“The human rights situation in the Occupied Palestinian Territory remains grave”, the United Nations High Commissioner for Human Rights Louise Arbour informed the members of the UN Human Rights Council in Geneva this week.
Three new reports on the situation in the occupied Palestinian territory were discussed at the Human Rights Council in Geneva on Monday.
Arbour told the Council that there must be urgent implementation of her earlier recommendations, made in a previous report last March, for ending human rights violations caused by Israeli military attacks and incursions — including “the establishment of accountability mechanisms”, and the ending of the closure of Gaza.
Three months ago, Arbour had reported that “the protection of both Palestinian and Israeli civilians requires immediate action by all parties and by the international community”.
The aim, she said, is to “bring about a change in approach to the use of force”.
Arbour’s recommendations in her earlier report called on Israel, the Palestinian Authority, and the “de facto” Hamas government in Gaza, to establish urgently and without delay “accountability mechanisms” to carry out independent, law-based, transparent and accessible investigations – according to international standards – of any alleged breaches of their respective obligations under international human rights and humanitarian law.
The specific violations she mentioned formed a “balanced” list in which the blame was divided between Israel and the Palestinians: “indiscriminate attacks and incursions, indiscriminate firing of rockets or mortars, suicide bombings, targeted killings, and torture”.
Arbour said that personal accountability should also be investigated and prosecuted, where “negligence, recklessness or intent is established”.
And called for an end to the closure in Gaza, and to the suffering due to deprivation of human rights. Living conditions for 1.4 million people in Gaza, she wrote in March, were “abhorrent”. And, she said, Israel must cease all actions violating international human rights and humanitarian law obligations – in particular the prohibition of collective punishment.
At the same time, Arbour said, the “de facto government in Gaza under the effective control of Hamas should take all measures in its power to eliminate the negative effects of the siege” – and must stop all human rights violations against both Palestinian and Israeli civilians, “notably the indiscriminate firing of rockets into Israel”. And, Arbour added, the Palestinian Authority should “take all measures in its power to alleviate the situation”.
Arbour urged the international community, at that time, to “actively promote the implementation of the decisions, resolutions and recommendations” of the United Nations Security Council, the United Nations human rights mechanisms, and the International Court of Justice.
Just prior to making those recommendations, Arbour, a Canadian lawyer and judge who served as chief prosecutor for the United Nations international tribunals for the Former Yugoslavia and for Rwanda, handed in her resignation notice in early March, after being buffeted by strong criticism and diplomatic obstruction from multiple sources – not the least of it involving the Middle East.
At the time she announced that she would not be seeking renewal of her first four-year term appointment as High Commissioner, Arbour did not give any explanation. She will be leaving office at the end of June.
Her successor – who will be appointed by UN Secretary-General BAN Ki-Moon – has not yet been announced.
During her time in office, Arbour criticized human rights violations committed by the Bush administration in its “war on terror”, and the disproportionality of the Israel’s Second War on Lebanon.
Though she had very little to do with it, the conversion of the UN’s Human Rights Commission into a Human Rights Council during her tenure has been less than a success.
The change was billed as an attempt to deal with what was in fact a highly-political denunciation of the “politicization” of human rights. Then, once the Council was in place, it was denounced for focusing too much time on Israeli violations of Palestinian human rights. Even the UN Secretary-General joined in (both the previous one, Kofi Annan, and the current one, BAN Ki-Moon).
The United States – which was not elected as a member of the Human Rights Council when it was set up, decided not to run for election this year, and has recently announced its effective withdrawal from the Council except when its “vital national interests” are involved.
The bulk of the criticism was aimed at the Council’s “obsession” – purely political, it was charged – with Israeli violations of Palestinian human rights, at the expense of dealing with the many other instances of human rights violations around the world.
However, if the aim was to bully the Council into diverting its attention from the grievous situation in the occupied Palestinian territory, the reports issued on Monday indicate that it is not going to happen just quite yet. But, there are also signs of reaching out for accomodation.
In her latest – and last — report, Arbour laid out arguments describing the specific commitments and obligations of each the parties:
1. Israel’s obligations, the report noted, were described in the International Court of Justice’s July 2004 Advisory Opinion, The Consequences of the Construction of A Wall in the Occupied Palestinian Territory. Accordingly, Israel is bound by the provisions of the Hague Regulations, which have become part of customary international law, even though Israel is not a party to The Hague Convention of 18 October 1907. In addition, the Fourth Geneva Convention (of 1949) is applicable, the report said, “in the Palestinian territories which before the 1967 conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel”. A footnote adds that “This fact has not been altered by Israel’s 2005 unilateral withdrawal of its forces from the strip, as confirmed repeatedly since then by the General Assembly (most recently in its resolution 62/107 of 17 December 2007”.
Arbour wrote that United Nations human rights treaty bodies have been guided by the opinion of the ICJ (1) that Israel, as a State party to international human rights instruments, “continues to bear responsibility for implementing its human rights conventional obligations in the OPT, to the extent that it continues to exercise jurisdiction in those territories”, and (2) that Israel’s obligations under the International Covenant on Economic, Social and Cultural Rights include “an obligation not to raise any obstacle to the exercise of such rights in those fields where competence has been transferred to Palestinian authorities”.
