A/HRC/10/20
page 12
and non-governmental organization efforts. In some situations, the shelters were not always
treated as sanctuaries by the Israeli armed forces. Six UNRWA emergency shelters were
damaged during Operation Cast Lead.9
21. Furthermore, given such emergency conditions, it seemed feasible to establish temporary
refugee camps either in southern Israel or in neighbouring countries for the duration of the
attacks. This course of action had allowed almost 1 million Kosovars (almost half the civilian
population) to obtain temporary refuge in the neighbouring former Yugoslav Republic of
Macedonia during the bombing by the North Atlantic Treaty Organization forces in 1999. It
seems evident that, had Serbia denied the Kosovo population such a refugee option by
controlling egress, it would have been accused of inhumane behaviour and criminality by the
world community. It would seem that the law of war and international human rights law, for the
sake of the protection of civilian innocence in wartime situations, needs to affirm the right of
every non-combatant civilian to become a refugee, or at least to have the right to seek such a
status, especially if the conditions for an internal refugee option are not present.
22. Such an affirmation does not address the related question as to whether neighbouring
countries have a legal duty to accommodate, to the extent feasible and at least temporarily,
civilians seeking to escape from an ongoing war zone. It would seem at the very least that Israel,
as occupying Power and belligerent party, had such a legal obligation. In a general way, such an
obligation is set forth in articles 13 to 26 of the Fourth Geneva Convention. Especially relevant
are article 15, which looks to the establishment of “neutralized zones” to shelter the civilian
population from “the effects of war”; article 16, which imposes a special duty to accord the sick
and wounded, as well as expectant mothers, “particular attention and respect”, and article 24,
which imposes a duty on the occupying Power to protect any children under 15 who are orphans
or separated from their families, and obliges it to “facilitate the reception of such children in a
neutral country for the duration of the conflict”.
23. It is acknowledged that the particular circumstances in Gaza made it difficult, but not
entirely impossible, to fulfil these obligations in the manner set forth in the Fourth Geneva
Convention. What seems clear, however, is that Israel, as occupying Power, should have adapted
these protective goals to the situation facing the population of Gaza, and that this was feasible to
a considerable degree, at least to the minimum extent of allowing particularly vulnerable
categories of persons within the civilian population, such as children, the sick and disabled,
orphans, the elderly and the wounded, to leave. On 21 January 2009, the Executive Board of the
World Health Organization reported, for instance, that more than half of the civilian casualties
(over 1,300 dead and thousands injured) caused by the Israeli military operations were women,
9
A much publicized instance was Beit Lahiya, where about 1,600 displaced Gazans had taken
shelter at an UNRWA school, on which the UNRWA spokesman said: “Where you have a direct
hit on an UNRWA school where about 1,600 people have taken refuge, where the Israeli Army
knows the coordinates and knows who’s there, where this comes as the latest in a catalogue of
direct and indirect hits on UNRWA facilities, there have to be investigations to establish whether
war crimes have been committed.” “Israel declares ceasefire; Hamas say it will fight on”,
New York Times, 18 January 2009.
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