FREE GAZA BLOG

As the UN and human rights groups demand independent investigations into the conduct of Israel’s offensive in the Gaza Strip, the world’s attention is focusing on whether Israeli or Hamas officials could face prosecution for war crimes.

Whatever the inquiries find, bringing suspected war criminals to court will be far from straightforward.

There is a world of difference between establishing that war crimes have been committed, and then holding those responsible to account, says Mark S Ellis, the executive director of the International Bar Association (IBA).

“Often, people view these as the same, but they are not under international law. There is a gap … regarding the issue of accountability,” Ellis says.

Even if independent inquiries do establish that gross violations of the laws of armed conflict have taken place during the war in Gaza, the mechanisms to ensure those responsible on either side are brought to justice “simply don’t exist”.

Four options

There are four main options open to states, groups or individuals seeking to launch legal proceedings against suspects should investigators find war crimes have been committed during the 22-day assault on the Strip, Ellis says.

All four routes are fraught with complexities, particularly in relation to the Gaza conflict.

First, individual war crime cases would ordinarily be referred to the International Criminal Court (ICC).

“The ICC simply doesn’t have jurisdiction over this conflict,” says Ellis, “because Israel has not signed up to the Rome Statute [that enshrined the ICC].”

As the ICC requires states to adopt the court’s jurisdiction, it is unable to bring any actions against non-signatories itself, unless the UN Security Council votes to refer specific cases for potential prosecution.

While that happened when ICC prosecutors accused Omar al-Bashir, the president of Sudan - another non-signatory state - of committing war crimes in Darfur, it is unlikely to occur in relation to the Israel-Gaza conflict.

Gaza is not formally recognised as a state by the UN and “the US, and perhaps other [security council] member states, would veto any resolution that would ask for the ICC to investigate Israel,” says Ellis.

“The ICC option is effectively closed.”

The second route would be for the UN General Assembly to request an advisory opinion from the International Court of Justice (ICJ), also based in The Hague, on the legality of specific actions taken by states.

However, the ICJ has no enforcement powers, as was witnessed by its inability to act following its ruling that Israel’s construction of a separation barrier breached aspects of international law.

The ICJ requested Israel rectify elements of the construction, which Tel Aviv ignored - something any state can choose to do, Ellis notes.

Geneva conventions

The third option involves states trying their own citizens or soldiers for war crimes – a requirement under the Geneva Conventions.

“That’s unlikely to happen on both sides, but that is still a responsibility of the state, body, or entity that’s responsible for, or has authority over, the individuals who have committed these crimes,” says Ellis.

The survivors of the Israeli offensive in Gaza have slowly begun to restore a semblance of normalcy to their daily lives.

Public facilities are operating once again, the streets are being cleared, tractors are at work removing piles of rubble, power lines are being fixed and electricity and water services are being restored to homes in Gaza.

Government employees went back to work on January 21 and arrangements are being made for those whose offices have been destroyed.

Palestinian ministries are recommencing their work despite the destruction of some of their facilities.

Schools reopened on January 24 but many classes were overcrowded as they attempted to accommodate students from buildings which had been destroyed by Israeli air raids.

Meanwhile, the police have pledged to return to the streets in full uniform in a matter of days.

However, the return to a sense of normalcy in Gaza, despite the siege and threat of renewed Israeli attacks, has been slow in coming.

In the first 24 hours following the Israeli announcement of a unilateral ceasefire many Gazans exercised caution and did not venture out.

Those who did leave their homes, headed to the nearest store or moved from one home to another in order to reunite with their families; the majority stayed put and decided to wait.

The city looked and felt deserted. It was not until the next day that people began to slowly emerge and examine their immediate surroundings.

Residents of neighbourhoods that were occupied by Israeli forces during the ground offensive feared returning to their apartment buildings and houses in case the ceasefire failed to hold.

They only visited their homes in the daytime to survey the extent of the damage.

Garbage and debris

It was no small shock to see the state of destruction levelled on Gaza City. The streets were filled with garbage, rubble and debris. Pavements seemed like they had been pulled out of the ground.

