On 3 July 2015, the Human Rights Council adopted a resolution titled “ensuring accountability and justice for all violations of international law in OPT, inc. East Jerusalem”. The resolution, which came after the discussion on 29 June 2015 of the report submitted by the UN Independent Commission of Inquiry, passed with 41 votes in support and 5 abstentions (India, Ethiopia, Paraguay, Kenya and Macedonia). The sole vote against came from the United States, who described the resolution and agenda item 7 as singling out Israel.

The Israeli delegation was present at the voting on this resolution and denounced the council’s obsession with their state. They called the council’s dealings unfair and expressed opposition to the resolution.

The Palestinian delegation expressed gratitude for the balanced and impartial approach of the report. They drew attention to Israel’s targeting of civilians and urged the council to seek justice.

It is important to note that the entire EU bloc at the council voted in support of the resolution. Latvia, who spoke on behalf of the EU, acknowledged reservations towards some of the wording in the resolution, but supported the resolution as a step towards remedy for the violations that took place in Gaza. France and UK also spoke even though they were in alignment with the EU position. France expressed regret that Israel did not cooperate with the commission and commended the Palestinian government for doing so. The U.K. expressed support for Israel’s right to defend itself, but noted that the right of self-defence required proportionate force and distinguishing between civilian and military targets.

Background

On 29 June 2015, the Human Rights Council met to consider the issue of the human rights situation in Palestine and other occupied Arab territories. An independent commission of Inquiry, which was established in 2014, presented its investigative report on the Gaza conflict of 2014 during this consideration. GICJ was present at the presentation of the report and was able to provide two statements to the human rights council regarding the Gaza conflict and the ongoing violations of human rights faced by Palestinians.

Nearly a year after it was established, the report of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1 was released to much anticipation. The process leading up to the release of the report was not without its hurdles.

Established on 23 July 2014 at the Human Rights Council’s 21st special session on the human rights situation in the Occupied Palestinian Territory including East Jerusalem, the commission faced constant undermining throughout its investigative period by Israel and other states. In February 2015, the Canadian chair of the commission William Schabas was forced to resign after Israel made a formal complaint to the Human Rights Council. His removal was part of the active Israeli campaign against the commission. Even after he replaced by the American Mary McGowan Davis, the campaign continued with efforts to trivialize the work of the commission.

Efforts to trivialize and undermine the commission’s report intensified in the weeks leading up to its presentation at the Human Rights Council. On 14 June 2015, Israel released its own report investigating the events which took place during the summer 2014 conflict. In the report, Israel cleared itself of any wrongdoing and called its actions “lawful” and “legitimate”.

This report was meant to provide an alternative and pro-Israel narrative to the commission’s report. At the consideration of the issue, Israel boycotted the Human Rights Council and as such did not provide statements as a concerned country.

Despite the challenges, the report released by the commission shows independence and careful consideration of the facts. While it is clear that the commissioners took great measures to show neutrality, the facts as they are spelled out in the report simply are not neutral. In fact, they are damning as show the extent of the destruction and disproportionate use of force undertaken by Israeli Defence Forces during the conflict period.

The Report

The commission’s report is clear and thorough in its account of the violations of international human rights and humanitarian law committed in the context of the conflict between 13 June and 26 August of 2014 in the Gaza strip.

To carry out its mandate, the commission contacted Israel, the State of Palestine and Hamas so it could gain access to relevant regions and receive testimony from all sides. The cooperation of Israel was specifically needed to gain access to Israel, the West Bank, East Jerusalem and the Gaza Strip. Israel never responded to requests for access to these areas. On the Palestinian side, there was cooperation from the Palestinian government and its representatives provided documents as well as written reports to the commission.

The commission conducted over 280 interviews with victims and witnesses. It received more than 500 written statements from eyewitnesses, medical reports, and affidavits as well as satellite imagery, video footage and photographs. Due to the lack of access into Gaza, most interviews had to be done through video conference.

