“There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance.” -Benjamin B. Ferencz, Chief Prosecutor for the United States at the Nuremberg war crimes trial.
The U.N. Human Rights Council (HRC) in Geneva voted Friday to endorse the Goldstone report by a large margin (26-5) and “called upon all concerned parties to ensure their implementation.” However, instead of sending the report’s recommendations to the United Nations Security Council (UNSC), the HRC decided to send them to the UN General Assembly (GA). The UNSC will only be asked to monitor and report on the recommended investigations into the crimes allegations and on the prosecution of the perpetrators.
Attempts to discredit Goldstone
Israeli leaders attempted to discredit both the UN team and the report, even before its release. Palestinians view the Goldstone Report as an independent -- and official -- confirmation of what they, Israeli conscientious objectors, human rights organizations and eyewitnesses have said before. What are the Palestinians’ options, keeping in mind that, as the HRC assumed, the UNSC is unlikely to send the report to the International Criminal Court (ICC) given that the U.S. is likely to use its veto?
The disturbing images of Israeli “Operation Cast Lead” streamed into living rooms around the world at a time when Western democracies were celebrating Christmas and the New Year. The ongoing festivities did not sufficiently distract from the powerful effects of 22 days of unrelenting bombing on a trapped population. Most governments remained silent but outraged citizens marched in the millions, calling for an immediate ceasefire and for Israel to be brought to account.
After his visit to Gaza, UN Secretary General Ban Ki-Moon briefed the Security Council, stressing: “where civilians have been killed and there are allegations of violations of international humanitarian law, there should be thorough investigations, full explanations and, where it is required, accountability."
Israel refuses to cooperate with Human Rights Council
Subsequently, the HRC announced the appointment of South African Richard J. Goldstone “to lead an independent (four-person) fact-finding mission to investigate international human rights and humanitarian law violations related to the recent conflict in the Gaza Strip.” The Israeli government refused to cooperate with the Mission or allow them access to Gaza, the West Bank or southern Israel.
The Mission accessed Gaza through Egypt, and interviewed only those Israelis from southern Israel who could travel to Geneva. It found that "[w]hile the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right of self defence, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole."
The Mission concluded that there was sufficient evidence to suggest that Israeli actions constituted war crimes and even crimes against humanity, as did the launching of mortar and rocket-propelled grenades by Palestinian armed factions across the border into southern Israel. The crimes being violations of international criminal law, the Mission suggests that the investigations be conducted by the ICC. The report should therefore be sent by the HRC to the UNSC for referral to the ICC should the two parties fail to conduct independent and transparent investigations with credible follow-up actions within six months.
The Palestinian Authority (PA) endorsed the report at first, but following pressure from the US and Israel it agreed that the vote of the UN's Human Rights Council be postponed until March 2010. This reversal was met with such an outcry that the PA backtracked and decided to support Libya’s request for a UN Security Council (UNSC) emergency meeting on the report. The UNSC’s fifteen members were divided about holding a special session. They compromised by deciding to include the report at the regular monthly meeting on the Middle East, brought forward from October 20 to October 14, 2009. In the meantime, the HRC agreed to hold a special session on October 15, 2009 at the PA’s request. This allowed the UNSC to discuss the report in the broader context of the conflict only, considering that it was premature to discuss it further until the Human Rights Council acted on it.
The HRC has now acted. It has endorsed the Goldstone report, sent the recommendations to the UNGA and requested that the UNSC monitor the recommended enquiries into the alleged crimes and subsequent charges. Given that the five permanent members hold veto power, will the UNSC act for the protection of civilians in armed conflict and for deterrence? Will it refer the issue to the ICC should there be no credible investigation undertaken, or will political wrangling thwart the fight against impunity? If so, are there other ways to ensure accountability for violations of international law?
Ensuring accountability for violations of international law
The Goldstone report states that, given its role in the enforcement of International Humanitarian Law as well as International Human Rights Law, the ICC is a competent authority to investigate and prosecute crimes such as those allegedly committed during the 22-day war on Gaza.
