Accountability for the violation of human rights in the Occupied Territories

Accountability for the violation of human rights in the Occupied Territories

1 Jan 2011

Accountability for human rights violations is crucial to deterrence, in order to ensure that they are not repeated. Therefore, international law requires that states effectively investigate suspected breaches of human rights and prosecute those responsible. The law also requires that victims be compensated for the injuries they suffered through violation of their rights.

The major goal of international humanitarian law (IHL) is to reduce the number of civilians harmed in hostilities. Toward this end, IHL specifies clear rules on when, and against whom, force may be used. Under the “principle of distinction,” the sides engaged in hostilities must distinguish between combatants and civilians during combat. Attacks intentionally directed against civilians and civilian objects are prohibited. The “principle of proportionality” dictates that, in attacking a legitimate military object, the anticipated military advantage from the attack must be greater than the anticipated injury to civilians resulting from the attack. Accordingly, the state mounting the attack must take all possible precautions to reduce harm to civilians. Injury to civilians is never considered an integral part of hostilities and is always an undesirable outcome although it is legally permitted under certain circumstances.

As it is prohibited to aim attacks at civilians, states are obligated to investigate cases in which civilians are injured, including during the course of armed conflict. For instance, a series of conditions must exist for the killing of civilians in hostilities not to be considered a breach of law. Among other things, attacks must be aimed only at legitimate targets, the military must take all feasible precautions to reduce harm to civilians, and the anticipated military advantage from the attack must be greater than the anticipated injury to civilians. Determining that the death of a person did not result from a breach of law can be made only after these questions are examined in the framework of an investigation.

The military’s duty goes beyond investigating intentional harm to civilians. Military officials must also verify that soldiers and officers carry out military orders and Israeli law. These prohibit not only firing with intention to kill, but also causing death by negligence, violence, pillage, and many more acts.

Every state is responsible for illegal acts carried out by bodies or persons acting on its behalf, and is therefore obligated to remedy the consequences of these acts. Its primary obligation is to restore the original situation before the offense. However, after most serious human rights violations, the damage cannot be undone. In these cases, the state's main obligation is to compensate the victims for the injury caused to them, directly and indirectly, by infringement of their rights. The obligation to compensate is explicitly stated both in international humanitarian law and in international human rights law.

Since 2000, with the outbreak of the second intifada, Israel has increasingly avoided accountability for serious violations of human rights of West Bank and Gaza residents for which it is responsible. One example is the policy enforced in the West Bank until April 2011: as a rule, not to open criminal investigations in cases in which soldiers killed Palestinians who were not taking part in the hostilities. Another is the enactment of legislation that denies Palestinians harmed by illegal acts of Israeli security forces almost any possibility to file compensation suits in Israeli courts.