Israel may face UN court ruling on legality ofconflict
* Afua Hirsch, legal affairs correspondent
* , Wednesday 14 January 2009
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 , and international
humanitarian law,” said Richard Falk, the UN’s special rapporteur on the
Palestinian territories and professor emeritus of international law at
“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
,” Falk added. “The arguments that Israel’s
blockade is a form of prohibited , 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 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 .
“The blockade of humanitarian relief, the destruction of
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
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
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 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