Findings of UN commission on Gaza will be controversial

The UN Human Rights Council has announced the appointment of the members of the Commission of Inquiry to investigate purported violations of international law in the Occupied Palestinian Territory, particularly in the Gaza strip.

Ireland abstained from voting on the resolution setting up the commission. This was regrettable as the operative paragraphs made clear that its mandate is fair and impartial. The resolution condemned all violence against civilians wherever it occurs, including as a result of rocket fire and established an independent commission to conduct the investigation.

The commission’s mandate is ambitious and many findings are certain to be controversial. Navigating the political sensitivities of the Israeli-Palestinian conflict is not part of its remit but already there are efforts to discredit members of the commission. The most important function is to establish the facts and circumstances of violations and crimes perpetrated and to identify those responsible. It is not a court of law tasked with determining the guilt or innocence of those allegedly involved. But it is noteworthy that the mandate does not just enable but requires that all parties, Israeli and Palestinian, are subject to investigation.

Command and control In seeking to identify those responsible, the commission will be interested in individuals who exercised command and control functions during the conflict. While the majority of these will be military personnel from

the Israeli Defence Forces and the military wing of Hamas, it may also include civilians. These may include the political leaders on both sides. This could lead to members of the Israeli cabinet, along with political leaders of Palestinian militant groups being named as persons responsible.

A practical challenge to the inquiry will be finding evidence that links senior members of the Israeli administration and the Hamas organisation with specific crimes or actions deemed to be disproportionate or indiscriminate in nature. Another important function of the inquiry is to make recommendations, in particular on accountability measures. This is part of a broader strategy to end impunity and ensure that those responsible for violations of international law are held accountable.

There are several precedents for such inquiries. The UN established a commission of inquiry into Darfur in 2004. The evidence gathered was subsequently used by the International Criminal Court in the investigation and indictment of Sudanese president Bashir.

Palestinian and international human rights organisations have for some time advocated for the use of international law mechanisms to examine the situation in Palestine, especially in relation to the Israeli settlements, exploitation of natural resources and ongoing violations of human rights. The US has opposed such a strategy and any Palestinian recourse to the International Criminal Court and has threatened to withdraw funding to the Palestinian Authority should it proceed.

The Human Rights Council has already established commissions of inquiry in respect of Syria, Sri Lanka and Korea. None of these are receiving the co-operation of the relevant government and it is most unlikely this inquiry will be well received in Israel. But it is still possible to conduct an effective and impartial inquiry according to international standards. Reputable international, Palestinian and Israeli human rights organisations have been investigating and documenting violations in Palestine for many years.

There is the testimony of victims, relatives, UN and other international staff, media and those who participated. There is also the sheer scale of the physical and forensic evidence. In this regard the commission will be assisted by a team of experts.

Since the recognition of Palestine as a non-member observer state at the UN in 2012, Palestinian president Abbas has come under increased pressure to make the necessary declaration recognising the jurisdiction of the court and accept the consequences. The evidence gathered by the UN commission of inquiry could play a significant part in this process.

If, as is most likely, the commission finds that war crimes have been committed and names individuals implicated, it will be impossible for the prosecutor at the International Criminal Court to ignore such evidence. This may precipitate a formal investigation and possible indictment by the court. Although such a process will take years, it would be the most significant step in ending the impunity that has characterised the now regular outbreaks of hostilities in the region and the Israeli occupation of Palestinian territory since 1967.

Prof Ray Murphy of the Irish Centre for Human Rights, NUI Galway, was a visiting scholar with Al-Haq, a Palestinian Human Rights Organisation from January to June this year