By Catherine Harwood, Leiden University
The Human Rights Council (HRC) resolved on 23 July 2014 to establish an international commission of inquiry to investigate alleged violations of international humanitarian law (IHL) and human rights in Palestine. Unsurprisingly, this resolution has fuelled the raging political storm surrounding the conflict in Gaza. The political divide is evident in the results of the vote: 27 states in favour, 1 state against, and 17 states abstaining. The main reason put forward by states that did not support the resolution was that the resolution was biased against Israel. But do these concerns hold water?
The United States was alone in voting against the resolution, explaining that it was a “biased and political instrument” that would “create another one-sided mechanism targeting Israel”. This statement referred to a controversial HRC fact-finding mission into Israel’s Operation Cast Lead in 2009. Many other states also abstained out of concerns of bias in the resolution. The European Union explained that its members abstained as the final draft text was “unbalanced, inaccurate, and prejudges the outcome of the investigation by making legal statements”, and “fails to condemn explicitly the indiscriminate firing of rockets into Israeli civilian areas as well as to recognize Israel’s legitimate right to defend itself.” The EU does not however consider that the commission holds a one-sided mandate. Some sections of the media take a different view, with headlines such as “UN to investigate Israel’s Gaza offensive” and “UN votes to investigate Israel, not Hamas”.
Are these claims of bias justified? It is necessary go to look beyond political rhetoric to the text of the resolution, including the general operative paragraphs, the commission’s mandate, and the Preamble. Although one aspect of the Preamble takes an anti-Israeli stance, the operative paragraphs and the commission’s mandate are not biased, and the commission should not be depicted as a one-sided inquiry.
Paragraphs 1 and 2 are directed against Israel. Paragraph 1 condemns the failure of Israel to end its occupation of Palestine. So far, the resolution is on safe ground: the International Court of Justice (ICJ) determined in an advisory opinion that it is an illegal occupation. Paragraph 2 uses very strong language to “[condemn] in the strongest terms the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations carried out in [Palestine] since 13 June 2014”.
Conversely, paragraphs 3 and 4 condemn violations against civilians, including Israelis. Paragraph 3 condemns “all violence against civilians wherever it occurs, including the killing of two Israeli civilians as a result of rocket fire, and urges all parties concerned to respect their obligations under [IHL] and international human rights law”. This contradicts the EU’s statement that the resolution did not condemn indiscriminate firing of rockets into Israeli civilian areas. Paragraph 4 calls for cessation of Israeli military assaults in Palestine “and an end to attacks against all civilians, including Israeli civilians”.
The remainder of the operative paragraphs address wider matters. Paragraph 5 calls for a ceasefire. Paragraph 6 demands Israel to end its closure of the Gaza Strip, as it amounts to collective punishment of the civilian population. That observation recalls the ICJ’s view. Paragraph 7 requests the international community to provide humanitarian assistance. Paragraphs 8-10 express concern at violence and incitement by “extremist Israeli settlers illegally transferred to [Palestine] against Palestinian civilians”, poor treatment of Palestinian detainees and unlawful detentions. While some sectors of Israel view the settlements as lawful, the Israeli judiciary recognises that this is not the case, as has the Special Rapporteur on Palestine, an international commission of inquiry and the majority of legal scholars. It is also clear that unlawful detention and ill-treatment of detained persons only apply to Israel. Paragraphs 11-12 relate to measures to encourage compliance with international law.
The general operative provisions condemn a broad ambit of alleged Israeli violations, but also condemn alleged violations committed against Israeli civilians. Media outlets have criticised the resolution for failing to mention Hamas. But the resolution does condemn the rocket strikes into Israel, and demands an end to targeting of Israeli civilians. Naming Hamas could have assisted to frame the resolution in more equal terms, but by itself this does not render the resolution irrefutably biased.
The Commission’s mandate
Paragraph 13 defines the Commission’s mandate as investigation of “all violations of [IHL] 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”.
This mandate is a far cry from the obviously one-sided mandate of an earlier commission of inquiry established by the former Commission on Human Rights that was instructed to investigate violations “by the Israeli occupying Power”. Nor will the mandate need rewriting to include all relevant parties to the conflict, as was the case for the 2009 inquiry into Gaza. The current commission is clearly instructed to investigate “all violations”, and does not limit the parties to be investigated. The EU acknowledged that the inquiry pertains to violations by all sides, including “Hamas and other militant groups.” Claims that only Israeli actions will be examined are erroneous.
The mandate is limited in its geographic scope to “the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip”. This excludes the territory of Israel. But it does not mean that violations against civilians in Israel will be excluded from scrutiny. Alleged violations by Hamas include using civilians in Gaza as human shields and directing rockets at civilian populations in Israel. The former actions occur within Gaza and the latter originate from Gaza. Arguably, both fall within the Commission’s mandate, so it is not one-sided in this respect either.
Even though attention has been directed at the commission’s mandate, the real crux of conflict stems from the question of Israel’s right to self-defence. The EU, US and Canada, among others, have issued public statements recognising Israel’s right of self-defence. The HRC resolution does not recognise this right, even though recognition of the right in the abstract is a different question to whether it has been exercised lawfully in practice. But the resolution also states in the Preamble that Israeli assaults are “the latest in a series of military aggressions by Israel”.
Here is the crux of the matter: conceptualising military action as ‘aggression’ rejects the idea that the state is acting in self-defence. To conceptualise Israeli military actions as aggression implies one of two conclusions: either Israel may not invoke the right of self-defence; or it has not been exercised in conformity with the requirements of necessity and proportionality. It implies a conclusion as to the legality of Israel’s actions in terms of jus ad bellum, or the legality of the use of force. This is a different question to whether violations of international humanitarian law have occurred, which relates to the conduct of hostilities, rather than the legality of the use of force per se. In light of the extent of support of Israel’s right to exercise self-defence, it is not surprising that several states refused to sign on to the resolution.
The impending Commission does not have a one-sided mandate: it is tasked with investigating all violations of IHL and human rights, regardless of the actors involved. In fact, with the news on Friday that violence has also broken out in the West Bank, the inquiry may be broader than Gaza. Claims that the Commission will be one-sided and biased are not supported on the face of the resolution. Further accusations of bias will no doubt be launched as soon as the commissioner appointments are announced, with commissioners’ prior activities and statements scrutinised to detect any hint of partiality.
The resolution’s operative paragraphs condemn all attacks that target civilians, both Palestinians and Israelis. There is an emphasis on Israeli violations, but this is perhaps warranted by the wider range of obligations that are held by Israel. The resolution’s failure to recognise that Hamas as a party to the conflict has obligations to respect IHL and that it is responsible for violations is a fair criticism, and undermines the credibility of the resolution from the perspective of those on the lookout for evidence of anti-Israel bias.
The fact that political support for a resolution calling for impartial investigation of serious violations has fallen away by the inclusion of the word ‘aggression’ indicates just how entrenched this political conflict has become, and the extent to which the voting blocs in the HRC are digging in their heels. John Ó Néill writes that the “paradox of the resolution text is that it simply re-affirms the inability of the current diplomatic architecture to provide any capacity to resolve conflicts.” More fundamentally, the voting results reproduce the broader political stalemate surrounding this conflict that has endured for decades.