The Gaza Mission: Implications for International Humanitarian Law and Un Fact-Finding
Yihdego, Zeray, Melbourne Journal of International Law
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
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. …