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One Year After The Gaza Conflict: A Persistent Quest for Justice

Yesterday, on 27 December 2009, one year had passed since the commencement of the devastating atrocities of Israel’s 22-day-long assault  on the occupied Gaza Strip (otherwise known as Israel’s Operation “Cast Lead”). There has indeed been a notable amount of writing  done about the conflict and its context over the past year (we have also covered this topic here, here and here, inter alia). On its one year anniversary, this brief tribute will focus on the  current state of the justice and accountability  process through the lens of international law by first considering the significance and credibility of the Goldstone mission report,  examining the first phase of the accountability process in light of the international law applicable to post-conflict responsibilities of the parties to the conflict and concluding on where the victims of these atrocities stand today.

The significance and credibility of the Goldstone fact-finding mission

The first point that I would like to present and briefly discuss concerns the legal character and role of a UN fact-finding mission, such as the Goldstone mission, which is presently the leading body for accountability and justice for the Gaza conflict as well as Israel’s belligerent occupation of the Palestinian territories as a whole. This point comes to challenge the misinterpretation of the role and legal character of the mission upheld by some governments and other international actors, holding inter alia that the Goldstone mission is politicised, biased towards Israel and rash in its conclusions. What these actors have neglected to consider is the role and significance of the mission to the justice and peace process, and most importantly the objective credibility that is attributed to its conclusions on the substance of the violations of international law that were generated by both parties during the assault.

It is important to note that UN fact-finding missions have a non-judicial character, in fact such missions are designed to collect evidence of criminality and, therefore, they do not pretend to arrive at judicial conclusions on the basis of the investigation that they conduct. Prof. Bassiouni, a renowned international scholar on victims rights and post-conflict justice, has analogised the role of fact-finding missions with that of truth-commissions arriving at the conclusion that UN fact-finding missions, like truth Commissions, should not be deemed a substitute for prosecution. The role of both bodies – that often run in conjunction with prosecutions – is to establish a record of what has happened. [1] Finally, even if we analogise with the standards of a criminal investigation, a judicial criminal investigation is rarely able to gather the information on a case in a comprehensive manner and present a case that is without some factual ambiguities. Therefore, international justice, like national justice, can never be held to the standards of perfection.

The methods used by the Goldstone investigation, the skill of its experts and the vast amounts of information of various forms examined by the mission reflect a high level of precision in its empirical research attesting to its impartiality, and being a clear measure of its credibility. Therefore, despite not being a judicial fact-finding team and in certain areas being only indicative of the amount of alleged violations that occurred during Israel’s 22-day-long Operation in the Gaza Strip, the 542-page report produced by the mission unquestionably succeeds to present enough evidence to substantiate a prima facie case that begs to be answered and warrants a more thorough investigation to be conducted in accordance with international standards, and where appropriate, for prosecutions to be launched.

The Post-Conflict Responsibilities of the Parties to the Conflict: Israel and Palestine after Operation “Cast Lead”

We are presently in the first phase of the accountability process, as prescribed by international law and confirmed by the Goldstone mission report. Namely, the phase of enforcement of the post-conflict responsibilities of the parties to the conflict. Post-conflict responsibilities adhere to the objective of peace-building through justice, which as Justice Goldstone has also noted, needs to happen as close to the victims as possible. The principal actors that are implicated in the accountability process in the aftermath of a conflict are the parties to the conflict.

The obligation to investigate, prosecute and compensate is at the heart of the definition of post-conflict responsibilities of the parties to the conflict. The obligation is found both in international humanitarian law (IHL) – enshrined in all four Geneva Conventions – and in international human rights law (IHRL), the provisions of which delimit the specific standards for such investigations and ensure a victim-oriented approach in the prosecution process as much as in affording reparations and compensation to victims and their families.[2] The obligation to prosecute in both IHL and IHRL is premised on ensuring that institutions, structures and culture on the national level combine to form the rule of law.

Overall, although international law is conscious and affirming of the significance of national or local handling of accountability for atrocities as an important step in the justice process, it is also weary of the fact that a domestic system is unlikely to be able to take on a program of accountability on its own. International law, therefore, explicitly demands that the international community should assume an active monitoring role, both to ensure the fairness and credibility of the process as well as to reinforce the notion that even where the process is wholly internal, the international community has a strong interest in accountability.[3]

The UNGA Resolution of 5 November 2009 (named the “declaration against impunity” by the President of the GA) voted in by 114 member states, puts into motion the first phase of the chronology for the accountability process devised by the Goldstone report. It endorses the report’s findings and recommendations for further action and “calls upon the Government of Israel to take all appropriate steps, within a period of three months, to undertake investigations […]” and “urges […] the undertaking by the Palestinian side, within a period of three months, of investigations […]”. The Resolution entrusts the Secretary General of the UN to report to the GA at the end of the three month period, i.e. on the 5 February 2010.

