Monday, August 11, 2014

On the New Members of the Human Rights Council "Independent International Commission of Inquiry to Investigate all Violations of International Humanitarian Law and International Human Rights Law"

(Pix (c) Larry Catá Backer 2014)

On August 11, 2014, the President of the Human Rights Council, Baudelaire Ndong Ella, appointed the members of the Human Rights Council's "independent international commission of inquiry to investigate all violations of international humanitarian law and international human rights law" in the area that the Human Rights Council describes as "the Occupied Palestinian Territory, including East Jerusalem, particularly in the Gaza Strip." Letter to All Permanent Representatives to the United Nations Office and Other International Organizations in Geneva from the President of the Human Rights Council, Baudelaire Ndong Ella, Geneva, August 11, 2014 (the note verbale).

The three commissioners named include Ms. Amal Alamuddin (United Kingdom), Mr. Doudou Diène (Senegal) and Mr. William Schabas (chair, Canada, Eire).
Some information about the commissioners follow along with the text of Council resolution S-21/1.

The naming has already been marred by missteps and institutional embarrassment. These suggest difficulties in the process of selecting the members of this commission that point to a regrettable lack of transparency and coordination within the HRC.It suggests, to some extent, the difficulties states continue to experience when they seek to manage their affairs within their community but within structures of mass media and mass democracy.

Most interesting in this respect was the appointment of Ms. Amal Alamuddin, a British-Lebanese barrister (Doughty Street Chambers), activist and author. She specializes in international law, criminal law, human rights, and extradition.  Most recently she has become known for her relationship with the American actor George Clooney.  At the time of the announcement of her appoint, Ms. Alamuddin issued a statement declining to serve.  It was reported this way:

Despite reports to the contrary, Amal Alamuddin will not be serving on the United Nations' Gaza Human Rights Commission.

George Clooney's fiancé released the following statement regarding the recent news, and explained why she chose to turn down the position.

"There are various reports published today stating that I have been appointed as one of the three members of the UN Commission of Inquiry for Gaza. I am horrified by the situation in the occupied Gaza Strip, particularly the civilian causalities that have been caused, and strongly believe that there should be an independent investigation and accountability for crimes that have been committed."

PHOTOS: Hollywood gets political
Ramey Photo

The British attorney continued, "I was contacted by the UN about this for the first time this morning. I am honoured to have received the offer, but given existing commitments—including eight ongoing cases—unfortunately could not accept this role.

"I wish my colleagues who will serve on the commission courage and strength in their endeavours."

Aside from Alamuddin's hectic work schedule, she's obviously been busy planning her upcoming nuptials to the Hollywood star. (Lily Harrison, News/Amal Alamuddin Explains Why She Will Not Serve on the UN's Gaza Human Rights Commission, E, Aug. 11, 2014).
 The United Nations has prepared the following summary of information about Mr. Diène:

MR. DOUDOU DIÈNE, United Nations Special Rapporteur on contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance

