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”.

U.S.: Board of Inquiry mission was to develop a clear record of the facts. Barak: copy of internal IDF investigation to be given to UNSG, showing that IDF did not fire intentionally at UN

At the U.S. State Dept Briefing on Tuesday (5 May), spokesman Robert Wood said in answer to a journalist’s question: “We would just note the Secretary General’s reminder that this board of inquiry, for one, is not a court of law. It is not a judiciary body. Also, I think in his cover letter, he reminded everyone that the mission of this board of inquiry was to develop a clear record of the facts. And, in fact, I believe he noted that two of the board’s recommendations were basically outside the terms of reference that applied to the board. So, you know, one of the things that we have said from the beginning is that these types of inquiries need – they need to refrain from politicization, and we still believe that to be important. So we’ll need a little bit more time. We just, as I said, received the report and we’ll take a look at it”.

The State Department’s remarks carefully echoed what UNSG BAN Ki-Moon had carefully said earlier in the day in New York: “I would emphasize that a Board of Inquiry is not a judicial body or court of law. It does not make legal findings and does not consider questions of legal liability.
My purpose in establishing this Board was to develop a clear record of the facts surrounding these serious incidents and their causes and to determine where responsibility might lie, bearing in mind the complexities of the overall situation”.
The findings, the “clear record of the facts” that the UN Board of Inquiry was charged with developing, and the determination of where responsibility might lie, could lead to further international action.

BAN Ki-Moon in UNRWA compound in Gaza on 20 January 2009 - Maan Photo by Wissam Nassar

UNSG BAN Ki-Moon visits UNRWA compound in Gaza City on 20 January 2009, just days after an IDF attack using white phosphorus.  The ruins of the compound and the destroyed relief supplies are still smoldering.

Haaretz reported on Tuesday evening that “Defense Minister Ehud Barak on Tuesday denied claims made by a United Nations panel of inquiry that Israel Defense Forces troops fired intentionally at UN facilities in the Gaza Strip during Operation Cast Lead … Barak has asked that United Nations Secretary General Ban Ki-Moon be given a copy of the internal IDF investigation into Cast Lead, according to the Defense Ministry. The army’s investigation included assessments of incidents in which IDF troops or aircraft fired on UN facilities in the Gaza Strip. The internal investigation proves irrefutably that the IDF did not intentionally fire at those facilities, the Defense Ministry said”. This can be read in full here.

Meanwhile, UNSG BAN Ki-Moon told journalists at UNHQ/NY on Tuesday that “The Government of Israel has informed me that it has reservations and objections to elements of the summary. At the same time, I am pleased that the Israeli Government has agreed to meet United Nations officials to address some of the Board’s recommendations, in so far as it relates to Israel”.

Russia, who currently chairs the UN Security Council, has convened a special meeting of the Council to discuss the situation in the Middle East. Since the Annapolis process began in November 2007, Russia has been trying to get a high-level meeting of the Quartet to assess progress in the negotiations — but the U.S. and Israel, at least, have not wanted to commit to any date. UNSC Resolution 1860, adopted on 8 January at the height of the IDF’s Operation Cast Lead against Gaza,

Israel complains about not-yet-published UN report

In an astonishing — and, sorry, I can’t help, but it’s also highly amusing — illustration of the matrix of the Israeli government, the Israeli media, the role of leaking, and attempts to influence international policy and opinion, the Israeli Ministry of Foreign Affairs (MFA) sent out an email at 11:22 this morning denouncing a UN report that has not yet been released.

The MFA also partially reveals the contents of a letter that the UN Secretary-General has not yet sent to the UN Security Council.

The MFA communique states that “UN Secretary General Ban Ki-moon will today (Tuesday, 5 May 2009) send to the UN Security Council [in a “letter”, apparently] his response to the summary of the report of the internal inspection committee, which he previously formed. The committee examined the events in which nine UN installations were damaged during Operation Cast Lead”.

In the as-yet-unsent letter, according to the statement from Israel’s MFA, “Secretary General Ban criticizes the firing of Kassam rockets at Israeli towns, and praises the coordination between the Israel Defence Force (IDF) and the UN during Operation Cast Lead”.

This may come as a surprise to some in the UN. UNRWA officials recounted to a Human Rights Watch (HRW) team their frantic efforts, including listing their log of multiple phone calls over a two-hour period to various contacts in the IDF, to stop the closer-and-closer firing of White Phosphorus near the main UNRWA compound in Gaza City on 15 January.  HRW reported that UNRWA Gaza Field Administration Officer Scott Anderson, a retired U.S. army officer, who was in the UNRWA compound when the shelling started, “speculated that the IDF was ‘walking’ the artillery fire across the area – firing shells along an arc at evenly spaced intervals”.   The Human Rights Watch team later reported that no Israeli ground troops were operating in that area at the time, but it was crowded with Palestinian civilians and UNRWA personnel. As a result of the fires caused by the White Phosphorus, many millions of dollars of supplies were burned in the warehouse area of that UNRWA compound. A few days later, in the same UNRWA compound, UNSG BAN addressed television cameras of major international media while standing in front of the still-smoldering supplies.

