UN conference calls for action on investigation findings on Gaza war

Experts at a recent UN conference (including a former UN human rights Special Rapporteur) have called for the release of and follow-up action on the UN Secretary-General's mandated inquiry into the Gaza conflict.

Riaz K Tayob

EXPERT speakers at a recent United Nations conference on the Question of Palestine emphasised that legally the international community is bound to act on the results of investigations of the Israeli offensive in Gaza between December 2008 and January 2009.

The 22-23 July meeting, which was held in Geneva under the auspices of the UN Committee on the Exercise of the Inalienable Rights of the Palestinian People, was addressed by a number of experts, practitioners and parliamentarians, including former UN Special Rapporteur on the situation of human rights in the Occupied Palestinian Territories (2001-2008), Professor John Dugard. It was attended by representatives of UN member states, civil society and the media.

Panellists who addressed the meeting included Vera Gowlland-Debbas, Professor of Public International Law, Graduate Institute of International Studies, Geneva; Charles Shamas, Senior Partner, MATTIN Group, Ramallah; John B Quigley, Professor of International Law at Moritz College of Law, Ohio State University; Nathalie Tocci, a Senior Fellow with the Institute for International Affairs in Rome; Phyllis Bennis, Fellow of the Institute for Policy Studies in Washington, DC; and Mark Brailsford, Senior Protection Coordinator at the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).

The former UN Special Rapporteur was South African Professor John Dugard, veteran anti-apartheid academic and activist, who was twice an ad hoc judge in the International Court of Justice (ICJ) and is a member of the UN International Law Commission. In 2009 he was appointed by the League of Arab States to chair an Independent Fact Finding Committee (IFFC) on violations of human rights and international humanitarian law in Gaza in Israel's Operation Cast Lead, which he reported on at the meeting. Dugard said the IFFC has suggested that the League take further action.

Disaster

Dugard emphasised that it would be a 'disaster' if there was no follow-up to the investigations into the Gaza conflict.

 Aside from actions within the UN, actions that could be taken, Dugard said, include:

*          prosecutions for violation of the Fourth Geneva Convention in national courts in accordance with Articles 146 and 147 of the Convention, prosecutions pursuant to universal jurisdiction statutes which allow a person to be prosecuted in a third country for an international crime committed extraterritorially;

*          actions under the American Alien Tort Act, which allows American Federal courts to exercise jurisdiction in any civil action brought by an alien for violation of a peremptory norm of international law outside the United States;

*          referral to the International Criminal Court (ICC).

On the ICC, he said that on 22 January 2009 the Palestinian Minister of Justice, Ali Kashan, lodged a declaration with the Registrar of the ICC on behalf of the Government of Palestine recognising the jurisdiction of the Court for international crimes committed in Palestine since 1 July 2002, under Article 12(3) of the Rome Statute (the treaty establishing the ICC).

At this time the Registrar is still considering her decision, Dugard said. The Arab League's IFFC expressed the opinion that the ICC should accept the declaration lodged by the Government of Palestine and investigate the commission of international crimes in the course of Operation Cast Lead.

He said this was a difficult decision as objectively it may be argued that Palestine does not qualify as a state. Nevertheless the IFFC took the position that Palestine should be treated as a state for the purpose of the Rome Statute. After all, it is recognised as a state by over a hundred states and is a member of the Arab League.

Dugard also called for the release of the UN Secretary-General (SG)'s mandated Board of Inquiry report (the Martin Report, named after its chair Ian Martin) on incidents affecting the UN during the recent Gaza conflict.

The Martin Report, of which the SG released only an abbreviated version, was mandated to 'review and investigate nine incidents, in which death or injuries occurred at, or damage was done to, United Nations premises or in which death or injuries occurred, or damage was sustained, in the course of United Nations operations during the Gaza conflict'. (The detailed 184-page report critical of Israeli attacks on UN personnel and buildings during the Gaza conflict has been meticulously stripped down to a 27-page document - mostly due to political sensitivities and on security grounds.)

Dugard said, 'The Secretary-General of the UN mandated an inquiry into the damage to the UN property, and that commission reported. Unfortunately only an abbreviated report was published because the SG has suppressed the full report. Why have we had no report at this meeting on that subject? And the reason is that everyone accepts that they don't wish to take this matter seriously.