Born in Senegal in 1941, Doudou Diène was a prizewinner in philosophy in Senegal’s Concours Général. He holds a law degree from the University of Caen, a doctorate in public law from the University of Paris and a diploma in political science from the Institut d’Études Politiques in Paris. Having joined the UNESCO Secretariat in 1977, in 1980 he was appointed Director of the Liaison Office with the United Nations, Permanent Missions and United Nations departments in New York. Prior to this, he had served as deputy representative of Senegal to UNESCO (1972–77) and, in that capacity, as Vice-President and Secretary of the African Group and Group of 77. Between 1985 and 1987, he held the posts of Deputy Assistant Director-General for External Relations, spokesperson for the Director-General, and acting Director of the Bureau of Public Information. After a period as Project Manager of the ‘Integral Study of the Silk Roads: Roads of Dialogue’ aimed at revitalizing East-West dialogue, he was appointed Director of the Division of Intercultural Projects in 1993 (currently Division of Intercultural Dialogue). In this capacity, he directed various projects on intercultural dialogue, including the Slave Route, Routes of Faith, Routes of al-Andalus, and Iron Roads in Africa. In 1998 he was placed in charge of activities pertaining to inter-religious dialogue. In 2002, he was appointed by the Commission on Human Rights as Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, a mandate that was later extended by the Human Rights Council. He is the author of numerous publications and has chaired and been the distinguished guest on various panels, radio and television programs, including Neuf siècles de guerres saintes (May 1996), UNESCO/ARTE; Sur la piste des caravanes: L’endroit de toutes les rencontres (February 1998); Sur la route des épices (March 2000), UNESCO/NDR/ARTE; and a programme in the Thalassa series on The Slave Route (FR3, April 1998). He is co-author of Patrimoine culturel et créations contemporaines and of Vol. 35, No. 2 of the Journal of International Affairs on the New World Information Order. He has also published many articles on the issue of intercultural and inter-religious dialogue in journals such as Archeologia, Historia, Sciences et Vie, Actualité des Religions, Diogenes, etc. Editorial director of From Chains to Bonds, (UNESCO, 1998), he wrote the preface to Tradition orale et archives de la traite négrière (UNESCO, 2001), as well as the editorial of Newsletter No. 2 of ‘The Slave Route’ (UNESCO, 2001).

The Chair, William Schabas, is a well known expert in human rights and genocide,is a professor at Middlesex University (North London). His faculty profile at Middelsex University provides:
Professor William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international human law and human rights at Leiden University, emeritus professor of human rights law at the National University of Ireland Galway and honorary chairman of the Irish Centre for Human Rights, invited visiting scholar at the Paris School of International Affairs (Sciences Politiques), honorary professor at the Chinese Academy of Social Sciences in Beijing, visiting fellow of Kellogg College of the University of Oxford, and professeur associé at the Université du Québec à Montréal. Prof. Schabas is a 'door tenant' at the chambers of 9 Bedford Row, in London.

Professor Schabas holds BA and MA degrees in history from the University of Toronto and LLB, LLM and LLD degrees from the University of Montreal, as well as honorary doctorates in law from several universities. He is the author of more than twenty books dealing in whole or in part with international human rights law, including: The Universal Declaration of Human Rights: travaux préparatoires (Cambridge: Cambridge University Press, 2013); Unimaginable Atrocities, Justice, Politics and Rights at the War Crimes Tribunals (Oxford: Oxford University Press, 2012), The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010), Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2011, 4th ed.), Genocide in International Law (Cambridge: Cambridge University Press, 2nd ed., 2009) and The Abolition of the Death Penalty in International Law (Cambridge, Cambridge University Press, 2003, 3rd ed.). He has also published more than 300 articles in academic journals, principally in the field of international human rights law and international criminal law. His writings have been translated into Russian, German, Spanish, Portuguese, Chinese, Japanese, Arabic, Persian, Turkish, Nepali and Albanian.

Professor Schabas is editor-in-chief of Criminal Law Forum, the quarterly journal of the International Society for the Reform of Criminal Law.He is President of the Irish Branch of the International Law Association and chair of the International Institute for Criminal Investigation. From 2002 to 2004 he served as one of three international members of the Sierra Leone Truth and Reconciliation Commission. Professor Schabas has worked as a consultant on capital punishment for the United Nations Office of Drugs and Crime, and drafted the 2010 report of the Secretary-General on the status of the death penalty (UN Doc. E/2010/10).

Professor Schabas was named an Officer of the Order of Canada in 2006. He was elected a member of the Royal Irish Academy in 2007. He has been awarded the Vespasian V. Pella Medal for International Criminal Justice of the Association internationale de droit pénal, and the Gold Medal in the Social Sciences of the Royal Irish Academy.

In addition to his academic and experienital credentials, he appears to be quite vocal in a judgment, now well articulated in public fora, of the criminality of the head of government of the State of Israel. Haaretz, a newspapers in Israel reported:
The United Nations Human Rights Council last night named the three members of the international commission of inquiry to investigate possible war crimes by Israel during Operation Protective Edge. A senior official in the Foreign Ministry said that despite Israel’s attempts to influence the composition of the panel, the final outcome is unbalanced and problematic.