Despite Israel’s insistence that the Gaza Strip is not occupied, the commission determined that Israel continues to an occupying power. It has control over the Gaza airspace and maritime areas and must approve all activities that take place in the area. It also regulates the monetary market and controls custom duties. The blockade which began in 2007 has been described by the United Nations Secretary General as “a continuing collective penalty against the population of Gaza”, a statement which the commission agreed with. According to international laws, these facts indicate that Gaza is indeed occupied by Israel. The international community through the General Assembly of the UN, the International Committee of the Red Cross (ICRC) and the Prosecutor of the International Criminal Court (ICC) also affirms this.

The commission said in its report that Palestinians have been living under distressful conditions. Psychological trauma and physical destruction of their environment is widespread. The conflict which took place in the summer of 2014 was especially devastating for the Palestinian people. There were 1,462 Palestinian civilians killed, including 299 women and 551 children. This large death toll does not even begin to show the depth of the destruction as a further 11,231 Palestinians were injured and 10 percent of these injuries resulted in permanent disabilities. This loss for the Palestinians stands in sharp contrast to the Israeli losses where a mere six civilian lives were lost. According to the commission, the serious violations of international humanitarian and human rights law which took place amount, in some cases, to war crimes.

The commission’s main findings and conclusions in the report especially emphasized areas that reflect new patterns, such as the Israeli attacks on residential buildings. Also examined were attacks on UN shelters, medical facilities and other infrastructure. The commission especially drew attention to the fact that Israeli authorities failed to make changes to their policies in Gaza even when they had information of the massive death toll and destruction.

In its report, the commission writes, “indeed, the fact that the political and military leadership did not change its course of action, despite considerable information regarding the massive degree of death and destruction in Gaza, raises questions about potential violations of international humanitarian law by these officials, which may amount to war crimes.”  The commission goes further to express doubts about the ability of current accountability mechanisms to address this problem. The inclusion of this overall observation serves the purpose of singling out top Israeli leaders such as Prime Minister Netanyahu. It is the responsibility of those leaders, both political and military to ensure that Israeli Defence Forces operate with respect for international humanitarian law and revise their tactics in the face of new information.

The commission’s report was especially critical of Israeli investigations into alleged violations of international law. It believes that further steps must be taken to bring these investigations into compliance with international standards. Despite several cases where the actions have Israel Defence Forces have come into question, criminal investigations rarely occur. One of the measures suggested by the commission was to enhance the independence and impartiality of the Military Advocate General, who is responsible for investigating.  This would allow Palestinian victims the ability to gain effective remedies, which includes reparations.

Due to the lack of cooperation, the commission was unable to properly examine Israeli military objectives for its attacks.  As such, the legality of the attacks could not be fully analysed, though the effects and actions taken in some cases may constitute war crimes. The impunity that prevails for violators of international laws in both Gaza and the West Bank encourages repetition. The commission urged Israel to hold violators accountable as a means to secure justice for victims and prevent future conflict.

Recommendations to Israel

The commission’s recommendations showed immense thoughtfulness and a willingness to spark changes for the Palestinian people especially its proposal for the effective implementation of the recommendations of all previous mechanisms.

The commission called on all parties to respect international humanitarian and human rights law. They emphasized the right of victims to effective remedy, which includes full reparations and asked that all parties to the conflict cooperate with the International Criminal Court.

Especially important was the call for Israel to hold a thorough and transparent review of policies surrounding military operations and law enforcement as they pertain to the occupation. They specifically drew attention to the use of explosive weapons in densely populated areas, the targeting of residential buildings, ensuring the principle of distinction is respected and the use of live ammunition as crowd control.

Further recommendations given asked that access be granted to Israel and Palestinian territories for investigation by international human rights bodies and NGOs. They asked that direct criminal liability be imposed on military commanders for the crimes committed by their subordinates.  Notably, the commission also asked that structural issues that fuel the conflict be addressed, including the right to self-determination. It called for an immediate end to the blockade on Gaza, for all settlement activity to be stopped and the advisory opinion of the International Court of Justice on the separation wall be implemented. Lastly, they asked that Israel accede to the Rome Statute of the International Criminal Court.

Recommendations to Palestine

While the Palestinian people suffered immensely during the conflict, violations of international law were also committed on their side, and the report makes recommendations to remedy this. The commission recommended that the State of Palestine investigate violations of international laws committed by armed groups. They also asked for increased efforts in building Palestinian unity to ensure the protection of human rights and accountability for victims.

