Al-Haq Briefing Note Special Series:

Legal Analysis of Israel’s attacks against the Occupied Gaza Strip

Briefing Note V: An Unprecedented Mandate for Accountability - The UNHRC Commission of Inquiry into Violations of International Law Committed since 13 June 2014

Introduction

Since 8 July, over 1,900 Palestinians have been killed in Israeli attacks on the Gaza Strip. According to estimates by the United Nations Office for the Coordination of Humanitarian Affairs, around 83 percent of those killed are civilians, including over 431 children. Reports indicate that on 28 July Israeli forces undertook an aerial attack on a playground in Shati’ refugee camp, on the beach front in Gaza City, killing at least 10 children and injuring at least 40 others. The injured from Shati’ refugee camp were transferred to al-Shifa’ hospital, which had been hit by an Israeli strike in a separate incident one hour earlier; it is one of at least nine health facilities to be hit since the start of attacks on the Gaza Strip. On 30 July, Israeli shelling hit a United Nations (UN) girls’ school killing 19 Palestinians and injuring 90 others. Last week, another UN school was hit in Beit Hanoun, killing 15 people and injuring approximately 200 others. These accounts are mere samples of the Israeli attacks that have targeted civilians and civilian objects since 8 July and have claimed the lives of a devastating number of Palestinians.

On 23 July 2014, the UN Human Rights Council (HRC) voted to establish an independent international Commission of Inquiry to investigate alleged violations of international humanitarian law and human rights law associated with recent Israeli military operations in the Occupied Palestinian Territory (OPT)[1]. This brief outlines possible implications of such a Commission in an effort to hold perpetrators accountable for violations of international law committed against protected persons and objects within the context of the Israeli occupation of the State of Palestine.

Commissions of Inquiry and Fact-Finding Missions

The text of the HRC resolution establishing a body to investigate violations of international law committed since 13 June in the OPT creates ‘an independent, international commission of inquiry’. This terminology differs from previous HRC resolutions establishing independent bodies charged with investigations over alleged violations of international law in the OPT. In previous inquiries – including the 2013 comprehensive investigation on the impact of Israeli settlements, as well as inquiries looking into the 2006 Israeli military attack on Beit Hanoun, and the 2008-2009 “Operation Cast Lead” in the Gaza Strip – the HRC referred to the term ‘fact-finding mission’ in establishment of the independent body mandated to conduct investigations[2].

Despite the difference in terminology, ‘fact-finding mission’ and ‘commission of inquiry’ can be interpreted in a similar light. Inquiry is defined in legal literature as “a method to ascertain facts, whereby an impartial investigative body elucidates the facts relating to a dispute between states in order to produce a finding on the disputed facts for the purpose of a successful peaceful settlement of the dispute”[3]. Similarly, certain literature also defines ‘fact-finding’ as a ‘method of ascertaining facts’ through the evaluation and compilation of various information sources.[4] ‘Fact-finding’ is also defined by the UN General Assembly 1991 Declaration on Fact-finding in the Field of the Maintenance of International Peace and Security as “any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation which the competent United Nations organs need in order to exercise effectively their functions in relation to the maintenance of international peace and security”[5].

From an accurate analysis of these definitions, it emerges that there are no substantial differences between ‘inquiry’ and ‘fact-finding’, both in terms of the content (ascertaining facts) and scope (contributing to dispute settlement) of such activities. This may explain why, many legal experts and academics have started to refer to the terms ‘fact-finding missions’ and ‘commissions of inquiry’ interchangeably as synonyms,[6] despite the fact that the Commission of Inquiry into Syria established by the HRC in 2011 referred to ‘fact-finding’ as just one of its assigned tasks.[7]

Significantly, the mandates of both fact-finding missions and commissions of inquiry provide a wider interpretation than is indicated by their definitions. Over the last twenty years, commissions of inquiry and fact-finding missions progressively established under UN auspices to cover conflict in countries such as Guinea, Palestine, and Syria have gone far beyond this strictly-defined task by providing legal qualifications, identifying perpetrators of violations of international law, highlighting the responsibility of such perpetrators under international law, and advancing recommendations and follow-up measures for the key actors and stakeholders involved in a certain situation, including measures to ensure accountability[8]. This, however, does not mean these missions should be understood as replacing the role traditionally played by a court of law or any other judicial body. As will be explained below, commissions of inquiry and fact-finding missions base the credibility of their findings on a standard of proof that is inevitably lower than the one applied in judicial proceedings. This is why commissions of inquiry and fact-finding missions have reiterated countless number of times their inability to make final judgments as to criminal guilt.

The aforementioned examples help illustrate how naming a certain mission as ‘commission of inquiry’ or ‘fact-finding mission’ is not indicative of its tasks and scope in their entirety. To identify the strength of a commission of inquiry or a fact-finding mission, it is necessary to examine the mandate with which it has been entrusted and assess the way that mandate is interpreted by the commissioners.

The Mandate of the New Commission of Inquiry

If one looks at the mandate of the newly established Commission of Inquiry, substantial differences emerge with respect to the mandate of the Fact-finding Mission on the Gaza Conflict of 2009 (2009 FFM). In particular, the text of the resolution adopted by the HRC on 23 July 2014 calls on the President of the HRC to “urgently dispatch an independent, international commission of inquiry 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”[9]. In contrast, the text of the resolution establishing the 2009 FFM did not have such emphasis on accountability.

