On Thursday, 25 March 2010, the UN Human Rights Council adopted Resolution A/HRC/13/L.30 in the context of the follow up to the Report of the UN Fact Finding Mission on the Gaza Conflict (the Goldstone Report).
Significantly, this Resolution calls for the High Commission for Human Rights to:
explore and determine the appropriate modalities for the establishment of an escrow fund for the provision of reparations to the Palestinians who suffered loss and damage as a result of unlawful acts attributable to the State of Israel during the military operations conducted from December 2008 to January 2009.
The establishment of such a fund, a key recommendation of the Goldstone Report, is an appropriate and essential measure. As recognised in Article 31 of the Responsibility of States for Internationally Wrongful Acts, in this context, reparation is a legal obligation incumbent on the State of Israel.
However, the Palestinian Centre for Human Rights (PCHR) emphasize that restitution is only one component in the pursuit of accountability and the attainment of victims' rights.
There can be no substitute for criminal investigation and prosecution. This reality, is explicitly recognised in, inter alia, Articles 2 and 26 of the International Covenant on Civil and Political Rights, while the obligation to investigate serious violations of international law constitutes an obligation under customary international law.
It is also a long-standing principle of international law that if genuine domestic investigations into suspected international crimes - such as grave breaches of the Geneva Conventions, torture, or crimes against humanity - are not forthcoming, then recourse must be had to mechanisms of international justice.
As published previously (see Genuinely Unwilling) PCHR believe Israel's investigative and judicial system is fundamentally incapable of conducting genuine investigations with respect to alleged violations committed against civilians; a conclusion also reached by national courts in Spain and the Netherlands.
Israel's unwillingness to conduct genuine investigations into the events surrounding last year's offensive on the Gaza Strip confirm that recourse must be had to mechanisms of international justice via the International Criminal Court and the exercise of universal jurisdiction.
The UN General Assembly has requested that the Secretary-General report to the General Assembly on the status of Israeli and Palestinian investigations in July 2010. PCHR believe that it is imperative that the Committee of Experts established by the Human Rights Council report back prior to this date, in order that their findings may contribute to the Secretary-General's decision. As it stands, the Committee of Experts is required to report back in September 2010.
PCHR remind all concerned parties that - as confirmed by, inter alia, the Inter-American Court of Human Rights - investigations which persist for a long period of time without those responsible being identified, constitute "a situation of serious impunity and ... a breach of the State's duty."
Further delays in the process of ensuring victims' legitimate rights to an effective judicial remedy cannot be allowed; individuals suspected of committing international crimes cannot be allowed to continue living in impunity. The UN must not contribute to the perpetuation of a system of impunity, and the violation of individual's legitimate rights to the equal protection of the law.
The Human Rights Council Committee of Experts must act in conjunction with the Secretary-General as mandated by the General Assembly.