Human Rights Council   

General Assembly debates dueling Goldstone Report proposals

Mark Leon Goldberg November 3, 2009 - 11:32 am

Comment ( 2 )  

The General Assembly will take up the Goldstone Report in a session tomorrow.  There are two competing resolutions circulating.  The first (below) is drafted by Arab states and calls for the Secretary General to transmit the report to the Security Council.  The EU, lead by France and Germany, are trying to prevent that outcome by inserting language in the resolution that calls on both the Palestinians and Israeli's to pursue internal investigation into alleged war crimes, the credibility of which would be verified by the High Commissioner for Human Rights before a future Human Rights Council meeting.  Specifically, the EU text:

"Urges the parties to launch appropriate independent investigations, in conformity with international standards, into the allegations of serious violations of [international humanitarian law] and international human rights law] reported by the Mission, requests the [High Commissioner for Human Rights] to report on their undertakings to the next session of the Human Rights Council and requests the Secretary-General to report to the General Assembly on developments by xxx."

This essentially means kicking the report back down to the Human Rights Council rather than up to the Security Council.  It will be interesting to see how the P-5 vote on this.  This is a position much closer to what the United States wants, but it is still hard to see the United States voting for a resolution in any form, particularly given the fact that the United States Congress will vote today on a measure today condemning the Goldstone Report.  Meanwhile, China and Russia are probably loathe to vote for something that effectively sets a precedent by which "internal" human rights issues are discussed at the Security Council.  

In any event, this will be a closely watched vote tomorrow. 

 

 

 

Draft from Arab states

 

2 November 2009

 DRAFT

 GENERAL ASSEMBLY - 64th SESSION

 AGENDA ITEM: Human Rights Council Report

 Follow-up of the Report of the United Nations Fact Finding Mission on the Gaza Conflict (Goldstone Report)

 The General Assembly,

 Guided by the purposes and principles of the Charter of the United Nations,

 Recalling the relevant rules and principles of international law, including international humanitarian and human rights law, particularly the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, which is applicable to the Occupied Palestinian Territory, including East Jerusalem,

 Recalling also the Universal Declaration of Human Rights and the other human rights covenants, including the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child,

 Recalling its relevant resolutions, including resolution ES-10/18 of 16 January 2009 of its tenth emergency special session,

 Recalling also the relevant Security Council resolutions, including resolution 1860 (2009) of 8 January 2009,

 Recalling the relevant resolutions of the Human Rights Council, including resolution S-12/1 of 16 October 2009,

 Expressing its appreciation to the “United Nations Fact Finding Mission on the Gaza Conflict” led by Justice Richard Goldstone for their comprehensive report,

 Affirming the obligation of all parties to respect international humanitarian law and international human rights law,

 Emphasizing the importance of the safety and well-being of all civilians, and reaffirming the obligation to ensure the protection of civilians in armed conflict,

 Gravely concerned by reports regarding serious human rights violations and grave breaches of international humanitarian law committed during the Israeli military operations in the Gaza Strip that were launched on 27 December 2008, including the findings of the “United Nations Fact Finding Mission on the Gaza Conflict” and the Secretary-General’s Board of Inquiry,

 Condemning all targeting of civilians and civilian infrastructure and institutions, including United Nations facilities,

 Stressing the need to ensure accountability for all violations of international humanitarian law and international human rights law for preventing impunity, ensuring justice, deterring further violations and promoting peace,

 Convinced that achieving a just, lasting and comprehensive settlement of the question of Palestine, the core of the Arab-Israeli conflict, is imperative for the attainment of a comprehensive, just and lasting peace and stability in the Middle East,

1. Endorses the report of the Human Rights Council on its Twelfth Special Session of 15-16 October 2009;

 2. Requests the Secretary-General to transmit the report of the “United Nations Fact Finding Mission on the Gaza Conflict” to the Security Council;

 3. Calls upon the Government of Israel to take all appropriate steps, within a period of three months, to undertake investigations that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the “United Nations Fact Finding Mission on the Gaza Conflict” towards ensuring accountability and justice;