2. The Palestinian Liberation Organization (PLO), the report said, “made a unilateral undertaking, by a declaration on 7 June 1982, to apply the Fourth Geneva Convention and the Protocol Additional thereto relating to the Protection of Victims of International Armed Conflicts (Protocol 1). Switzerland, as depositary State, considered that unilateral undertaking valid”.
(1 + 2.) In addition, the Arbour report pointed out, in the 1994 (Oslo Accords) agreement on the Gaza Strip and the Jericho Area, both Israel and the PLO made a commitment and signed an agreement (in article XIV) to respect human rights
3. Hamas “is bound by international humanitarian law obligations concerning, inter alia, the conduct of hostilities and the rights of civilians and other protected persons”. In addition, the report says, Hamas has confirmed its commitment to respect “international law and international humanitarian law insofar as they conform with our character, customs and original traditions” – according to the text of the National Unity Government programme delivered by then Prime Minister Ismail Haniya before the Palestinian Legislative Council, 17 March 2007. The report adds: “it is worth recalling that non-State actors that exercise government like functions and control over a territory are obliged to respect human rights norms when their conduct affects the human rights of the individuals under their control”.
In discussion in the Council on Monday, Israel’s Ambassador Itzhak Levanon – usually a combative critic – said “it was gratifying to see in her latest report” that the High Commissioner “chose not to focus solely on Israel … but also to detail both the obligations and the violations of the Palestinians”. This, he said, “set a new precedent for the Human Rights Council: the possibility of a balanced consideration of what neutral observers can acknowledge is a complex situation”.
However, the Israeli Ambassador otherwise totally ignored the catalog of reported violations “caused by Israeli military attacks and incursions in the occupied Palestinian territory” – the subject of one of the three reports presented Monday – as well as the recommendations to deal with them.
He focused, instead, on refuting criticism made in another report about infringement of religious freedom caused by “obstacles to freedom of movement, such as the closures/permit regimes, and the Wall”, which, Arbour told the Council, “severely impeded the population’s access to religious sites as well as hindered cultural exchanges”.
That report concluded that “the measures adopted by the Government of Israel to restrict freedom of movement of both people and goods in the Occupied Palestinian Territory severely impeded the population’s access to religious sites, notably in Jerusalem, cultural exchanges and events. While the security of the population is undoubtedly an important consideration, the relevant measures should be proportionate to that aim and non-discriminatory in their application. A considerable part of the restrictions were introduced to ensure and ease freedom of movement for the inhabitants of Israeli settlements, which have been established in breach of international law, creating intolerable hardship for hundreds of thousands of Palestinians attempting to exercise their right to freedom of movement inside the Occupied Palestinian Territory … As the Occupying Power, Israel bears responsibility for the preservation of the cultural and religious heritage in the Occupied Palestinian Territory under international law”.
But, the Israeli Ambassador countered, Israel has always guaranteed the protection and freedom of access to holy sites for all religious”.
He did add that “Israel has never asked to be exempt from critique of its human rights record …we simply ask to be judged by the same standards and on equal footing with every other country”.
However, while the Israeli Ambassador was going easy on the out-going High Commissioner, UN Watch, a non-governmental organization that watches out for Israel in the UN, was going after Professor Richard Falk, the new Special Rapporteur on the situation of human rights in the Palestinian territories, who made his first presentation to the Human Rights Council on Monday.
In an effort to discredit Falk, a Professor Emeritus of International Law at Princeton University (and an American Jew), who has been highly critical of Israel’s occupation and who last year made remarks comparing Israeli practices in the Palestinian territories with those of the Nazis in World War II, which he recently explained were intended to “shock” — UN Watch asked him about more recently reported remarks he made about the 9/11 attack on the twin World Trade Towers and the Pentagon on 2001.
The specific question, by a representative of UN Watch – and widely circulated by UN Watch to its email list — asked Falk “what credibility you expect your reports to have, when leading newspapers such as The Times of London are commenting on your support for the 9/11 conspiracy theories of David Ray Griffin, who argues, and I quote from the Times article of April 15th, ‘ that no plane hit the Pentaton’ and that ‘the World Trade Center was brought down by a controlled demolition’?”
An Egyptian move to strike the question from the record in the Human Rights Council was smilingly brushed aside by the Council’s chairman.
What Falk apparently in fact did, however, was slightly different than what the UN Watch questioner said he did – Falk wrote a chapter in a book edited by Griffin – without giving any explicit endorsement of Griffin’s specific remarks.
Falk has also been a long-time anti-nuclear-weapons activist.
Because of his remarks making the comparison with the Nazis, it has been predicted that Falk will be barred from entry into Israel – though it has not actually happened — as was done recently to another American Professor, Norman Finkelstein. Finkelstein, whose parents were Holocaust survivors, has severely criticized what he calls the “Holocaust industry” in which he argued that political and financial concessions are extorted from the West, while the actual survivors are left to fend for themselves.
