The Art of Facts

A LEGAL BLOG about Fact-finding and Armed ConflicTS

A New Commission of Inquiry for the OPT: “the More Things Stay the Same, the More They Change”?

While I could have posted something on the new commissions created by the UN on CAR and Eritrea, I felt compelled to share a couple of brief comments about the new international commission of inquiry on the OPT established yesterday by the Human Rights Council, maybe mostly to reflect on a strange apparent sensation of ‘déja vu’ (here is the advanced edited version of the resolution A/HRC/RES/S-21/1).

Many commentators stressed that the new IDF military operation in Gaza will not change much in the long-term, following the 2008-2009 Operation ‘Cast Lead’ and the 2012 Operation ‘Pillar of Defence’. Similarly, one’s impression might be that the HRC just created another commission of inquiry for the OPT, and as noted in my previous post, some alleged IHL violations committed now tragically resemble those investigated in 2009 by the United Nations Fact Finding Mission on the Gaza Conflict (UNFFMGC), chaired by Mr. Richard Goldstone, established by the HRC Resolution A/HRC/S-9/L.1 (see the report of the UNFFMGC report: ‘Goldstone Report’).

So what to make of this feeling of ‘déjà vu’? As the proverb goes, “the more things change, the more they stay the same”. In the OPT, the impression is mostly that things stay the same, both on the ground once again, with more military operations to stop Hamas from firing rockets at Israeli cities with dramatic consequences for civilians; and before the HRC, with another attempt to document violations precisely to ensure they would not be repeated! Well, this is not exactly true. At least this time, out of yet another military operation, things seem to have slightly changed in the design of the new Commission’s mandate.

In 2009, the UNFFMGC was tasked with investigating “all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression” (A/HRC/S-9/L.1, para. 14). This lead Mr. Goldstone to first refuse the invitation to lead the Mission as in his owns words when recounting his experience, this was “a patently one-sided mandate relating only to war crimes allegedly committed by Israel” and “There was no word about war crimes allegedly committed by Hamas” (p. 46). The issue was solved when the President of the HRC asked him to suggest a wording for an even-handed mandate, which was then included in the President’s letter appointing the members of the Mission to serve as the reference document for the mandate. It was changed into investigating “all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after” (para. 151 of the Goldstone Report). The text of the 2014 HRC resolution creating the commission of inquiry departs from the 2009 resolution in that the HRC decided to:

“urgently dispatch an independent, international commission of inquiry, to be appointed by the President of the Human Rights Council, to investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014, whether before, during or after, to establish the facts and circumstances of such violations and of the crimes perpetrated and to identify those responsible, to make recommendations, in particular on accountability measures, all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable, and on ways and means to protect civilians against any further assaults, and to report to the Council at its twenty-eighth session” (para. 13).

Of course it is too soon to predict how the Commissioners would interpret this broad and manifold mandate, going apparently beyond the current conflict in Gaza and including among other things, identifying alleged perpetrators. It is true the Resolution S-21/1 may seem unclear as to whether it includes violations committed by all Parties to the conflict in Gaza. It makes references to the OPT, the Gaza Strip, ‘the military operations conducted since 13 June 2014’ and to ‘further assaults’. In particular the geographic scope limited to the OPT might hamper the ability of the Commission to look into the impact of rockets fired by Hamas and that land into Israel.

However, it is safe to say it represents somehow an improvement compared to the explicit limited one-sided mandate of the 2009 HRC Resolution (leaving aside the fact that like in 2009 the HRC uses the term ‘violations’, which is odd considering that the Commission is supposed to determine whether violations were committed in the first place…). Despite what we just said, the wording appears to include all acts of all Parties to the conflict as part of the Commission’s mandate. This is not just to be welcomed as a key prerequisite for the impartiality of the future work of the Commission. This is also a fundamental condition for the Commission to be able to conduct an accurate legal assessment and determination of the lawfulness of specific acts. Indeed, certain IHL rules on the conduct of hostilities by definition require consideration both of the acts of the attacker and of the party being attacked.

In the case of the Commission of Inquiry on Lebanon the HRC resolution defining the mandate specifically focused on the conduct of Israel, excluding other parties to the conflict, notably Hezbollah, from the scope of the mission’s work. The commissioners, mindful of this limitation, specifically addressed this issue in the final report, expressing concerns about the mission’s lack of authority to examine the behavior of Hezbollah: “Thus an inquiry into the conformity with international humanitarian law of the specific acts of IDF in Lebanon requires that account also be taken of the conduct of the opponent. That said, taking into consideration the express limitations of its mandate, the Commission is not entitled, even if it had wished, to construe it as equally authorizing the investigation of the actions by Hezbollah in Israel” (Report of the Commission of Inquiry on Lebanon, A/HRC/3/2, 23 November 2006, paras 14– 15). On the contrary, in the particular case of the hostilities in Gaza, the HRC Resolution would allow the Commission to consider the alleged IHL violations by Hamas of civilians being used as human shields, its practice of putting civilians at risk through storing ammunitions, using civilian houses as command posts, and firing rockets from residential civilian areas, as well as to potentially address the indiscriminate attacks through rockets fired at Israel in as much as they are launched from the Gaza Strip. It remains to be seen whether the Commission would also include as part of the same act being investigated the impact of rockets landing in Israel.

Having said that, and although this new Commission is a positive development, these few lines seem futile. Unfortunately they don’t mean much in practice for civilians in Gaza now. For them, things will stay the same, until a cease-fire is agreed and effectively implemented…

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