UN Gaza Commission Will Collect Evidence of Crimes

[John Quigley is Professor Emeritus at the Moritz College of Law of The Ohio State University.]

Photo credit: Wikimedia Commons

The adoption by the United Nations Human Rights Council on 27 May 2021 of Resolution S-30/1 titled Ensuring respect for international human rights law and international humanitarian law in the Occupied Palestinian Territory, including East Jerusalem, and in Israel opens an important avenue for seeking implementation of the rule of law in the Palestine/Israel situation.

The resolution was adopted in the wake of the recent Gaza-Israel armed hostilities, to examine possible violations of law. That much is not remarkable. The Human Rights Council has established similar fact-finding commissions for prior conflicts of this type. This new commission is also tasked, however, with identifying individuals for potential prosecution by preparing dossiers that detail their participation in acts that constitute international crimes. The new commission is to determine what international violations have been perpetrated, and specifically to “collect, consolidate and analyse evidence of such violations and abuses and of crimes perpetrated, and systematically record and preserve all information, documentation and evidence, including interviews, witness testimony and forensic material, in accordance with international law standards, in order to maximize the possibility of its admissibility in legal proceedings.”

To this end, the commission is to “identify, where possible, those responsible, with a view to ensuring that perpetrators of violations are held accountable.” It is to “cooperate with judicial and other entities.” This mandate makes the commission a criminal investigating unit, preparing dossiers on particular individuals with a view to prosecution. That is a task not given to earlier fact-finding missions.

The resolution does not name any particular courts, but it could be domestic courts that find they have jurisdiction. Importantly, it could be the International Criminal Court. The ICC Prosecutor could include evidence the commission assembles in the current investigation of crimes in the territory of Palestine.

The crimes involved are not limited to those perpetrated in the recent Gaza-Israel conflict. A second innovative aspect of the resolution is that it calls for investigation not only of acts during the recent hostilities, but of the circumstances that led to those hostilities. Beyond the recent conflict, the commission is to investigate  “all underlying root causes of recurrent tensions, instability and protraction of conflict, including systematic discrimination and repression based on national, ethnic, racial or religious identity.” That could include immediate root causes like the eviction of Palestinians residents of the Sheikh Jarrah neighborhood in East Jerusalem. But it would also include broader root causes.

That frame of reference will allow the commission to examine crimes related to the causes going back to the early years of the conflict. One of the root causes – one that relates to Gaza, but not only to Gaza—is the denial of right of return to Palestinians displaced from the territory of Palestine in 1948. That denial is a crime against humanity, as recently confirmed by Human Rights Watch in its report, A Threshold Crossed:  Israeli Authorities and the Crimes of Apartheid and Persecution (April 2021). Most residents of Gaza are from families not indigenous to Gaza, but from families from elsewhere in Palestine who were forced out by Israeli and pre-Israeli military forces. Both that original expulsion and the denial of return constitute the crime of persecution, which falls within the jurisdiction of the International Criminal Court as a crime against humanity. Persecution is defined by the Rome Statute as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Israeli officials who deny repatriation do so intentionally, the deprivation of fundamental rights is severe, and the deprivation is premised on identity as Palestinians. Territorial jurisdiction is present, because the displaced fled into Jordan and into Palestine, both of which are party to the Rome Statute. Temporal jurisdiction is present because the effects of expulsion continue to the present time, and because, even apart from the expulsion, denial of return is an act at the present time that involves a denial of fundamental rights. Please see my The Palestinian Right of Return Could Go to the ICC.

The occupation by Israel of the Palestinian territories of the West Bank and of Gaza, an occupation that began in 1967, is another root cause. It has involved an international crime, namely, the war crime of transfer of civilians into territory under belligerent occupation.

A feature of the new commission that may make this role realizable is that the commission is to be of a semi-permanent type. Fact-finding commissions are typically set up to look into a situation, file a report, and disband. This time, the Human Rights Council resolution calls the commission it is creating an “ongoing independent, international commission of inquiry.” It will be in existence long enough to assemble criminal dossiers and to work with the International Criminal Court, which is not known for speed.

The Human Rights Council resolution was adopted over the opposition of many of the major European governments who are members of the 47-nation body. To date, no members have been appointed. When they are, they may come under pressure to limit the scope of their inquiry. However, a serious investigation into the root causes of the recent Gaza-Israeli conflict could be a major step in charting a path to an overall resolution of the long-standing conflict between Israel and Palestine.

The events of the past month have brought major change in how the Israel-Palestine conflict is perceived, both by the populations directly involved, and by the international community. A window has opened for approaches that were previously unthinkable. The various populations of Palestinians, though separated from one another by international borders, have evinced a sense of unity not seen in recent years. In the US Congress, voices that did not exist until recently are calling for a change in the US approach to resolving the conflict. With past outbreaks between Gaza and Israel, the United States has colluded with Israel to protect it from international scrutiny. The shift in the climate in Congress may make it difficult for the Biden Administration to play the traditional US role of covering for Israel.

The Human Rights Council is building on all these elements of change in the local and international context. The destruction unleashed on the Gaza Strip has brought a renewed sense of urgency. It is not enough to have a ceasefire. The root causes remain, as the Human Rights Council understands. Human rights will not be protected until those causes have been eradicated. Civilians in both Israel and Palestine will go to bed not knowing whether rocket fire will keep them from awakening in the morning.

The Human Rights Council has taken a courageous step, knowing that it is challenging the United States, whose President declared as Israel was levelling buildings in Gaza that Israel had not engaged in a “significant over-reaction.”

Bilateral negotiations have so far proven a dead end in resolving the Israel-Palestine conflict. The key underlying issues involve international crimes on the Israeli side. Investigation of them as such might alter the international climate and jump-start processes to bring the conflict to an end.