The UNHRC Report on the 2014 Gaza War

Part I: Mandate

by

Howard Adelman

The basic question is whether a) the United Nations Human Rights Council (UNHRC) was operating outside of its mandate field or its field of supposed expertise, and b) in setting up a commission of inquiry, its own presumptions about human rights law, for which it has a clear mandate, deformed in any way the application of humanitarian law in its analysis of the 2014 Gaza War.

On 24 June 2015, the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict delivered its report (A/HRC/29/52) (UN Gaza War 2014). The commission was set up by the UNHRC and the report was delivered as agenda item 7 under the more general heading, “Human rights situation in Palestine and other occupied Arab territories.” One year earlier, on 23 June 2014, when the Gaza war was still underway, the UNHRC adopted resolution A/HRC/RES/S-21/1 to establish the independent, international commission of inquiry to investigate all violations of international humanitarian law (my italics) 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, and to report to the Council at its twenty-eighth session in March 2015. The report was delivered only three months late. The mandate read as follows:

“Ensuring respect for international law (my italics) in the Occupied Palestinian Territory, including East Jerusalem”, the United Nations Human Rights Council requested the UN High Commissioner for Human Rights to “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 (my italics) 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 (my italics), and to report to the Council at its twenty-eighth session”.

However, the United Nations never mandated the UNHRC itself to investigate humanitarian law. Human rights, yes. Humanitarian law, no. Humanitarian law is not mentioned once in the long resolution of 15 March 2006 setting up the United Nations Human Rights Council to replace the United Nations Commission on Human Rights which had fallen into total disrepute. According to the website of the Commission as well as the UNHRC, the Commission of Inquiry interprets this mandate as including investigating the activities of Palestinian armed groups in Gaza, including attacks on Israel, as well as the Israeli military operation in the Gaza Strip and Israeli actions in the West Bank, including East Jerusalem, by looking into a broad range of alleged violations committed by all parties under the full range of human rights, including economic, social and cultural rights. [Note that humanitarian law is not mentioned in this section.]

Here again, Res. A/60/251 setting up UNHRC does refer to regional groupings of states and especially individual states, but nowhere can we find any mention of armed groups, military, violence, etc. The UNHRC was mandated to strengthen the promotion and protection of human rights around the globe, that is, the rights of individuals in relationship to the states in which they live or of which they may be members. The UNHRC was not given responsibility for protecting all aspects of international law, but only those aspects having to do with the relationship between states and its citizens or individuals living on the soil governed by a state. Two overlapping realms of international law – refugee law and humanitarian law – deal respectively with the rights of individuals who are not members of a state that provides for their protection and for the laws governing the initiation and conduct of war. Yet the mandate, now as specifically interpreted by the Commission, was to look into the actions of Palestinian armed groups in Gaza, including attacks on Israel, as well as the Israeli military operation in the Gaza Strip, the West Bank and East Jerusalem as a part of the West Bank.

Under humanitarian law, this would mean investigating what happens to prisoners of war, how the wounded are treated, how military personnel are treated, and how and whether the state makes a strong effort to distinguish between civilian and military personnel. When we examine the report in detail, it will be interesting to see what aspects of humanitarian law are covered and which are not. We are, however, no longer surprised that the UNHRC would decide to investigate the protections afforded civilians and the permitted military means used in the 2014 Gaza War. After all, five years earlier, on 12 January 2009, under almost similar wording, the UNHRC set up what came to be known as the Goldstone Commission.

The difference in wording is interesting. Resolution S-9/1 setting up the Goldstone Commission in 2009 decided to: “dispatch an urgent, independent international fact-finding mission, to be appointed by the President of the Council, to investigate all violations of international human rights law and international humanitarian law (my italics) by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission.” What a difference five years can make! Unlike the Goldstone Report, which was found to be so flawed, even by Richard Goldstone himself after it was published, the 2014 mandate mentions both belligerents and not just one (Israel) and does not restrict the investigation to Palestinian territories. The 2014 mandate does not predefine the war as unjust on the part of Israel by referring to the “current aggression” by Israel. In a more subtle shift, the reference to humanitarian law in the Goldstone Commission mandate followedthe investigation of the application of human rights law. In the 2014 mandate, the reference to humanitarian law precedes the reference to human rights law.