The roads were strewn with overturned cars, fallen lampposts, trees, windows and bricks that had been blown out of homes.

Driving through the city centre, where several government buildings had once been, was like driving through a junkyard. Every street, every alley, every corner bears evidence of mayhem and upheaval.

While the central areas of Gaza City were badly affected, the scale of the destruction in the outlying areas and towns is incomparable.

Beit Lahya a town with orange and olive groves, factories and residential areas was laid waste.

You could not walk more than a few metres without passing a home, school, warehouse, public service building or mosque that had been flattened. In some parts of the town, entire clusters of houses had been demolished.

Other houses which were left still standing are now uninhabitable because they had their windows blown by shrapnel and artillery shells which fell nearby.

The orange groves were not spared the destruction; tens of trees had been uprooted and some fields were bulldozed - leaving no trace of local agriculture.

Human rights group Amnesty International has accused Israel of war crimes, saying its use of white phosphorus munitions in densely populated areas of the Gaza Strip was indiscriminate and illegal.

The accusations from the London-based organisation came as the scale of the destruction caused by the Israeli assault on the Palestinian territory overwhelmed Gazans.

Amnesty is not the first group to accuse Israel of using white phosphorus.

Human Rights Watch made the accusation on January 10 and the UN has also said Israel used the munition during its offensive in Gaza.

Donatella Rovera, a researcher with Amnesty, said: “Such extensive use of this weapon in Gaza’s densely populated residential neighbourhoods is inherently indiscriminate.”

“Its repeated use in this manner, despite evidence of its indiscriminate effects and its toll on civilians, is a war crime,” she said.

Ample evidence

The use of white phosphorus is not prohibited under international law, but the indiscriminate use of any weapon in an area crowded with civilians could be used as the basis to make war crimes charges, legal experts have said.

Israel said last week that all weapons used during its three-week campaign in Gaza complied with international law, but said it would carry out an internal investigation following Amnesty’s accusations.”In response to the claims … relating to the use of phosphorus weapons, and in order to remove any ambiguity, an investigative team has been established in southern command to look into the issue,” the Israeli army said.

Amnesty’s accusations are made on the basis of an on-the-ground study by Chris Cobb-Smith, a British weapons expert who visited Gaza as part of a four-person Amnesty team following the start of a ceasefire on Sunday.

Cobb-Smith said he had found widespread evidence of the use of the incendiary material.

“We saw streets and alleyways littered with evidence of the use of white phosphorus, including still-burning wedges and the remnants of the shells and canisters fired by the Israeli army,” he said in a statement.

“White phosphorus is a weapon intended to provide a smokescreen for troop movements on the battlefield. It is highly incendiary, air burst and its spread effect is such that it should never be used on civilian areas.”

‘War crimes’

When white phosphorous lands on skin it burns through muscle and into the bone, continuing to burn unless deprived of oxygen.

Amnesty said that one of the places worst-affected by the use of white phosphorous munitions was the UN Relief and Works Agency compound in Gaza, which Israel shelled on January 15.

In another incident on the same day, a white phosphorus shell landed in the al-Quds hospital in Gaza City, causing a fire and forcing hospital staff to evacuate patients.

At the time, the UN had accused Israel of using white phosphorus, but the Israeli army refused to comment.

Israel faces potential claims in international courts for its actions in Gaza, where it launched an offensive against Hamas on December 27 with the stated aim of stopping the Palestinian group from firing rockets into Israel.

Tzipi Livni, Israel’s foreign minister, said on Monday that she was “at peace” with the actions Israel had taken during the conflict.

The Gaza Strip is a land in ruins, devastated by 22 days of Israeli assault and an ongoing siege.

It is almost a week since the end of this latest war, yet the death toll is still rising. Each day more bodies are found under the rubble.

For the survivors, at least 100,000 now find themselves homeless.

At least 21,000 commercial, public and private buildings have been damaged or levelled - almost 1,000 for every day of the war.

The cost of rebuilding is likely to run into billions of dollars, according to the UN.