The UN report at issue is that of the special Board of Inquiry set up by UNSG Ban Ki-Moon to look into IDF military strikes (the IDF says they were not intentional attacks) that hit some nine UN targets or installations in Gaza, including the main UNRWA Compound in Gaza City (that actually happened the day UNSG Ban arrived in Israel for a visit), and a UN school in the northern Gaza Strip a couple of days later, as well as several UN local staff workers.

The UN Board of Inquiry was headed by Ian Martin of the United Kingdom, and was looking at incidents involving death and damage at the the UN installations in Gaza during Israel’s 22-day military operation. The Board of Inquiry began work on 12 February, and its other members are Larry Johnson (United States), Sinha Basnayake (Sri Lanka) and Lieutenant Colonel Patrick Eichenberger (Switzerland).

The MFA statement said that “The State of Israel rejects the criticism in the committee’s summary report, and determines that in both spirit and language, the report is tendentious, patently biased, and ignores the facts presented to the committee. The committee has preferred the claims of Hamas, a murderous terror organization, and by doing so has misled the world. As noted by the Secretary General in his letter, during the course of its work the committee met with the Israeli team, which cooperated fully and with complete transparency. The Israeli team presented various intelligence materials, including videos, aerial photographs, eye-witness reports and other material. None of this information is reflected in the report”.

While the UN report will apparently call for further investigation, the MFA takes a stern tone to the contrary: “Israel views the publication of the report’s findings as the end of the internal UN inspection process. The UN is responsible for drawing its own conclusions regarding the means it should implement to contend with the complex reality in which a terror organization operates in proximity to UN installations without differentiation and in a manner that endangers UN activities. We expect clear statements and action from the UN in this regard”.

Is the Israeli MFA criticizing UNRWA for not taking action to prevent Hamas from being “in proximity to UN installations”?  (Even the massive firepower used during the IDF military operation in Gaza failed to do this.)?

And, is Israel in a position to declare the end of any UN investigation process?

In fact, as these words were being written, another UN team of independent investigators, appointed by the UN Human Rights Council in Geneva, yesterday began a week-long meeting to prepare for their fact-finding mission to the region. The Human Rights four-person team is headed by Judge Richard Goldstone of South Africa, former prosecutor for International Criminal Tribunals for the former Yugoslavia and Rwanda, and will include Christine Chinkin, Professor of International Law at the London School of Economics and Political Science at the University of London; Hina Jilani, Advocate of the Supreme Court of Pakistan and former Special Representative of the Secretary-General on Human Rights Defenders; and Colonel (retired from the Irish Armed Forces) Desmond Travers, member of the Board of Directors of the Institute for International Criminal Investigations (IICI). This was reported yesterday on the UN News Centre website here.

And, in an entirely separate domaine, a UN Human Rights treaty body is meeting in Geneva today and tomorrow to review Israel’s compliance with its obligations under the Convention Against Torture. The Jerusalem Post reported Tuesday that “Israel is likely to answer questions on its treatment of Palestinian detainees, the alleged existence of a secret interrogation center known as Facility 1391, the closure of the Gaza crossings, and the West Bank security barrier when it appears before the UN Committee Against Torture in Geneva on Tuesday and Wednesday”.

But, if a Haaretz report on Tuesday afternoon is correct, the UNSG may have already conceded several points in his as-yet-undelivered letter. Haaretz said that Ban wrote that the Board of Inquiry’s report “was not legally binding … In the letter, the UN chief condemned Hamas cross-border rocket fire on Israeli civilians, attacks that sparked the conflict and, according to the Israeli paper, were ignored by the UN committee in its report. Ban also commended the Israel Defense Forces for its close coordination with the world body during the 3-week operation, as well as the cooperation given by Israel with the report’s authors. He said his representatives were holding meetings with the Israeli government on implementing the report’s recommendations. The UN chief added there would be no further reports by the world body on the subject”.

So, far from reacting strongly in order to “save face”, has the UNSG already caved in to this Israeli pressure?

The Haaretz report added that “Ban made the comments in a letter he agreed to attach to the report at the request of Foreign Ministry director-general Yossi Gal, who traveled to New York on Monday for meetings with Ban’s aides on the matter”. This report in Haaretz can be read in full here.

Before the Israeli MFA response to the not-yet-released report, Israel’s most widely-read newspaper, Yediot Ahronot (in Hebrew), published an article containing very strong reactions from various Israeli officials, and by 8:24 am, its English-language website YNet had a slightly-softened version online.

