1. This statement focuses on the impact of Israel’s continuing Gaza military campaign, initiated on 27 December 2008, on the humanitarian situation confronting the 1.5 million Palestinians confined to the Gaza Strip. In accordance with the undertaking of the mandate, it confines its comments to issues associated with Israel’s obligations as occupying power to respect international humanitarian law (IHL), which refers mainly to the legal obligations contained in the Fourth Geneva Convention of 1949, which sets forth in some detail the legal duties of Israel as the occupying power.
3. The quality of this report is undoubtedly diminished by the absence of first-hand observations of the pre-existing humanitarian situation existing in Gaza, which was to be the objective of a mission undertaken by the Special Rapporteur to gather information for use in making a report to the regular session of the Human Rights Council (HRC) scheduled for March, 2009. This mission was aborted when the Special Rapporteur was denied entry to Israel on 14 December 2008, detained for some 15 hours in a holding cell at Ben Gurion Airport, and expelled on the next day. Such treatment of a UN expert on mission would seem to raise serious issues for the Organization as a whole, bearing on the duties of a member state to cooperate, and to deal with those carrying out UN work with appropriate dignity. It is to be hoped that the government of Israel can be persuaded to reconsider its policy of exclusion that has hampered the work of this mandate.
5. The use of force by an occupying power against the security threats emanating from a population under occupation is permissible within the constraints set by international law. Israel claims that its current military campaign is reasonable and necessary given the scale and severity of the rocket attacks directed at Israeli civilian populations living in the South Israel towns of Sderot and Ashdod, and attributed to Hamas.
6. It should be pointed out unambiguously that there is no legal (or moral) justification for firing rockets at civilian targets, and that such behavior is a violation of IHR, associated with the right to life, as well as constitutes a war crime. At the same time, the nature of the offense must be evaluated with the context of its occurrence, including the relevance of the temporary ceasefire that had held since June 2008 until seriously disrupted by a lethal Israeli attack on Palestinian militants in Gaza on 4 November 2008.
7. This blockade in effect for a period of 18 months was unlawful, a massive form of collective punishment, and as such in violation of Article 33 of the Fourth Geneva Convention, and also a violation of Article 55, which requires that the occupying power ensure that the civilian population has sufficient food and that its health needs are addressed.
8. Most accounts of the temporary ceasefire indicate that it was a major Israeli use of lethal force on November 4, 2008 that brought the ceasefire to a de facto end, leading directly to increased frequency of rocket fire from Gaza. It is also relevant that Hamas repeatedly offered to extend the ceasefire, even up to ten years, provided that Israel would lift the blockade. These diplomatic possibilities were, as far as can be assessed, not explored by Israel.
9. It is also important under international law to determine the extent to which the reliance on force is proportionate to the provocation and necessary for safeguarding security. To mount a major military campaign against an essentially defenseless society already gravely weakened by the blockade accentuates the disproportion of reliance on modern weaponry in combat situations where military dominance was largely uncontested. The one-sidedness of casualty figures is one measure of disproportion. Another is the scale of devastation and the magnitude of the attacks.
10. There have also been a variety of allegations made by qualified observers of Israeli reliance on legally unacceptable targets and on legally dubious weaponry that violate the customary international law prohibition on weapons and tactics that are ‘cruel’ or cause ‘unnecessary suffering.’ Among the targets viewed as unlawful under IHL: Islamic University, schools, mosques, medical facilities and personnel (including ambulances). Among weapons that are legally dubious under IHL: phosphorous gas in shells and missiles that burn flesh to the bone; dense insert metal explosives (so-called DIME) that cut victims to pieces, and raise risk of cancer for survivors; depleted uranium associated with deep-penetrating, so–called ‘bunker buster’ bombs used against Gaza tunnels, possibly causing radiation sickness for anyone exposed over a period of centuries.
12. From the perspective of the Mandate for oPt the following recommendations seem worthy of the attention at this Special Session:
(1) To request restoring access for Special Rapporteur to the occupied Palestinian territories as an essential feature of UN monitoring role;
(2) To seek General Assembly initiatives with respect to investigating allegations of war crimes;
(3) To propose long-term truce based on cessation of rocket launchings from Gaza and unconditional lifting of blockade;
(4) To request an Advisory Opinion from the International Court of Justice to assess the legal status of Israeli control in Gaza subsequent to Israeli ‘disengagement’ in 2005.
[originally published at husseini.org on Jan. 9, 2009]