The U.N.’s Pointless Special Rapporteur on Palestine

Last week, the United Nations Special Rapporteur on the situation of human rights in the Occupied Palestinian Territory, John Dugard, presented his report to the Third Committee (Social, Humanitarian and Cultural) of the United Nations General Assembly (the Committee’s account of his presentation can be found here and a draft if his report here).

Dugard’s mandate is somewhat odd. He is charged with reporting on violations of international human rights or humanitarian law by Israel in the occupied territories. He has no mandate to report on any violations by the Palestinians themselves. Nor does any other special rapporteur. So Dugard’s conclusion that his report simply tells the “old story of serious violations of human rights and international humanitarian law against an occupied people by a State that claimed to be committed to civilized legal values” is not exactly surprising.

Nor is his conclusion surprising given that he admits that he spoke only with Palestinian sources during his one-week June visit and that his report relies wholly on “secondary sources – press reports, reports of non-governmental organizations (NGOs), United Nations publications, etc.” Given his mandate, it is not exactly shocking that the Israeli forces didn’t want to talk to him or allow him to visit the war zone in August.

Dugard’s report is already being attacked as another example of the U.N. General Assembly’s one-sided obsessive focus on Israel (see Anne Bayefsky’s takedown here). But that story is too easy. Dugard is a well-credentialed international law professor, with a fancy seat at the University of Leiden. He is no dummy.

But he is adding nothing to the debate on Palestine and Israel, as far as I can see. He has no obvious expertise in gathering information about the situation in the Occupied Territories and he has, uh, no first-hand information. Nor is he really in a position, I think, to offer a really persuasive application of legal principles to the facts at hand, given he really doesn’t have the facts. But he does so anyway here:

36. Israel has, in addition, violated the most fundamental rules of international humanitarian law, which constitute war crimes in terms of article 147 of the Fourth Geneva Convention and article 85 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict (Protocol I). These include direct attacks against civilians and civilian objects and attacks which fail to distinguish between military targets and civilians or civilian objects (arts. 48, 51 (4) and 52 (1) of Protocol I); the excessive use of force arising from disproportionate attacks on civilians and civilian objects (arts. 51 (4) and 51 (5) of Protocol I); the spreading of terror among the civilian population (art. 33 of the Fourth Geneva Convention, and art. 51 (2) of Protocol I) and the destruction of property not justified by military necessity (art. 53 of the Fourth Geneva Convention). Above all, the Government of Israel has violated the prohibition on collective punishment of an occupied people contained in article 33 of the Fourth Geneva Convention. The indiscriminate and excessive use of force against civilians and civilian objects, the destruction of electricity and water supplies, the bombardment of public buildings, the restrictions on freedom of movement and the consequences that these actions have had upon public health, food, family life and the psychological well-being of the Palestinian people constitute a gross form of collective punishment. The capture of Corporal Gilad Shalit and the continued firing of Qassam rockets into Israel cannot be condoned. On the other hand, they cannot justify the drastic punishment of a whole people in the way that Israel has done.

Here is an unfortunate example of how some international lawyers practice and how some international law professors do their work. They see an injustice (based on conversations with some activists and locals, all of whom have only one point of view). They pull out their copy of the most plausibly relevant laws. And then they conclude that all sorts of legal violations have occurred, without conceding even that other facts may exist that could rebut or mitigate their conclusion.

The General Assembly, of course, is thrilled to have this neato simple conclusion about the Occupied Territories that conveniently assigns all the blame to one side. But why should international law professors accept these pointless opportunities to lend whatever credibility they have to this pointless exercise?