Recall that Mary Robinson, who eventually supported Richard Goldstone’s Report, partially because of her respect for him, and who had been the first person approached to head the 2009 Commission, refused to take the position as head of the 2009 Commission because the mandate was so one-sided and had been “guided not by human rights but by politics.”  Richard Goldstone himself, before taking the position, complained of its failure to take into account the actions of all parties in the conflict and informally received approval by the President that the Commission could broaden its mandate. However, the broadening seemed peripheral and, in any case, the UNHRC ignored the recommendation applicable to Hamas. Thus, Goldstone’s insistence that the informal broadening and the fact that his initiative received no objections at a plenary session of UNHRC was sufficient, proved incorrect, as did his chastisement of Hillary Clinton for her “tiresome and inept” criticisms of the one-sided nature of the mandate. This could not be done with the 2014 mandate which formally required the mission to look at all parties: Israel; the Palestinian Authority; Hamas, which governs Gaza; and other armed Palestinian groups. The two mandates, however, are similar in covering the West Bank, said to include East Jerusalem instead of being referred to as a separate entity, though the violent conflict did not take place there.

In 2009, Richard Goldstone in presenting his report said that he and his fellow commissioners had been motivated by four goals:

• To uphold the principle of the rule of law and, more particularly, humanitarian and human rights law
• To ensure the protection of civilians during armed conflict to the greatest extent possible
• To ensure that no state or armed group should remain immune from accountability and justice
• Finally,“out of a deep concern for the hundreds of civilians who needlessly died and those who suffered injury and dislocation of their lives.”

The key question in the 2014 inquiry would be the same. Were civilians “to the greatest extent possible” protected during an armed conflict? The question was not, were civilians protected to a reasonable degree in accordance with the laws of war? Because humanitarian law does not require that civilians be protected to the greatest extent possible, for, in the end, that would entail not going to war at all by either side. Killing per se is unlawful under human rights law. However, under humanitarian law, killing combatants is not unlawful and even the killing of civilians is permitted under the situation of “collateral damage” where deaths of civilians are permitted under the principle of proportionality, which is not about protecting civilians to the greatest extent possible, but requires balancing the incidental loss of civilian life or injury to civilians in relationship to the concrete and direct military advantage expected from a particular attack. In other words, it is not about the numbers killed relative to one another on each side, but whether those civilian deaths were proportionate to the military goals being pursued.

There is also an overlap between humanitarian and refugee law. Some of the norms applicable to the Gaza War require:

1. If the territory is legally an occupied territory, the prohibition under the Fourth Geneva Convention of individual or mass forcible transfers, both within the occupied territory and beyond its borders; there is an exception – an occupying power is permitted  to “evacuate” the inhabitants of a particular area if this is necessary for the security of the civilian population or for imperative military reasons;
2. Attacking belligerents is permitted, but attacking civilians and civilian property indiscriminately is prohibited;
3. The duty to spare the civilian population as much as is feasible;
4. The prohibition of reprisals against either the civilian population and its property.
5. Permitting an unhindered passage of relief supplies and assistance.

Who investigates, how they investigate and the intellectual frame they use to conduct that investigation will determine, in large part, the outcome. To take up the latter point, in international studies a definitive distinction is made between humanitarian law, refugee law and human rights law. These three spheres overlap in their application, but the distinction does not. Human rights law deals with a state’s relationship to its citizens and other foreigners on its soil focusing on the protections of civilians from any oppression by a state. Refugee law deals with the rights of individuals who lack membership in a state that will protect them and are outside their state of normal residence, but, in situations of failing or disintegrating states, may even be living within their national home. Humanitarian law deals with the conduct of war, more particularly, though certainly not only, the protection of civilians affected by armed conflict. Unlike humanitarian law, which can never be suspended, some human rights treaties permit states to derogate from certain rights in times of public emergency and suspend certain key rights, including the right to life and the prohibition of torture or cruel, inhuman or degrading treatment or punishment.

