The Human Rights Council has just named a three person commission of inquiry into alleged war crimes in Gaza. This commission was sure to get a great deal of attention based on the politically sensitive nature of its work. But I think it’s fair to expect a bit more of attention because one of the commissioners, the highly regarded and accomplished war crimes expert Amal Alamuddin, happens to be engaged to a highly regarded and accomplished American actor. (The other two commissioners, Doudou Diène and William Schabas of Canada are similarly well respected among colleagues).
So what is this commission of inquiry all about and what will it do?
The Human Rights Council called for an investigation of alleged war crimes and violations of international humanitarian law in Gaza in on July 23. The USA was the only country to vote against the resolution. But since this is the Human Rights Council (and not the Security Council) the USA has no veto so the commission of inquiry was approved. The commission is due to report its findings and make recommendations to the Human Rights Council in seven months.
We have seen this movie before, so we know a bit of what to expect in terms of what the report will look like and what recommendations it may make. In September 2009, the international legal icon Richard Goldstone lead a commission of inquiry into Israel’s incursion in Gaza in the winter of 2008/2009. Like in the current conflict, over 1,000 people were killed — and those killed were overwhelmingly Palestinians. Also, like in the current conflict there were allegations that Hamas indiscriminately fired rockets into Israeli territory and that Israel bombed civilian targets, including UN schools serving as shelters.
The “Goldstone Report,” as it came to be known, found probable evidence of war crimes by Israel and Hamas and recommended that the situation be referred to the International Criminal Court for further investigation and possible prosecution. But that is pretty much where the story ends because the Human Rights Council does not have the authority to refer situations to the ICC. In this circumstance, only the Security Council can do that and there was no way that the USA would consent to giving the ICC jurisdiction to investigate Israel. As a result, there was no real accountability for the alleged war crimes detailed in the Goldstone report.
I think it is fair to assume that this new commission of inquiry will likely produce similar results. That is, when the report comes out in March it will carefully and assiduously detail specific incidents in which a war crime is likely to have been committed and do its best to identify the perpetrators. Both sides will be probably implicated. And when the commissioners recommend mechanisms for accountability of these alleged war crimes, they will most likely suggest that the Security Council give the ICC jurisdiction. The Security Council will almost decline to take this step.
This result will certainly be disappointing to those who believe that international judicial mechanisms are the best hope for real accountability for war crimes in Gaza. But it is not for the commission of inquiry to pre-judge what the Security Council may or may not do. Their job is to assemble the facts as best they can.