National Lawyers Guild urges UN to refer Gaza war crimes to the International Criminal Court

National Lawyers Guild, 18 March 2011

The National Lawyers Guild (U.S.) strongly urges the Human Rights Council of the United Nations to pass a resolution supporting the referral of the Israeli siege, blockade, and war on Gaza to the International Criminal Court. Such a resolution would pave the way for the UN Security Council to make such a referral.

In addressing Libya, the UN Security Council swiftly referred the situation to the prosecutor of the International Criminal Court in the Hague (ICC. However, the UN Security Council has done nothing to address the ongoing Israeli violations of the rights of Palestinian civilians in Gaza or US acts, including arms shipments, in support of those violations.

The NLG previously urged the adoption of the comprehensive Goldstone report, and affirmed calls from Palestinian political, social, and human rights organizations for international justice regarding the war on Gaza and the ongoing siege, particularly the Israeli war on Gaza in 2008-2009. The NLG conducted a delegation to Gaza in February 2009 that released a report assessing human rights violations in Gaza and providing strong recommendations:

The Goldstone report stated:
While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self-defence, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole.(Goldstone Report, paragraph 1883)

On March 21, the Human Rights Council will consider the second report of a Committee of Independent Experts which it mandated to assess the Israeli and Palestinian investigations into serious violations of international law committed in Gaza in 2008-2009. The UN Fact-Finding Mission on the Gaza Conflict, headed by Justice Richard Goldstone, found in September 2009 that these violations included war crimes and possibly crimes against humanity. It recommended that the Israeli authorities and the relevant authorities in the Gaza Strip be required to investigate the serious violations of international humanitarian and human rights law reported by the Mission. If the authorities failed to conduct independent investigations meeting international standards within six months, the Mission recommended that the UN Security Council refer the issue to the International Criminal Court.

The previous report of this committee in September 2010, stated that the investigations conducted by Israeli authorities and relevant authorities in Gaza failed to meet international standards of independence, impartiality, effectiveness, thoroughness and promptness. However, rather than supporting a referral to the ICC, the Human Rights Council voted to simply renew the Committee’s mandate for another six months. Now, it is time to stop the delay and take action. The National Lawyers Guild joins with Amnesty International and other human rights organizations in calling on the UN Human Rights Council to issue a resolution that:
condemns the failure, particularly on the part of the Israeli authorities (the attacking state party responsible for the killing of over 1400 Palestinians), to conduct credible, independent, impartial investigations or prosecute Israeli government and military leaders who are responsible;[1] refers the September 2010 report and the upcoming report of the Committee of Independent Experts to the UN General Assembly and urges the [[GA]] General Assembly to call upon the Security Council to refer the war and siege on Gaza to the ICC; notes that the ICC Prosecutor has yet to request a determination from the Pre-Trial Chamber on whether the ICC has jurisdiction to investigate war crimes committed during the Gaza conflict, pursuant to a declaration accepting ICC jurisdiction submitted by the Palestinian Authority in January 2009, and requests him to do so urgently; and calls on states to fulfil their duty to investigate and prosecute crimes committed during the conflict before their national courts by exercising universal jurisdiction.

The absence of any serious attempt to stop the Israeli aggression during the war on Gaza was a severe failure on the part of the United Nations and the international community. We urge the Human Rights Council, General Assembly and Security Council to consistently apply international legal standards and utilize international justice mechanisms, and point out that the Israeli war crimes committed in Gaza are a glaring example of a lack of international accountability, a situation that must be rectified.

The National Lawyers Guild therefore calls on the Human Rights Council of the United Nations to pass a resolution supporting the referral of the Israeli siege, blockade, and war on Gaza to the International Criminal Court and for the UN Security Council to take up this matter and make the referral to the ICC.

If the UN Security Council fails to make the referral, the National Lawyers Guild notes that Article 22 of the UN Charter has a remedy:
Article 22 states, “The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions.”

Thus, Article 22 enables the General Assembly to establish an International Criminal Tribunal for Israel (ICTI) as a ‘subsidiary organ’ to prosecute Israel’s top generals and other military and political leaders for gross violations of the law even if the UN Security Council does not act to refer the matter to the ICC. As precedent, the NLG notes that it was the UN General Assembly that convened a conference in 1998 that established the International Criminal Court itself. In view of the possibility of a US veto in the Security Council, and consistent with the recommendation of the NLG delegation to Gaza in 2009, the National Lawyers Guild calls on the UN Human Rights Council to also include in its resolution support for the the UN General Assembly establishing an International Criminal Tribunal for Israel.

The National Lawyers Guild’s report of its February 2009 delegation to Gaza, with its full proposals for action, is available here:

The National Lawyers Guild, founded in 1937, is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

[1] Furthermore, we note that, in the words of the Goldstone report, there can be no equation of “the position of Israel as the occupying power with that of the occupied Palestinian population or entities representing it” (A/HRC/12/48: p: 521). We reject any attempt to criminalize or equate the resistance of an occupied people to the institutional, state-directed, massive violence of the occupier.

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