'There we have a report which is from a UN body which in effect accuses Israel of war crimes. Nothing is done about it. I think the international community lacks the will to do anything about it. Why have these reports that accuse Israel of committing war crimes not been raised in the Security Council of the UN? Is it because we fear the veto of the US? Why do we not test the veto of the US? And I do hope that when the [UN] General Assembly convenes that states will raise the question in the General Assembly.  I do think it's a question of political will on the part of states, they are simply not prepared to rock the boat where Israel is concerned. I am not only talking about the EU and US, the developing world is quite frankly no better when it comes to enforcing international law when it comes to Israel and Palestine.'

Dugard said that there would be an accumulation of reports, including the report of Judge Goldstone to the UN Human Rights Council (HRC). Broadly, the reports thus far all reach the same conclusions. 'It will be a disaster, to put it mildly, if nothing is done about these reports.' Dugard added that the test will come when the General Assembly meets later this year, by which time the Goldstone report will be public. 'It is not enough to leave it to the HRC, it must be raised in the General Assembly and in the Security Council; we do hope the Arab League will do that, that is certainly what we have suggested to the League,' Dugard said.

Palestinian statehood

International Law Professor John B Quigley, of Moritz College of Law, Ohio State University, is reported to have said at the meeting that the war in Gaza in late 2008 and early 2009 had brought into focus the importance of Palestinian statehood - states were in a stronger position than non-states in securing remedies when their civilians were subjected to atrocities in violation of international humanitarian law. Individual governments and the UN could make a significant contribution to protecting civilians in Palestine by taking measures, individually and collectively, to make it clear that Palestine was a state. The ICC only had jurisdiction if a crime was committed within the territory of the State Parties to the Rome Statute,  which Palestine was not. Palestine had sought to give the Court jurisdiction by declaring its acceptance of the ICC jurisdiction (for investigating the Gaza conflict); as a state Palestine would be entitled to do so.

However, although the international community could and should do more to solidify international acceptance of Palestine, it had already done more than enough to establish Palestine as a state. Indeed, Palestine had been a state since 1924. Herbert Samuel, the first High Commissioner for Britain of Palestine, had said that Palestine was a state, as had Norman Bentwich, Palestine's then-Attorney General. History, Quigley continued, had very well established that Palestine was a state. Israel's occupation of Gaza and the West Bank beginning in 1967 had not extinguished Palestinian statehood. Israel had taken control subject to the existing statehood of Palestine. Other evidence was that various UN bodies had admitted Palestine to membership, regarding Palestine as a state. The manner in which Palestine had been regarded and treated by the international community had been consistent from the time of the Treaty of Lausanne (1924) to the present. The international community had regarded Palestine as a state, even though it had not, to date, had its own administrative apparatus. As to the current lack of full administrative control due to Israel's belligerent occupancy, it was widely conceded that belligerent occupancy did not affect sovereignty.

Quigley said that Palestine should be accepted as a party to additional multilateral treaties, in particular to those that were of vital significance to it, like the Geneva Conventions and the human rights treaties. In that regard, the government of Switzerland as depositary for the Geneva Conventions had declined Palestine's ratification in 1989 on the rationale that the status of Palestine was being resolved at the UN, and that the matter should not fall to a single state because it happened to be a depositary of particular treaties.

Vera Gowlland-Debbas, Professor of Public International Law at the Graduate Institute of International Studies in Geneva, said that the status of Palestine was regulated by international law. Various rights had to be taken into account, including the right to self-determination; the right to statehood; the right to respect the sovereignty of a state; and the right to claim reparation for loss of resources. The ICJ had in July 2004 in an Advisory Opinion determined the illegality of the occupation. The Gaza Strip constituted an integral part of the territory occupied in 1967 and was part of Palestine. The applicable law during conflict included human rights law. The norms that were applicable,  for example the right to self-determination, were international laws from which no derogation was possible. Upon examination of its legal status, Palestine had to be deemed to be of direct concern to the UN.

