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UN Reaffirms the Safeguards for Civilians in Times of War

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“Accountability for breaches of international humanitarian law and for human rights violations, as well as respect for human rights, are not obstacles to peace, but rather the preconditions on which trust and, ultimately, a durable peace can be built.” – Navanethem Pillay, then UN High Commissioner for Human Rights, 2009.

On July 3, 2015, the concluding day of its summer session, the United Nations (UN) Human Rights Council welcomed the report of the “Gaza Conflict Commission of Inquiry” which indicated that the Israeli military and Palestinian armed groups may have committed war crimes during the Israeli “Operation Protective Edge” campaign. 47 member States of the Human Rights Council voted in favor of the resolution, 5 States abstained: Kenya, Ethiopia, Macedonia, India and Paraguay; the USA was the only Member State to vote against the resolution.

The Gaza Conflict Commission of Inquiry was led by the New York Judge Mary McGowan Davis with Doudou Diène of Senegal, the UN Special Rapporteur on Contemporary Forms of Racism (2002-2008), as the other ranking member. The Commission was to study the legal implications of an earlier UN Fact-Finding Mission on the Gaza Conflict. The Commission was not established to evaluate the results of the Fact-Finding Mission which had largely confirmed the death tolls provided by the Gaza Hamas administration, some 2,250 Palestinians killed of which 1,462 civilians. Rather the Commission had the task of setting out the world law applications of the facts collected earlier.

Thus the focus of the Commission was the “Geneva Convention relative to the Protection of Civilian Persons in Time of War” of August 12, 1949. The Geneva Conventions, for which the International Committee of the Red Cross is responsible, grew out of deliberations started in 1947 in the shadow of the abuses of the Second World War. By 1949, the negotiations among governments led to the 1949 Red Cross Conventions. The emphasis was on the principles of protection and not on the punishment of wrong doers. The International Committee of the Red Cross is not an international court. It bases its protection efforts on the belief that all sides in a conflict have an interest to follow the laws of war as its soldiers or civilians could meet the same fate. If there is to be any action on trials and punishment, such trials should be done in national courts.

From 1974 to 1977, as a result of the war in Vietnam, there were subsequent laws of war negotiated to cover “civil wars” − wars within a State where the parties involved may not be States. (1)

Today, however, there is the International Criminal Court which can investigate as well as having the mandate to hold court trials and pass judgment. Investigations and trials can also be carried out at the national level. The Israeli argument has always been that the Israeli Defense Force (IDF) can and does carry out investigations and that there is a functioning national court system. The Hamas-led administration of Gaza makes the same argument.

Unfortunately, both Israel and Hamas have dismal records of investigating their own forces. I am unaware of any case where a Hamas fighter was punished for deliberately shooting a rocket into a civilian area of Israel − on the contrary, some Hamas leaders repeatedly praise such acts. While Israel has carried out investigations into alleged violations by its forces, the emphasis has been on the unauthorized actions of individual soldiers, not on policy makers. Yet the Gaza Conflict Commission stressed that “military tactics are reflective of a broader policy approved at least tacitly by decision-makers at the highest levels of the Israeli government.”

Nongovernmental organizations (NGOs) active in UN human rights bodies, including the Association of World Citizens, have long stressed the importance of fact-finding carried out by the UN, intergovernmental bodies such as the Organization for Security and Cooperation in Europe, and NGOs themselves. (2)

There are now two follow-up steps set out by the Human Rights Council resolution:

1) A request is made that the UN High Commissioner for Human Rights (and thus the Secretariat) prepare a report on implementation measures;

2) A recommendation that the UN General Assembly take up the matter “until it is satisfied that appropriate action is taken to implement its recommendations.”

The Israeli government has replied angrily to the resolution, the Israeli Ambassador to the UN in Geneva calling it an “anti-Israeli manifesto” and Prime Minister Benjamin Netanyahu saying “the UN Human Rights Council cares little about the facts and less still about human rights.”

Rather, I would say that the resolution is an important procedural advancement in the respect of world law in times of conflict. In the past, there have been UN-authorized fact-finding missions with the reports going directly to discussion in the UN Commission on Human Rights (as it was then) and then to the UN General Assembly. With the Gaza Conflict Commission of Inquiry we have a useful intermediary step. First there is a fact-finding effort as close in time to the events as possible to interview victims, to see the physical damage and to interview the military and other combatants. Such fact-finding is done, as it were “in the heat of the action”.

