Impunity wins

With the UN Human Rights Council's decision to defer its vote on war crimes in Gaza politics has once again triumphed over international law, writes Amira Howeidy

---

Click to view caption

An Israeli border policeman detains a Palestinian stone-throwing youth during clashes in the east Jerusalem Shuafat refugee camp

On 2 October, a week before the UN Human Rights Council was scheduled to vote on the Gaza war crimes report, Geneva-based Palestinian human rights activist Rania Madi knew something was wrong. She received a tip off from sources in the council about US and Israeli plans to defer the vote to March 2010. In response she intensified her lobbying and voiced concern at the possibility. "The Palestinian delegation in Geneva told me not to worry, that everything was going fine," she told Al-Ahram Weekly in a telephone interview from Brussels.

International, Palestinian, Israeli and Arab human rights activists, many of whom, including members of Amnesty International and Human Rights Watch, flew to Geneva for the event, had spent weeks planning their actions following the would-be vote, formulating "follow up mechanisms" to be put in place after the expected endorsement of a report that accuses Israel and Hamas of "possibly" committing war crimes and crimes against humanity during Israel's war on Gaza last January.

It was the first time in the history of the UN that Israeli and Palestinian NGOs had jointly organised an event.

An estimated 33 of the council's 47 member states were prepared to endorse the 575-page report of the fact-finding mission mandated by the UNHRC last April to investigate violations of international and humanitarian law during Operation Cast Lead, Israel's 22-day war which killed more than 1,400 Palestinians and destroyed much of Gaza's infrastructure. Compiled by Jewish South African judge Richard Goldstone, a former member of the South African Constitutional Court and chief prosecutor of the International Criminal Tribunals for both former Yugoslavia and Rwanda, the report was submitted to UNHRC in Geneva on 29 September during the council's 12th regular session.

The report strongly recommends that if Israel and Hamas fail to investigate the alleged violations and undertake follow-up actions that meet international standards of objectivity within six months, then the Security Council should consider referring the whole issue of Israeli and Hamas accountability to the prosecutor of the International Criminal Court (ICC) in The Hague. Because of its majority-vote system, the council was expected to endorse the report and issue a resolution on how to proceed. According to diplomatic sources, the council had drafted a resolution submitting the report to the UN General Assembly (UNGA) which, unlike the UN Security Council, has no veto and operates on a majority voting system. Technically, the UNGA could then have referred the case to the ICC. The draft resolution also endorsed all of Goldstone's recommendations.

Accounts from official and non-official delegates in Geneva concur that just as the Human Rights Council was to issue its resolution on the report the PA's representative in the council, Ibrahim Khreisha, demanded that the council defer the vote to March 2010. The U-turn came after Khreisha received a telephone call from Palestinian Authority (PA) President Mahmoud Abbas. Geneva-based diplomatic sources told the Weekly that Khreisha had said the PA's demand was "non negotiable".

Madi witnessed the corridor-deliberations that followed.

"All sorts of reasons were cited," she says, including Israeli threats to quit the "peace process", US Secretary of State Hillary Clinton's pressure on Abbas to stop the vote, Abbas's son's business interests in the West Bank, where he owns a mobile service provider, which would have been jeopardised if the PA had not stopped the vote. I couldn't face the international human rights activists who came all the way to Geneva to support us only to witness the official Palestinian delegation thwart everything."

Legal and political experts agree that the report's endorsement by UN bodies -- regardless of whether or not a war crimes tribunal ever took place -- would have made it a powerful tool for civil society to push for divestment, and possibly sanctions against Israel. It would have provided a basis for activists to take legal action against cooperation with Israel, accused by the report of committing war crimes and crimes against humanity, and press for trade, academic, scientific, cultural and sporting boycotts. It would have also acted to undermine the Israel-EU Association, the basis for scientific cooperation.

Goldstone and his team of heavy-weight investigators -- including professor of international law at the London School of Economics Christine Chinkin, member of the High Level Fact Finding Mission to Beit Hanoun, Hina Jilani, advocate of the Supreme Court of Pakistan and member of the International Commission of Inquiry on Darfur, and Colonel Desmond Travers, a former officer in the Irish Armed Forces and member of the board of directors of the Institute of International Criminal Investigations -- knew the impact of their report. So did Israel. It was Israel, however, that won. In a letter to UNHRC Goldstone wrote that "a culture of impunity in the region has existed for too long". His mission struggled for months to end that impunity, during which they made repeated field visits to Gaza, and were repeatedly denied entry to Israel. Yet impunity continues to reign.