The three spheres are said to overlap and complement each other. But, in reality, they are also at odds. After all, in war, targeting anyone for death, even if the person is a soldier, cannot be part of human rights law which, as interpreted in the last two decades, even restricts states from taking the lives of their own citizens even in cases of very heinous crimes. So it is very difficult to look at military behaviour through a military lens of humanitarian law if the primary glasses used are to assist in viewing that behaviour in terms of human rights violations. It is akin to using reading glasses to allow one to see distances more clearly.

Now it is well known that three agencies were set up to educate and monitor behaviour in each of these three fields – the UNHRC for human rights law, the UNHCR (High Commission) for refugee law, and the International Committee for the Red Cross (ICRC) for humanitarian law. So how come the UNHRC seems to be poaching on ICRC territory? One reason is conceptual.  ICRC in its 2005 statement on its own mandate, stated that, “International humanitarian law, refugee law and human rights law are complementary bodies of law that share a common goal, the protection of the lives, health and dignity of persons. They form a complex network of complementary protections and it is essential that we understand how they interact.” However, that is not how a coterie of human rights lawyers, researchers and professional actors who have made human rights their specialty, view it. For them, human rights is all encompassing and humanitarian law and refugee law are but specialized divisions of human rights law. The three fields are not related as overlapping, but one field is all-encompassing while the other two are subordinate.

But the rivalry is not just conceptual. This is quite evident. The UNHRC states unequivocally its imperial position: the UNHRC defines itself explicitly as the “principal human rights official of the United Nations.” But it is not the principal humanitarian law official of the international system. The ICRC, an organization much older than the UN itself, is. Yet the UNHRC saw no need to seek out the ICRC to forge a partnership to investigate the violent conflict in Gaza, or, for that matter, to cite the ICRC very much in its report. There is another reason, for the ICRC, unlike UNHRC, does not have a close relationship with any human rights organization, but particularly with the UNHRC which lacks a field presence. Further, human rights organizations define themselves as outspoken and, therefore, by their very nature, they speak out. ICRC, in contrast, has a confidential modus operandi.

But this does not explain why, of the 680 paragraphs and 1255 footnotes, ICRC is only referred to in 18 of them, that is just under 1%. Though ICRC was present and active in Gaza throughout the whole conflict, ICRC is only cited three times for evidence, each time with respect to Israeli behaviour – targeting civilians in an UNRWA school, targeting ambulance drivers and targeting the Gaza power plant. There is not one citation that says anything positive about Israel by the ICRC and no references to ICRC observations re Hamas conduct.

In addition to the three specific observational and interpretive issues, ICRC is cited three times with respect to two issues, the Palestinians aiming missiles at Israel, and here only to note that since the missiles could not be aimed properly, this would clearly be a mitigating circumstance in the degree to which they could found to be at fault. There are also two citations concerning Israel as an Occupying Power, not to discuss the legal issues raised, but to simply support the view that Israel has been an occupying power long before it invaded Gaza and even after it withdrew its troops.

The other 12 citations refer to ICRC as the definitive reference point on international humanitarian law, therefore granting in reality what they take away conceptually and concretely in the behaviour of UNHRC. Further, as the leading authority on humanitarian law, ICRC makes itself available to offer advice, particularly to the UNHRC, on the basic principles and guidelines applicable to various situations of alleged humanitarian law regulations. Why was so little attention paid to ICRC when it is clearly the most respected and widely recognized protector of humanitarian law as well as one of the most respected humanitarian organizations in the world? Most importantly, it is THE organization mandated under international law, including the Geneva Conventions, to both interpret humanitarian law and to protect the victims of armed conflict, including those wounded in war, combatants taken prisoner, the forcibly displaced and, most importantly for this report, the responsibility for protecting civilians and other non-combatants. Given ICRC’s well-known criticisms of some of Israel’s conduct, it could not be because ICRC is biased in favour of Israel. But ICRC is biased in favour of humanitarian law as a distinctive field, though overlapping with human right law, occupying a distinctly separate niche in international law.

