News & Updates
July 10, 2015
Jimmy Carter & Gro Brundtland: UN Report Shows Accountability is Key to Unlocking Peace in Israel and Gaza
“Continued impunity and lack of accountability will greatly increase the likelihood of fresh conflict and further war crimes.”
The report by the UN Human Rights Council’s Commission of Inquiry into the 2014 Gaza war highlights rights violations and possible war crimes committed by both sides. Its findings echo what we heard on our own visit to Israel and Palestine two months ago. We received many first-hand accounts of the effects of the war on both Palestinian and Israeli civilians.
We came away from Israel and Palestine convinced that political leaders in Israel, the Palestinian Authority and Hamas all need to be subject to greater accountability so that they uphold the rule of law.
This is why we welcome the Commission of Inquiry’s report as a potential milestone on the path to accountability. The report is as objective and even-handed as circumstances allowed, as is to be expected with the highly regarded US judge Mary McGowan Davis as Commission Chair.
It is regrettable that neither Israel nor Hamas responded to the Commission’s questions about specific incidents and legal and policy issues – unlike the Palestinian leadership in Ramallah, which did provide answers. Israel went further, refusing any cooperation and denying entry to Palestinian territories to members of the Commission on the grounds of “inherent bias” – a charge repeated again by Prime Minister Benjamin Netanyahu when the report was published.
Israel regularly complains about perceived bias by the UN and its institutions (notably the Human Rights Council), and other international actors – including, on occasion, The Elders. In such a deep-rooted, protracted and torturous conflict, objectivity becomes a precarious commodity and accusations of bias can be easily deployed by both sides to deflect criticism.
It is worth noting that Hamas has also rejected the Commission’s criticisms. When institutions, be they UN-related or respected NGOs, are loudly criticised by both parties to a dispute or conflict, the likelihood is that they have acted in a spirit of neutrality.
Ironically, Israel and Hamas both complain that they are being compared to one another in the report. Israel, as a sovereign, internationally-recognised state, objects to any comparison to what it calls a terrorist organisation; likewise, Hamas in its self-declared role as a “resistance movement” sees no comparison between its actions and those of an occupying military power.
These complaints obscure a wider point: the actions of both Israel and Hamas should be measured against international standards of behaviour. It is not a question of equivalence, but of equal and fair treatment under international law.
The Commission’s report recommends that the parties to the Gaza conflict should themselves take responsibility for prosecuting and ensuring appropriate accountability for violations of international law. However, it seems that neither Israel nor Hamas can be relied upon to do so. Consistent with past practice in previous conflicts over Gaza, Israel’s own report has exonerated its armed forces from any blame for civilian deaths in Gaza, including four children killed on a beach, attacks on UN schools where displaced inhabitants were taking shelter, and apparently deliberate destruction of civilian homes.
Hamas claims the report establishes a “false balance” between victims and killers – ignoring those killed by its own attacks. Impunity flourishes in this climate of denial and self-justification, making ordinary citizens on all sides more vulnerable to violent attacks and human rights abuses.
This is why The Elders support the Commission’s main recommendation that “the parties should cooperate fully with the preliminary examination of the International Criminal Court (ICC) and with any subsequent investigation by the ICC that may be opened.”
The decision by the Palestinian Authority to now submit evidence to the ICC on the Gaza war, illegal settlements in the West Bank and East Jerusalem, and the treatment of Palestinian prisoners shows this issue will only gain in political salience in the weeks and months ahead.
The ICC is one of the nearest institutions to objective neutrality that the community of nations possesses. The more it is used and respected, the more effective it will become. It was set up to be one of the principal means of achieving accountability for war crimes and minimising impunity. Regrettably neither Israel nor the US are parties to the Court. In our view, they should be.
As the Commission’s report makes clear, impunity for breaches of international law, including war crimes, has prevailed “across the board” in recent conflicts between Israel and the Palestinians, not least in Gaza. Continued impunity and lack of accountability will greatly increase the likelihood of fresh conflict and further war crimes. Already, diplomats on the ground are grimly forecasting a new, and even bloodier, round over Gaza.