Then there is a calm, legal review of the fact-finding reports. In the past when I have been present at debates on fact-finding reports in the Commission on Human Rights, the debates were anything except calm and legal. They were political exchanges which reflected the evaluations of the original conflict. In this case of the Gaza Commission, we have an orderly presentation of facts, avenues to strengthen protection, and suggestions on the role of the International Criminal Court. There is no guarantee that the discussions in the next UN General Assembly will be calm and focused on legal procedures, but at least there will have been this useful intermediary step.

As things now stand, world law is not created by the decisions of a world parliament. World law is basically the “common law of mankind”’ based on small advances. Usually the first step is to set out the basic values in widely agreed-upon texts such as the Red Cross Geneva Conventions. This is followed by a recognition that there are repeated violations of these values in the practice of war, the torture of individuals, massive aggression against minorities. After repeated violations, there is the very slow realization that such violations are not acceptable and if nothing is done, the values themselves will be permanently undermined.

We are now at this last stage as concerns Gaza. The repeated bombings of the Gaza Strip do not bring peace, security or socioeconomic development. In fact, each bombing campaign creates a more difficult situation. It is not a function of world law to say what socioeconomic-political measures should be taken, though as NGO representatives we can and have made suggestions. The function of world law is to set out clearly the value basis of the law, to set out fair procedures to deal with possible violations and ultimately to see if there can be sanctions or punishment for wrong doers.

I believe that we still have many miles to go on the path for the respect of world law, but I believe that the direction is now set.

Notes

1)     See Hilaire McCoubrey and Nigel White, International Law and Armed Conflict (1992)

2)     See B. G. Ramcharan (ed), International Law and Fact-Finding in the Field of Human Rights (1983)

For NGO Fact-finding, see Hans Tholen and B. Verstappen, Fact-Finding Practice of Non-Governmental Organizations (1986)

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Middle East

Justice delayed is justice denied. I lost my family to Iran Regime’s barbarity

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Mohammad Shafaei’s family- The toddler in his mother’s arm is Mohammad Shafaei

On May 4, over 1,100 families of the victims of the 1988 massacre in Iran wrote a letter to the international community. We called on the United Nations and European and American governments to take immediate action in preventing the regime from further destruction of their loved ones’ graves.

I was one of the signatories. I have lost six of my relatives to the regime’s cruelty. I was seven years old when my parents were arrested for their democratic ideals and activism.

My father, Dr. Morteza Shafaei, was a well-respected and popular physician in Isfahan. He was admired by people because he was extremely compassionate and giving to others. He was brutally executed by the regime in 1981 simply because he sought a democratic future for his family and his compatriots. The mullahs also killed my mother, two brothers, Majid (only 16) and Javad, and one of my sisters, Maryam, along with her husband.

By the age of 8, I had lost my entire family, save for one sister, as a result of the regime’s executions and crimes against humanity.

Mohammad Shafaei

The 1988 massacre stands as one of the most horrendous crimes against humanity after World War II. In the summer of that year, based on a religious decree issued by Khomeini, then-Supreme Leader of the theocratic regime in Iran, tens of thousands of political prisoners were liquidated. Most of the victims belonged to the principal democratic opposition movement Mujahedin-e Khalq (MEK).

It is believed that the regime massacred at least 30,000 political dissidents that year in the span of a few months. This much was confirmed by the designated heir to the regime’s Supreme Leader Ayatollah Hossein-Ali Montazeri both in his published memoires and leaked audiotape in 2016, in which he condemned the ongoing crime against humanity in August 1988 during a meeting with high-ranking regime officials.

Those officials continue to serve the regime today in high-ranking positions. Ebrahim Raisi, for example, who was a member of the “death committees” in charge of rounding up and killing the political prisoners, is currently occupying the highly sensitive post of the Judiciary Chief. He is expected to announce his candidacy to run for President during the June election. After the June 2009 uprising, he said, “Moharebeh (waging war on God) is sometimes an organization, like the hypocrites (MEK). Anyone who helps the MEK in any way and under any circumstances, because it is an organized movement, the title of Moharebeh applies.” According the Islamic Punishment Act, the punishment for Moharebeh is death.

For years, the clerical regime has been systematically and gradually destroying the graves of the victims of the 1988 massacre in Tehran and other cities. As the world learns more about the killings and the international outrage grows, Tehran’s mullahs are scrambling to clear all traces of their crimes against humanity.

