Report of the fact-finding mission headed by Archbishop Desmond Tutu on Israeli shelling in Beit Hanoun on 8 November 2006 (Introduction, Background, Conclusions and Recommendations)
“THERE IS A POSSIBILITY THAT THE SHELLING CONSTITUTED A WAR CRIME”
HAMAS MUST STOP THE FIRING OF ROCKETS ON CIVILIAN POPULATION IN ISRAEL
At its third special session, held on 15 November 2006, the Human Rights Council adopted resolution S-3/1, in which the Council among other things, called for a high-level fact-finding mission to be established and for the mission to travel to the town of Beit Hanoun in the occupied Palestinian territory of Gaza, following Israeli military operations carried out there around 8 November 2006. The President of the Council appointed Archbishop Desmond Tutu of South Africa to lead the mission, and Professor Christine Chinkin of the United Kingdom of Great Britain and Northern Ireland as the sole other member of the mission. In accordance with the resolution, the Secretary-General and the United Nations High Commissioner for Human Rights provided the administrative, technical and logistical assistance required to enable the mission to fulfil its mandate.
The mission has submitted two interim reports to the Council, in which it outlined efforts undertaken to discharge its mandate (A/HRC/5/20). The present report is the final report of the mission, following its trip to Beit Hanoun in May 2008.
On three occasions, the mission attempted to travel to Beit Hanoun via Israel. Each of these attempts was frustrated by the refusal of the Government of Israel to cooperate with the mission (see A/HRC/5/20). The desire of the mission to travel via Israel was motivated by the experts’ desire to meet with and hear the views of Israeli actors (Government, military and non‑governmental), including individuals living in areas of southern Israel under the threat of rocket attack from Gaza. In the view of the mission, hearing and taking into account the views of these actors would, among other things, go some way towards redressing any imbalance in resolution S-3/1 perceived by the Government of Israel. In view of the unchanging attitude of the Government of Israel, the mission decided in January 2008 to travel to Beit Hanoun via Egypt. The mission travelled to Beit Hanoun from 27 to 29 May 2008.
CONCLUSIONS AND RECOMMENDATIONS
The mission expresses its sympathy to all victims of the shelling on 8 November 2006 of Beit Hanoun. The attack took lives, inflicted horrendous physical and mental injuries, tore families apart, destroyed homes, took away livelihoods and traumatized a population. Its aftermath compounded those ills. The courage of the victims in the face of continuing hardship deserves our admiration. Their recovery is not aided by continuing incursions into Beit Hanoun including on the night after the mission’s visit to the town.
. The mission again expresses its regret that the Government of Israel decided to withhold any cooperation with the mission. Israel feels that the mandate of the mission is biased against it. That is a matter for the Council. The mission has, however, gone to great lengths to execute its mandate in as balanced a way as possible. The effective ban on its visiting Israeland meeting with Israeli actors (including victims of Kassam rocket attacks in southern Israel) has itself been an obstacle to the balance that Israel seeks. The mission expresses its sympathy to all those affected by the Kassam rocket attacks in southern Israel.
The bombing of Beit Hanoun and its aftermath came in the wider context of the conflict in the occupied Palestinian territories and Israel. The occupation remains the root cause of the bleak situation that the mission only briefly sketches in the present report. The cessation of hostilities between Israel and Palestinian militants in June 2008 was a positive development. The mission reiterates that the process towards peace must operate within a framework of international law and be guided by respect for the Charter of the United Nations, international human rights law and international humanitarian law. The mission draws the attention of all parties to the conflict to Security Council resolution 1325 (2000) requiring attention to the special needs of women in the aftermath of conflict and urging women’s participation in conflict resolution and sustainable peace.
The violence in Gaza and southern Israel has led to countless violations of international human rights and international humanitarian law. This lack of respect on both sides for the rules of conflict not only leads to incidents such as that in Beit Hanoun, but also undermines respect for the laws of war and human rights in other conflicts. The people of Gaza must be afforded protection in compliance with international law and, above all, the Fourth Geneva Convention. The Israeli military must place at the centre of its decision-making and activities in the occupied Palestinian territories the consequences of the use of force on civilians. In the absence of a well-founded explanation from the Israeli military (who is in sole possession of the relevant facts), the mission must conclude that there is a possibility that the shelling of Beit Hanoun constituted a war crime as defined in the Rome Statute of the International Criminal Court. Similarly, as the mission made clear to Hamas at the highest level, the firing of rockets on the civilian population in Israel must stop. Those in positions of authority in Gaza have not only an international humanitarian law obligation to respect international humanitarian law norms relating to the protection of civilians, but also a responsibility to ensure that these norms are respected by others.
