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Controversy over draft UN resolution on Gaza

Nov. 3, 2009 10:11 P.M. (Updated: June 22, 2010 6:13 P.M.)
By Jared Malsin

Bethlehem – Ma’an – The UN General Assembly is likely to vote in support of a UN report alleging war crimes in Gaza on Wednesday, but experts say that, if not properly worded, the resolution could close off options for further action on the matter.

There are at least two views on the subject. In one camp, some human rights experts say that a weakly-worded resolution could create the appearance of a victory while depriving the General Assembly of the ability to follow up on the issue further. In an interview on Tuesday, however, a top Palestinian diplomat defended a draft resolution and said critics had misinterpreted international law.

A draft resolution currently being circulated by Arab states would express support for the Goldstone report, while doing little to implement the document’s recommendations for investigation and prosecution, according to Richard Falk, a professor of international law at Princeton who also serves as the UN’s Special Rapporteur on Human Rights in the Palestinian territories.

The Arab draft asks UN Secretary-General Ban Ki-moon to bring Richard Goldstone’s report on Israel’s attack on Gaza to the Security Council. The report accuses both Israel and Palestinian combatants of committing war crimes during the three-week war.

The draft resolution also asks Israel and Palestinian authorities to conduct their own investigations, and for the Ban to report back on these to the General Assembly.

If such a weakly-worded resolution passes, “I think there will be a quiet celebration in Washington and Tel Aviv and a disappointment for those holding Israel accountable,” said Falk.

A vote for a weak resolution, he added, could “create disillusionment among activists with regard to reliance on the United Nations as a means of securing justice for the Palestinian people.”

The issue centers on the fact that the Security Council, dominated by veto-wielding US, UK, Russia, France, and China, is not likely to act on the report. Human rights activists are now urging the General Assembly to prepare for this outcome, and leave avenues open for future action on the report.

“Ideally the General Assembly should retain authority to recommend the report to the International Criminal Court (ICC) or establish an ad hoc tribunal,” said Falk in a phone interview. “There’s nothing in the [UN] charter precluding the General Assembly” from doing this, Falk said.

"It’s a long journey"

Palestinian Ambassador to the United Nations Riyad Mansour, however, said the resolution - if passed - would not spell the end of possibilities for prosecution. Mansour disagreed with Falk’s interpretation of international law, arguing that the Rome statute that created the ICC would not allow the General Assembly to refer the issue to the court.

Another option, he noted, would be a decision of ICC Prosecutor Luis Moreno-Ocampo to open proceedings on the Gaza war without further action by the UN in New York. “[But] I don’t think he [Ocampo] is in a rush,” Mansour added.

“We need to keep knocking on the door of the Security Council to shoulder its burden with respect to enforcement,” Mansour said on the phone from New York.

Mansour defended the resolution, explaining it was likely to draw broad support even from European states and others outside the Arab League, Non-Aligned Movement and Organization of the Islamic Conference states that drafted it. Such support, he suggested, would help Palestinians in the long-run.

“There is a new environment forming,” Mansour said. With the creation of the ICC, “We entered a new era of fighting impunity and seeking accountability. … I am sure that Israel will think 1000 times before trying a similar operation in Gaza, … and our brothers in Hamas will think again before firing rockets on civilian populations.”

But, he added “It’s a long journey.” “If you look at it like tomorrow we’re going to set up a lynching of Israeli war criminals, I don’t blame you for being pessimistic.”

Automatic action

Mahmoud Abu Rahma, the Communications and International Relations Coordinator for the Al-Mezan Centre for Human Rights in Gaza agreed with Mansour’s assessment that the General Assembly does not have the authority to refer the Gaza report to the ICC.

The wording of Wednesday's resolution, Abu Rahma noted, will be critical, and that the General Assembly should endorse all of the recommendations of the Goldstone report. Specific recommendations, such as the establishment of a fund to compensate victims, are important, he argued.

“We want a strong resolution,” he said in a phone interview. “We all know the secretary-general is too weak to do something meaningful – we know this from experience.”

However, if the Security Council does not take action on the matter, the General Assembly will “automatically” be empowered to take further steps, he said.

Ingrid Jaradat Gassner, the director of the Bethlehem-based BADIL Center for Palestinian Refugee and Residency Rights, said in an interview, “This General Assembly resolution will be crucial because it will determine what action can be taken over the coming weeks and months.

Gassner also said that the clause of the Arab-backed draft that calls on the Secretary-General to report back is “a useful method of putting the issue in the garage.” She said “hundreds of such resolutions” are passed without follow-up action taken.

However, she added, “The Palestinian leadership has options. They cannot hide behind international pressure. They could change strategy and say ‘what we get out of this consensus resolution is far too little.’”

A more strongly-worded resolution, Gassner argued, would lose the votes of European countries, but would still pass the General Assembly.

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