Roots of Gaza conflict to be probed by UN
By: John Quigley / Contributing Writer
After prior rounds of hostilities between Gaza and Israel, the United Nations Human Rights Council has set up inquiry commissions to look into violations of humanitarian law. This time it is going one step further. By Resolution S-30/1 (27 May 2021) titled Ensuring respect for international human rights law and international humanitarian law in the Occupied Palestinian Territory, including East Jerusalem, and in Israel, it is ordering an assessment not only of acts during the immediate crisis, but of “all underlying root causes of recurrent tensions, instability and protraction of conflict, including systematic discrimination and repression based on national, ethnic, racial or religious identity.”
The commission will not have to look far to find identity-based repression. Most Gaza families come from other parts of Palestine. Summarily forced out of their home areas in 1948, they sought refuge in Gaza, which was under the control of the Egyptian army. The United Nations told Israel that it must repatriate these families, beginning in 1948 with the General Assembly’s Resolution 194. Instead, Israel’s Knesset adopted a Prevention of Infiltration Law, criminalizing return by Palestinian refugees. Any who tried could be arrested as “infiltrators” and deported.
The demand to return has not dissipated over time. In 2018, young Gazans stormed the fence that separates Gaza from Israel, in what they called the Great March of Return, only to be met by rifle fire from the other side.
The 1948 expulsions from home areas and the continuing denial of repatriation, the commission will find, stand at odds with the Universal Declaration of Human Rights, which guarantees both a right to remain in one’s country and a right, if abroad, to be re-admitted, whether or not one holds the relevant nationality. Israel’s denial of repatriation to Palestinian refugees was recently pegged as a crime against humanity by Human Rights Watch in A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution (April 2021).
The denial of repatriation is a crime that the International Criminal Court could take up as part of its ongoing State of Palestine investigation, as I recently explained in a post in Opinio Juris as The Palestinian Right of Return Could Go to the ICC. The Gazans are not the only Palestinians who were forced out in 1948 and who have been denied repatriation. Many more await return from Lebanon, from Jordan, from Syria. Denial of their repatriation by Israel is also part of the root causes of the recent hostilities.
Ethnic cleansing in Jerusalem, particularly in the Sheikh Jarrah neighborhood, is a more immediate root cause, as was conflict that developed in May at Jerusalem’s holy sites. The commission will readily find repression on the Israeli side in regard to Jerusalem. The occupation of East Jerusalem by the Israel Defense Force in 1967 was unlawful as an act of aggression. See my The Six-Day War and Israeli Self-Defense: Questioning the Basis for Preventive War, 2013. The annexation of East Jerusalem by the Knesset that followed in 1980 was unlawful, because territory taken in hostilities may not be annexed, regardless of whether the taking was lawful. The annexation was condemned by the UN Security Council in its Resolution 478. Annexation of territory taken militarily is also a crime for the officials behind it. It is defined as an act of aggression under the Rome Statute of the International Criminal Court.
The blockade instituted by Israel in 2007 around Gaza is another root cause. It has devastated the already fragile economy of Gaza. The blockade has been called an unlawful act in violation of international law by the UN Office for the Coordination of Humanitarian Affairs.
The commission’s broad mandate to examine root causes is the more significant because the commission is tasked not simply with ascertaining violations of law, but with preparing dossiers on specific officials. Under the Human Rights Council’s resolution, the commission is to “identify, where possible, those responsible, with a view to ensuring that perpetrators of violations are held accountable.” To that end, the commission is to “collect, consolidate and analyse evidence of such violations and abuses and of crimes perpetrated,” with a view to “its admissibility in legal proceedings.”
The Human Rights Council’s resolution does not name any courts to which the commission is to forward its findings. Crimes against humanity can be prosecuted under the laws of many countries, particularly countries that invoke the principle of universal jurisdiction and therefore do not require that the acts have a connection to their own territory. Crimes against humanity can be prosecuted, for example, by Germany under its Code of Crimes Against International Law. They can also be prosecuted at The Hague under the Rome Statute of the International Criminal Court.
The Human Rights Council sees the work of the commission as a long-range task. It is setting it up as an “ongoing independent, international commission of inquiry.” An investigation into what befell the Palestinians who sought refuge in Gaza will require research into facts that are hotly contested. Israeli officials may tell the commission that the Palestinians who wound up in Gaza in 1948 left their home areas because Arab authorities told them to leave, or because flight of population in wartime just happens. Palestinian families who formerly lived, say, in Jaffa, which was the main town in Palestine, will relate mass shelling of their residential areas in 1948 by a Jewish militia that was widely regarded as terrorist. United Nations documents of the period will confirm forcible eviction from areas throughout Palestine.
The denial of repatriation will be easier to investigate. To see if there are Israeli officials who can be prosecuted for denying repatriation, it will take only a phone call to the Prime Minister’s office in Jerusalem to ask if they are prepared to invite the refugees to come home.
The United States criticized the Human Rights Council for setting up the commission. If the Biden Administration were inclined towards meaningful steps towards peace between Palestine and Israel, it could take a cue from the Council. Joe Biden has a telephone. He could make that call to Jerusalem.
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