U.S. Joins the UN Human Rights Council

After not being elected — for the first time in its history — to membership for the final sessions of the now-replaced UN Human Rights Commission (HRC), and sullenly sitting out the opening sessions of the HRC’s successor (the new but not-much-improved UN Human Rights Council), the U.S. did stand for elections has now joined the Human Rights Council in Geneva.

The U.S. has supported Israel’s criticisms that the new Human Rights Council has spent too much time on Israel (and not enough time on other places where human rights are also being violated. The former Special Rapporteur on abuses in the occupied Palestinian territory for the Human Rights Council, John Dugard, has just written an article stating that “President Obama’s recent speech to the Muslim World failed to address allegations that Israel committed war crimes in Gaza”.

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Richard Goldstone due in region this weekend to begin hearings on Gaza war

Until the last minute, it was not clear how South Africa’s Justice Richard Goldstone would arrive in the region this weekend with a mandate from the United Nations Human Rights Council in Geneva to begin an inquiry into the IDF’s Operation Cast Lead against Gaza (27 December – 18 January), or whetherIsrael will or will not let him enter the country, if he tries to come here.

Israel — which often prefers ambiguity — apparently did not reply to Goldstone’s request for a visa.

The mission’s mandate is to “investigate all violations of International Human Rights Law and International Humanitarian Law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.”

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Professor Richard Falk on UN Board of Inquiry report and on the need for further investigation

Here (via Palestinian Pundit) is an Al-Jazeera International interview with Professor Ri
chard Falk, who speaks from his home in Santa Barbara, California, giving an early reaction (on 5 May) to UN Secretary-Genera BAN Ki-Moonl’s presentation of his Board of Inquiry Report on deaths, injuries, and damage to UN installations in Gaza during the IDF’s Operation Cast Lead.

Falk is the UN Human Rights Council’s Special Rapporteur on Human Rights in the Occupied Palestinian Territory, and — in what is regarded by many as a complete fiasco — he was detained overnight in bad conditions then deported after trying to enter Israel through the Ben Gurion International Airport on 15 December (just three days before the start of Operation Cast Lead). See our earlier postings here and here.

Here is my transcript of most of Falk’s remarks in his recent interview with Al-Jazeera:

(1) “I am somewhat disappointed by the SG’s tone in response to this very serious and scrupulously-argued report that’s based on a very careful analysis of the available evidence. It is true that that the UN Human Rights Council has designated an investigatory team headed by Justice Richard Goldstone that is planning to examine the human rights violations and international humanitarian law issues that occurred during the Gaza attacks. So, he [UNSG BAN Ki-Moon] might have better argued that there was already underway a parallel UN initiative and therefore there wasn’t a need for a further inquiry under the auspices of the SG’s office” …

(2) “I would say, serious as the attacks on these UN facilities are, they’re a relatively minor part of the onslaught on Gaza as a whole, and the real center of inquiry should be the violations of international humanitarian law in relation to the civilian population and the civilian infrastructure of Gaza, where I think one would find in the course of an impartial investigation that very serious crimes of war had been committed and there should be some procedure for accountability that follows from such an investigation”.

(3) “One interpretation of his [UNSG BAN Ki-Moon’s] response is to say that the UN through the HRC has already authorized such a full-scale investigation. And having been in touch with the Goldstone group, I know their intention is to carry out such an investigation. So in one way Ban Ki-Moon’s response was somewhat misleading, because the UN is already committed — subject to Israel’s cooperation — to conduct just that sort of full-scale investigation, which is long-overdue. It should have been carried out by now, because the longer you wait, the harder it is to gather convincing evidence”.

(4) “Israel has not yet made clear what non-cooperation means. If it is carried to the extreme that it was in my case — that is, expelling the investigators if they try to enter — then it will pose a very serious obstacle to a real investigation. But if it merely means that they won’t make the higher officials of the Israeli government available for interviews and won’t share the evidence that they have under their disposal, then it’s a limitation but it wouldn’t be a fatal obstacle to carrying out a meaniful investigation. But what is important is that this investigation go forward. There are other groups that have attempted and are attempting to report more fully on the commission of war crimes during the Gaza attacks,including a very high-profile delegation lead by John Duguard who was my predecessor as Special Rapporteur, and it was done under the auspices of the Arab League and is expected to issue a report in the coming weeks”.

UPDATE: Meanwhile, on Friday (8 May) the team of international human rights experts examining alleged violations of international human rights law and international humanitarian law committed in the context of the December-January Israeli military operation in the Gaza Strip ended a week of closed-door preparatory meetings in Geneva on Friday. According to remarks made by the spokesperson for the UN Secretary-General BAN Ki-Moon at the regular noon briefing at UNHQ/NY, the team, headed by former UN war crimes prosecutor Richard Goldstone, held initial meetings with a broad cross-section of stakeholders, including representatives of Member States, the UN, and non-governmental organizations. The Mission also established terms of reference and a three-month programme of work.  That means their report will not be out before the Israeli Defense Forces (IDF) final report on the conduct of Operation Cast Lead, which is expected to be released in June.

