“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.
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)
Why no global outcry over Saudi war in Yemen?
On Sunday, the US intelligence agency confirmed that the brazen killing of Saudi journalist Jamal Khashoggi was ordered by the Saudi crown prince Mohammad Bin Salman, which must have finally given some comfort to his restless soul. The truth was not hidden from the world, as it was already established by the Turkish authorities, but now we have the word straight from the horse’s mouth.
Khashoggi’s killing led to unprecedented global outcry against the Saudi regime because of its wanton disregard for human rights. It dominated newspaper headlines and primetime TV discussions for weeks as the mystery surrounding the dissident journalist’s killing grew.
To their credit, Turkish government authorities left no stone unturned to unravel the murder mystery and expose the masterminds of the most diabolical crime. The whole world waited with bated breath because suddenly something had stirred people’s conscience.
Today everyone knows about Khashoggi and everyone knows his murderer. Everyone is talking about it and tweeting about it. But, hold on, this is not the only crime his murderer has committed. His murderer has the blood of thousands of Yemenis on his hands and he is directly responsible for the starvation of millions of people in Yemen. Does the world know about it? Does it care?
A much-anticipated UN Security Council resolution calling for a cessation of Saudi-led war in Yemen and for the humanitarian aid to be allowed to reach millions of starving people was reportedly “stalled” this week after British Foreign Secretary Jeremy Hunt, who had moved the resolution, met the Saudi crown prince in Riyadh.
The prince, reports say, ‘threw a fit’ about the resolution. He didn’t like the idea of food reaching the starving Yemenis because he wishes to see them killed either through bombardment or with starvation. Hunt surrendered tamely because UK happens to have arms trade with the Saudi regime.
Saudi-led war in Yemen has stretched into its third year now, killing more than 10,000 people and leaving the country completely devastated. The humanitarian situation in the war-ravaged country has been termed ‘catastrophic’ by aid groups. And the world has chosen to be a mute spectator.
The blockade of the country means around 18 million people don’t have access to food, which could eventually and inevitably lead to the worst famine in more than a century. Already 2.2 million children are acutely malnourished and fighting for their lives. The World Food Program warned this week that the country was “marching to the brink of starvation”.
Why has the world chosen to be silent even as warnings of famine have assumed alarming proportions? Akshaya Kumar, a senior Human Rights Watch official, says it’s because of the “sway” Saudi has over some members of the UN Security Council, which has prevented the UN in naming and shaming the regime in Riyadh. “At this point, vague appeals to ‘all parties’ to improve their behavior won’t work; Any resolution that doesn’t specifically mention the Saudi-led coalition by name and call it out for its role in the carnage in Yemen won’t have the required effect in Riyadh,” he said in an interview.
The patronage of world powers like the United States and United Kingdom has ensured that Saudi rulers escape culpability for their war crimes in Yemen. Their support for the Saudi-led coalition in the form of arms, training, intelligence, and refueling of bombers has compounded the misery of Yemenis. The two countries continue to sell billions of dollars in arms to the Saudi regime, thus are directly complicit in the war crimes being committed against the Yemenis.
While bombings by the Saudi-led coalition have devastated the country, US drones have also been flying in the air. A new report by AP documenting civilian deaths in Yemen reveals that the US drones have contributed to several civilian killings this year, while pretending to be fighting Al-Qaeda’s local franchise. What Americans did in Iraq and Afghanistan previously, they are now doing that in Yemen, directly and indirectly.
Today millions of children in Yemen weigh less than an average American’s weekend lunch. One of them dies every ten minutes due to acute malnutrition and various diseases. United Nations has already estimated that 10 million people may starve to death, majority of them children, due to the Saudi-led war and blockade. Yet, there is no anger, no outrage, no vigils, no street demonstrations, no primetime TV debates, no editorials. It is a forgotten war.
Human rights have been reduced to a joke by the Saudi-led coalition and its international sponsors involved in Yemen war. The only way to end this war is to stop arms sale to the Saudi regime and to hold all parties – which includes Saudi Arabia, UAE, Kuwait, Bahrain, Qatar, Sudan, Egypt, Jordon, Morocco, US and UK – accountable for their war crimes.
First published in our partner MNA
Gulf countries pivot towards Israel: Can Arab recognition be foresighted?
The visit of Israeli Prime Minister Benjamin Netanyahu to Oman surprised the entire world and delivered a message of smoothening of relations between Oman and Israel. This event has marked the first ever visit by any Israeli leader to Oman in 22 years. The Israeli Prime Minister and the Sultan discussed ‘Ways to enhance the peace process in the Middle East’ as well as other issues of ‘joint interest’. For Netanyahu, a milestone was achieved in the form of Oman recognition of Israel as normalizing relations with fellow regional states is one of the important clause of Netanyahu’s policy. Moreover, an Israeli Minister Yisrael Katz attended an International Transport Conference in Oman and proposed a railway link to connect Persian Gulf with the Mediterranean Sea. However, the railway link isn’t confirmed yet, it was just proposed in the conference. In parallel, Israeli Culture and Sports Minister Miri Regev attended Abu Dhabi Grand Slam 2018 in United Arab Emirates, where for the first time in history the national anthem of Israel was played. Similar approach was adopted by Israel towards Qatar. These changing dynamics can foresight the future of Gulf politics, that is, gulf countries can align with Israel to counter the influence of Iran in the region and for this purpose gulf countries may recognize Israel.
