On 21st and 22nd September, 2010, respectively, two reports were issued by two separate but circumstantially related missions appointed and mandated by the Human Rights Council to investigate violations of international law in the context of the Palestine-Israel conflict. The reports were submitted in the course of the Council’s 15th session, which recently took place in Geneva.
The first report, submitted to the Council on 21 September 2010, is that of the Committee of independent experts in international humanitarian and human rights laws to monitor and assess any domestic, legal or other proceedings undertaken by both the Government of Israel and the Palestinian side, in the light of General Assembly resolution 64/254, including the independence, effectiveness, genuineness of these investigations and their conformity with international standards (the Committee of Experts report). This report comes as a follow up to the Goldstone report, pursuant to the Council’s resolution 13/9 and in conjunction with the official reports submitted to the UN Secretary General by the Government of Israel and the Palestinian side (the West Bank and the Gaza Strip authorities, respectively) on the investigation they conducted into the alleged violations of international law committed during Israel’s Operation.
This report can reasonably be perceived as weaker, in both methodology and conclusions, than what a number of other UN fact-finding missions have produced. The numerous documents and factual analyses provided by a variety of local and international expert bodies and individuals could and probably should have resulted in the compilation of a stronger, more assertive report. An example of these deficiencies, was the report’s mention of Israel’s non-cooperation with the mission’s work as a supposed obstacle to the mission’s ability and competence to conclude as to the nature and character of Israel’s investigations. Whilst questions may arise from those who are not familiar with the situation in the region, it is very clear for those who have been documenting and monitoring Israel’s violations and failure to provide remedies through effective investigation and prosecutions for a number of decades, that the picture is much less ambiguous than the report presents. Israel’s long history of impunity and its culture of whitewashing violations of human rights and international law should not therefore have been ignored as starkly by the Committee’s report.
Nevertheless, the report’s presentation to the Human Rights Council by Prof Tomuschat, head of the Committee, and the overall message communicated by the Committee’s report was that Israel’s investigations “lacked transparency” and “impartiality” and that Israel failed to investigate those who designed, planned and oversaw the offensive. The Committee’s conclusions with regard to Israel’s failure to address the command responsibility of certain military and government officials are indeed some of its most powerful statements, which conclusively hold that Israel’s investigation mechanisms are inadequate and incapable of addressing some of the most serious allegations that were brought against its officials (para. 95).
Moreover, the Committee refuted Israel’s repeated arguments with regard to the effective incompatibility of IHRL and IHL, claiming that the IHRL standards for investigations do not apply during armed conflict. The Committee notes that “the gap between the expansive standards under IHRL and the less defined standards for investigations under IHL is not so significant. Several criteria under human rights law can be met within the context of armed conflict.” (para. 30). The report emphasises that “the growing trend towards requiring comparable standards for investigations under IHL and IHRL” (Ibid), and that victims rights are in essence an important and crucial part of the state’s obligations when investigating incidents of violations of the law of armed conflict.
The second report, submitted to the Council on 22 September 2010, is that of the international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance (the Flotilla report). Prof Schabas has provided some interesting comments on the content of this report and its analysis of the incident in light of IHRL and its application of the ICCPR to a boat on the high seas. This report concludes that since Israel’s blockade of the Gaza Strip was not lawful, the interception of the flotilla that was on its way to Gaza’s shore with a clearly declared intention to provide humanitarian assistance, was also unlawful. The report also states that there are strong indicators of the fact that certain war crimes were committed by Israel in the course of its offensive on the flotilla. Prof Schabas also notes that there is a strong case for for ICC to be able to invoke its jurisdiction over the incident in as far as Article 12(2) of the Rome Statute holds that the Court may exercise jurisdiction ‘if the crime was committed on board a vessel or aircraft’ to the extent that ‘the State of registration of that vessel or aircraft’ is a State party.
The Chatham House conducted an expert meeting on the Goldstone report back in December 2009 which produced a report of the meeting which assessed the procedural criticisms made of the UN fact-finding mission. Sir Nigel Rodley has also published a very insightful paper assessing the Goldstone report in light of the Belgrade rules for UN fact-finding missions, which is the most comprehensive international normative framework applicable to the work of such missions. The paper can be found at the following citation: Nigel S. Rodley, “Assessing the Goldstone Report”, Global Governance 16 (2010) pp. 191-202. These documents provide further useful guidance on the standards that are widely used to evaluate reports produced by UN bodies.
These reports highlight a further number of incidents in the context of the Palestine-Israel conflict that have resulted in impunity for the perpetrators of grave violations of human rights and international law. These incidents are unfortunately not isolated exceptions. The events that have taken place in recent years, including the ‘Cast Lead’ offensive on the Gaza Strip, the ongoing three-year siege and blockade of Gaza, the flotilla incidents, the continuing incursions and systematic violations of human rights in the West Bank, have all been whitewashed by Israel’s political immunity secured by the acquiescence of the international community at the sight of Israel’s actions. This is why, in the given circumstances, the most palpable, realistic and promising means for guaranteeing accountability in the region is by ensuring that the ICC accepts Palestine’s declaration to transfer jurisdiction to the Court, and initiates investigations of the allegations of war crimes and crimes against humanity committed in Palestine over Israel’s decades-long occupation.
Israel’s reaction to the Expert Committee’s work, who it deemed to have taken the same approach as the “biased and extremist” (in the words of the Israeli Foreign Ministry) HR Council, and the report consisted of the following:
Israel is a democratic and law abiding country that carefully observes international law and, when need be, knows how to investigate itself. That is how Israel has always acted, and that is the way in which investigations were conducted following Operation Cast Lead, launched to protect the inhabitants of southern Israel from rockets and terror attacks carried out by Hamas from Gaza.
The Israeli investigation system, which conforms to all international standards, is being examined by the Turkel Committee, an independent panel with international observers. This committee is still carrying out its work.
In view of all this, as well as of the biased, politicized and extremist approach of the same Human Rights Council that had initiated the skewed Goldstone Report, Israel sees no reason to cooperate with this commission.
Israel will nonetheless read and study the report.