Further, a number of legal and factual questions come out of this statement that have yet to be directly addressed. For instance, what does the GA mean by “Palestinian side”? Whilst doubts remain as to whether the armed groups in Gaza are attributable to the Gaza authorities[4], the  implications of the submission of the declaration for a self-referral to the ICC, under Art. 12(3) by the Minister of Justice of the Palestinian Authority based in the West Bank (a matter we have previously covered here) and the extent to which the Palestinian Authority (that largely does not have de facto control over daily life in the Gaza Strip) sees itself as implicated in the post-conflict responsibilities of the parties to the conflict are unclear. Moreover, should the accountability process focus only on the conclusions of the Goldstone report? After all, the report does not look into the crime of aggression or the justification of the use of force by Israel. It also sidesteps a number of legal issues pertaining to Israel’s prolonged belligerent occupation regime in the Palestinian territories and its violation, inter alia, of the prohibition of apartheid and colonialism in international law.[5]

It should be recalled that the investigation mechanisms used by Israel to investigate previous atrocities, such as the war with Hezbollah in Lebanon in 2006 or the events of the second intifada, have not met the international standards manifesting a general unwillingness to conduct a genuine, professional investigation.[6] On 11 December 2009, Israel announced that after having looked into the 36 cases considered by the Goldstone report that its conclusions are that 30 of the claims are unfounded and the other 6 were white-washed as operational mistakes (other actions taken by Israel in the course of its internal military investigations of the misconduct during the Gaza conflict were covered here). On the other hand, the Hamas government has thus far altogether defaulted to initiate investigations or even express a clear intention to do so. From a purely theoretical perspective, it is also uncertain whether the two parties to this conflict can be considered to  be subjected to the same IHL obligations, and that further certain normative modifications may be expected to arise out of the fact that this is a conflict between an occupying  power and an occupied and besieged population.

Nevertheless, the exhaustion of national investigation channels is in most cases a prerequisite to the invocation of international mechanisms. Only in default of these mechanisms can international mechanisms be invoked. In light of the fact that many states and other actors continue to express some level of disdain for the Goldstone process and the mission’s report, states should become aware of their obligations in international law, not to recognize the present-day culture of impunity and continuing violations of international law by Israel and the Palestinian side, each to its own extent, but to take positive measures to ensure the cessation of violations and to demand and facilitate the parties’ compliance with international law.

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Endnotes:

[1] See, e.g., Bassiouni, Cherif, “Searching for peace and achieving justice: The need for accountability”, Law and Contemporary Problems, Vol 59, No 4, 1996; Bassiouni, Cherif. “Appraising UN Justice-Related Fact-Finding Missions”, Journal of Law and Policy, Vol 5, No 35, 2001.

[2] Aldana-Pindell, Raquel. “An emerging universality of justiciable victims rights in the criminal process to curtail impunity for state-sponsored crimes”, Human Rights Quarterly, Vol 26, 2004.

[3] See, Kritz, Neil. “Coming to terms with atrocities: A review of accountability mechanisms for mass violations of human rights”, Law and Contemporary Problems, Vol 59, No 4, 1996.

[4] Goldstone report, para. 1954.

[5] See, on the question of apartheid and colonialism, Human Sciences Research Council, “Occupation, Colonialism, Apartheid?: A re-assessment of Israel’s practices in the occupied Palestinian territories under international law”, June 2009, available at: http://www.hsrc.ac.za/Document-3227.phtml

[6] See, e.g., For further details on the Or Commission of Inquiry, see Adalah’s publication at: http://www.adalah.org/eng/commission.php; B’Tselem update 11.11.09, Military investigations of harm to civilians in Operation Cast Lead are insufficient, available at: http://www.btselem.org/English/Gaza_Strip/20091111_IMP_Investigations_of_Cast_Lead_Operation.asp; Goldstone report, para. 1961.

** This post is based on a presentation by the author given at an OHCHR event on the Goldstone report and Accountability that took place at the UNDP offices in Jerusalem on 14 December 2009.

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