Israel: A step closer to being declared guilty of war crimes

Syed Sharfuddin*

A special session of the UN Human Rights Council was held in Geneva on 27 May 2021 to discuss the grave human rights situation in the occupied Palestinian territories, including East Jerusalem, which remains fragile after the ceasefire agreed between the two sides following the special session of the UN General Assembly on 20 May 2021. The call for a special session was made by Pakistan, as coordinator of the Organization of Islamic Cooperation (OIC) and the State of Palestine on behalf of the OIC countries. The move was supported by 20 of the 47 members of the Commission, as well as 43 observer countries including Afghanistan, Iran, Saudi Arabia and Turkey.

On 27 may 2021, the Geneva based UN body adopted an OIC backed resolution that, inter alia, called for the establishment of a commission of inquiry on the recent rocket attacks to determine if these constituted war crimes committed by Israel. The resolution also urged on all states to refrain from transferring arms to Israel “when they assess, in accordance with applicable national procedures and international obligations and standards, that there is a clear risk that such arms might be used in the commission or facilitation of serious violations or abuses of international human rights law or serious violations of international humanitarian law”.

The resolution was easily carried with 24 member states voting in favour, 9 against and 14 abstentions. Countries which voted against the resolution included Austria, Britain, Bulgaria, the Czech Republic and Germany from Europe; Cameroon and Malawi from Africa; Uruguay from South America and Marshal Islands from the Pacific. Countries, which abstained on the resolution included France, Denmark, Italy, the Netherlands, Poland, and Ukraine from Europe; and, Brazil, Japan, Korea, India, Nepal, Togo, Fiji and Bahamas from other regions. Countries that voted in favour of the resolution included Armenia, China, Russia, Argentina, Bolivia, Cuba, Mexico Venezuela, Eritrea, Namibia, the Philippines and other OIC countries represented on the Commission. These were: Bahrain, Bangladesh, Burkina Faso, Ivory Coast, Gabon, Indonesia, Libya, Mauritania, Pakistan, Senegal, Somalia, Sudan and Uzbekistan.

Surprisingly, 2 OIC states from Africa did not support the resolution.  Cameroon voted against the resolution while Togo abstained. Cameroon became OIC member in 1974. Togo became a member in 1997. Israel had expected Mexico to vote against the resolution but it voted in favour. The OIC usually does not censure its members for voting against the organisation’s resolutions at the UN for political reasons. Few OIC members have large Muslim majority but are not Islamic countries constitutionally or even demographically such as Nigeria and Cameroon. Their membership of the organisation is meant more to give a voice to the Muslim population of these countries in the Muslim Ummah than to really give its government a place in the association. However, membership only lasts for as long as the government of the day wants to remain a member of the OIC. The arrangement offers advantages to both the OIC and to the concerned countries.

Reacting to the vote, the US, which left the UN human rights watchdog in 2018 and instead decided to become an Observer, said that it “deeply regretted” the decision. Israel called it a “shameful act” which makes a “mockery of international law”. It further said that Israel would not cooperate with the UN probe. No one expressed surprise on these statements as it was clear even before the Commission decided to hold a Special Session to discuss the grave situation in Gaza and other occupied territories in Israel on Thursday, neither the US nor Israel wanted such an outcome.

The UN human rights body is a political organisation. Its resolutions, which are non-biding on member states, are also influenced by political considerations. It is no surprise, therefore, that Israel’s traditional supporters and arms suppliers have either openly come out in support of Israel such as the US, or found other reasons to justify their negative vote, such as the UK which said it finds the resolution’s implementation too costly. However, the Commission’s resolutions do influence the assessment of a country’s human rights record and have an impact on the stance of other human rights bodies and NGOs toward that country.

This is the first time the UN human rights body has called for the establishment of an open-ended permanent Commission of Inquiry to investigate possible war crimes committed by a member state. The Commission is also mandated to investigate all underlying root causes of recurrent tensions, instability and protraction of conflict, including discrimination and repression. The credit for drafting such a comprehensive resolution goes to Pakistan and other like-minded countries, which made it possible for the resolution to be carried by a majority vote.

The 11-day war in which Israel and Palestine fired thousands of rockets against each other resulted in the deaths of 270 Palestinians, including 68 children in the occupied Palestinian territories, mostly in Gaza. It also killed 12 Israelis. However, it was an uneven and totally one-sided war in which on the one side was the organised defence force of a state armed with sophisticated surveillance and aerial strike capability openly backed by the world’s superpower US, and on the other side were rag tag elements of a non state entity with no international recognition or support, defending the rights of its people facing forced evacuations from their ancestral lands, and struggling to protect Al-Aqsa mosque in Al-Quds Al-Sharif during the annual fasting month of Ramadan.

Besides fatalities, Israeli air strikes in Gaza caused a wide spread destruction of civilian infrastructure which included homes, schools, hospitals, and essential supplies such as drinking water tanks and Gaza’s only Covid testing facility. Altghough Israel claimed that these building were used for militant activities, the UN officials confirmed that they had not seen any evidence to support Israel’s claim. If the UN body finds that these attacks were indiscriminate and disproportional, Israel could be well held accountable for committing war crimes in the occupied territories.

In a damage limitation attempt, Israel and the US will now use this vote to stress that the Commission should probe the violations of international law by Hamas for indiscriminately firing “thousands of rockets” on Israel’s civilian population. However, such a large number of missiles causing only 13 deaths in Israel will not provide any evidence of the violation of international law by Hamas. Chances are that after the investigators have done their work, Israel will get fully exposed and will come a step closer to be indicted for war crimes before an international criminal court.

*The author is a former Pakistani diplomat and a former Special Adviser for Political Affairs at the Commonwealth Secretariat, London. He was also formerly a Board member of the Commonwealth Human Rights Initiative, UK Chapter, and CEO of Muslim Aid, UK.