The ICJ had in its Advisory Opinion highlighted the obligation of other states to perform certain obligations: once illegality was determined, states were no longer able to act in disregard of that illegality. Israel had undertaken a sanctions policy that was in violation of international law, including the limiting of access to potable water and the sewerage system. Under international law, the occupying power was under the obligation to provide such basic services to the occupied people. Israel had committed serious breaches of international law and other states had the duty to react to such breaches. Breaches included, among others, aid or assistance for the perpetration of wrongful acts, such as training, arming, financing and issuing of export licences for weapons. Every single state had the duty to cooperate to reach the cessation of the breach and no state should recognise as lawful the situation created by the breach. Further, the responsibility for actions of private companies could be attributed to a state if it had backed the companies' projects, such as the exploitation of Gaza's natural resources. States could invoke the breaches before national courts and also reparation for the losses suffered by the occupied people.

Regarding the role of the ICC, Gowlland-Debbas said that the issue of Palestine was in conformity with the jurisdiction of the ICC's Statute, which included the aim to end impunity for war crimes.

Responsibility

Charles Shamas, a senior partner lawyer with the MATTIN Group (a voluntary human rights-based partnership in the Occupied Palestinian Territories), said that he wanted responsibility to be delivered and that responsibility existed factually. The international law to be upheld was the international law of occupation and jus ad bellum. Israel rejected its responsibility for complying with certain non-derogable obligations laid out in that law, arguing that the law and obligations in question were not de jure applicable to the factual situation, while the overwhelming majority of the international community considered them as applicable. The ICJ and the UN Security Council (UNSC) had also fixed responsibility with Israel.

Discussions during the meeting also covered the legal possibility to reverse a country's commitment to universal jurisdiction; a possible trend to view the Palestinian situation from a mere humanitarian standpoint; the eventual necessity of Palestinians to recognise a Jewish state; possible recourse the Palestinian people had if the international community was unwilling to react; legal implications of attacks on Israeli settlements in Palestine; and information on attacks on UN compounds.

Nathalie Tocci, Senior Fellow with the Institute for International Affairs in Rome, speaking on the EU's policy during and in the aftermath of the war in Gaza, said that EU member states had to show respect for international humanitarian law and ensure that it was being respected by others. The EU could also resort to negative measures, such as sanctions, trade sanctions, flight bans and other means in cases of human rights violations. But during the events in Gaza, the EU had failed to respect its obligations and had acquiesced to the events. The EU had further fuelled the dynamics of the conflict by further acquiescing to international humanitarian law and human rights violations during the conflict. There was an inconsistency between the aims and the actions of the EU, as it was still pursuing a two-state solution as part of its policy.

Tocci said that the EU had to rethink its policy objectives. That could lead to an abandonment of a two-state solution in theory, but that was impossible in reality. The EU could also not abandon its goal of respect for international humanitarian law and human rights. The only way for the EU to achieve internal coherence was for it to rethink its policy. The EU had also to continue to press Israel to open other access points to the Gaza Strip besides the Rafah crossing.

Namibia (which, like Palestine, had been under a mandate and colonised by apartheid South Africa) said that it was disheartening to see that Palestine was still on the agenda of the UN. Namibia raised the question as to whether  there was a trend to turn the issue (the Palestine Question) into a mere humanitarian problem.

As to the difficulty of obtaining balanced evidence as stated by the SG in his letter to the UNSC on the Martin Report, a representative of the Arab Human Rights Commission (AHRC) said it wondered why that kind of balance had to appear in UN documents, despite the reality of the one-sided facts on the ground.

The AHRC said that at the UN the talk is about balanced evidence, when talking about the aggressor. The AHRC said this has to include talk about victims, referring to some problems with balance. The Commission asked how it can be ensured that this type of balance will not necessarily appear in UN texts.  The AHRC  asserted that the balance is there for political reasons, it is not there to tell the truth. It is not there to deal with this issue head on.

On responsibility under international law vis-a-vis Palestinian militants, the AHRC said there are several different borders. Israel does not recognise any of these borders. The militants from Hamas and other Palestinian groups who attack using home-made rockets in the south of Israel, in fact are colonies that have been set up in the area that was given to the Arabs in (General Assembly) resolution 181 of 1947. What is the international criminal responsibility of a militant who thinks that his country is occupied? While not here to defend Hamas, the AHRC representative said, the question does arise in terms of international law about the penal responsibility (of Palestinian militants).