Recommendations to the International Community

The commission’s recommendations to the international community provide tacit acknowledgement that the resolution to the ongoing situation requires active international pressure. The commission called for the international community to promote compliance with human rights obligations in Palestine and Israel. To that end, they asked for the use of influence in preventing violations by all parties.

Especially important in the wake of Palestine joining the International Criminal Court was the commission’s call for the international community to support the work of the ICC. In this recommendation, they asked countries to comply with extradition requests where they pertain to suspects of crimes.  The commission also asked that legal and policy standards be developed on the use of explosives in populated areas. During the conflict, the use of explosives in high population areas was especially detrimental and led to many Palestinian deaths, so this recommendation has great value.

Looking to the Human Rights Council specifically, the commission recommended a comprehensive review of the implementation of all prior recommendations by the UN mechanisms. Here they said: “the persistent lack of implementation of recommendations – made by previous commissions of inquiry, fact-finding missions, United Nations treaty bodies, special procedures and other United Nations bodies, in particular the Secretary-General and OHCHR – lies at the heart of the systematic recurrence of violations in Israel and the Occupied Palestinian Territory […] The commission calls upon all duty bearers to implement fully all recommendations made by the above-mentioned bodies without delay in order to avert a crisis similar to that of summer 2014 in the future.”  The focus on implementation is important, because that is what will create positive change.

Palestinian Response to the Report

As a concerned country, Palestine was given the opportunity to provide extended statements regarding the report. The Palestinian delegation condemned Israel’s lack of cooperation with the commission. They further emphasized that the report was neutral and any statements to the contrary only serve to undermine the importance of the report. The delegation asked that Israel be held accountable for its actions and justice be served for the Palestinian people.

The Palestinian delegation also brought forward issues of the ongoing oppression faced by the Palestinian population from Israeli occupation. The settlements being built on Palestinian land only serve to restrict the Palestinian people. In addition, despite the 550 children lives lost in the 2014 conflict, the UN Secretary-General failed to include Israel in its report of countries who violate the rights of children in armed conflict, allowing Israel to get away with its illegal actions. The delegation also drew attention to the fact that Israel has not yet complied with the 2004 International Court of Justice (ICJ) advisory opinion that asked for the removal of the separation wall.

Responses from the International Community

While EU countries continued their efforts to undermine the consideration of the human rights situation in Palestine at the Human Rights Council by boycotting the discussion, the overall tone from other countries was one of condemnation of Israel’s military aggression. Algeria who spoke on behalf of the African Group expressed support for the Palestinian right to self-determination and called for an end to the occupation and blockade of Gaza. Many other countries condemned the human rights violations in Palestine and the occupied Arab territories, and asked that the international community come together to ensure that Israel is held accountable for all the crimes perpetrated and the rights of Palestinians be protected.

Several countries including Pakistan on behalf of the Organization of Islamic Cooperation (OIC), denounced Israel and its supporters’ boycott of the discussion on Gaza at the council. They asked that the subject of the human rights situation in Palestine and other occupied Arab territories remain on the agenda until the occupation has ended. This was especially significant, because the boycott of the council and other tactics were part of a concerted effort to discredit the commission and its report.

Pakistan also condemned Israel’s attempt to discredit individual members of the commission, as had been done to the prior chairperson.  Pakistan further pointed out that even in its condemnation of Israeli aggression, the report failed to acknowledge the imbalance of power between Israeli and Palestinian forces.

The European Union drew attention to the humanitarian law violations by both sides and stressed the need for justice and reparations to victims.

Ireland, one of the few European countries to speak independently, expressed regret that Israel did not cooperate with the commission or allow entry in the Palestinian territories. While they acknowledged the right of states to self-defence, they also condemned the use of disproportionate force in such instances. Norway condemned the human suffering in the Gaza conflict and called for investigations to ensure accountability for any crimes committed. Iceland referred to Israel’s constant disrespect for international law unacceptable and called for a two state solution.