A selected summary of items in the Hebrew press sent out to journalists by the Israeli Government Press Office (GPO) a short while later recounted that, according to Yediot Ahronot, “Israel livid: UN prepared deadly report on Gaza Strip operation. UN AGAINST IDF. UN report determines: IDF intentionally fired at UNWRA institutions and people in Gaza during ‘Cast Lead’. Israeli source: If they do not soften wording, this is an earthquake“.

But, from the reaction sent out by the MFA, we learn that the report has already been softened once. Israel now wants it softened even more. On top of that, Israel wants the UN to stop its “internal investigation process”. And the MFA is demanding that the UN to take an even clearer stance against Hamas, than it already has — the UN is an integral part of the Quartet [whose other three members are the U.S., European Union, and Russia], which has adopted it its entirety the Israeli conditions for refusing to deal with Hamas.

However, the UN has major humanitarian operations in the Gaza Strip, which it will not abandon even though Hamas is currently in charge there. And, the UN Security Council has in the Gaza Strip, and the UN has major humanitarian operations there, 1.5 Palestinians (the majority of whom are refugees) are crowded, living under an Israeli-imposed blockade administered by the military, and largely prevented by Israel from leaving. And, the UN Security Council Resolution (1860) adopted on 8 January, “Calls for the unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment”.

“All I can say is that I am sooooo relieved that I can’t be accused of leaking this report”, said one UN spokesperson in Jerusalem. “But, what do the Israelis think they’re doing? I thought they were supposed to be so good at media management. What this will do is make it all the harder for the UN to back down from any stiff conclusions, and make it impossible to water down any more what might have been watered down already”.

According to the MFA leak, “The Secretary General further emphasizes in his letter that the UN inspection committee is not a judicial body and is not authorized to examine legal issues”. That, of course, is one explanation for the apparent fact that the UN Board of Inquiry report does not accuse Israel of war crimes.

The Yediot Ahronot article in Hebrew (translation into English supplied by a UN contact) reported that “The report was placed on the UN secretary general’s desk a few days ago, and it is liable to generate a diplomatic earthquake. The report’s authors chose to ignore Israel’s contentions and determined unequivocally: Israel deliberately fired at UN institutions even though it knew it was forbidden. The report accuses Israel of disproportionate fire and excessive use of force. The report also states that Israel shot at Palestinian civilians unnecessarily and excessively. It should be noted that the report is worded one-sidedly and includes numerous and grave charges against Israel. On the other hand, the report almost entirely ignores Hamas and the rocket fire at Israeli communities”.

As a result, the article said, this report’s findings would — if left as is — “open up the possibility of charging top Israeli officials in legal institutions all over the world and drag Israel into deep diplomatic mud”.

Yediot Ahronot reported that “A person on the American delegation to the UN told Yedioth Ahronoth yesterday: ‘Except for accusing Israel of war crimes, this report has everything. This is a report that is unprecedented in its gravity toward Israel, and Israel will have to lick the wounds of the report for many years, if the current wording is accepted as is’ … A member of the French delegation said yesterday that if the report’s conclusion are accepted, Operation Cast Lead is liable to drag Israel into a relentless diplomatic war that was worse than what it underwent during the second Intifada”.

So, according to this article in Yediot Ahronot, “When the intention to make the report public became known, the new Foreign Ministry secretary general, Yossi Gal, left for New York to receive the draft of the report and to hold talks with top UN officials to persuade them to delay publication, to change some of the sharp language and to promise that in the press conference that will take place after the report comes out, that the secretary general will balance the harsh findings in it. Israeli officials are very troubled by the timing of the publication—on the eve of President Shimon Peres’s meeting with UN Secretary-General Ban Ki-moon tomorrow [Tuesday] morning. Peres is expected to have held a harsh talk last night with the secretary general and to demand of him to delay publication. Foreign Minister Avigdor Lieberman also called the UN secretary general from Rome and had a harsh talk with him. As far as is known, the secretary general made it clear that it was not possible to change the content of the report or to delay publication. The pressure is therefore focusing now on having the secretary general try to minimize the damage in the remarks he will make at the press conference that he is expected to hold after publication”.