 4. Urges, in line with the recommendation of the “United Nations Fact Finding Mission on the Gaza Conflict”, the undertaking of investigations that are independent, credible and in conformity with international standards, within a period of three months, by the Palestinian side into the serious violations of international humanitarian and international human rights law reported by the “United Nations Fact Finding Mission on the Gaza Conflict” towards ensuring accountability and justice;

 5. Recommends to the Government of Switzerland, in its capacity as depositary of the Fourth Geneva Convention, to undertake the necessary steps as soon as possible to reconvene a Conference of the High Contracting Parties to the Geneva Convention on measures to enforce the Convention in the Occupied Palestinian Territory, including East Jerusalem, and to ensure its respect in accordance with common article 1;

 6. Requests the Secretary-General to report to the General Assembly, within a period of three months, on the implementation of the present resolution, with a view to considering further action, if necessary, by the relevant United Nations organs and bodies, including by the Security Council;

 7. Decides to remain seized of the matter.

 

Proposed EU Changes:

1. Takes note of the report of the Independent International Fact-Finding Mission and expresses concern at the allegations of breaches of international humanitarian and human rights law.

 2. Condemns all targeting of civilians and United Nations facilities.

 3. Emphasises the obligation of all parties to the conflict to respect international humanitarian law and international human rights law.

 4. Stresses the urgent need to ensure accountability for all violations of international human rights law and international humanitarian law to deter further violations.

 5. Urges the parties to launch appropriate independent investigations, in conformity with international standards, into the allegations of serious violations of IHL and IHRL reported by the Mission, requests the HCHR to report on their undertakings to the next session of the Human Rights Council and requests the Secretary-General to report to the General Assembly on developments by xxx. 

 

 

Human Rights Council endorses Goldstone Report

Mark Leon Goldberg October 16, 2009 - 10:43 am

Comment ( 5 )  

The UN Human Rights Council passed a resolution endorsing the Goldstone Report, which found evidence suggesting that the Israeli Defense Forces and Hamas may have committed war crimes during Operation Cast Lead last winter (but reserves its harshest criticisms for Israel.)  The report was discussed at the council for a vote for the first time earlier this month, but the Palestinians (under heavy pressure from the United States) opted to defer a vote on the resolution until the Council met again in March.  The Palestinian leadership, however, come under heavy domestic pressure from this decision and so reversed course and called for a special session of the council to vote on the Goldstone Report. 

This episode is being closely watched in Washington because it presents the first real test of American engagement at the council.  As I wrote at the time, the first non-vote was a pretty good example of the United States effectively pursuing its interests through diplomacy at the council. While this second vote did, in fact, endorse the report (an outcome the United States was trying to avoid) the final vote count was pretty weak: 25 in favor, 6 opposed, and 11 abstentions.  This means that the issue has probably run its course.  There is very little chance that (as the report suggests) the Security Council will consider granting the International Criminal Court jurisdiction over the crimes. 

 What does this say about U.S. engagement at the Human Rights Council? It is impossible to predict what would have happened should the United States have simply stayed out of this debate (as it has largely done since the council was formed in 2005). But I think it is fair to say that the United States was able to steer the result of this debate at least closer to its preferred outcome than had it simply remained on the side-lines. 

Here is a breakdown of the final vote:

 

 

U.S. victory at the Human Rights Council

Mark Leon Goldberg October 2, 2009 - 11:51 am

Comment ( 1 )  

At the urging of the Palestinians (and under intense pressure from the United States) the Human Rights Council delayed taking up the Goldstone report until it meets again in March.  The report alleges war crimes committed by both the IDF and Hamas during Operation Cast Lead last winter.

As I wrote earlier in the week, the debate over the Goldstone report presents the first real test of American diplomacy on the council. The United States sought to block a resolution that fully endorsed the report's recommendation that the issue be kicked to the General Assembly.  To that end, the U.S. was granted something of a reprieve when the Palestinian delegation said it would be in the interests of the peace process to delay action on the report.

This is a major, tangible victory for the "new era of engagement" that President Obama promised in his General Assembly speech last week.  The State Department worked the phones furiously this week to try and secure support for its position at the Council. And, lo and behold, the Obama administration was able to achieve its preferred outcome at the council though concerted engagement. By working the system from the inside (rather criticizing from the sidelines) the Obama administration was able to steer the council to an outcome that is favorable to American interests. 

