The Gaza Mission: Implications for International Humanitarian Law and Un Fact-Finding

Beginning of article

The Report of the United Nations Fact-Finding Mission on the Gaza Conflict was published more than two years ago. The UN Human Rights Council and the UN General Assembly endorsed the recommendations of the Report and requested both parties to undertake investigations on alleged violations, inter alia, of international humanitarian law. The parties to the conflict and two recent UN expert committees have published follow-up reports to the fact-finding. Nonetheless, in April 2011, the chair of the UN Fact-Finding Mission, Judge Goldstone, 'retracted' from or 'amended" some of the Report's conclusions, in particular the allegations against Israel concerning its 'policy" of deliberate and indiscriminate attacks against Palestinian civilians and their objects. The remaining members of the UN Fact-Finding Mission stood firm on their original findings and conclusions. This article looks at the credibility of this fact-finding process and the wider implications of the whole exercise to civilian immunity and UN fact-finding in light of subsequent developments and the core features of UN fact-finding. It particularly enquires into the doubts raised about the appropriateness and effectiveness of the use of UN fact-finding in such complex and long-standing cases including, in this case, where there is lack of genuine will to act by the parties concerned or a lack of binding mandate from the UN Security Council. It also explores the substantive and institutional implications of the exercise in enhancing and promoting civilian immunity during armed conflict in cases where the parties are unwilling to cooperate fully but may be subject to legal obligations owed to the international community as a whole.

CONTENTS

I Introduction
II Fact-Finding in General: Key Features and Exceptions
III Core Features of the Gaza Fact-Finding Mission
    A Mandate, Applicable Law, Scope and Parties to the Conflict
    B Consent, Impartiality and Procedural Fairness
    C Follow-Up Investigations and Controversies
IV The Substantive Findings of the Report: Reflections on Some IHL
   Issues
    A Deliberate Attacks
      1 Targeting Government Buildings
      2 Targeting Police
      3 Targeting Civilians
      4 Targeting Civilian Objects
    B Indiscriminate Attacks
      1 By Palestinian Armed Groups
      2 By the IDF
    C Failure to Take Precaution (and the Use of Human Shields)
    D The Use of Certain Weapons
V Credibility and Implications .
    A Credibility
      1 Consent
      2 Fairness and Impartiality .
      3 Consistency
    B Implications .
VI Conclusion and Suggestions

I INTRODUCTION

There has been much debate and controversy surrounding the extensive Report of the United Nations Fact-Finding Mission on the Gaza Conflict ('Gaza Report'), that investigated the armed conflict in Gaza of 2008-09. (1) Sponsored by the UN Human Rights Council ('UNHRC') and published in September 2009, the Gaza Report concluded that both Israeli and Palestinian armed groups breached their international humanitarian law ('IHL') or jus in hello duties, which, amongst other things, amounted to the perpetration of war crimes. The UNHRC and the UN General Assembly ('UNGA') adopted the Gaza Report by majority vote and called upon both sides to undertake credible and appropriate investigations concerning the serious allegations made against them. (2) In January and July 2010 Israel published what it called Updates in response to the UNGA's request (but not directly to the UNHRC). (3) While some errors and infringements and quite a few incidents of breaches of IHL by the Israel

Defence Forces ('IDF') have been admitted, allegations of systematic and deliberate breaches of international law have been categorically denied. The Palestinian authorities (both in Ramallah and Gaza) have, or claim to have, undertaken investigations but the core allegations implicating Hamas armed groups have not been addressed.

Despite the fact that the Gaza Report was published more than two years ago, it, along with the UN's various follow-up measures, is still subject to fierce political and diplomatic controversy. (4) The extensive academic commentary on the Gaza Report has also been sharply divided. (5) Nonetheless, it remains legally and intellectually invaluable, as it poses crucial substantive, procedural and institutional questions which need to be debated and addressed. This article follows a different approach to previous literature and seeks to widen the debate by inquiring into:

(1) the wider issues of the role of UN fact-finding as related to jus in bello civilian immunity;

(2) the credibility and contributions of the UN fact-finding Mission on the Conflict in Gaza's ('Mission') factual and legal findings; and

(3) the implications of this controversial exercise for UN fact-finding and IHL.

