Abstract
Legal constraints have often failed to protect civilians from the adverse affects of war. It was no different during the Gaza conflict. IHL proved hardly relevant to the suffering of civilians inside and outside of Gaza a year ago. In order to prevent the rules from becoming even more irrelevant, States should take their obligation to ensure respect for IHL more seriously. The obligation to ensure respect implies that every State ought to take action with regard to any other State which does not respect this law. The duty to ensure respect provides for a system of collective responsibility for compliance with IHL. In the past, the Security Council explicitly called on States to ensure respect by Israel, as Occupying Power, for its obligations under the Geneva Conventions. The International Court of Justice also stated in its Advisory Opinion on the Wall: “all States Parties to the Fourth Geneva Convention have the obligation to ensure compliance by Israel with IHL”. The duty to ensure respect has various dimensions. I have identified one particular measure available to States in order to fulfil their obligation to ensure respect: fact finding.
Liesbeth Zegveld, Professor of International Humanitarian Law, Leiden University. This paper was presented at the Conference “Politics and International Law after the Gaza War”, 25 January 2010, Peace Palace, Den Haag.
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Notes
- 1.
UN Doc. S/RES/681 (20 December 1990).
- 2.
International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion of 9 July 2004, para 163.
- 3.
Fact finding means any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation. See ‘Declaration on Fact Finding by the UN in the Field of International Peace and Security’, UN Doc. A/RES/46/59 (9 December 1991).
- 4.
Article 90 of the Additional Protocol I (1977) of the 1949 Geneva Conventions.
- 5.
One of the findings of the UN investigation team was that chemical weapons had ‘without any doubt’ been used by Iraq against Iran and that civilians had died as a consequence. See ‘Report of the Mission Dispatched by the Secretary-General to Investigate Allegations of the Use of Chemical Weapons in the Conflict Between the Islamic Republic of Iran and Iraq’, UN Doc. S/20060 (20 July 1988), p. 9. The importance of international investigation commissions may proof its worth for many years to come. The UN investigation team’s findings in the Iraq/Iran war have gratefully been used in the court case against Dutch businessman Van Anraat.
- 6.
The name of the report is ‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’.
- 7.
The Goldstone Fact-Finding mission fits into a long tradition of the UN endeavouring to have full knowledge of all relevant facts and to undertake to that end fact-finding activities. See UN Doc. A/RES/46/59.
- 8.
Human Rights Council, ‘Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict’, UN Doc. A/HRC/12/48 (25 September 2009), para 136 [hereinafter Goldstone Report].
- 9.
For victims, establishment of the facts is also crucial. They may even prefer a correct finding of facts, to an interpretation of these facts, over the application of the law to these facts. Victims want to know what has happened. The ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation’, which were adopted by the General Assembly of the United Nations in 2005, recognize explicitly “the victim’s right to … access to relevant information concerning violations”. See UN Doc. A/RES/60/147 (16 December 2005).
- 10.
Goldstone Report, para 162.
- 11.
Id., at para 169.
- 12.
Falk 2009.
- 13.
Goldstone Report, para 1583. Israel contends that the vast majority of the casualties resulted from the lawful application of force and that Hamas bears responsibility for allowing armed groups to operate amidst the civilian population.
- 14.
Falk 2009.
- 15.
Kamerstukken II 2008/09, 23 432/26 150 nr. 306.
- 16.
Goldstone Report, para 171.
- 17.
Id., at para 13.
- 18.
Id., at para 15.
- 19.
Id., at para 15, referring to the International Court of Justice, Corfu Channel Case, ICJ Reports (1949) 4, at 18.
- 20.
In some cases the Commission thought a personal statement is sufficient unless this was consistent with the injury of the victim. See ‘Recommendations Made by the Panel of Commissioners Concerning Individual Claims for Serious Personal Injury or Death’ (Category “B” Claims), UN Doc. S/AC.26/1994/1 (26 May 1994), p. 41. See also Singh 2006, p. 73. The UNCC was able to do this because it was handling large groups of claims and was able to distil proof or patterns of proof thereof. See Singh 2006, pp. 76 and 90.
- 21.
See, among others, European Court of Human Rights, Salman v. Turkey (21986/93), 27 June 2000, paras 99–100; Inter-American Court on Human Rights, Velasquez v. Guatemala, 25 November 2000, para 152.
- 22.
Goldstone Report, para 175.
- 23.
In many cases the Goldstone Mission found that acts entailing individual criminal responsibility have been committed. See Goldstone report, para 172.
References
Falk R (2009) Commentary: The Future of the Goldstone Report: Can the UN Implement International Law? The Berkeley Daily Planet, 1 October 2009. http://www.berkeleydailyplanet.com/issue/2009-10-01/article/33850?headline=Commentary-The-Future-of-the-Goldstone-Report-Can-the-UN-Implement-International-Law-
Singh R (2006) Raising the Stakes: Evidentiary Issues in Individual Claims Before the United Nations Compensation Committee. In: Permanent Court of Arbitration (ed) Redressing Injustices Through Mass Claims Processes. Oxford University Press, Oxford
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Zegveld, L. (2011). The Importance of Fact-Finding Missions Under International Humanitarian Law. In: Meloni, C., Tognoni, G. (eds) Is There a Court for Gaza?. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-820-0_7
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