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Israel may face UN court ruling on legality of Gaza conflict
* Afua Hirsch, legal affairs correspondent
* The Guardian, Wednesday 14 January 2009
* larger | smaller
* Article history
Israeli aircraft attack a Gaza City cemetery Link to this video
Israel faces the prospect of intervention by international courts amid growing
calls that its actions in Gaza are a violation of world humanitarian and
criminal law.
The UN general assembly, which is meeting this week to discuss the issue, will
consider requesting an advisory opinion from the international court of
justice, the Guardian has learned.
Damage at a Gaza City graveyard Link to this audio
"There is a well-grounded view that both the initial attacks on Gaza and the
tactics being used by Israel are serious violations of the UN charter, the
Geneva conventions, international law and international humanitarian law," said
Richard Falk, the UN's special rapporteur on the Palestinian territories and
professor emeritus of international law at Princeton University.
"There is a consensus among independent legal experts that Israel is an
occupying power and is therefore bound by the duties set out in the fourth
Geneva convention," Falk added. "The arguments that Israel's blockade is a form
of prohibited collective punishment, and that it is in breach of its duty to
ensure the population has sufficient food and healthcare as the occupying
power, are very strong."
A Foreign Office source confirmed the UK would consider backing calls for a
reference to the ICJ. "It's definitely on the table," the source said. "We have
already called for an investigation and are looking at all evidence and
allegations."
An open letter to the prime minister signed by prominent international lawyers
and published in today's Guardian states: "The United Kingdom government ...
has a duty under international law to exert its influence to stop violations of
international humanitarian law in the current conflict between Israel and
Hamas."
The letter argues that Israel has violated principles of humanitarian law,
including launching attacks directly aimed at civilians and failing to
discriminate between civilians and combatants.
The letter follows condemnation earlier this week from leading QCs of Israel's
action as a violation of international law, and a vote by the UN's human rights
council on Monday on a resolution condemning the ongoing Israeli military
operation in the Gaza Strip.
"The blockade of humanitarian relief, the destruction of civilian
infrastructure, and preventing access to basic necessities such as food and
fuel are prima facie war crimes," a group of leading QCs and academics,
including Michael Mansfield QC and Sir Geoffrey Bindman, wrote in a letter to
the Sunday Times.
Israel has already been found to have violated its obligations in international
law by a previous advisory opinion of the ICJ, and is likely to vigorously
contest arguments that it is an occupying power. It previously stated that
occupation ceased after disengagement from Gaza in 2005.
Its stance raises questions as to the utility of an advisory opinion by the ICJ
after Israel rejected its finding in a previous case, which found the wall
being constructed in the Palestinian territories to be a violation of Israel's
obligations under international humanitarian law.
Questions are also being raised as to whether the international criminal court,
which deals with war crimes and crimes against humanity, would have any
jurisdiction to hear cases against perpetrators of the alleged crimes on both
sides of the conflict. Neither Israel nor the Palestinian territories are
signatories to the Rome statute, which brings states within the jurisdiction of
the ICC.
More likely, experts say, is the establishment of ad-hoc tribunals of the kind
created to deal with the war in the former Yugoslavia and the genocide in
Rwanda.
"If there were the political will there could be an ad-hoc tribunal established
to hear allegations of war crimes," Falk said. "This could be done by the
general assembly acting under article 22 of the UN charter which gives them the
authority to establish subsidiary bodies."
* guardian.co.uk © Guardian News and Media Limited 2009
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