One victim of the Beit Hanoun shelling was the rule of law. There has been no accountability for an act that killed 19 people and injured many more. The Israeli response of a largely secret internal military investigation is absolutely unacceptable from both legal and moral points of view. The mission notes that Israel has adopted a similar response to other killings by its military, with similar results. The mission repeats its position that, regardless of whether the casualties at Beit Hanoun were caused by a mistake, recklessness, criminal negligence or wilful conduct, those responsible must be held accountable. It is not too late for an independent, impartial and transparent investigation of the shelling to be held; indeed, the mission notes other instances in which the courts have ordered the Israeli military to open investigations into the killings of civilians by the military. The mission welcomes this intervention by the courts. Justice cannot wait for peace to be secured. Rather, no credible, lasting peace can be built upon impunity and injustice.
As the mission has repeatedly stressed (including to representatives of Hamas), those firing rockets on Israeli civilians are no less accountable than the Israeli military for their actions (A/HRC/5/20, para. 19).
Accountability involves providing a remedy and redress for victims. To date, neither has been forthcoming from Israel, despite its admission of responsibility for the attack. The very clear message from the victims and survivors to the mission and to the Council is that they seek justice before anything else. The present report outlines some of the obstacles put in the way of victims seeking justice. While the mission calls on Israel to remove these obstacles, it is of the view that victims should not be forced to fight for compensation through Israeli courts when all accept that damage was inflicted on individuals by the State. The mission recommends that the State of Israel pay victims adequate compensation without delay. In the light of the magnitude of the attack on a small community, and in addition to compensation to individuals, the mission also recommends that Israel make reparation to the community of Beit Hanoun in the form of a memorial to the victims that constitutes a response to the needs of survivors. Possibilities include a health facility such as a much-needed physiotherapy clinic.
The situation of victims and survivors of the shelling, as witnessed by the mission, remains grim. Israel, Hamas and the Palestinian Authority have human rights obligations towards the victims. Most of the ongoing violations, however, are caused by Israeli action or inaction. The mission calls on Israel to honour its obligations to the people of Beit Hanoun, and more generally to the people of occupied Gaza, to respect, protect and fulfil their human rights. A major barrier to the enjoyment of human rights is the ongoing blockade that limits individuals’ ability to provide an adequate standard of living for themselves and their families and the capacity of local authorities to provide essential services for the population. A central need of victims is access to health services. Israel must desist from obstructing victims’ access to health-care services, be it through restricting the flow of medical goods and personnel into Gaza, or through restricting victims’ ability to leave Gaza to seek health care elsewhere.
The Council asked the mission to make recommendations on ways and means to protect Palestinian civilians against any further Israeli assaults. Specific recommendations in this regard were made in the mission’s previous report, recommendations that the mission reiterates. In the mission’s view, one of the most effective and immediate means of protecting Palestinian civilians against any further Israeli assaults is to insist on respect for the rule of law and accountability. We have seen that even the flawed Israeli investigation into the Beit Hanoun shelling resulted in a decision to discontinue use of artillery in Gaza, one of the main causes of civilian death and injury in the territory. The knowledge that their actions will be scrutinized by an independent authority would be a powerful deterrent to members of the Israeli military against taking risks with civilian lives.
During a press conference at the conclusion of its visit to Gaza, the mission indicated that the international community is failing to fulfil its role in respect of the suffering of the people of Gaza, in particular in its silence which begets complicity. In its efforts to discharge its mandate, the mission witnessed positions based on political objectives rather than on principle by all relevant parties. Addressing human rights violations suffered by individuals in Israel and in the occupied Palestinian territories must be the prime motivating force for members of the Council and others with influence in the region.
Finally, the mission expresses its thanks to all those who facilitated its visit to Beit Hanoun, in particular the Government of Egypt and UNRWA. It also expresses its thanks and deep admiration to those working with the people of Gaza, specifically non‑governmental organizations, human rights defenders and the United Nations.