Most of us have forgotten where exactly our loved ones are buried, many of them in mass graves. The campaign for justice for victims of 1988 has gained greater prominence and broader scope. International human rights organizations and experts have described the massacre as a crime against humanity and called for holding the perpetrators of this heinous crime to account.

Paranoid of the repercussions of international scrutiny into this horrific atrocity, the Iranian regime has embarked on erasing the traces of the evidence on the massacre by destroying the mass graves where they are buried. The regime has tried to destroy the mass graves of massacred political prisoners in Tehran’s Khavaran Cemetery in the latest attempt. Previously, it destroyed or damaged the mass graves of the 1988 victims in Ahvaz, Tabriz, Mashhad, and elsewhere.

These actions constitute the collective torture of thousands of survivors and families of martyrs. It is another manifest case of crime against humanity.  

The UN and international human rights organizations must prevent the regime from destroying the mass graves, eliminating the evidence of their crime, and inflicting psychological torture upon thousands of families of the victims throughout Iran. 

Moreover, the Iranian public and all human rights defenders expect the United Nations, particularly the UN High Commissioner for Human Rights Michele Bachelet, to launch an international commission of inquiry to investigate the massacre of political prisoners and summon the perpetrators of this heinous crime before the International Court of Justice.

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Middle East

Can Biden Bring Peace to the Middle East?

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Joe Biden
Official White House Photo by Adam Schultz

As the fierce fighting between Israel and the Palestinians rages on, the Biden administration’s Middle East policy has been criticized for its relatively aloof, “stand back” approach that has resulted in the absence of any pressure on Israel to re-think its harsh mistreatment of the Palestinians, vividly demonstrated in the recent police attack at al-Aqsa mosque and the attempted eviction of Palestinians from their homes in East Jerusalem, viewed by the Palestinians as part of Israel’s “ethnic cleansing.”

Consequently, a UN Security Council draft resolution on the crisis has been reportedly held up by US, which has prioritized the familiar narrative of “Israel’s right to self-defense” ad nauseam, without the benefit any nuances that would reveal any fresh thinking on the problem on the part of the Biden administration.  As in the past, the new crisis in Israel-Palestinian relations has sharpened the loyalties and alliances, in effect binding the US government closer to its Middle East ally under the rainstorm of Palestinian rocket attacks, highlighting Israel’s security vulnerabilities in today’s missile age.  Determined to crush the Palestinian resistance, the mighty Israeli army has been pulverizing Gaza while, simultaneously, declaring state of emergency in the Arab sections of Israel, as if there is a military solution to an inherently political problem.  What Israel may gain from its current military campaign is, by all indications, bound to be elusive of a perpetual peace and will likely sow the seed of the next chapter in the ‘intractable’ conflict in the future.  

Both sides are in violation of the international humanitarian laws that forbid the indiscriminate targeting of civilian population and, no matter how justified the Palestinian grievances, they too need to abide by international law and consider the alternative Gandhian path of non-violent resistance, notwithstanding the colossal power of Israeli army.

As the editors of Israel’s liberal paper, Haaretz, have rightly pointed out, the problem is the Prime Minister Benjamin Netanyahu, who is highly unpopular, unable to form a government, afflicted with a corruption case, and who has been appeasing the extremist elements in Israeli politics who have no qualm about the illegal expropriation of Palestinian lands.  Israeli politics for its own sake needs to move to the center, otherwise the Israeli society as a whole will suffer, as more and more educated Israelis will leave the country, Israel’s recent gains through the Abrahams accord with the conservative Arab states will be essentially wiped out, as these states will need to cater to the rising tide of anti-Israel sentiments at home or face serious legitimation problems, and Israel’s regional rivals led by Iran will continue to harvest from the present crisis.

Unfortunately, there does not seem to be any political will in Washington to spur a political shift in Israel that would secure better results in terms of the elusive Middle East peace and both President Biden and the Democratic Party establishment are concerned that their Republican opponents will seize on any tangible US pressure applied on Israel.  In other words, domestic US priorities will continue for the foreseeable future to hamper a much-needed corrective Washington influence on an ally that receives 4 billion dollar military aid annually and, yet, is unwilling to allow the White House to have any input on its handling of the Palestinians at home and the West Bank and Gaza.  

But, assuming for a moment that the Biden administration would somehow muster the will to stand up to Netanyahu and pressure him to cease its massive attacks on Gaza, then such a bold move would need to be coordinated with a deep Arab outreach that would, simultaneously, persuade the Palestinian groups led by Hamas and Islamic Jihad to go along with a US-initiated cease-fire, followed by related efforts at UN and regional level to bring about the groundwork for a more enduring peace, such as by holding a new international peace conference, similar to the Oslo process.  