He asked whether the right to resistance is part of the study of the UN committee, which right is mentioned by Richard Falk (also a former Special Rapporteur on Palestinian human rights).

The 'right to resistance' of Palestinian militants was a complicated question, Dugard said. During the 1970s there was the argument that national liberation movements had a right to resist, the right to use force, perhaps all methods, in order to assert their right to resistance. But that view has been discredited. Today it is generally accepted that international humanitarian law applies equally to state actors and to non-state actors.  In other words, Palestinian militants who engage in action which violates international humanitarian law by firing rockets indiscriminately into southern Israel commit a war crime.  They violate international humanitarian law. In Dugard's view, there is no conflict between the right to resist and international humanitarian law, the latter prevails.

Quigley proffered the view that the principle of right of resistance is still international law. There is of course international humanitarian law, but it seems that is a separate issue. The right of resistance gives the right to use military force. But that military force must be used consistently with the principles of international humanitarian law. That would  put resistance movements in a very difficult situation when they are in a power imbalance, as the Palestinians are. As a practical matter it may amount to the same thing, if it is said 'you are going to be subject to the rules of humanitarian law'; the occupied people may not have any way to engage in military action that would comply with international humanitarian law.

Quigley added that the fact that Namibia and Palestine are the only two mandates never resolved properly makes it especially important that Namibia addressed this meeting.

On whether it is correct to say that Palestine must recognise the Jewish state, Quigley said that's a very difficult question. In principle, there isn't a basis for that. The problem is that the UN recognised Israel back in 1949 and that becomes a kind of a fact, and the Palestinians are therefore in a bind. If one were to go back to the mandate and what should have happened out of it, it should have been something very different. The Security Council should have taken some action, back in 1948, to prevent what occurred. It didn't. Once the international community does recognise an entity, regardless of its right to have territory, as was done in 1949, then it makes it very difficult to challenge.

Probing deeper on the issue of equalising the parties and the role of the UN, Phyllis Bennis, Fellow of the Institute for Policy Studies, said the term 'stakeholders' is used to refer to relevant actors in resolving the conflict, but we do not hear about the obligations of the occupier in as direct a way. Bennis asked, 'Does that not lead to the problem of the SG suppressing the report that he had commissioned regarding attacks on UN personnel and UN property? Specifically, [don't] the SG and the entire Secretariat work for the General Assembly at the end of the day, [and] not the Security Council?' Bennis added that 'this fear of the use of the veto is a bit of a cover for the question of political will.' If there is political will in the General Assembly there is certainly the legal power to compel, because the General Assembly pays the salaries of everybody involved in the release of that report. She asked the meeting whether this was not an option.

Reparations

Another panellist addressed the issue of turning to humanitarian assistance when this is a question of reparations and a legal concept. It is not a question of humanitarian assistance. The international community should insist upon reparations and really assess these reparations. There should be some form of commission, like the UN Compensation Commission, which the General Assembly could well institute, not the Security Council.

Responding to the question of effectiveness of law being just for the strong, a panellist said that there are two strands of international law. One is legitimacy and the other is effectiveness. The two sometimes inter-relate; in other words, legitimacy can feed into effectiveness, or even aid effectiveness. For example, the years of legitimising Namibia, of declaring the illegality of South Africa's occupation, may not in itself have brought in Namibia (as an independent state).  But in the opposite scenario, if the UN had endorsed South African occupation, it would not have resulted in Namibia. And the same goes for Palestine. If the UN had endorsed an annexation, for example, we would not be discussing it still today. The role of legitimacy is extremely important, even though sometimes it may appear to be a fiction.

Responsibility to Protect

A diplomat from an Arab country cited the discussions on R2P (Responsibility to Protect, a UN mechanism that would allow for intervention in a country on humanitarian grounds). Since R2P came to the UN in 1999 in New York, he speculated that 'if there was a strong drive to include foreign occupation, it [R2P] would disappear from the UN agenda. The entire concept will disappear. No one will talk about it, including those who proposed it.'