The three-member panel will be chaired by Prof. William Schabas, a Canadian expert on international law whose academic focus has been on genocide. He is known to be highly critical of Israel and harshly attacked Operation Cast Lead at the time (2008-09). He praised the report issued by the Goldstone Committee following that operation, and said the commission’s chairman, Richard Goldstone, should be awarded the Nobel Peace Prize.

Schabas has called in the past for the International Criminal Court in The Hague to put Prime Minister Benjamin Netanyahu and former President Shimon Peres on trial. Last year, at a conference in New York, Schabas said: “My favorite would be Netanyahu within the dock of the International Criminal Court.” A few years earlier, he said that if there was an indictment in the ICC against the president of Sudan for genocide, why should a similar indictment not be issued against the Israeli president for events in Gaza.
Professor Schabas has rejected the charges of bias and the calls for recusal.

"The suggestion that I'm anti-Israel is absurd," William Schabas said Monday in an interview from Toronto, pointing out that he's on the editorial board of the Israel Law Review.

"Like everybody inside and outside Israel, I disagree with people. Is everyone in Israel who has an opinion about (Benjamin) Netanyahu anti-Israel?" (Lee Anne Goodman, William Schabas, head of UN Gaza commission, dismisses anti-Israel charge, CBC News, Aug., 11, 2014)

Sadly, and  whatever their strength, these very public opinions may impede acceptance of any of the recommendations of the Commission as it goes about its work.  The impediment is deepened to the extent the commission is meant to produce a quasi judicial role--finding facts from which it will indict the culpable on the basis of shared  premises and according to "law". That perception is hard to maintain given both the language of the Resolution and the noticeable absence of participation by the State of Israel, the real object of all of this activity.  In Or it will enhance the work of the Commission if that work is understood as cultural-political, designed to reinforce the normative premises of the international order applied to a political judgement reached about the viability and culpability of the Jewish population of Israel and its government. When combined with the judgements already set out in Council resolution S-21/1 (set out below), it is unlikely that the Commission will receive much cooperation from Israel or much support from the United States.  In addition recent speeches by high HCR officials might be useful to get a sense of the direction in which the Commission will be undertaking its work:
Speeches/Statements made by the High Commissioner:

Speaking to the Informal Plenary Meeting of the General Assembly on the situation in Gaza, 6 August, the High Commissioner noted that the current has now superseded, in casualties and duration, the Israeli military operations of 2008/2009, and called it "a terrible failure for humanity". The need for investigation and accountability raised during previous Israeli military operations has still not been met, she noted, but added that the Commission of Inquiry established by the Human Rights Council last month will help to establish clarity regarding acts committed by all parties, thus beginning to address accountability issues related to the current hostilities. The HC also observed that the 2009 Fact-Finding Mission on Gaza noted the need for the International Criminal Court to address the situation, and said, "Such a recommendation is still relevant today."

Full text of the speech available HERE:

At a Special Session of the Human Rights Council on the human rights situation in the Occupied Palestinian Territory, including East Jerusalem, which took place on 23 July, the HC reiterated to all actors in this conflict that civilians must not be targeted. "It is imperative that Israel, Hamas and all Palestinian armed groups strictly abide by applicable norms of international humanitarian law and international human rights law," she said. "This entails applying the principles of distinction between civilians and combatants and between civilian objects and military objectives; proportionality; and precautions in attack". She noted a number of incidents "where there seems to be a strong possibility that international humanitarian law has been violated, in a manner that could amount to war crimes" and said every such incident must be thoroughly investigated, since impunity for alleged violations of international law invites further transgressions.