Governed by the Rome Statute, the ICC is “the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.” Canada contributed to its creation in many important ways, including in drafting the final proposal. The current ICC President, Philippe Kirsch, is a Canadian. Having signed the Rome Statute of the ICC in 1998, Canada became the first country to adopt comprehensive legislation implementing the Rome Statute by enacting the “Crimes Against Humanity and War Crimes Act,” (CAHWCA) in 2000. The ICC was established in 2002.
As Pr. Michael Lynk states, “[T]his creates a form of universal jurisdiction, which allows states such as Canada to charge, try and convict someone who has committed a war crime or a crime against humanity anywhere in the world, as long as that person is either a citizen or is on their soil. Increasingly, if the international criminal tribunals that the international community has created are unable, for whatever reason, to move against war criminals, then this legislation is meant to be used to ensure justice in all the states that have implemented the Rome statute into domestic legislation and subscribed to the court's jurisdictional structure.”
In January 2009, the PA made a "declaration of competence" to the ICC, according to Article 12(3) of the Rome Statute, under which a state that is not a party to the Rome Statue can voluntarily accept the jurisdiction of the Court on an ad hoc basis. To open an investigation, the ICC has to first assess whether the PA is a state. In the Spring 2009 issue of the Rutgers Law Record, Pr. John Quigley argues that: “The Palestine declaration under ICC Statute Article 12(3) provides the ICC with jurisdiction over the 2008-09 hostilities in Gaza. On the issue of Palestine statehood, one finds a solid base in international law for a conclusion that such statehood exists. While that conclusion may be counterintuitive to many, it follows logically from the rules in customary international law on sovereignty and on recognition.”
There are other ways for the ICC to act which do not involve the determination of whether Palestine is or is not a state. Luis Moreno-Ocampo, prosecutor for the ICC, announced earlier this year that the ICC was actively examining mechanisms that would allow it to investigate the allegations. While Israel is not a signatory to the 2002 Rome Treaty, Israelis who hold dual citizenship can be prosecuted if the other state of citizenship has signed the treaty, as in the case of an Israeli reserve officer who holds South African citizenship. The ICC could proceed because South Africa is a signatory to the treaty.
An alternative is for another member state to request an investigation by the ICC directly, using Article 14 which states that a “State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.”
A number of organizations have suggested using the U.N. General Assembly (UNGA) Resolution 377, so-called ‘United for Peace.’ This resolution, promoted by the US, was adopted on November 3, 1950. It grants the GA authority to recommend collective measures for maintaining peace and security, when Security Council action has been blocked by a veto. This was the means for the United States to circumvent possible vetoes by the former Soviet Union during the Korean Wars:
"[The GA] Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security."
UN Resolution 377 has been used ten times since its adoption. The tenth emergency special session was requested by Qatar, as the Chair of the Group of Arab States, to deal with the Israeli occupation of Palestinian Territory. The session started in 1997 and was adjourned ‘temporarily” on November 17, 2006. It could be resumed “upon request from Member States.” (Resolution ES-10/16)
As the International Court of Justice stated in its Advisory Opinion on the legal consequences arising from Israel's construction of a barrier (the "wall"), it found that both the 1949 Fourth Geneva Convention relative to the protection of civilian persons in times of war,  to which Israel is a party, and the 1907 Hague Regulations,  a source that is binding on Israel as customary international law, are applicable to Israel's occupation of the Palestinian territories. The High Contracting Parties are obliged to respect and ensure respect for the Conventions in all circumstances, which legal responsibilities are currently unfulfilled.
The international community is therefore not without law-based options should it decide to end at last this conflict that it helped create 61 years ago. As Justice Goldstone said, “Now is the time for action… Time and again, experience has taught us that overlooking justice only leads to increased conflict and violence.”
Bahija Réghaï is a well-known human rights activist, former president of the National Council on Canada-Arab Relations (NCCAR).
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