In this analysis I will eventually discuss the key legal issues and the observations and interpretations of specific incidents where each of the belligerents were or could be found to be at fault. I will also compare the citations of ICRC compared to those attributed to such NGO human rights organizations as Amnesty International and Human Rights Watch who also presumptively assume a responsibility for humanitarian law, but almost always within a human rights frame. I will also question why the foremost authorities on applied humanitarian law are not cited or drawn upon for their experience in the application of international humanitarian law, namely the views of various Western armed forces on the ethical conduct of the war in accordance with international humanitarian law.

Just because the UNHRC is not the first among equals when it comes to humanitarian law, and just because it places international humanitarian law in a subordinate position to international human rights law, and just because its citations of the ICRC are so few, and even those few are feeble, does not mean that the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict could not conduct a proper investigation and deliver an excellent report. Certainly even on a cursory reading, it is much superior to the Goldstone report. If the Goldstone Report was worthy only of an E, a complete failure, a cursory reading of this report on the 2014 Gaza War appears to deserve at least a passing grade. Whether it will be a bare pass, a good pass or an excellent one will have to await our analysis.

One last word about the UNHRC’s own mandate and the mandate assigned to its commission. The Universal Declaration of Human Rights, the principles of which UNHRC is mandated to uphold, itself suggests that UNHRC in conducting this inquiry strayed both well outside its comfort zone as well as its responsibilities to the international community. For example, echoing Immanuel Kant, the preamble of that Declaration states unequivocally that its foundation is not only freedom and justice, but peace. Further, Article 3 states clearly that, “Everyone had the right to life, liberty and security of person.” War contradicts that and claims that belligerents have no right to life and no right to security, with the exception of the protection of civilians so long as that is possible given the strategies each side adopts. War by definition is a violation of human rights. But the Declaration is not concerned with violent conflict, either the reasons for going to war or the conduct of the war. It is concerned with such old standbys as freedom of speech, of assembly, as well as the new economic freedoms enunciated since the Universal Declaration was adopted. The latter document clearly refers to its mandate as focused on a state in relationship to individuals over whom it has charge.

International humanitarian law is about the conduct of states or quasi-state entities as they do battle, and primarily about the protection of individuals. Human rights are also about the protection of individuals. Those rights make up a very long list. However, by the time you get to Article 29 of the Declaration, the clear aspiration is peace. Article 28 reads: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” Clearly that is aspirational since international order is stated as a precondition for the full realization of human rights. Yet the Declaration does not attend to the question of how an international peaceable kingdom can be established. The foundation of human rights law and international humanitarian law are fundamentally distinct.

If human rights are based on the universal declaration of 1948, international humanitarian law is based on the four Geneva Conventions of 1949 and the two additional protocols of 1977, as well as a number of specific treaties, such as Conventions on the use of specific weapons – such as phosphorous or poison gas – Conventions on the protection of cultural property during violent conflict, and all of these as interpreted by international jurisprudence. International law governs the initiation and conduct of armed conflict even if nowhere in the law is armed conflict defined. But somehow, we all seem to know what it is even when it is not defined. And certainly there was no dispute that humanitarian law applied to the Gaza conflict. However, just to be clear, the ICRC qualifies a situation of violence and then “sends a memorandum to the parties concerned setting out their obligations under international humanitarian law and offers its services.”

What constitutes an “unlawful killing” in situations of armed conflict must be assessed on the basis of the relevant rules of international humanitarian law, including the fact that combatants or other persons taking a direct part in hostilities may be attacked – even with lethal force; and that killing of civilians in certain circumstances must be assessed pursuant to international humanitarian law’s principle of proportionality which requires a balancing of the incidental loss of civilian life or injury to civilians with the concrete and direct military advantage expected from a particular attack.

I will pay a great deal of attention to the application of this principle by the Commission the objectivity and expertise of which depends in good part on the expertise and mental frameworks of the Commissioners.

Next blog: The Commissioners