Reactions from leading experts on latest UN Commission on Gaza

The United Nations Human Rights Council announced last week the formation of a commission to investigate the most recent Israeli attack on Gaza, Operation Protective Edge. The panel will be headed by William Schabas, a Canadian professor of international law. The UN has said that the panel will be investigating human rights violations and potential war crimes. Whilst Israel has described the panel as a “kangaroo court”, Hamas has welcomed the setup of the commission. Hamas’ spokesman Sami Abu Zuhri said, “Hamas welcomes the decision to form an investigation committee into the war crimes committed by the occupation [Israel] against Gaza and it urges that it begin work as soon as possible.”

The commission has already met with some controversy though with the appointment of its leading lawyer William Schabas. Schabas has been described by some critics as anti-Israel. An advert run in the New York Times describes him as not only anti-Israel but a “friend of Ahmadinejad”. It seems the most irking thing about his appointment was Schabas’ former involvement in the Russell Tribunal on Palestine which concluded that Israel has committed well documented violations of international law. Schabas countered the argument that he is anti-Israel by citing that he has been on the board of the Israel Law Review.

This in turn has raised some concerns; one leading lawyer, Francis A Boyle a former legal adviser to the Palestinian Liberation Organisation told MEMO that Schabas’ appointment could be of concern to the Palestinians given his role on the Israel Law Review Board. Either way Schabas’ appointment is causing waves and his role in the Commission will almost certainly be under inspection. Boyle’s concerns however were not limited to the experts involved, he went on to say that “will be an exercise an (sic) damage control and damage limitation on behalf of Israel and very well could be used to hurt the Palestinians.”

The commissions’ findings might be hard to predict, but one thing that has been widely commented on during the assault on Gaza has been the disproportionate action by Israel. Killing almost 2,000 civilians and injuring nearly 10,000 the effect on the Gaza Strip would be intolerable by any standards. And with the Strip facing its third war in six years, it has come under increasing humanitarian strain, having barely had a chance to recover before being hit again.

With even members of the British government such as Deputy Prime Minister Nick Clegg saying “is difficult to deny that Israel’s military action appears disproportionate and, combined with the Gaza blockade, is resulting in the collective suffering of the Palestinian people”, it is clear that the Gazans have had to pay a heavy price as a result of Israel’s actions. Over the last six years this heavy price has been a burden without any justice for the Palestinian people.

After Operation Cast Lead a UN Fact Finding Mission was established to investigate the events that had taken place in Gaza. The Goldstone Report essentially accused Israel of war crimes and possible crimes against humanity. Israel rejected the findings of the report and though the report received a great deal of international backing its findings were not implemented. During that fact finding mission Israel refused to engage with the UN Fact Finding team. Almost immediately after the UN’s announcement that they would be establishing this most recent commission Israel dismissed it as being biased against Israel.

If recent history is anything to go by, it is not surprising that there are some concerns from leading experts that this commission could face difficulties during its investigation. Leading international law expert, John Dugard told the Middle East Monitor that though he had full confidence in the mission he hoped that Israel would co-operate but he “fear(ed) that it would not”. Dugard also raised concerns about Egypt’s role, ” I hope Egypt will allow the Mission access to Gaza as it did with both Arab League Fact Finding Mission and Human Rights Council Mission in 2009″. He also went on to say the he hoped European states would keep an open mind but noted that this was “too much to expect of the USA”.

It’s not just Israel’s reaction and response to the mission that observers will be monitoring. The UKs position during the conflicts in Gaza has come under intense scrutiny. After the Goldstone report, the UK’s response to it was heavily criticised. With Israel forcefully lobbying UN members to vote against the Goldstone report, the UK chose not to vote. Despite increasing pressure from MPs in the UK, the then Labour government took the decision not to vote either way on the report – although it did not officially abstain from voting.

This time around the UK’s action will be even more closely watched, especially as leading politicians take a strong stance against Israel’s actions. One top politician, Baroness Warsi resigned over the UK’s policy on Gaza. Lord David Steele, a former leader of the Liberal Democrats, expressed his support for the commission when he told MEMO “I just hope that more international attention will be paid to this report than was the case with the Goldstone report.”

The National Lawyers Guild also welcomed the commission and told MEMO that there were pleased that the UNHRC had launched an investigation into Israel’s “criminal behaviour”. But they too echoed concerns about the history of the Goldstone report itself saying, “we expect that any objective investigation would – like the Goldstone Report -condemn the Israeli assault and recommend prosecution of its military and political leaders.”

“We further expect that Israel, shielded by the United States, would once again ignore the report. To end Israel’s impunity its leaders must be investigated and prosecuted in the International Criminal Court for war crimes, genocide and crimes against humanity, alongside US leaders who aided and abetted them. We are sending a letter to that effect to the ICC Prosecutor.”

Calling for the International Criminal Court to investigate will in itself prove to be difficult. Reports on Monday suggested that the ICC was under pressure not to open an investigation into war crimes in Gaza as a result of pressure from the US. These reports argue that Fatou Bensouda, ICC chief prosecutor, will not put forward an investigation unless the Palestinians submit a new request. A former request from 2009 will not be accepted.

If the ICC does investigate this would push this commission’s results much further than the Goldstone report. Hina Jilani, one of the members of the Goldstone fact finding mission, told MEMO that “mechanisms for accountability were created at the international level to ensure the respect for the rule of law, when it is evident that national governments are either unwilling or unable to hold genuine accountability. If the international community shies away from the use of these mechanisms, it becomes complicit in the denial of justice to the victims.”

Commenting on the commission Jilani said, “the newly established Commission of Inquiry on Gaza established by the Human Rights Council at its Special Session on 23 July 2014 is certainly welcome. However, its efforts can only be fruitful if accountability of those responsible for any violations they find, is ensured. That would not be possible unless the international community has an unequivocal resolve to end impunity as well as tolerance for any acts that violate international law, especially those causing deliberate harm to civilians at times of war.”

Leading UN figures have already raised concerns, the UN Secretary –General Ban Ki-moon said that Israel had been guilty of violations of international law and Navi Pillay UN High Commissioner for Human Rights said that Israel had deliberately defied international law. Jilani said that “no one must be allowed to sabotage or divert efforts towards peace. Nor must these be de-linked from imperatives of accountability and justice. The rule of law must prevail and impunity for international crimes and gross violations of international law must end. The 2009 report of the Gaza Fact Finding Mission had observed that, “justice and respect for the rule of law are the indispensable basis for peace.”

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.