Extrajudicial executions – HRC fourth session – Special Rapporteur report (Alston)/Transmission to Governments(Israel, PA)/Replies (Addendum – excerpts)

IMPLEMENTATION OF GENERAL ASSEMBLY RESOLUTION 60/251

OF 15 MARCH 2006 ENTITLED "HUMAN RIGHTS COUNCIL"

Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston

Addendum

Summary of cases transmitted to Government and replies received**

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*  The present document is being circulated as received, in the languages of submission only, as it greatly exceeds the word limitations currently imposed by the relevant General Assembly resolutions.

** The report was submitted late in order to reflect the most recent information

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Introduction

1. This report contains a comprehensive account of communications sent to Governments up to 1 December 2006, along with replies received up to the end of January 2007. It also contains two additional categories of communication: (i1) tThose sent after 1 December 2006 to which responses were received in time for inclusion,; and (ii2) rResponses received to communications that were sent in earlier years.

I. COMMUNICATIONS AND REPLIES

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Israel: Deaths of Civilians in the Gaza Strip

Violation alleged: Deaths due to attacks by the military

Subject(s) of appeal: More than 170 persons

Character of reply: No response (recent communication)

Observations of the Special Rapporteur

The Special Rapporteur looks forward to receiving a response concerning these allegations.

Letter of allegation dated 30 November 2006

I am writing to your Excellency’s Government to express my concern about recent incidents involving the killing of civilians in the Gaza strip and Israel. I am also writing a letter to the Palestinian Authority, a copy of which is enclosed with this letter.

According to reports received, on 8 November 2006 artillery shells fired by the Israeli Defense Forces at a cluster of houses in Beit Hanun in the Gaza Strip killed 18 Palestinians, including 14 women and children. On 22 November 2006, Israeli Defense Forces reportedly killed a woman in her 30s and a 16-year-old boy, in addition to two gunmen from Hamas. On 24 November 2006, in Beit Lahiya an Israeli Defense Forces sniper reportedly killed a 10-year-old boy, Abdel Aziz Salman.

These three incidents are just a few recent examples of the consistently rising death toll since Israeli Defense Forces re-entered the Gaza Strip following the capture of Cpl Shalit. According to statistics of the non-governmental organization Physicians for Human Rights, between 28 June and 27 October 2006 Israeli military action in the Gaza Strip directly caused the death of 247 persons and the injury of another 996. 155 of the 247 dead (corresponding to more than 63 percent) were civilians. According to the same statistics, 337 of those wounded, i.e. more than a third, were children.

I do not consider it necessary to recall in any detail here the overall body of norms and principles of international humanitarian law and international human rights law applicable to the conduct of military operations by the Israeli Defense Forces in the Gaza Strip in general and to the incidents mentioned above in particular. These include several principles specifically aimed at minimizing civilian deaths in the course of military operations, such as the principle of distinction, the prohibition of indiscriminate attacks, the principle of proportionality, and the obligation to take all feasible precautions to avoid, and in any event to minimise, incidental loss of civilian life.

I would like to recall, as noted in my 2006 annual report to the Commission on Human Rights, that “[t]he State obligation to conduct independent and impartial investigations into possible violations does not lapse in situations of armed conflict and occupation” (E/CN.4/2006/53, para. 37). This includes the obligation, whenever a State receives allegations that someone has committed or ordered a grave breach – such as the “wilful killing” of a protected civilian – to investigate the matter and either try the suspected perpetrator before its own courts or extradite him to another State that has made out a prima facie case. Should the perpetrator be found guilty, the State must impose an effective penal sanction (ibid., para. 34).

With respect to these obligations, I would like to learn:

(i) whether your Government maintains statistics of the number of civilians the Israeli Defense Forces have killed in the Gaza Strip since 28 June 2006;

(ii) how many of these civilian deaths have been investigated, and whether such investigations were carried out only internally by the Israeli Defense Forces or also by other authorities;

(iii) the outcome of the investigations your Excellency’s Government has carried out into the reported killing of more than 170 civilians in the Gaza Strip since the end of June 2006;

(iv) in my letter to your Government requesting a visit of 16 June 2006 I had expressed particular concern “about the reported recent intensification of rocket fire on Israel from Gaza, the explosion killing seven civilians on a beach north of Gaza City on 9 June 2006, and the 11 June 2006 rocket attack by the Israeli Defence Forces on a vehicle allegedly carrying artillery and explosives, which resulted in the death of two Islamic Jihad militants and nine civilians”. Has your Government carried out independent investigations into the 9 and 11 June 2006 incidents (in addition to the internal IDF investigations) in the meantime? With what results?

