23 June 2015

Initial ZFA Response to the UN Human Rights Council Report into the 2014 Gaza Conflict

The fingerprints of Israel-phobic UN Human Rights Council staffers are evident throughout the report into last year’s conflict in Gaza issued today by that body’s supposedly ‘Independent Commission of Inquiry’. Under a wafer-thin patina of legalese and diplomatic jargon, this document is damned by the oh-so-typical bias and bigotry against Israel that has rendered the UNHRC notorious over recent decades. Commissioners Mary McGowan Davis and DouDou Diène have irrevocably besmirched their legal reputations by allowing their names to be associated with such an unscrupulously prejudiced process.

A cursory reading of the Commission’s Report reveals the following egregious offences against the principles of objectivity, equity and impartiality:

1. Paragraph 56 makes the absurd argument that Israel should be obligated to comply with the terms of an international treaty to which it never became a state party.

The Protocol Additional to the Geneva Conventions (Protocol I) is a thoroughly politicised document that was negotiated at the height of the Cold War in 1977. Delegates to the treaty conference from the Soviet Bloc and Third World were insistent that the Protocol must incorporate provisions that benefit guerrilla irregulars fighting against conventional armed forces. As a result, Protocol I deviated so sharply from the existing law of armed conflict that both Israel and the United States declined to ratify it. And other western nations that did agree become states party – e.g. Britain, France and Germany – were careful to make their ratification contingent upon statements of reservation that severely constrained the application Protocol I’s most problematic provisions.

The blatantly politicised character of Protocol I precluded this treaty from attaining the status of jus cogens in international law. Jus cogens are norms of state behavior that have become so universally accepted throughout the international community that they’re considered binding even on nations that never formally signed on to them. As a less-than jus cogens international agreement, Protocol I thus imposes no obligation upon non-party nations like Israel and the United States. Yet the Commission nonetheless sees fit to make the farcical argument that the provisions of this treaty nonetheless apply to the IDF.

2. The Commission relies on hearsay evidence to make repeated allegations that Israel “could” or “may” be guilty of war crimes. And in Paragraph 75 the report asserts:

The onus is on Israel to provide sufficient details on its targeting decisions to allow an independent assessment of the legality of the attacks conducted by the Israeli Defense Forces”.

3. Yet the Commission shows no countervailing eagerness to pursue allegations that Hamas and Palestinian Islamic Jihad engaged in widespread acts of perfidy – the misuse of civilian facilities for military purposes. In fact, the Commissioners seem blithely prepared to make do with a perfunctory statement of regret in Paragraph 62 over their inability to investigate Palestinian war crimes more fully:

The commission regrets that it was unable to verify allegations made by Israel on the use of civilian buildings by Palestinian armed groups owing to the denial by Israel of access to Gaza; fears by Palestinian witnesses of reprisal by armed groups and local authorities, in particular when providing information remotely; and challenges faced by Palestinian human rights organizations in documenting alleged violations by Palestinian armed groups.

With this statement the Commission turns a Nelsonian blind eye to abundant video evidence publicly available from the international press that documents Palestinian rocket fire in close proximity to UN[1] and medical facilities[2].

4. In Paragraph 64 the Commission then goes on to extenuate, if not exculpate, Hamas and Palestinian Islamic Jihad over their illegal tactic of using civilian facilities for military purposes:

The commission recognizes that the obligation to avoid locating military objectives within densely populated areas is not absolute. The small size of Gaza and its population density make it difficult for armed groups to always comply with this requirement.

And like a dog returning to its vomit, the Commission can’t resist the temptation to cast the onus of guilt for Palestinian war crimes on the UN’s usual and favourite suspect:

The questionable conduct of these armed groups, however, does not modify Israel’s own obligations to abide by international law.

5. The only unequivocal denunciation made by the Commission against Hamas involves the extra-judicial execution of alleged Palestinian collaborators in Gaza during last year’s conflict. Apparently a body count of 21 people shot by Hamas firing squads too much for that the most die hard anti-Zionist partisans amongst the UNHRC staff to get away with ignoring.

These are just a few of the discrepancies and deficiencies in the UNHRC’s report that leap out at first glance. We are confident that a more in-depth assessment of this flawed document will reveal many more.

[1]Gallagher Fenwick, Franc24 (5 Aug 2014) http://bit.ly/1TJlblR

[2]Aishi Zidan, Helsinki Times (1 Aug 2014)  http://bit.ly/1LxTxCL