Justice Richard Goldstone speaking at the UN Office in Geneva - AP file

Photo of Justice Richard Goldstone speaking at a press conference at the UN Office in Geneva

The Human Rights Council-appointed team stated that they plan to conduct visits to affected areas of southern Israel and the Occupied Palestinian Territory, including Gaza. and they indicated that they have requested Israel’s cooperation in this regard. The UN spokesperson said that “According to Justice Goldstone, the Mission will focus its investigation not on political considerations, but on an objective and impartial analysis of compliance of the parties to the conflict with their obligations under international human rights and humanitarian law — especially their responsibility to ensure the protection of civilians and non-combatants”.

John Dugard is in Gaza to investigate possible war crimes

According to a report published yesterday (Friday) by Ma’an News Agency, John Dugard — the former Special Rapporteur of the UN Human Rights Council on the human rights situation in the occupied Palestinian territory (who has since been replaced by Richard Falk) — is in Gaza as part of a human rights fact-finding mission sponsored by the Arab League at the invitation of the Palestinian Centre [yes, it uses British spelling] for Human Rights.
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John Dugard interviewed in the Jerusalem Post

John Dugard, a South African international law professor and former anti-Apartheid activist, has taken strong if testy exception to Israel’s policies in the occupied Palestinian territory (oPt), as the UN Human Rights Council’s Special Rapporteur on the Human Rights Situation there.

So, it was a little surprising to see that the Jerusalem Post sought him out for an interview, which was published at the end of March.

And, it was a little more surprising to see Dugard being wary, and pulling his punches.

Here is the fully self-explanatory Jerusalem Post introduction to the interview: “Over the years, Dugard has become reviled by many in Israel who charge that he is biased in favor of the Palestinians and that his reports are unbalanced, unfair and prejudiced. His latest report is no exception. Indeed, many consider it his most biased and extreme. The Jerusalem Post asked Dugard in a telephone interview to explain some of the statements he made in that report”.

Here are a few excerpts from the Q & A:

“JPost Question: Why do you say that Israel cannot expect the end of violence as a precondition for ending the occupation? If the Palestinian leadership is effective enough to negotiate peace, should it not be effective enough to stop the terrorists?

John Dugard Answer: There are two answers. It’s quite clear that the Palestinian security forces lack the capacity to stop violence in the territories. That has been clear under both [former PLO head Yasser] Arafat and [PA President Mahmoud] Abbas. And so one cannot wait until that situation is achieved. But my second answer is that if one looks at other situations in which there has been conflict, negotiations started before the conflict came to an end. I could refer to the South African situation, for instance. We had intense violence during the early 1990s, when peace negotiations were taking place. This was one of the worst periods for urban terrorism in South Africa. The same applied in Namibia. But the end of violence was not set as a precondition for peace negotiations. In an ideal world, one would like to see that, but given the incapacity of the Palestinian Authority to end violence in Palestinian territory and given the fact that one needs to bring the violence to an end, I think it is necessary to negotiate, albeit in a state in which violence continues.

JPOst Question: Your report says, “in the present climate, it is easy for a state to justify its repressive measures as a response to terrorism – and to expect a sympathetic hearing. Israel exploits present international fear of terrorism to the full.” But do you not agree that the facts indicate that the repressive measures Israel has introduced in the past few years are a result of Palestinian violence aimed at it?

John Dugard Answer: I think one has to accept that any government in any situation of conflict will choose to call its opponents terrorists. Again, I’m sorry to return to the South African situation, but there, too, we had an anti-terrorism law, and opponents of the regime were criticized as terrorists. I was personally called a terrorist. Someone like Archbishop Tutu was labeled a terrorist. And in today’s climate, since 9/11, this has become worse. Governments do so repeatedly in order to get the support of the international community to condemn the acts of violence of their opponents. What I’m suggesting in the context of the Middle East is that, although some of the acts of the Palestinians, such as the firing of rockets into Sderot and Ashkelon are acts of terror, Israel is able to gain international sympathy for its responses in both the West Bank and Gaza in light of the war on terror. For instance, if one looks at the actions of the Israeli government in the West Bank, the construction of the wall in Palestinian territory, the increase in the number of settlements, checkpoints, roadblocks – all these actions are justified by Israel as part of the war against terror.
Quite frankly, I see the construction of the wall as part of an attempt on the part of Israel to enclose settlements within Israel. I think that some of the checkpoints are unnecessary and, of course there’s no justification for the expansion of settlements as an anti-terrorism measure. But nevertheless, Israel is able to get international sympathy for its actions because they are construed by many in the West as part of the war against terror.