Falk is replacing as Special Rapporteur the South African law professor and anti-Apartheid activist John Dugard (who has made analogies between Israel’s occupation policies and the Apartheid regime). Falk and Dugard worked together, previously, with a third personality (Indian or Pakistani, I can’t remember who) to prepare a report for the UN Human Rights Commission at the height of Israel’s re-invasion of Palestinian Authority areas in the spring of 2002, during the Second Intifada. Falk made the most striking statements both at the time. The report of their work for that 2002 Committee is virtually un-findable.
Israel has consistently not replied to visa requests to most UN Special Rapporteurs, or special investigation missions, whose mandates it does not like. So, most of them do not come to the region. Dugard, by contrast, refused to abide by UN niceties and protocols, and traveled instead on his national passport, to make a number of visits, without ever being barred – though he did not have official Israeli cooperation, meaning mainly that he was not given appointments to meet Israeli government officials.
Falk’s approach to this dilemma remains, of course, to be seen.
On Monday, Falk told the Human Rights Council that “My acceptance of this assignment is based on many years of study and contact with the conflict between Israel and the Palestinian people, including periodic visits to the area. I am dedicated to the possibility that the conflict can be presented in ways that are fair and just to both sides, but I believe that this can only happen if the guidelines of international law [which Falk subsequently said are ‘a mutually beneficial alternative to war and violence’] are allowed to shape the peace process designed to achieve a solution”.
Falk also said that “It is not possible to approach the mandate without expressing a grave concern for the present circumstances confronting the Palestinians subject to the occupation, especially 1.5 million Palestinians living in Gaza … It seems desirable even in advance of my own effort to prepare a report on the conditions in the Occupied Palestinian Territories to alert the Council to a dire situation in Gaza that daily threatens the health and well-being of the entire population. The focus on Gaza is justified by the extremity of the occupation policies being pursued by Israel, but the issues associated with the West Bank and Jerusalem are also serious, especially to the extent that any future possibility of the successful establishment of a Palestinian State is being daily undermined by the ongoing unlawful extension of Israeli settlements”.
Falk, who has been on the job for only six weeks, presented Dugard’s final report – dated 28 January, but issued only a few days ago. (The date, it was explained from Geneva “has to do with UN translation and internal archiving systems, it has nothing to do with a
release date”).
In that report, the UN Special Rapporteur (Dugard) stated starkly that “regular military incursions, the closure of crossings, the reduction of fuel and the threat to the banking system have produced a humanitarian crisis in Gaza”.
All three reports presented by the UN on Monday relied on data from UN agencies and bodies operating in the occupied Palestinian territory, and on some human rights NGOs.
A humanitarian crisis in Gaza is exactly what the Israeli military, which administers the sanctions regime in Gaza, pledged to the Israeli Supreme Court in January that it would avoid — at least, as the IDF said, to the extent that this would be under their control.
The Israeli Prime Minister has also said several times that a humanitarian crisis in Gaza would be avoided – although he also indicated at the same time that the situation would be allowed to go right up to the brink.
In a discussion with journalists on Monday near the Nahal Oz fuel transfer point into Gaza, IDF Colonel Nir Press said that while the Israeli military “is not inside” and does not have its own information on the humanitarian conditions inside Gaza, it does rely on the international organizations who are there, and on lists provided daily by Palestinian officials from Ramallah.
The problem is that the international organizations, at least, have all said clearly that there is a humanitarian crisis in Gaza – while the Israeli military and government continue to make their denials.
Also on Monday, Falk asked the members of the Human Rights Council to amend his mandate, so that he could also investigate Palestinian violations of human rights and international law – although, he said, only “internationally”, and not within the Palestinian territory.
This, Falk said somewhat obtusely, would maintain the focus of attention on core concerns of the Human Rights Council with the suffering inflicted on the Palestinian people as a result of the prolonged Israeli occupation.
Interestingly, this proposal — that the Special Rapporteur’s mandate be extended to include Palestinian as well as Israeli violations — emerged from criticisms originally emanating from Israel.
But many if not most Palestinians would also most likely be in favor of having Palestinian human rights violations exposed and corrected, as well.
In any case, in his closing remarks, following a lengthy debate with statements made by many countries, Falk told the Human Rights Council that “I think it’s extremely important to realize that we are dealing with the suffering of the Palestinian people, and secondarily of the victimizing of those Israelis that are affected by the violence that has been associated with Palestinian rocket attacks. My view, as Special Rapporteur, is that the primarily responsibility is to see to it that international humanitarian law is respected and implemented and taken seriously. And that requires looking at the behavior of all relevant parties, it seems to me. But that should not confuse the issue of the primary responsibility of Israel to protect the lives and well-being of the occupied population. And, indeed, as I’ve tried to suggest, by making the mandate credible, it will be possible to more effectively focus on the substantive issues that are most troubling to those who have been concerned with the situation”.