The peoples of Israel and Palestine are weary of conflict; the international community is weary of years of failed negotiations; the donors are weary of rebuilding destruction and seeing no results for their generosity. If, however, the ICC can now enforce accountability this could increase the incentive for all parties to act within the law and convince them that the only way to resolve the conflict is through peaceful diplomacy, not force of arms.
June 23, 2015
The United Church of Christ will hold its general synod in Cleveland June 26-30 and consider a divestment resolution targeting the Israeli occupation. Archbishop emeritus Desmond Tutu has issued a statement supporting the resolution.
My dear sisters and brothers in the United Church of Christ,
Greetings in the name of Jesus Christ, through whom we share work and witness on behalf of God’s love and God’s justice.
I write to endorse, “A Call for the United Church of Christ to Take Actions Toward a Just Peace in the Israeli-Palestinian Conflict”, Resolution #4, which will be put to the vote at your 30th General Synod later this month in Cleveland, Ohio.
We grieve over Israel’s decades long oppression of Palestine and Palestinians: The illegal occupation; the expanding West Bank settlements; the separation wall; the siege of Gaza; the manipulation of water rights; the network of checkpoints and settler bypass roads; the detention of people without charges; the travel restrictions, identity cards, and disruption of every aspect of daily life for Palestinians.
We condemn the brutality of Israel’s policies. But we do not condemn Judaism or Jews.
As South African, we recognize institutionalized racism when we see it. We have experienced the corrosive effects of segregation – and have witnessed the healing power and joy of reconciliation.
It is unconscionable to remain silent, or neutral, in the face of injustice. Neutrality maintains the status quo and compounds the injustice.
The depth of my commitment to justice in the Holy Land has cost me friends and elicited vehement criticism. It is the cost of discipleship that requires us to name evil and clearly oppose it. Calling me anti-Semitic will not stop me from speaking out for justice.
We do not seek to demonize the architects of Israel’s occupation of Palestine, but to implore those with the political power to change their policies and their ways. Injustice brutalizes the humanity of the oppressors as well as that of the oppressed. Freedom for Palestinians will liberate Israelis, too.
We are sisters and brothers of one family, the human family, God’s family. We are made for each other, for inter-dependence, for goodness and for love. When we recognize each other for what we truly are, we make the impossible possible.
Thank you for recognizing our common humanity, for taking a stand for justice. Your resolution places you on the side of justice and human rights for all.
I endorse fully your resolution’s proposal to use the powerful non-violent tools of economic leverage. These tools helped us to engineer a new day for my own country, South Africa. With you, we proved that economic pressure can force the most powerful to the table. I am grateful that your denomination stood with us then, voting to join the South African divestment movement, and that you are prepared once again to take this stand for justice.
I applaud your decision to be guided by the faithful voice of the Christian community of Palestine, and to encourage widespread study of Kairos Palestine – a Moment of Truth (2009). It was just such a document which, in 1985, allowed the world to hear our voice and learn the depth of our oppression in South Africa. May we all heed the Kairos Palestine call, as people of faith, to engage in “resistance with love as its logic”.
I affirm your resolution’s condemnation of all violence and your uncompromising commitment to the path of non-violence and inter-religious dialogue. And I commend the resolution’s call for accountability from your own, United States, government over its annual $3.1 billion in military aid to Israel.
As US citizens you have the responsibility to speak truth to the power of your own government. As Christians you have the duty to side with the oppressed and by so doing to liberate the oppressor.
I endorse your resolution, and fervently pray for the day when Palestinians and Israelis will be reconciled and live together in dignity, security, and peace, with equal rights for all. When that day comes our collective hallelujahs will resound across the world we share.
God bless you.
Archbishop Emeritus Desmond Tutu Cape Town, South Africa
April 23, 2013
The Palestinian-Israeli issue has always been controversial. Palestine’s upgraded UN status from “non-member observer entity” to “non-member observer state,” passed in the General Assembly by a large margin on November 30, 2012, brings with it, on one hand, new opportunities for Palestinians, while on the other hand, it is potentially more of “a headache” for Israel.