An important thing to notice is that the countries smoothening their relations with Israel are members of GCC, where Saudi Arabia is at the top of hierarchy- the major decision maker in Middle East- which means without Saudi Arabia’s willingness and its interests, GCC countries cannot take such a big decision. Now here a question arises, why would Saudi Arabia allow this approach?
The main reasons are; firstly, the crown prince Mohammad Bin Salman have cordial relations with Israel’s top leadership and he(MBS) is seen as a potential ally by Israel in Middle East, the major reason why Israel demanded US to side by Saudi Arabia in Khashoggi murder case. Second, it would be very difficult for Saudi Arabia- the self-proclaimed leader of the Sunni Muslim world- to recognize Israel while other states in the region still oppose the existence of a Jewish state in Middle East. Recognition of Israel by other GCC countries would make it far easier for Saudi Arabia to recognize Israel or at least to melt ice. Lastly, the Khashoggi murder case have already deteriorated the international image of Saudi Arabia, at this point of time the country cannot afford to bear another blame as Muslim countries think it would be injustice to Palestinians if Israel is recognized.
So will Saudi Arabia follow the suit and recognize Israel? The question still remains ambiguous, but since Saudi Arabia haven’t opposed these action of GCC countries and a continuous diplomatic support from Israel to Saudi Arabia have been visible although both countries do not have diplomatic relations, it can be predicted that something is going on, between both of these states which they have chosen not to disclose now. Coming to Qatar, since Qatar is also involved in this process of developing diplomatic relations with Israel, it can prove to be a catalyst in the troubled Saudi/Qatar relations as helping Saudi Arabia to develop relations with Israel while other Arab states are doing the same can lift up the entire blame from Saudi Arabia. Maybe the sanctions over Qatar will be lifted or just become less intensified. Qatar sees it as an opportunity to regain the similar status in the region as well as to reconstruct relations with the other Arab countries.
Turkish Newspaper Implicates UAE’s Crown Prince in Covering Up Murder of Khashoggi
Saudi Crown Prince Mohammed bin Salman al-Saud, and UAE Crown Prince Mohammed bin Zayed al-Nahyan, are close friends and allies, who jointly lead the war against Houthi-led Yemen. On Sunday afternoon, November 18th, a leading Turkish newspaper, Yeni Şafak, reported the two leaders to have also collaborated in hiding the murder on October 2nd in Istanbul of Washington Post columnist Jamal Khashoggi.
Yeni Şafak headlined “Dahlan ‘cover-up team’ from Lebanon helps hide traces of Khashoggi murder” and reported that on October 2nd, “A second team that arrived in Istanbul to help cover-up the murder of Saudi journalist Jamal Khashoggi was dispatched by Muhammed Dahlan, UAE Crown Prince Muhammed bin Zayed’s chief hitman in the region, … according to an informed source who spoke to Yeni Şafak daily on the condition of anonymity.”
On November 16th, the Washington Post had headlined “CIA concludes Saudi crown prince ordered Jamal Khashoggi’s assassination”.
Bin Salman and bin Zayed are U.S. President Donald Trump’s closest foreign allies other than, possibly, Israel’s Prime Minister Benjamin Netanyahu. All four men are determined that there be regime-change in Shiite Iran. This anti-Shia position bonds them also against the Houthis, who are Shiites, in Yemen, where bin Salman and bin Zayed lead the war, and the United States provides the training, logistics, and weapons. Both bin Salman and bin Zayed are fundamentalist Sunnis who are against Shia Muslims. Israel and the United States are allied with these two princes. Saudi Arabia’s royal family have been committed against Shia Muslims ever since 1744 when the Saud family made a pact with the fundamentalist Sunni preacher Mohammed ibn Wahhab, who hated Shia Muslims. Thus, Saudi Arabia is actually Saudi-Wahhabi Arabia, with Sauds running the aristocracy, and Wahhabists running the clergy.
In 2017, in Saudi Arabia’s capital of Riyadh, Trump sold, to the Saudi Crown Prince, initially, $350 billion of U.S.-made weapons over a ten-year period (the largest weapons-sale in world history), and $110 billion in just the first year. That deal was soon increased to $404 billion. For Trump publicly to acknowledge that Salman had “ordered Jamal Khashoggi’s assassination” would jeopardize this entire deal, and, perhaps, jeopardize the consequent boom in America’s economy. It also would jeopardize the U.S. alliance’s war against Shiites in Yemen.
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