If, as one panellist mentioned, we had a motion in the General Assembly the US will vote against it, the diplomat said, and the US would not be alone.

Citing an example from the Human Rights Council, the diplomat said that on the resolution to condemn the aggression on Gaza, the Arabs had put a reference to the launching of the rockets. But the group also wanted to list the number of victims from both sides. A request came from Western countries to delete the number of victims or at least delete the number of Israeli victims.  The diplomat said that this was because it showed the disproportionality. He said, 'these are the ones who lecture us about human rights, these are the ones who claim to be holding the banner high when it comes to human rights. We did not delete the numbers and so they abstained from the vote. So if we are talking  about  something  that  is  clear cut,  what  would  be  the  case  if  we decide  through  the  General  Assembly' to resort to the Uniting for Peace or other mechanisms we may resort to?

Referring to the HRC's Universal Periodic Review, in which countries' human rights situations are reviewed, he requested participants to check the webcast for Israel's review to see what happened. The diplomat said the record would show how 21 Western countries chose not to say a single word about foreign occupation. These countries just addressed human rights, including minorities, housing, sewage, inequality, women's rights, which are all important issues, but not a single word about foreign occupation. 'And then you want me to think that these people will vote for this resolution?' he asked rhetorically.

The diplomat added that 'the most respectable ones in the UN system, the Committee Against Torture (CAT) sitting in Geneva watching the lake view, not setting a foot in Gaza, came with a report and said Israel acted in self-defence. Is this the UN [which] is supposed to protect human rights?'

The diplomat said that something had to be done. But he pointed out that it cannot be done with the current structure, the current balance of power inside the UN, and the current bureaucracy within the UN. There is a need to be creative. 'If it is Darfur, it is fine, everybody is a humanist and for R2P, but when it comes to Palestine.,' he left the question hanging.

The diplomat said that at the launch of the R2P report he had asked where the reference to foreign occupation was. And the response was, 'it is a political issue, it is not a humanitarian issue.' It is mentioned clearly in the report at that time that R2P cannot be invoked against the P5 (five permanent members of the Security Council) or an allied country. 'So right from the beginning they implied this will be only used against poor countries,' he said. 'Don't come to me as a representative of a developing country and tell me there is something called the responsibility to protect. Because if there is a responsibility to protect, it has to be to protect all, or to protect none.'

During the opening of the meeting, Senegalese Ambassador Paul Badji, who is also Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People, said that there has not been an end to violence on either side, and we have witnessed the disquieting phenomenon of a significant increase of settler violence against Palestinians, often aided and abetted by the Israeli army.

The several billion dollars pledged for humanitarian aid and reconstruction in Gaza have been prevented from reaching the territory because of an Israeli blockade. The population of Gaza is kept one step ahead of outright starvation thanks to a trickle of minimal quantities of humanitarian assistance and other indispensable supplies which are allowed to enter the territory.

Badji said after Israeli soldiers made a number of revelations in a military academy, the Israeli authorities conducted a brief investigation into the behaviour of the Israel Defence Forces (IDF) in Gaza which exonerated the IDF. However, the Israeli authorities have taken a number of unprecedented measures to counter the allegations of violations by the IDF by stating that they will ensure the defence of anyone charged with individual criminal responsibility. Israel has also exercised pressure on governments to modify their countries' legislation with regard to universal jurisdiction.

In a message that was read out at the meeting, Miguel d'Escoto Brockmann, President of the UN General Assembly, reminded participants that in many ways, for the 1.5 million Palestinian civilians who live there, the Gaza war has not ended. With governments and the UN standing mute, unwilling or unable to provide assistance or protection to the people of Gaza, international civil society has taken the lead. Ships carrying humanitarian aid and human rights activists, accompanied by Nobel peace laureates, parliamentarians and journalists representing people around the world, are stopped in international seas, far outside Israeli territorial waters, by the naval forces of the occupying power, the ships taken forcibly to Israel and their passengers accused of illegal entry. The humanitarian goods are taken into custody.                                 

Riaz Tayob is a researcher with the Third World Network.

*Third World Resurgence No. 227, July 2009, pp 35-39