Full text of the speech available HERE

It is regrettable as well that the work of the Commission will likely serve only to feed any pre-judgments well in evidence in official statements and media accounts. And that, of course, is the great difficulty of setting lawyers on a quest for legal conclusions with respect to a matter the politics of which may not be ignored. It would indeed be odd if the Commission did not use its work, however much the Israeli's choose to ignore or deny it access,  to produce something that will lead to indictments of any number of high Israeli officials and to move toward efforts to discredit the government of that state because of its religious composition. But that certainty, ironically, will also de-legitimate the work of the Commission, and thereafter that of the ICC (if it chooses to go forward) in the eyes of states and civil society actors who believe that these efforts are no more than efforts to further the interests of one set of combatants in the great Jewish-Muslim wars. Indeed, the religious nature of the wars between Muslims and Jews, played out in Palestine-Israel remain one of the great unacknowledged events of this century. While the West tends to play down the religious element, and indeed make it invisible within the great structures of law it has sought to constrict after the Second World War, it is that stubborn and quite instrumental blindness that will continue to make it difficult to develop any relationship between the great structures of international law and the realities on the ground.  The use of the mechanics and facilities of the state system to manage religious wars, where some but not all combatants play any role provides perverse and ironic inversion of what many people suggest is the realities of war on the ground in Gaza.  This is all to be regretted, especially to the extent the consequences of these precedents may someday come to haunt the instittuions that are meant to be built thereby. For institution builders all of these actions under cover of international normative frameworks might produce some concern for the long term viability of the system itself. That danger of illegitimacy, now looping back on the instrument of that movement against the State of Israel, may be the long term consequence for the current approach to the U.N.'s "Jewish problem."

And that might serve as a warning about the necessity of practicing proportionality, inclusion and other important values, if one expects the same in return. In its absence, the Commission will merely reproduce in inverse the unsatisfactory results of war in which total victory is impossible and yet deeply desired to the point of irrationality. For those of us who value the development of an international architecture for resolving issues of human rights, the Jewish-Muslim wars have become the arena in which the legitimacy of those structures are either furthered or weakened.  It is too early to tell in which directions events will take the participants. But the willingness to start an inquiry with a set of conclusions does not bode well either for the outcome of the Commission's work or for the legitimacy of the use of international human rights and humanitarian law in a global context of religious and asymmetric warfare in which the old political tropes of the 20th century appear to have lost their meaning but not their utility.