The ultimate goal for the people of Gaza is to achieve an independent Palestinian state.

Palestinian children in the Gaza Strip have gone back to school for the first time since the 22-day Israeli offensive that killed more than 1,300 people, at least 410 of which were children.

About 200,000 children returned on Saturday as the UN Relief and Works Agency (Unrwa) reopened its 221 schools in the devastated territory.

Public schools operated by the Hamas-run government in the Gaza Strip were also reopened.

Three UN schools were hit by Israeli missiles and shells during the Israeli aerial, naval and ground offensive, including one attack in Jabaliya that left more than 40 people dead.

Al Jazeera’s Ayman Mohyeldin, reporting from that school, said hundreds of students had gathered as Palestinians struggle to get their lives back to normal.

“A Muslim aid organisation has come and is performing songs and dance, trying to lift the spirits of the kids,” he said.

Psychological trauma

Maher Wahba, a psychologist with Muslim Aid, said that one of the first tasks would be to address the psychological trauma being suffered by children who had lost family members and friends.

“We are here to let the children act out their stress and relive what has passed during the Israeli invasion,” he told Al Jazeera.

As students filed into the courtyard of Asma elementary school in Gaza City for the first time since the Israeli offensive began, they were greeted by a bleak reminder of the violence that left more than 1,300 Palestinians dead and thousands injured.

A hole punched by an Israeli rocket scarred the courtyard latrine and blood soiled the wall beside it.

Asma is one of over 600 schools in Gaza - most of which reopened on January 24 - that is today facing a large number of post-war operational challenges.

Educators across the Gaza Strip are now considering whether to reschedule exams which were abandoned when Israel began bombing the territory on December 27.

Teachers are also faced with the task of teaching in rooms which had served as shelters for dozens of refugees.

During the course of the Israeli air, ground and sea assaults on Gaza there has been a considerable shift in the nature of the offensive.

The aerial and ground attacks have risen in volume and ferocity and have shifted focus from civil security offices, public service buildings and mosques, to random bombardment of entire neighbourhoods, empty fields within the periphery of these neighbourhoods and vacated or partially vacated buildings.

Now, Israeli forces have taken to directly targeting and destroying residential buildings and homes, civilian cars transporting entire families and schools that provide shelter for the thousands of displaced families in the Gaza Strip.

‘Tomorrow never comes’

The United Nations Relief and Works Agency (Unrwa) schools turned shelters have provided cover from the rain and cold for many displaced Gazans but they have failed to provide protection from Israeli missiles.

Although 45 people were killed when a UN school in the northern city of Jabaliya - where 350 Gazans were taking shelter - was hit, those that survived have had little option other than to remain living in the building.

The United Nations has released images of what it believes are white phosphorus munitions raining down on one of its compounds during Israel’s war on Gaza.

The pictures, broadcast by Al Jazeera on Thursday, show what appears to be flame-generating munitons, thought to be white phosphorus “wedges” falling into a UN compound in Gaza.

Israel has said it will investigate the issue, but has not publicly acknowledged using the controversial chemical.

Al Jazeera has learnt that a total of 53 installations used by the United Nations Relief and Works agency, Unrwa, were damaged or destroyed during Israel’s Gaza campaign including 37 schools - six of which are being used as emergency shelters - six health centres, and two warehouses.

White phosphorus - a high-incendiary substance that burns brightly and for long periods on contact with the air - is often used to produce smoke screens.

But it can also be used as a weapon producing extreme burns when it makes contact with human skin.

The Israeli newspaper Haaretz has reported a brigade of paratroop reservists fired about 20 white phosphorus shells into the built-up area of Beit Lahiya on January 17.

Israeli shells landed in a UN-run compound where hundreds of people were sheltering, killing two Palestinian children and inflicting severe burns on another 14.

Amnesty International, the London-based rights group, has accused Israel of war crimes over its use of the munitions in heavily populated areas.

Children killed

International law forbids white phosphorus use against military targets within areas where civilians are concentrated, except when the targets are clearly separated and “all feasible precautions” are taken to avoid casualties among non-combatants.