The Focus on Accountability

Unlike the 2009 FFM, the present Commission has received a particularly strong and explicit mandate in relation to accountability and ending impunity. In this regard, the present Commission seems to have a mandate drafted in a manner that further empowers the Commissioners to work towards international criminal accountability. Similar examples can be found with regard to commissions on Darfur, Guinea, Libya, Syria and North Korea. Each of these missions received a powerful mandate to investigate alleged international crimes, identify individuals responsible and suggest measures towards accountability. The outcomes have been in almost all cases the determination that serious international crimes were committed, a sealed list of individuals allegedly responsible handed to the OHCHR and a request for a referral to the International Criminal Court (ICC). It is the first time in the OPT that an independent investigative UN body has been endowed with a mandate that encompasses such a comprehensive approach towards criminal accountability.

In this regard, it should be recalled that the 2009 FFM extensively covered matters such as allegations of international crimes committed in the Gaza Strip, the unwillingness of the Israeli judicial system to ensure accountability, and the referral of the situation to the ICC. Yet, the missing element in the 2009 FFM Report was a comprehensive approach, both in terms of the methodology and standard of proof employed, aimed at paving the way to individual criminal responsibility. It was in fact reiterated various times in the 2009 FFM report and in the Commissioners’ statements that the findings did not attempt to identify individuals suspected of having committed offences[10]. This is something that the new Commission not only can but should depart from, given that its mandate is “to identify those responsible […] all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable”. This represents an unprecedented opportunity for a UN instigative body to prima facie investigate allegations of international crimes in Palestine and pave the way for future investigations and prosecutions by a competent court. It is an opportunity that the newly-established Commission should take seriously, particularly in developing its recommendations. Such recommendations may vary from requesting that the Security Council refer the situation to the ICC, to encouraging the Palestinian Authority to seek accountability by ratifying the Rome Statute while encouraging the rest of the international community to support such an initiative.

The territorial and temporal scope

The HRC resolution crafted the mandate of the new Commission in a way that does not limit its investigations to the events taking place in the Gaza Strip but that also encompasses violations that have occurred in the West Bank, including East Jerusalem since 13 June. Accordingly, the new Commission will be able to investigate policies and practices of Israel in the West Bank, including the wave of arrests, detentions and excessive use of force targeting Palestinians as a form of collective punishment in response of the disappearance of the three settlers in June. The mandate, in fact, refers to ‘military operations conducted since 13 June 2014, whether before, during or after’. This means that, by interpreting its mandate broadly, the Commission would be able to look at the root causes, violations and alleged responsibilities that led to the escalations of the events in the Gaza Strip, including the continued denial of the Palestinian right to self-determination, which also requires sovereignty over natural resources.

In this regard, the precedent of the 2009 FFM provides further insight. While charged “to investigate all violations […] committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after”, the 2009 Mission covered in its Report not only incidents related to ‘Operation Cast Lead’ but also a number of violations committed in Israel and the West Bank including the treatment of Palestinian prisoners in Israeli jails, the restrictions on freedom of movement, the excessive use of force by Israel and targeting of political opponents by the Palestinian Authority and by Hamas in the Gaza Strip.

Ultimately, the Commissioners assigned to the new Commission of Inquiry and their interpretation of the mandate will affect the broadness and scope of the mandate they have received. As such, the composition of the Commission of Inquiry (including the ‘area of expertise’ of each commissioner) and of the Secretariat provided by the OHCHR to assist the Commission are crucial elements to its effectiveness and credibility, requiring highly qualified experts to carry out the investigations, not only in human rights abuses but also in criminal matters.[11]

The Commission’s work and recommendations

An important aspect of the Commission’s work is reflected in the methodology and, in particular, the standard of proof it will apply in order to present its findings as ‘credible’. In this regard there is a coherent trend in recent practices of commissions of inquiry charged with individual criminal accountability tasks to set the standard on to ‘reasonable grounds to believe’ or ‘reasonable suspicion’[12]. Given the similarities of the mandates of those missions with the present one, it would be important, as a matter of consistency, that the new Commission adopt a similar standard of proof. As explained by the Commission of Inquiry into Syria, this standard is met when the commission obtains a reliable body of evidence, consistent with other information, indicating the occurrence of a particular incident or event. This is a lower standard of proof than that applied in a criminal proceeding[13]. In this regard, it is important to stress again the fact that the Commission would not be mandated to make final judgments as to criminal guilt; rather, it would make an assessment of possible suspects that would pave the way for future investigations, and potential indictments, by a competent prosecutor.

Examples of past commissions have highlighted how, in order for the findings of a Commission to be deemed ‘credible’, the cooperation of the parties involved and access to the territory are extremely important, if not vital, components. The 2009 FFM received cooperation from the Hamas authority but not from the Israeli authority. Commissioners on the 2009 FFM were denied access to the West Bank while being able to enter the Gaza Strip only via Rafah border crossing. The lack of cooperation by Israel indeed had a certain impact on the evaluation the Mission gave on certain specific incidents from an IHL perspective.

In this regard, we recall that Israel, as member State of the UN, is obliged to respect the HRC’s resolutions and, as a consequence, to cooperate fully with the newly-established Commission, including by granting it access to its territory[14].  Israel’s cooperation would be important but not essential, given that the Commissioners would minimally have access to the critical part of the affected territory that is the Gaza Strip through the Rafah border crossing. In addition, the Commission can seek information from a number of different sources. Past commissions of inquiry have used information provided by particular sources such as UN agencies, the ICRC and international and local NGOs with access to the affected territory, which has been determined to be ‘reliable’ and ‘credible’. These sources complement interviews of victims and first-hand witnesses of the events in order to provide the grounds for the Commissions’ allegations in their reports.

Finally, one of the most salient aspects of the Commission of Inquiry’s work is to offer recommendations to different stakeholders, such as suggesting further responses and follow-up by the international community. This element will represent an important task in the new Commissioners’ work, particularly given the articulated mandate that the Commission has received – a mandate that gives strong reference to criminal accountability.