Human Rights Council
Twenty-first special session
23 July 2014
                   Resolution adopted by the Human Rights Council
Ensuring respect for international law in the Occupied Palestinian Territory, including East Jerusalem
     The Human Rights Council,
Guided by the purposes and principles of the Charter of the United Nations and the Universal Declaration of Human Rights,
Recalling General Assembly resolution 60/251 of 15 March 2006 and Human Rights Council resolutions 5/1 and 5/2 of 18 June 2007,
Reaffirming the right to self-determination of the Palestinian people and the inadmissibility of the acquisition of land by the use of force, as enshrined in the Charter,
Affirming the applicability of international human rights law and international humanitarian law, in particular the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949,[1] to the Occupied Palestinian Territory, including East Jerusalem,
Reaffirming that all High Contracting Parties to the Fourth Geneva Convention1 are under the obligation to respect and ensure respect for the obligations arising from the said Convention in relation to the Occupied Palestinian Territory, including East Jerusalem, and reaffirming their obligations under articles 146, 147 and 148 with regard to penal sanctions, grave breaches and the responsibilities of the High Contracting Parties,
Gravely concerned at the lack of implementation of the recommendations contained in the report of the United Nations Fact-Finding Mission on the Gaza Conflict of 2009,[2] and convinced that lack of accountability for violations of international law reinforces a culture of impunity, leading to a recurrence of violations and seriously endangering the maintenance of international peace,
Noting that 9 July 2014 marked the tenth anniversary of the adoption of the advisory opinion by the International Court of Justice on the legal consequences of the construction of a wall in the Occupied Palestinian Territory and that no progress has been made on its implementation, and affirming the urgent need to respect and ensure respect for international humanitarian law and international human rights law in this regard,
Firmly convinced that justice and respect for the rule of law are the indispensable bases for peace, and stressing that prevailing long-standing and systemic impunity for international law violations has created a justice crisis in the Occupied Palestinian Territory that warrants action, including accountability for international crimes,
Noting the systematic failure by Israel to carry out genuine investigations in an impartial, independent, prompt and effective way, as required by international law, on violence and offences carried out against Palestinians by the occupying forces and settlers and to establish judicial accountability over its military actions in the Occupied Palestinian Territory, including East Jerusalem,
Emphasizing the obligations of Israel as the occupying Power to ensure the welfare and safety of the Palestinian civilian population under its occupation in the West Bank, including East Jerusalem, and in the Gaza Strip, and noting Israel’s wilful abdication and rejection of its obligations in this regard,
Noting that the deliberate targeting of civilians and other protected persons and the perpetration of systematic, flagrant and widespread violations of applicable international humanitarian law and international human rights law in situations of armed conflict constitute grave breaches and a threat to international peace and security,
Deploring the massive Israeli military operations in the Occupied Palestinian Territory, including East Jerusalem, since 13 June 2014, which have involved disproportionate and indiscriminate attacks and resulted in grave violations of the human rights of the Palestinian civilian population, including through the most recent Israeli military assault on the occupied Gaza Strip, the latest in a series of military aggressions by Israel, and actions of mass closure, mass arrest and the killing of civilians in the occupied West Bank,
Expressing grave concern at the critical humanitarian situation in the Gaza Strip, including in particular the forced displacement of tens of thousands of Palestinian civilians, the crisis in access to adequate water and sanitation services affecting nearly 1 million people, and the extensive damage to electricity infrastructure resulting in 80 per cent of the population receiving electricity only four hours a day, and underlining the importance of providing emergency humanitarian assistance to them and other victims,
Welcoming the establishment of the Palestinian national consensus Government on 2 July 2014 as an important step towards Palestinian reconciliation, which is crucial for achieving a two-State solution based on the pre-1967 borders and lasting peace, and emphasizing that the situation of the occupied Gaza Strip is unsustainable as long as it remains geographically, politically and economically separated from the West Bank,
1.     Strongly condemns the failure of Israel, the occupying Power, to end its prolonged occupation of the Occupied Palestinian Territory, including East Jerusalem, in accordance with international law and relevant United Nations resolutions;
2.     Condemns in the strongest terms the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations carried out in the Occupied Palestinian Territory since 13 June 2014, particularly the latest Israeli military assault on the occupied Gaza Strip, by air, land and sea, which has involved disproportionate and indiscriminate attacks, including aerial bombardment of civilian areas, the targeting of civilians and civilian properties in collective punishment contrary to international law, and other actions, including the targeting of medical and humanitarian personnel, that may amount to international crimes, directly resulting in the killing of more than 650 Palestinians, most of them civilians and more than 170 of whom are children, the injury of more than 4,000 people and the wanton destruction of homes, vital infrastructure and public properties;
3.     Condemns all violence against civilians wherever it occurs, including the killing of two Israeli civilians as a result of rocket fire, and urges all parties concerned to respect their obligations under international humanitarian law and international human rights law;