JPost Question: You write that “the test for determining whether a territory is occupied under international law is effective control and not the permanent physical presence of the occupying power’s military forces in the territory in question.” From what I have been told by legal experts, there is no international precedent for the situation in Gaza. In your report, you provide facts to back up your argument. But it is easy to provide other facts to prove that the alleged occupation is ineffective – primarily the development of a military force by Hamas, and the import of heavy weapons which threaten to reach Israel’s most densely populated centers. Israel’s army of occupation, as you call it, is unable to prevent this.

John Dugard Answer: First of all, you suggest that opinion in Israel is united on the subject of whether or not Israel continues to occupy Gaza. But much of the scholarly writing in favor of the continued occupation has been done by Israeli scholars and if you look at the footnotes in my report, you will see that I do refer to Israeli writings and this is also the view expressed by many Israeli commentators. So, there is a vigorous and vibrant debate on the subject within Israel itself.
My second response is that “effective occupation” is a legal concept and one has to look at the extent to which the state exercises, or attempts to exercise, control over the territory, and I suggested that if one looked at the closure of Gaza’s borders, the control over air space and sea space, the control over the Palestinian population registry, the frequent military incursions into the territory, that Israel is ultimately in effective control. It has control over the territory. Gaza may be in a state of conflict but it is, in many respects, a prison and Israel has the key.
So despite the fact that there is opposition within Gaza, I think one must accept that Israel is in military occupation of the territory. If one looks at other cases of military occupation during the Second World War, for instance, Germany occupied western European countries and there was resistance in many of these countries. And so I don’t think the fact that there is resistance changes the nature of the occupation. In my view, it is a legal concept and Israel does meet the requirements for military occupation.

JPost Question: You compare the casualties on the Gaza side to those on the Israeli side. You seem to implying that the damage caused by Gaza terrorists is negligible in comparison to the damage inflicted on the Palestinians. But the people of Sderot and the surrounding area have been traumatized. The casualties in that sense are much higher. And the wider the range of terrorist rockets, the greater the physical and mental damage there will be.

John Dugard Answer: I certainly do not wish to minimize the terror to which the people of Sderot have been subjected. As my mandate doesn’t require me to go into it, I didn’t expand on it. But I have said categorically that the firing of rockets constitutes a war crime. And I’m aware of the traumatization of the people of Sderot and the impact it has had. So, if my report doesn’t express my condemnation sufficiently, I apologize”.

The full JPost interview with John Dugard can be read here .

Dugard – UNSG BAN Ki-Moon should quit Quartet

The UN Human Rights Council’s Special Rapporteur on Human Rights in the occupied Palestinian territory, John Dugard, has said today that the UN Secretary General should pull out of the Quartet that the U.S. has put together to support President Bush’s moves for Middle East peace — unless the Quartet begins to pay due regard to the deteriorating human rights situation in the Palestinian territory.

His remarks come as U.S. Secretary of State Condoleeza Rice is shuttling between Jerusalem and Ramallah to check on progress in Israeli-Palestinian negotiations ahead of Middle East peace talks that the U.S. will host in Annapolis later this year.

After a meeting with Palestinian President Mahmoud Abbas in Ramallah today, Rice told journalists at a joint press conference that both parties’ “obligations are spelled out in a really rather concrete way in the first phase of the roadmap” and that “the United States will be working with both parties to make certain that those roadmap obligations are implemented. I think that is an important role that we can play as a member of the Quartet and as a party with friendly relations with both Israel and the Palestinians”.

Dugard, a South African professor of international law who formerly opposed the now-eradicated Apartheid regime in his country, was interviewed today by the BBC World Service, and by Al-Jazeera TV’s English service. “Every time I visit [the occupied Palestinian territory], the situation seems to have worsened” he told the BBC. He last visited the Palestinian territory in late September, just a few weeks ago.

On Al-Jazeera today, in English, he criticized the Quartet for not ever having mentioned the International Court of Justice’s 2004 Advisory Opinion on The Wall.

Rice will have had to pass through a formidable Israeli checkpoint that allows only a few Palestinians to pass through The Wall on her trips to and from Ramallah, in the West Bank, but she is not known to have ever taken a closer look or a more in-depth tour of The Wall.

Dugard has become increasingly testy in recent years, while staying totally on message. Israel has criticized Dugard as biased and pro-Palestinian, yet Dugard is one of the few UN Human Rights experts who has actually come to Israel, in order to investigate the situation in the Palestinian territory occupied by Israel. However, his mandate does not include looking into the human rights situation in Israel itself. Nor has he ever been given an official Israeli visa in his United Nations Laissez Passer to conduct his missions, and he enters the country on his national passport (i.e., as a tourist). Israeli officials do not receive Dugard, officially, either.

Other UN Human Rights officials and envoys have generally refused to come unless they were given official Israeli visas for their missions.

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