The English-language version of this story, published on YNet, reported that “Although the report does not accuse Israel of committing war crimes and does not include a recommendation for legal proceedings, Jerusalem views it as a one-sided and even hostile document, as it fails to mention the Hamas terror directed ceaselessly at the civilian population in Israel. After receiving the report, Secretary-General Ban Ki-moon deliberated for several days on how to respond to it. He eventually worded a summarizing and ‘softened’ three-page document, which he plans to submit to the Security Council on Tuesday. The original report included a recommendation to probe two incidents which involved the use of phosphorus, but this recommendation was not adopted by Ban, as he believes it exceeded the mandate given to the committee. The board of inquiry was led by Ian Martin, the former secretary-general of Amnesty International. As noted by Ban, the IDF and Israeli Foreign Ministry fully cooperated with the committee. The Israeli Information Forum held a conference call Tuesday morning to discuss the issue. Representatives of the Prime Minister’s Office demanded that Israel refrain from capitulating or apologizing following the UN report. One of the decisions made was to remind the world that Hamas is a terror organization which caused the war and operated among civilian population and near UN facilities, firing thousands of rockets into Israel. The PM’s Office reps also said that the IDF’s operation in Gaza followed numerous warnings. ‘The responsibility lies on the shoulders of the Hamas terror organization, which conducted the offensive on Israel’s citizens’, one of them said.  Foreign Minister Avigdor Lieberman discussed the issue with the UN chief in recent days, seeking to minimize the damage caused by the report. Foreign Ministry officials stressed that the report did not deal with the entire Gaza offensive, but only with the incidents in which UNRWA facilities were fired on. President Shimon Peres, who is currently visiting the United States and is scheduled to meet with Secretary-General Ban, has also been recruited for the diplomatic battle against the report”… This YNet report can be read in full here.

The Israeli MFA, in its statement emailed around this morning, said that “Immediately upon the conclusion of Operation Cast Lead, and unrelated to the UN investigation, Israel carried out independent inquiries into the damage caused to the UN installations. The findings of these inquiries were published two weeks ago, and proved beyond doubt that the IDF did not intentionally fire at the UN installations. Not only have the Hamas terrorists not conducted such inquiries, they have use violence and intimidation against citizens of Gaza as tools to prevent them from presenting the actual truth. In this manner they have deceived the investigators, the UN and public opinion. Israel emphasizes that despite the fact that it was cleared of suspicions of war crimes raised during Operation Cast Lead [apparently, the MFA means here that Israel was cleared by itself, or by the IDF preliminary investigation released recently] , the report completely ignores the eight years of attacks against Israel that preceded the decision to initiate the operation, and ignores the difficult circumstances on the ground as dictated by Hamas and its methods of armed operation. As a terror organization, Hamas chose to position the battlefield in congested built-up areas, and in so doing, not only deliberately attacked Israeli civilians, as is determined in the report, but also put the lives of Palestinian civilians at risk and cynically and manipulatively used them as human shields. The IDF took various precautions to prevent damage to installations and vehicles belonging to the UN and other international organizations. These installations were marked on the operational maps according to information provided by the UN and the other international organizations. Officers and soldiers were briefed accordingly prior to and during the mission. Surprisingly, the report lays no responsibility on the Hamas organization, which placed its installations and dispatched its men to confront the IDF in proximity to the UN installations”.

International law experts, however, are nearly unanimous in arguing that, contrary to what the MFA is claiming here, a state has a responsibility not to fire on an area where it knows there are civilians — unless, and this is a big loophole, the military value of the target is so high that it is absolutely essential to do so.

An op-ed contribution published in the Jerusalem Post today, written by Rabbi Arik Ascherman, one of the leading figures in the Rabbis for Human Rights organization, made the same point, but argued on the basis of Jewish moral teachings rather than international law.

In his article, Rabbi Ascherman writes: “I don’t know the truth about Gaza. I doubt that many of you reading these words know either. As a Jew, a rabbi, an Israeli and a Zionist, I desperately want to believe the IDF that there was nothing to the transcripts from the Rabin Academy, or any other investigated incident. But, I can’t. And, I need to know. I must know whether my country is living up to commitments we made to ourselves in our Declaration of Independence 61 years ago that Israel’s foundation be ‘freedom, justice and peace as envisaged by the prophets of Israel’, and that ‘it will be faithful to the principles of the charter of the United Nations’. The Jewish tradition I am sworn to uphold demands that, even when pursuing a just cause such as self-defense, we must do so through just means (midrash) … May we reduce the threat to our soldiers by violating the teaching allowing us to kill those coming to kill us but forbidding us to kill innocents even to save ourselves (Sanhedrin)? Are we content saying, “Our hands did not shed this blood” (Deut 21:8), or do we accept responsibility if we haven’t done enough to prevent bloodshed (Sotah)? ”

In his piece, Rabbi Ascherman also states “That is why Rabbis for Human Rights and other Israeli human rights organizations are calling for an independent state investigation not in the hands of the IDF”.

An independent state investigation means, of course, an Israeli investigation. Many Israeli human rights figures have noted that if Israel did an investigation of its own that others would find credible, then the calls for further “fact-finding”, and “inquiry” would quiet down. But, they say, as it is, the facts that the UN and other international bodies are steadily producing will surely be used — failing a credible Israeli investigation — by other national or international courts.

With the time difference between Jerusalem and New York, it is just about now that UNHQ/NY officially opens for work. So, the rest of this story is still to come …