Operation Cast Lead five years on: ‘We are still demanding justice’

ICC should take concrete steps to ensure justice is served for the victims of Israel’s aggression in Gaza in 2008-2009.

The Israeli justice system has systematically turned its back on Palestinian victims and the rule of law [AFP]

This year marks the fifth anniversary of Operation Cast Lead, Israel’s 22-day offensive (December 27-January 18) on the Gaza Strip. Sitting in Gaza today it is hard to believe that five years have passed.

The horrors of that offensive remain indelibly etched in the minds of all Gazans. For 22 days we were closed in and relentlessly attacked, while the world watched as war crimes were broadcast live on television. At the end of the offensive over 1,400 Palestinians were dead; 82 percent of them – the overwhelming majority – were innocent civilians. In January 2009, Gaza looked like the scene of a natural disaster. Its people stood numb and in shock. But in the middle of the destruction and the loss, there was hope.

We believed that the world had to react: Who can forget the sight of white phosphorous raining down over Gaza City, and the suffering and death it caused to our families? Who can forget the indiscriminate artillery bombardment, the drone attacks that killed only civilians and children, or the bulldozers and explosive charges that left the homes in the Gaza Strip in ruins? We believed that justice would be done for the innocent civilians, and those responsible would be held to account.

The report of the UN Fact-Finding Mission on the Gaza Strip, confirmed our lawyers’ and fieldworkers’ findings: There was significant evidence indicating the widespread and systematic commission of war crimes in the Gaza Strip. The UN Mission concluded that Israel’s policies were premised on a “deliberate policy of disproportionate force”, aimed not at the enemy but at the “supporting infrastructure”, concluding that “[i]n practise, this appears to have meant the civilian population”.

Accordingly, the Mission recommended that the allegations of war crimes committed during Operation Cast Lead had to be effectively investigated and those responsible for international crimes prosecuted. The Mission recommended also that, if domestic investigations proved inadequate, the Security Council should refer the situation to the International Criminal Court.

In 2009 the Palestinian Centre for Human Rights (PCHR) submitted 490 criminal complaints (on behalf of 1,046 victims of Operation Cast Lead) to the Israeli Military Prosecutor. Among these cases were the most infamous incidents of the offensive, such as the killing of 21 members of the Samouni family, the attacks on schools, the use of white phosphorous, and the killing of civilians carrying white flags. Over the last five years PCHR has received only 40 responses in relation to these cases, almost all of which were interlocutory, indicating that a complaint had been received. Just three responses indicated that the cases had been closed (including that of the Samouni family), while one indicated that a soldier had been charged (and subsequently prosecuted). In the horrors of the offensive, it was the theft of a credit card that resulted in a prosecution.

In the last five years the Israeli justice system has systematically turned its back on Palestinian victims and the rule of law. Israel has refused to effectively investigate allegations of war crimes and to fulfil its obligations under international law, instead extending blank impunity to its soldiers and officials.

Not even civil compensation claims have had any chance of success. The obstacles imposed on victims from Gaza seeking compensation before Israeli courts include prohibitive court guarantees, a requirement that power of attorney forms be signed by an Israeli diplomat (impossible given the Israeli-imposed closure of the Gaza Strip), and Amendment No 8 which exempts Israel from any liability arising during a “combat action” (the very situations which international humanitarian law was intended to address).

This injustice is no longer acceptable and demands international intervention. If international law is to be effective, it must be enforced through the appropriate bodies, at the UN level and through the International Criminal Court (ICC). The world, however, has turned its back on the civilians of Gaza and on justice.

Significant pressure has been exerted on the government of Palestine to prevent it from joining the ICC. To its shame, the Palestinian government has so far buckled under this pressure.

However, this is not the end of the story. In January 2009, Palestine accepted the jurisdiction of the ICC: despite the ICC Prosecutor’s April 2012 shameful “decision not to decide“, the situation in Palestine can nevertheless be subject to the jurisdiction of the Court. The ICC Prosecutor can and must take concrete steps towards ending impunity in Israel and Palestine, and ensuring that victims’ right to justice is served.

We are not asking for special treatment: All we ask for is equality. Dignity, equality, humanity, these are the cornerstone of human rights and international law. If war crimes are committed those responsible must be held to account. This is a principle accepted around the world, but five years later, trapped behind the on-going illegal closure of the Gaza Strip, we are still waiting for it to be applied.

We are still demanding justice. Without justice we know that peace will remain a distant illusion.

Raji Sourani is the Director of Palestinian Centre for Human Rights.