Today's events show that the administration's decision to join the council was wise and prescient.  When the United States announced its decision to seek a seat on the council back in April, detractors accused the Obama administration of being naive to think that it could change what they described as an irredeemably anti-American or anti-Israel body. For example, Anne Bayesfky wrote in Foreign Policy at the time:

The council has passed more resolutions and decisions condemning Israel than all other 191 U.N. members combined. The council has one (of only ten) formal agenda items dedicated to criticizing Israel.  And one agenda item to consider the human rights of the remaining 99.9 percent of the world's population. There have been 10 regular sessions on human rights for all, and five special sessions to condemn Israel alone. The council excludes only Israel from the key negotiating and information-sharing meetings of every regional group...

Absolutely none of that will change with the United States sitting in the front row, Obama's rhetorical skills notwithstanding.  [emphasis wrong]

In fact, that is precisely wrong.  The United States was, indeed, able to change the dynamic at the Human Rights Council.  It would seem that a little engagement can go a long way. 

 

Obama's first "test" at the Human Rights Council

Mark Leon Goldberg September 29, 2009 - 9:13 am

Comment ( 2 )  

Judge Richard Goldstone presented his findings in person to the UN Human Rights Council in Geneva today.  The report, which investigated alleged war crimes surrounding Operation Cast Lead in Gaza last winter, found evidence suggesting that possible war crimes were committed by both the IDF and Hamas.  The report recommended that should local accountability mechanisms continue to be ignored, the Security Council should grant jurisdiction over the alleged crimes to the International Criminal Court.  

Into this equation steps, for the first time, the United States.  Last spring, the Obama administration sought, and won, an elected seat to the 47 member council.  Still, according to State Department Legal Adviser Harold Koh (himself a lion of international law) United States membership in the council is but an "experiment."

Well, if that's the case, then today's events at the Human Rights Council will present this new experiment's first test.  Egypt, Nigeria, Tunisia and Pakistan have circulated a resolution endorsing the Goldstone's recommendations "in full" (i.e. that the situation be referred to the Security Council for possible ICC intervention). 

The United States, however, is seeking something else.  In a statement critical of the methodology of the Goldstone report, assistant secretary of state Michael Posner, said the United States seeks a "consenus resolution that encourages Israel to investigate and address allegations in the Report thoroughly through credible domestic processes. It should also call on the Palestinians to launch credible investigations to address allegations of Hamas abuses and demand that Hamas stop its clear violations."

So, it's fair to say the United States will not go along with the current draft resolution. But will it secure enough votes for its preferred "consensus resolution?" 

We shall see. 

What should not be lost in the theatrics of today, though,  is the long term value of accountability.  At the Council meeting, Judge Goldstone explained why ending a culture of impunity is critical for lasting peace: 

"Now is the time for action," Goldstone told the Human Rights Council. "A culture of impunity in the region has existed for too long. The lack of accountability for war crimes and possible crimes against humanity has reached a crisis point; the ongoing lack of justice is undermining any hope for a successful peace process and reinforcing an environment that fosters violence. Time and again, experience has taught us that overlooking justice only leads to increased conflict and violence."

 

Goldstone in the New York Times

Mark Leon Goldberg September 17, 2009 - 9:14 am

Comment ( 0 )  

The famed jurist explains why the international community should concern itself with accountability for alledged war crimes in Israel and Gaza.

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 in Israel — on the contrary, Hamas leaders repeatedly praise such acts. While Israel has begun investigations into alleged violations by its forces in the Gaza conflict, they are unlikely to be serious and objective.

Absent credible local investigations, the international community has a role to play. If justice for civilian victims cannot be obtained through local authorities, then foreign governments must act. There are various mechanisms through which to pursue international justice. The International Criminal Court and the exercise of universal jurisdiction by other countries against violators of the Geneva Conventions are among them. But they all share one overarching aim: to hold accountable those who violate the laws of war. They are built on the premise that abusive fighters and their commanders can face justice, even if their government or ruling authority is not willing to take that step.

 

 

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