In a special one-day session held on 27 May, the United Nation’s Human Rights Council (UNHRC) adopted an unprecedented resolution to investigate war crimes in the Occupied Palestinian Territories (OPT) and Israel.
This happened six days after a ceasefire between Israel and the Islamic resistance movement Hamas went into effect. It ended 11 days of fighting during which Hamas’s military wing fired rockets into Israel and the latter responded with heavy bombardment of the blockaded and occupied Gaza Strip.
Together with the forced eviction by Israeli settlers of Palestinians from their homes in East Jerusalem that preceded it, the war triggered a worldwide wave solidarity with the Palestinians revealing a shift in the Israel-Palestine discourse, observers say.
A taboo on criticising Israeli policy or presenting balanced coverage of the conflict in the US and much of the West has noticeably eroded, something that resonated even in the infamously bureaucratic United Nations.
For the first time in the history of the organisation, a resolution to investigate alleged violations and abuse of international human rights law and international humanitarian law includes Israel in its mandate. While the special session was scheduled during and because of the 11-day conflict, the wording of the resolution does not limit the investigation to recent events.
Indeed the HRC decided to establish an “ongoing” independent, international committee of inquiry (ICO), to be appointed by the council’s president. This will investigate violations “leading up to and since 13 April 2021, and 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 committee’s mandate includes collecting and preserving evidence of violations and crimes with the possibility of admissibility in legal proceedings and identifying, “where possible, those responsible, with a view to ensuring that perpetrators of violations are held accountable.”
The resolution was adopted by a vote of 24 in favour, nine against and 14 abstentions. All seven European member states in the HRC abstained or voted against the resolution, which was introduced by Pakistan on behalf of the Organisation of Islamic Conference.
Human rights defenders say the UN has never attempted to investigate violations inside the 1948 borders, known as the Green Line, which marks the Palestinian territories captured by Zionist gangs to establish the state of Israel 73 years ago.
Although Israel is a Jewish state, it has a population of 1.9 million Palestinians with Israeli documents. They are descendants of the Palestinians who remained within those borders after the creation of Israel in 1948.
Akshaya Kumar, director of Crisis Advocacy and Special Projects in the New York-based Human Rights Watch (HRW) described the HRC’s commission of inquiry as a “transformative moment.”
“It is the first time ever that the HRC is looking beyond the immediate, beyond for example war crimes in the context of a conflict in Gaza, to the systematic discrimination across the OPT and in Israel itself – everywhere from the [Jordan] River to the [Mediterranean] Sea,” she said in reference to the entire map of the Palestinian-Israeli conflict.
In April HRW issued a groundbreaking report documenting crimes against humanity of apartheid and persecution by the Israeli authorities. B’Tsleem, the Israeli rights group, had already released a report earlier this year in the same vein, stating that Israel enacts an apartheid regime in all the territory it controls, but did not have the same impact as the international rights watchdog’s findings.
The 213-page report, “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution” is based on an overarching Israeli government policy to maintain the domination by Jewish Israelis over Palestinians and grave abuses committed against Palestinians living in the OT, including East Jerusalem.
The HRC did not mention any assessment of the crime of apartheid and persecution, but the COI has the mandate to make such an assessment. According to Kuma, “They’ve been told to look into systematic discrimination and its root causes. And HRW will be sure to get our analysis to them so they know what we think of the situation, which is that indeed the crime of apartheid and the crime of prosecution are being committed by Israeli authorities.”
Because the resolution tasks the COI’s members with preparing case files for the future, identifying perpetrators and collecting evidence, Kumar hopes they can build up the kind of information needed for prosecution.
On 13 May the International Criminal Court (ICC) Public Prosecutor Fatou Bensouda said an investigation is underway into alleged war crimes in earlier conflicts by both Israeli and Palestinian individuals, despite the former’s rejection of the court’s jurisdiction.
Bensouda told Reuters she would press ahead with her inquiry even without the cooperation of Israel, which accuses her office of anti-Semitic bias.
As with HRC commission of inquiry reports on violations in previous Israeli-Palestinian conflicts, the findings of the COI could be a main source of information examined by the office of the ICC’s prosecutor general.
“This could open up avenues for universal jurisdiction and it takes us one step closer to really giving the situation in Palestine the kind of attention that it deserves at the international level,” Kumar said.
By including all territories where Palestinians exist, the resolution is aligned with realities on the ground that have been distorted and misrepresented.
“What we’re seeing here is that the UN has adopted a resolution that takes a holistic view on violations against Palestinians in Gaza, East Jerusalem, the West Bank and inside Israel,” said Sawsan Zaher, deputy general director of Adalah, the Palestinian-run legal centre in Haifa, Israel.
This is important, she says, because it highlights how Israel exercises the same policies against all Palestinians regardless of their location and the different laws under which they live. “We can’t ignore the fact that this is also in compliance with the findings of the HRW’s report concluding that Israel has committed abuses required for the crime of apartheid,” she told Al-Ahram Weekly in a telephone interview.
Originally coined in relation to South Africa, apartheid has become a universal legal term. The prohibition against particularly severe institutional discrimination and oppression or apartheid constitutes a core principle of international law. The 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid and the 1998 Rome Statute to the ICC define apartheid as a crime against humanity.
In 2017 the UN pulled out a report by the Economic and Social Commission for Western Asia (ESCWA) which accused Israel of imposing an apartheid regime on the Palestinians. It was the first time a UN report clearly accused Israel of the crime of apartheid. The report was taken off ESCWA’s website after the UN body and its then secretary general Antonio Guterres came under pressure from “powerful member states” who undertook “vicious attacks and threats” in the words of ESCWA’s Executive Secretary Rima Khalaf, who resigned in protest.
Guterres was among the 50 senior European and international officials who signed an open letter on Monday condemning political interference in the efforts by the ICC to investigate war crimes in Palestine.
In 2019 a UN Committee on the Elimination of Racial Discrimination described Israel as a fragmented society, in which law, policies and institutions reflect the dominance of the Jewish population.
“It was the first time that Israeli policies inside the green line were examined,” Zaher said. “What we’re seeing here with the recent HRC COI is an expansion of the description of Israel’s regime two years ago.”
The root causes leading to changes in how the conflict is being perceived today, even if it is reflected in a different narrative, is a natural reaction to the prolonged Israeli occupation, says Zaher, “which is illegal by the definition of international law.”
The blockade of Gaza is now 16 years old and Israel’s occupation of the Palestinian territories is 54 years old. “This should be reflected in a new discourse, a new debate and a new way of analysing things that moves on from the rhetoric exonerating Israel.
“Of course, we shouldn’t be naïve; there’s a huge question now whether the UN will fund such a commission and indeed establish it,” she said.
*A version of this article appears in print in the 3 June, 2021 edition of Al-Ahram Weekly