These will be examined in light of the salient features of UN fact-finding or inquiry, the legal duties of Israeli and Palestinian authorities (including Hamas) and their responses to the findings of the Mission and the UN follow-up reports, and the March 2011 rift among members of the Mission over the credibility of the Gaza Report. In addition, attention will be drawn to the approaches of other fact-finding processes such as the Darfur and Georgia-Russia inquiries and to relevant academic commentaries. The international law focus adopted means that there will be no attempt, however, to investigate and evaluate domestic criminal systems and processes. In brief, the following analysis is focused on the worthiness and input of (imposed) fact-finding in regards to the protection and promotion of civilian immunity, which is of erga omnes character, and the tension it may create between the parties and others. The aim is to identify the lessons which may be learnt for developing more effective fact-finding in the future.

With this in mind, Part II provides a background discussion about the notion of fact-finding, as an institution or method of international law, to help resolve disputes or tensions. The purpose here is to identify and apply the salient features of fact-finding to the Gaza Report. Building on Part II, Part III addresses the mandate and applicable law by focusing on Additional Protocol I to the Geneva Conventions 1977 ('Additional Protocol I) (6) in particular, and also addresses questions of impartiality and procedural fairness. Part IV is the core of the analysis and enquires into the details of the most important and controversial allegations of deliberate, indiscriminate and reckless attacks against civilians by both sides. This section of the analysis is undertaken in view of authoritative sources, other relevant practices on the application of the law, the formal and informal responses of the parties to the conflict and the September 2010 and May 2011 follow-up reports authored by UN follow-up expert committees. (7) The objective here is to review the events surrounding the Gaza Report and its main legal findings and provide a broader insight into the extent to which the law has been objectively, consistently and innovatively applied to the facts. Finally, Part V examines the credibility and contributions of the Gaza Report to the Gaza conflict and its wider implications for UN fact-finding on IHL issues in light of the core purposes and characteristics of fact-finding.

II FACT-FINDING IN GENERAL: KEY FEATURES AND EXCEPTIONS

Fact-finding (or inquiry), as a method of settling international disputes and tensions, can be traced back to the Hague Convention for the Pacific Settlement of International Disputes 1907 ('Hague Convention'). (8) Article 9 of the Hague Convention describes fact-finding's function as facilitating 'a [re]solution of ... disputes by elucidating the facts by means of an impartial and conscientious investigation'. In contrast, the UN Resolution and Declaration on Fact-Finding of 1991 ('UN Declaration on Fact-Finding'), (9) which is of particular relevance to this article, defines fact-finding as 'any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation', 10 thereby broadening the scope of the definition.

The key characteristics of fact-finding include instituting and conducting an inquiry based upon consent (of states), examining factual rather than legal questions, the making of non-binding (or binding) findings and recommendations, and the objectivity and impartiality of those who are charged with such duties. (11) These have remained the basic tenets of fact-finding, although there may be some departures from or qualifications to them depending on the legal basis and their specific mandates. The first qualification is that competent international bodies, such as the UN Security Council ('UNSC') using its Chapter VII powers, may impose fact-finding missions upon states and others. (12) The UNSC did so, for instance, on Iraq to inspect its weapons programme in 1991, on Yugoslavia in 1992 and on Israel in 2002, as will be discussed later. Nonetheless, there are 'considerable practical and legal difficulties if the territorial State refuses to co-operate'. (13) Whilst the refusing state may be able to impede the activities of fact-finding and such a move may not be without legal or political repercussions for that state, it is less likely that a 'highly satisfactory outcome' will be achieved when the consent of the target state of an inquiry is absent. (14)

The second qualification is that fact-finding, in its institutional (as opposed to operational) (15) sense, may be extended to the determination of legal questions, liabilities and even remedies (16) and thus go beyond fact elucidation. Given that most contemporary fact-finding missions deal with both facts and legal issues, it is not clear whether such a broad mandate is still an exception rather than the norm. (17) Finally, as opposed to the traditional perceptions of fact-finding exemplified in the Hague Convention, the subject of inquiry may include non-state actors or even individuals, depending on a lawful mandate and authorisation. (18)

Thus, the purpose, legal bases and actors of fact-finding may vary depending on the legal framework and authority applied to it. For instance, the Hague Convention intends, at least on paper, to resolve disagreements 'by investigating disputed facts' but 'involving neither honour nor vital interests' (19) of the parties concerned. The Hague Convention also empowers disputing states parties to the Convention to establish 'International Commissions of Inquiry' through 'special agreement'. (20) In contrast, the UN …