual role in these cases as both the party responsible for the injuries committed to Gazans, and as the party with the authority to deny or accept Gazans' applications to enter Israel to pursue their legal proceedings.
In its December 2014 judgment, the Supreme Court upheld the onerous regulations set by the State Attorney's Office that, in the past, prevented Gazans from entering Israel to pursue their legal cases. In the course of this litigation, Adalah learned that the state was using its authority to only allow entry to Gazans if they did not harm the state's position in the compensation case.
This ruling contradicts the Supreme Court's 2006 decision that upheld the constitutional right of access to Israeli courts for Palestinians in civil tort cases. In practice, the Court's 2014 decision effectively closes the doors of the Israeli courts to Gazans' for their civil compensation claims, which thereby also constitutes a serious breach of Israel's obligations under international law.
Contact: Adalah's Media Director, Salah Mohsen, salah@adalah.org, (+972) (0)52-595-0922