NGOs who spoke were also very critical of Israel and several pointed out the violence and abuse faced by children, the complicity of the international community and the UN in allowing Israel to continuously perpetrate war crimes, the targeting of journalists , arbitrary detentions, continued displacement, a crippled health system, and lack of self-determination. The continuing blockade was also called a war crime that must be stopped. The lack of legal remedy or accountability for Palestinians within the Israeli system was highlighted by multiple NGOs.

The Resolution

The resolution which was adopted on 3 July 2015, by the Human Rights Council contained many important elements. It condemned all violations of international human rights and humanitarian law. It also stressed “the urgency of achieving without delay an end to the Israeli occupation that began in 1967” at a time when Israel seems willing to maintain the status quo with full knowledge that this detrimental for Palestine.
Also of great importance was the fact that the resolution deplored “the non-cooperation by Israel with the independent commission of inquiry on the 2014 Gaza conflict and the refusal to grant access to or to cooperate with international human rights bodies seeking to investigate alleged violations of international law in the Occupied Palestinian Territory, including East Jerusalem”. The inclusion of this sends a message that non-cooperation cannot be a mechanism used by Israel to defeat the work of UN mechanisms.

Other elements of note in the resolution included:

1.    Regretting the lack of implementation of the recommendations contained in the report of the United Nations Fact-Finding Mission on the Gaza Conflict, which follows a pattern of lack of implementation of recommendations made by United Nations mechanisms and bodies

2.    Alarmed that long-standing systemic impunity for international law violations has allowed for the recurrence of grave violations without consequence, and stressing the need to ensure accountability for all violations of international humanitarian law and international human rights law in order to end impunity, ensure justice, deter further violations, protect civilians and promote peace

3.    Calls upon all duty bearers and United Nations bodies to pursue the implementation of all recommendations contained in the report of the commission of inquiry, in accordance with their respective mandates

4.    Emphasizes the need to ensure that all those responsible for violations of international humanitarian law and international human rights law are held to account through appropriate fair and independent domestic or international criminal justice mechanisms, and to ensure the provision of effective remedy to all victims, including reparations, and stresses the need to pursue practical steps towards these goals

5.    Calls upon all States to promote compliance with human rights obligations and all High Contracting Parties to the Fourth Geneva Convention to respect, and to ensure respect for, international humanitarian law in the Occupied Palestinian Territory, including East Jerusalem, in accordance with article 1 common to the Geneva Conventions, and to fulfil their obligations under articles 146, 147 and 148 of the said Convention with regard to penal sanctions, grave breaches and the responsibilities of the High Contracting Parties

6.    Requests the United Nations High Commissioner for Human Rights to present, as part of the reporting requested by the Human Rights Council in its resolutions S-9/1 and S-12/1, a report on the implementation of the present resolution, as well as on the implementation of the recommendations contained in the reports of the independent commission of inquiry on the 2014 Gaza conflict and of the United Nations Fact-Finding Mission on the Gaza Conflict, to the Council at its thirty-first session

GICJ’s Statement and Position

GICJ delivered two statements during the discussions of the report at the Human Rights Council jointly with the International Youth and Student Movement for the United Nations (ISMUN) and the Federation of Associations for the Defense and the Promotion of Human Rights.

The statement delivered by Mr. Mohamed Jahadin Hacenna on behalf of Geneva International Centre for Justice and the Federation of Associations for the Defense and the Promotion of Human Rights:

The statement delivered by Ms. Ifeoluwa Kolade on behalf of Geneva International Centre for Justice and the International Youth and Student Movement for the United Nations:

GICJ believes that the violations of international human right and humanitarian law that took place in the context of the conflict of 2014 are deplorable. Furthermore, the ongoing human rights abuses for Palestinian people living in the occupied territories must be stopped.

GICJ firmly believes that the most important next step is the implementation of the many recommendations that have been put forth by different UN bodies over the past years. In this regard, GICJ supports the commission’s recommendation for a comprehensive review of all prior recommendations on the human rights situation in Palestine by UN mechanisms. It wishes to see the international community holding Israel accountable for its actions. In line with that, GICJ also urges civil society to take action. Compliance with the status-quo cannot remain the norm and as global citizens, there is a moral responsibility to fight injustice wherever it may occur. GICJ calls for accountability for the grave violations that have been committed against the Palestinian people.