It is my responsibility under the mandate provided to me by the Commission on Human Rights and extended by the Human Rights Council to seek to clarify all cases brought to my attention. Since I am expected to report on these incidents to the Council, I would be grateful for your cooperation and your observations on the above matters. I undertake to ensure that your Government’s response to each of these questions is accurately reflected in the report I will submit to the Human Rights Council for its consideration. Please note that in order to include your Government’s response in my next report to the Human Rights Council, I would need to receive it before 15 January 2007.

In the light of the reports received and of the questions these reports raise, I also would like to reiterate my request to conduct a visit to Israel and the Occupied Palestinian Territories at the earliest possible date. The Palestinian Authority has indicated its consent to my request. I am confident that such a visit could take place in the same constructive spirit as my recent visit to Israel from 10 to 14 September 2006.

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Palestinian Authority: Killing of Civilians in the Gaza Strip and Israel

Violation alleged: Impunity; Deaths due to attacks or killings by paramilitary groups or private forces

Subject(s) of appeal: General

Character of reply: No response (recent communication)

Observations of the Special Rapporteur

The Special Rapporteur looks forward to receiving a response concerning these allegations.

Urgent appeal sent on 30 November 2006

I am writing to your Excellency’s Government to express my concern about recent incidents of killing of civilians in the Gaza strip and neighboring Israel. I am also writing to the Government of Israel and a copy of that letter is enclosed herewith.

According to reports received, following the killing of 18 civilians in Beit Hanoun on 8 November 2006, several senior representatives of the Hamas party, the party leading the government and with a majority in the legislature, made statements which have been widely interpreted as advocating the resumption of suicide attacks against the civilian population of Israel.

On 23 November 2006, near the town of Beit Lahiya in the Gaza Strip, Ms. Fatima Omar Mahmud al-Najar, a woman aged around 60 years, reportedly detonated an explosive belt she was wearing when Israeli soldiers who had become suspicious about her conduct threw a stun grenade at her. Reports indicate that this attack was claimed by Hamas and that she was subsequently shown on television in a so-called martyr’s video, wearing a bright green Hamas bandanna.

According to further reports, on 15 November 2006, a 57-year old woman was killed and another man injured in Sderot after they were hit by shrapnel from a rocket fired from the Gaza Strip, which is at a ten kilometer distance from the town. Since Israeli settlers and troops withdrew from Gaza in September 2005, at least 1,100 rockets have reportedly been fired from Gaza, killing four Israeli civilians.

In connection with these statements and incidents, I would like to recall that international humanitarian law requires parties to an armed conflict to distinguish at all times between combatants and civilians, and to direct attacks only against combatants (Rules 1 and 7 of the Customary Rules of International Humanitarian Law identified by the International Committee of the Red Cross). Also launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited (Rule 14). Moreover, acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited (Rule 2).

In the light of these reports, I would like to learn the official position of your Excellency’s Government with regard to both the firing of rockets at Israeli civilian settlements and with regard to bomb attacks against Israeli targets, both military and civilian, carried out by persons who do not identify themselves as combatants.  

It is my responsibility under the mandate provided to me by the Commission on Human Rights and extended by the Human Rights Council to seek to clarify all cases brought to my attention. Since I am expected to report on this matter to the Council, I would be grateful for your cooperation and your observations on the following matters:

(i) Are the facts alleged above accurate?

(ii) Does your Excellency’s Government consider that it is obliged under international law to seek to prevent the firing of rockets at Israeli civilian settlements and explosive attacks against Israeli targets carried out by persons who do not identify themselves as combatants?

(iii) If not so, I would be grateful for an explanation as to the grounds on which your Government does not consider that international law, including the above provisions, places such an obligation on it.

(iv) If your Excellency’s Government does consider that it is under an obligation to prevent such attacks, please explain the steps taken to comply with this obligation.

I undertake to ensure that your Government’s response to each of these questions is accurately reflected in the report I will submit to the Human Rights Council for its consideration. Please note that in order to include your Government’s response in my next report to the Human Rights Council, I would need to receive it before 15 January 2007.

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