At the moment, of course, this is wishful thinking and the protagonists of both sides in this terrible conflict are more focused on scoring against each other than to partake in a meaningful peace process.  In other words, an important prerequisite for peace, that is the inclination for peaceful resolution of the conflict instead of resorting to arms, is clearly missing and can and should be brought about by, first and foremost, a capable US leadership, sadly hitherto missing.

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Middle East

Israel-Palestine Conflict Enters into Dangerous Zone

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Palestinians react as Israeli police fire a stun grenade during clashes at Damascus Gate on Laylat al-Qadr during the holy month of Ramadan, in Jerusalem's Old City, May 9, 2021. /Reuters

Since the start of the Muslim holy month of Ramadan in mid-April 2021, tension has escalated, with frequent clashes between police and Palestinians. The threatened eviction of some Palestinian families in East Jerusalem has also caused rising anger. But when Israeli security forces entered and attacked the unarmed Muslim worshipers, damaged the property, and humiliated the families, the situation turned into conflict.

Since the irrational and illogical creation of the Jewish State in the middle of the Muslim World, the tension started and emerged into few full-fledged armed conflicts and wars like; 1948–49, 1956, 1967, 1973, 1982, and 2006 wars/ conflicts. Tensions are often high between Israel and Palestinians living in East Jerusalem, Gaza, and the West Bank. Gaza is ruled by a Palestinian group called Hamas, which has fought Israel many times. Palestinians in Gaza and the West Bank complain that they’re suffering because of Zionists’ expansionist actions. Israel’s severe violations of human rights and extreme atrocities against Palestinians left Palestinians with no option other than protest and agitate. But Israel suppresses them and uses all dirty tricks to keep them silent.

It is worth mentioning that the United Nations Security Council has passed several resolutions to settle the Israel-Palestine issue peacefully. But Israel has not implemented either of them and kept using force to push them out and settle Jews in their land.

The State of Israel has been enjoying undue supported by the US, irrespective of who is president, but all of them support Israel unconditionally. Israel is the most favored nation of the US and the largest beneficiary of American aid, assistance, and support.

Ex-President Donald Trump helped Israel establish diplomatic relations with the United Arab Emirates, Bahrain, Sudan, and Morocco. Donald Trump favored Netanyahu, dramatically moved the US embassy from Tel Aviv to Jerusalem. His daughter and son-in-law were the facilitators for his support to Israel.

Till last news, at least 56 Palestinians have died under an array of aerial bombardments of the Gaza Strip. Five Israelis were killed too. Rockets, bullets, and rocks are flying around Israel and the Palestinian territories with catastrophic intensity in the latest wave of violence that periodically marks the Palestinian-Israeli conflict. Palestinian protesters run for cover from tear gas fired by Israeli security forces amid clashes at Jerusalem’s Al-Aqsa mosque compound on May 10, 2021, ahead of a planned march to commemorate Israel’s takeover of Jerusalem in 1967 Six-Day War.  Security forces have set on fire the centuries-old holy Mosque. Serious communal violence has broken out within Israel between Arab citizens and Jews. Fires were lit, a synagogue burned, a Muslim cemetery trashed, police cars set aflame, and an Arab-Israeli man killed. The mayor of Lod termed it a “civil war.”

The ferocity of the fast-escalating conflict might be extremely dangerous as Israel uses hi-tech, advanced, lethal weapons. A week ago, Israeli Prime Minister Benjamin Netanyahu seemed close to losing power after the climax of four inconclusive elections. The outbreak of hostilities has allowed him the opportunity to make his latest appearance as a tough guy and ended coalition talks by rival politicians. He might politicize the conflict in his favor.

There is a severe danger of spreading this conflict to a large-scale war, which might engulf the regional countries. There already exists tension among Israel and few regional powers. The recent Israeli attacks on Russian bases in Syrian may also widen the conflict.

Any war in the middle-East will have dire consequences globally. It is appealed to the UN and all peace-loving nations and individuals to speed up all-out efforts to stop the conflict at this initial stage and avert further bloodshed. It is demanded that the Israel-Palestine issue must be settled according to the resolutions passed by UNSC. Wish immediate peace, sustainable peace, and permanent peace in the Middle East and globally.

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