The change from “non-member entity” to “non-member state” for Palestine at the UN has deepened the concerns and hardened the positions of both sides in the conflict. Israel considers the fact to be counter-productive in terms of returning to direct negotiations for peace while Palestine continues to call for a freeze on building new settlements in the occupied territory as a precondition for direct negotiations. Hence, the upgraded status for Palestine at the UN seems to have largely impeded further efforts and possibilities to reach reconciliation.
The complex issue of whether Israeli settlements in the occupied territory are legal or illegal was addressed in the UN Human Rights Council report, approved in Geneva in March 2013. The report states that the settlements are illegal because they violate international humanitarian law under the Fourth Geneva Convention, specifically Article 49 which sets out basic criteria for what is acceptable as humane during wartime. Palestine insists that before direct negotiations for peace can resume with Israel, building by Israel in the occupied territory must stop. Israel is firm in its position that there can be no preconditions to the resumption of peace talks.
The recent change of status allows the Palestinians to participate in UN General Assembly debates, and gives them a chance to join UN agencies and the International Criminal Court (ICC). Palestine could choose to sign the ICC’s treaty and Rome Statute which may offer the opportunity to urge an investigation of perceived Israeli war crimes, and/or make other legal claims against Israel. This possibility, however, is not without potential problems for Palestine as Israel could lodge charges of their own against Palestine and ask for an ICC investigation. Hence, while Palestine’s access to the ICC through its new UN status could eventually lead to enforcement of international law decisions resulting in an Israeli retreat from its present positions, ICC access exposes Palestine to the same international law and its enforcement.
Considering the historical experience and rapid developments in the Middle East, it remains very hard to predict whether a sustainable solution to the Israeli-Palestinian conflict can be reached for the long-term. But the UN action in November 2012 to upgrade Palestine’s status can be a first step to bringing the elusive lasting peace in the Middle East, so long sought after by both Palestine and Israel. Perhaps it can offer an alternative road-map to Israeli-Palestinian coexistence.
December 27, 2012
With Resolution A/67/L.28 on the Status of Palestine at the United Nations having been passed with an overwhelming majority at the General Assembly on November 29, 2012, the Palestinian Authority’s status has been upgraded from a United Nations permanent observer entity to that of a non-member observer State. Although the Resolution does not necessarily mean that all States, including the nine that voted against the Resolution and the forty one that abstained, must now recognize Palestine as a State, it does mean that Palestine will have access to United Nations and agencies, including the International Criminal Court.
For many observers, this has been hailed as a great triumph for Palestine, and some commentators anticipate that Palestine will seek membership at the International Criminal Court in order to file claims against Israeli officials for the Gaza blockade, disproportionate attacks against and collective punishment of Palestinians, and the occupation of the West Bank. However, as will be shown below, seeking membership at the Court will prove to be a double-edged sword for Palestine. Israel will inevitably counterclaim against Palestinian officials, including members of Hamas responsible for intentional attacks against civilian targets in Israel.
Palestine’s Right to File Claims without Israel’s Consent
Under article 12 of the Rome Statute of the International Criminal Court (SICC), in order for the International Criminal Court to exercise jurisdiction, either: (i) the crime must have been committed in the territory of an International Criminal Court member State or on board a vessel or aircraft registered with a member State; (ii) the nationality of the accused must be with a member State; or (iii) the State in question must agree to jurisdiction. Israel is not a member State of the International Criminal Court. Therefore, the only way that Israeli officials could be tried by the Court would be if either Israel accepted the Court’s jurisdiction, which given Israel’s past conduct would be highly unlikely, or a crime over which the Court exercises jurisdiction is committed in the territory of an International Criminal Court member State or on board a vessel or aircraft registered with a member State. What this means is that if Palestine becomes a member State of the Court, which it may now do as a result of the recognition conferred by Resolution A/67/L.28, it could file claims against Israeli officials at the Court for crimes that occurred on Palestinian territory.