4.     Calls for an immediate cessation of Israeli military assaults throughout the Occupied Palestinian Territory, including East Jerusalem, and an end to attacks against all civilians, including Israeli civilians;
5.     Welcomes the initiative of Egypt, supported by the League of Arab States, and calls for all regional and international actors to support this initiative in view of securing a comprehensive ceasefire;
6.     Demands that Israel, the occupying Power, immediately and fully end its illegal closure of the occupied Gaza Strip, which in itself amounts to collective punishment of the Palestinian civilian population, including through the immediate, sustained and unconditional opening of the crossings for the flow of humanitarian aid, commercial goods and persons to and from the Gaza Strip, in compliance with its obligations under international humanitarian law;
7.     Calls upon the international community, including the States Members of the United Nations, international financial institutions and intergovernmental and non-governmental organizations, as well as regional and interregional organizations, to provide urgently needed humanitarian assistance and services to the Palestinian people in the Gaza Strip, including by supporting the emergency appeal launched by the United Nations Relief and Works Agency for Palestine Refugees in the Near East on 17 July 2014;
8.     Expresses grave concern at the rising number of incidents of violence, destruction, harassment, provocation and incitement by extremist Israeli settlers illegally transferred to the Occupied Palestinian Territory, including East Jerusalem, against Palestinian civilians, including children, and their properties, and condemns in the strongest terms the resulting perpetration of hate crimes;
9.     Expresses deep concern at the condition of Palestinian prisoners and detainees in Israeli jails and detention centres, in particular following the arrest by Israel of more than 1,000 Palestinians since 13 June 2014, and calls upon Israel, the occupying Power, to immediately release all Palestinian prisoners whose detention is not in accordance with international law, including all children and all members of the Palestinian Legislative Council;
10.   Underlines the importance of ensuring the protection of all civilians, emphasizes the continued failure of Israel to protect the Palestinian civilian population under its occupation as demanded by international law, and in this context calls for immediate international protection for the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, in accordance with the relevant provisions of the Charter of the United Nations, international humanitarian law and international human rights law;
11.   Recommends that the Government of Switzerland, in its capacity as depositary of the Fourth Geneva Convention,1 promptly reconvene the conference of High Contracting Parties to the Convention on measures to enforce the Convention in the Occupied Palestinian Territory, including East Jerusalem, and to ensure its respect in accordance with article 1 common to the four Geneva Conventions,[3] bearing in mind the statement adopted by the Conference of the High Contracting Parties on 15 July 1999, and the Declaration adopted by the Conference on 5 December 2001;
12.   Requests all relevant special procedures mandate holders to urgently seek and gather information on all human rights violations in the Occupied Palestinian Territory, including East Jerusalem, according to their respective mandates, and to include their observations in their annual reports to the Human Rights Council;
13.   Decides to urgently dispatch an independent, international commission of inquiry, to be appointed by the President of the Human Rights Council, to investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014, whether before, during or after, to establish the facts and circumstances of such violations and of the crimes perpetrated and to identify those responsible, to make recommendations, in particular on accountability measures, all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable, and on ways and means to protect civilians against any further assaults, and to report to the Council at its twenty-eighth session;
14.   Requests the cooperation, as appropriate, of other relevant United Nations bodies with the commission of inquiry to carry out its mission, and requests the assistance of the Secretary-General and the United Nations High Commissioner for Human Rights in this regard, including in the provision of all administrative, technical and logistical assistance required to enable the commission of inquiry and special procedures mandate holders to fulfil their mandates promptly and efficiently;
15.   Requests the High Commissioner to report on the implementation of the present resolution, including on measures taken with regard to ensuring accountability for the serious violations of international humanitarian law and human rights in the Occupied Palestinian Territory, including East Jerusalem, to the Human Rights Council at its twenty-seventh session;
16.   Decides to remain seized of the matter.
2nd meeting
23 July 2014
[Adopted by a recorded vote of 29 to 1, with 17 abstentions. The voting was as follows:
In favour:
Algeria, Argentina, Brazil, Chile, China, Congo, Costa Rica, Côte d’Ivoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Kuwait, Maldives, Mexico, Morocco, Namibia, Pakistan, Peru, Philippines, Russian Federation, Saudi Arabia, Sierra Leone, South Africa, United Arab Emirates, Venezuela (Bolivarian Republic of), Viet Nam
United States of America
Austria, Benin, Botswana, Burkina Faso, Czech Republic, Estonia, France, Gabon, Germany, Ireland, Italy, Japan, Montenegro, Republic of Korea, Romania, the former Yugoslav Republic of Macedonia, United Kingdom of Great Britain and Northern Ireland]

                        [1]   United Nations, Treaty Series, vol. 75, No. 973.
                        [2]   A/HRC/12/48.
                        [3]   United Nations, Treaty Series, vol. 75, Nos. 970–973.

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