UN Special Rapporteur on Human Rights in the Palestinian Territories Richard Falk talks to Amira Howeidy
about the pressure mounted on the UN fact-finding mission in Gaza
Fathiya Moussa, a Palestinian girl whose parents and siblings were killed in an Israeli air strike at their home in Gaza last January, wants to know why she's been orphaned. She is quoted in an Amnesty International report published 2 July as saying "we want an investigation."
Not only is she not getting retribution, justice or compensation, she might not get what amounts to a meaningful investigation as she and 1.5 million Palestinians in Gaza continue to suffer deplorable conditions under Israel's cruel two-year old siege.
Amnesty's 129-page report, "Israel/Gaza Operation Cast Lead: 22 days of death and destruction" is, despite all attempts to maintain a diplomatic tone, a blatant condemnation of Israel. Approximately 1,400 Palestinians were killed in that war (including 400 children), with 5,000 injured and maimed and 2,000 building units destroyed. The report is the first account by an independent international body on the war. It has been almost ignored by Israel.
The "investigation" that Fathiya and tens of thousands of Palestinian war victims expect may be in the making, but maybe not. Last week a UN-appointed independent fact-finding mission into the war on Gaza wrapped up its work after holding two separate public hearings end of June and early July in Gaza and Geneva respectively. According to the mission's head, South African judge Richard Goldstone, the hearings that included both Palestinians and Israelis were meant to give a face and a voice to the war's victims.
Israel has refused to cooperate with the mission that it described as "biased", denying it entry. This left the mission obliged to enter Gaza, which is controlled by Hamas, via Egypt. Goldstone, a Jew, is a former member of the South African Constitutional Court and former chief prosecutor of the international criminal tribunals for the former Yugoslavia and Rwanda.
His mission has been described by Israeli commentators and spokespeople as "bizarre", with the purpose of proving "preconceived" ideas about Israel's role in the war. The report is due to be presented to the UN Human Rights Council (UNHRC) in September. Until that happens, many are wondering how Israeli pressure -- and refusal to allow Goldstone entry -- will affect the outcome of the investigation.
Even the unprecedented Gaza and Geneva public hearings have been the subject of sceptical assessments as to their legal and moral value. One eyewitness and survivor, 91-year-old Moussa El-Sellawi, who lost five members of his family when an Israeli missile razed to the ground a mosque they were in, told the committee he has never seen anything like that war in his life.
Richard Falk, the UN Human Rights Council's special rapporteur for Palestine, describes the hearings as "a very innovative, respectful and beneficial technique in trying to obtain as much awareness of the actual circumstances as possible." In a telephone interview with Al-Ahram Weekly from Lisbon, Falk added: "One is trying to reconstruct the reality experienced by these Israeli attacks and certainly direct discussions and hearings involving the victims themselves provides important insight."
But there is concern that these hearings will be compromised after coming under attack. Despite being denied entry to Israel to complete his investigation, Goldstone told Israeli TV that the report will be "balanced". Did he have to make that statement?
Says Falk: "Judge Goldstone has a lot of experience. I think at the same time he has certain diplomatic approach that recognises that there is pressure and he probably feels that the credibility of the undertaking depends on achieving at least what most observers would regard as a balanced approach". It's not a language Falk would use "because the situation itself is so unbalanced."
"This was a one-sided attack on an essentially defenceless population trapped in the war zone, and what really need to be reported are the realities experienced by that attack, and it is true that the Hamas did some things that were not consistent with international humanitarian law, but they were of such small magnitude compared to what the Israelis did," he says. It is "misleading", he went on, to "create the impression that both sides were somehow at fault. And I hope the assertions in response to this pressure do not mean that the report will attempt to put on a similar level the wrongs attributed to Hamas and the wrongs attributed to Israel."
Falk, an American professor emeritus of international law at Princeton University, author of 20 books, speaker and activist, was also denied entry to Israel on several occasions as UN special rapporteur on Palestine. During 1999-2000, he worked on the Independent International Commission on Kosovo. In 2001, he served on a UN High Commissioner for Human Rights enquiry commission for the Palestinian territories.
In January 2009, Falk and a list of distinguished international law scholars and experts published a petition in The Sunday Times that described Israel's aggression on Gaza as a "war crime". One of the signatories, professor of international law at the London School of Economics, Christine Chinkin, became a member of Goldstone's mission upon its formation last April.
Falk described Chinkin as "a very qualified" observer who has a "world reputation for her expert knowledge and her integrity and general professionalism." He adds: "I think the idea that you have to have a blank slate in your mind in order to be an objective observer is extremely misleading. The fact that people observe at a distance these events as she did -- and as I did -- and viewed them as war crimes seems so apparent to any genuinely objective observer that it should in no way affect the more careful effort to collect evidence and to confirm or disconfirm those initial impressions and allegations."
The fact-finding mission was formed in April, three months after the UNHRC issued a non- binding resolution that accused Israel of "massive violations of the human rights of the Palestinian people". It also decided to dispatch an "urgent" independent international fact-finding mission to investigate alleged violations. The mission's findings were due to be presented to the council's session in March. UN insiders say the mission's formation took months because of "sensitive" political considerations related to the mission's head. Falk was one of the obvious names for nomination, but was dismissed because Israel rejects him outright, even though he's Jewish.
"I've only heard those rumours myself so I can't affirm or disconfirm them," he says. "I know that Israel mounted a lot of pressure against me and some other people so that they would probably not be given serious consideration. And the Office of the UN High Commissioner, which arranged for the appointment of this group, is probably more sensitive to that kind of pressure than the Human Rights Council which initially selected me [as special rapporteur]."
So while Judge Goldstone is also Jewish, Falk believes this aspect "doesn't put you above or beyond criticism, as my personal experience suggests." Nonetheless, he thinks "there may have been some feeling that there is less grounds for predictable objections to such a mission if its head is a prominent and qualified Jew."
He described the Office of the High Commissioner as part of the "bureaucratic operations of the UN," which he thinks is "more susceptible to US and Israeli pressure", unlike the UNHRC which is a political grouping of 47 governments that are less susceptible to such pressure. This is why the council is constantly attacked by Israel and the US.
Either way, the findings of the upcoming report will not be binding. Even if it doesn't lead to further effort to impose accountability on Israel, Falk argues that, "it will have an important effect on what I've been calling the second war, the legitimacy war." In other words, it will be important for world public opinion and for the kind of movement that is in solidarity with the Palestinians, "which has a certain similarity to the anti-Apartheid movement" that was so effective in bringing pressure on South Africa."
This is why the "civil society impact of this report" should be considered. "I think that it will have an important positive influence on the Palestinian struggle," he said.