Palestine’s New Right— Robust as It Seems?
This sounds like a major shift in politics and relations of Israel and Palestine, since Palestine may now pursue Israeli officials before the International Criminal Court without Israel’s consent. It is so significant that some nations, including the United Kingdom, sought a commitment from Palestinian leaders that Palestine would not file a claim against Israel before the International Criminal Court as a precondition to voting for Resolution A/67/L.28. When the United Kingdom did not receive this commitment, it abstained from voting on the Resolution.
However, while Palestine’s potential International Criminal Court membership appears significant and, according to some commentators, it may significantly derail the Israel-Palestine peace process, the reality is that the Court will not likely play any important role in the relations between the two nations. Palestine is keenly aware if it were to join the International Criminal Court and file a claim against Israel, Israel would immediately retaliate with a counterclaim. Palestine would quickly find its membership with the Court to be a mixed blessing: Palestine would not only enjoy the right to bring actions before the Court but would also be vulnerable to actions brought against it. Of the claims over which the Court holds jurisdiction, one could make the argument that Palestine, through its Gaza Strip arm ruled by Hamas, is far more vulnerable to claims brought against it than is Israel.
For example, it would be difficult to characterize the blockade of the Gaza Strip or Israel’s disproportionate counterattacks as crimes falling under the Court’s jurisdiction, such as murder or extermination “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (art. 7.1 SICC). Israel would argue that the blockade and attacks were never aimed at civilians, but rather at Hamas militants who have repeatedly fired rockets into civilian areas of Israel. Other supposed crimes such as collective punishment of Palestinians and the settlements are, in the words of Kevin Jon Heller’s November 29, 2012, Opinio Juris commentary, “fraught with ambiguity and difficult to prove.”
Defending Against Israeli Claims
Palestine, in contrast, would encounter great difficulty defending against an Israeli claim that Hamas fired rockets directed at civilians in Tel Aviv and Jerusalem, thus constituting crimes against humanity. If Israel could prove that rockets were fired indiscriminately at civilian targets, Palestinian leaders could be held guilty of violating the principle of distinction (discrimination), a key precept of international humanitarian law that requires parties to a conflict to distinguish between the civilian population and combatants in order to spare civilian populations and property.
Palestinian Fatah leadership could argue that rockets fired were under the exclusive control of Hamas, a non-state entity that neither represents the Palestinian people nor serves as the legitimate governmental authority of Palestine. However, such an argument would likely be futile. International criminal law over the last century has increasingly recognized non-state actors as potential violators of international law. There has been renewed and increasing interest in assigning responsibility and accountability to them for their actions. There has thus been a trend in both domestic as well as international law to find jurisdiction in such cases. Even the 1945 Charter of the International Military Tribunal (London Charter), which laid out the laws and procedures of the Nuremberg Tribunal that adjudicated crimes against the Nazi regime, could be read to apply to non-state actors. The International Criminal Tribunal for Rwanda made clear that crimes committed by non-state actors could be adjudicated, and the International Criminal Tribunal for the Former Yugoslavia went as far as even convicting a number of non-state actors for crimes against humanity.
Following this trend, the International Criminal Court allows prosecutions of individual non-state actors. In defining “crimes against humanity,” the Statute of the Court requires that attacks directed against any civilian population involve a “course of conduct involving the multiple commission [of murder, extermination, enslavement, etc.] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack” (art. 7.2 SICC). Thus, by including “organizational policy,” the Statute of the Court can be read to include acts by organizations, such as insurrection movements or other groups such as Hamas that may not have a clear nexus with state action.
The General Assembly’s upgrade of Palestine from observer entity to non-member observer State is more complicated than would seem at first glance. Although the upgrade will grant Palestine new rights under international law, the exercise of at least some of these rights, including the filing of claims against Israeli officials before the International Criminal Court, could be more detrimental to Palestine than to Israel.