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Home > Issue 24: Democratic Formation in Palestine Periodic Reports (10) & (11 ) >

Palestinian Rights, al-Aqsa Intifada, and International Commissions of Inquiry? A Survey and Critical Reflection

2006-02-11
by Ingrid Jaradat

A Survey and Critical Reflection

Israeli non-compliance with UN resolutions and international humanitarian and human rights conventions has never been effectively challenged by the international community, in particular by the United Nations, since it recommended, in 1947, to partition Palestine against the wishes of the majority of the Arab population. Palestinians themselves so far lack effective domestic and international fora in which to pursue claims concerning the violation of their basic rights. Recommendations by the UN Commission on Human Rights to protect the Palestinians and their rights by means of intervention under Chapter VII of the UN Charter a mechanism that does not require Security Council approval remain unacted upon. This despite findings by the Commission on Human Rights since the early 1970s that Israel s policies in the 1967 occupied Palestinian territories have risen to the level of war crimes, a view reiterated in a resolution (S-5/1) adopted during a special session of the UN Commission on Human Rights in mid-October 2000.

Abstention from rights-based intervention against Israeli violations of UN resolutions and international law standards, and the sidelining of the United Nations system, became an explicit international policy after the signing of the 1993 Oslo Accords. The 1993 Declaration of Principles and subsequent interim agreements thus exclude reference to key UN resolutions, such as General Assembly Resolution 194, and unlike other regional Israeli agreements with Egypt and Jordan, do not include any reference to international law. Clarifications by the UN Commission on Human Rights concerning the danger of partial political agreements and the importance of international law and UN resolutions as a framework for a comprehensive solution of the Israeli-Palestinian conflict were simply ignored, and international support for the Middle East Peace Process became synonymous with support for the results of regional power politics, irrespective of their conformity with international human rights standards.

Negotiating from a position of strength - augmented by the support of the United States - Israel has managed to exempt itself and the Oslo process from the application of principles of international law, including the right of the Palestinian people to self-determination and the right of return for Palestinian refugees. When the accumulation of rights violations brought about a new popular Palestinian uprising which shattered the Oslo framework, the international community felt called onto the scene. It responded with the mandating of several commissions of inquiry which, irrespective of the obvious, were to explain why a region that was on the way to peace went up in flames and were also to issue recommendations for how to remedy the situation. In accordance with the international tradition established in the last third of the twentieth century, such inquiry missions were set up in two tracks: a United Nations track following the procedures prescribed by the mechanisms of the UN system, and a track aiming to by-pass international decision making based on UN resolutions and international law. Not surprisingly, the former was favored by the Palestinians and their allies, and considered a nuisance by the United States and Israel, who have employed all means of power politics to shape the future of the region by means of mechanisms operating outside the UN system.

I. The UN-Track
The Process leading up to the UN Committee of Inquiry
11 “ 15 October 2000:
Investigation by the Special Rapporteur on Human Rights

In the second week of October, only two weeks after the start of the renewed violent conflict in Palestine, a Special Rapporteur of the UN Commission on Human Rights undertook a first fact-finding visit in Palestine. The major findings of Mr. Giorgio Giacomelli, Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967 and former Commissioner-General of UNRWA, are excerpted below:

Report of the Special Rapporteur to the Commission on Human Rights

(UN Doc. E/CN.4/S-5/3; 17 October 2000; excerpts)

Local Perceptions

In general, respondents identified one of the main causes for the recent Palestinians protests as the outcome of accumulated frustration with the perceived shortcomings of both the content and implementation of the Oslo process, notably in its failure to uphold the human rights and humanitarian norms.

Both the local Palestinian and Israeli interlocutors consulted emphasised to the Special Rapporteur that all concerned parties could not possibly be incognizant of the danger inherent in this breach:  the people in the street, Israeli intelligence, the UN Commission on Human Rights,  various treaty bodies, the General Assembly, the Special Rapporteur, the Palestinian Authority.  They lamented that, in spite of that, no corrective action was taken.

Under the circumstances, all local parties reiterated their disappointment at the international community s evident lack of will to take substantive measures to uphold rights for Palestinians. Moreover, they uniformly deplored the double standard that has applied to the occupied Palestinian territories, tolerating or facilitating the Israeli occupation authorities unbroken pattern of violations.  In particular, they point out the contradiction between these standards established through the United Nations and the simultaneous ineffectiveness of the UN to uphold its own principles. A number of common demands were forcefully put forward by practically all interlocutors as the needed corrective action:

  • The de jure implementation of applicable humanitarian law and human rights standards, including the Fourth Geneva Convention (1949) and the principal human rights treaties;
  • The prompt formation and dispatch of a Commission of Inquiry with competence to establish responsibility for violations committed by the Occupying Power. A number of interlocutors recommended measures comparable to those taken in the case of East Timor;
  • That any peace agreement should be subject to the scrutiny and guarantee of a competent body empowered to review its consistency with human rights and humanitarian law, including UN resolutions on Palestine (e.g. UN Resolution 194);
  • That ICRC urgently increase its presence as a measure of physical protection;
  • That international observers and/or an interposition force be established to ensure the physical protection of the occupied population;
  • That the relevant thematic Special Rapporteurs give special attention to occupied Palestinian territories.

The grievances expressed were not devoid of a certain positive underpinning. Respondents also conveyed the hope that the losses arising from these tragic events would not be incurred in vain.   Rather they expressed the hope that a correct reading of the meaning of recent events will inspire the establishment of a fairer process capable of leading to a durable peace.

  • 17 October 2000:

FifthSpecial Session,UN Commission on Human Rights

In mid-October, after three weeks of Israeli aggression in the occupied territories and immediately upon the return to Geneva of the Special Rapporteur, the 53 member UN Commission on Human Rights, the primary human rights body in the United Nations, met in a Special Session to discuss the current situation in Palestine. This Special Session, convened upon the request by the Permanent Representative of Algeria on behalf of the Council of Arab Permanent Representative Members of the League of Arab States, was significant because only four such sessions had been convened in the history of the UN Commission on Human Rights (previous special sessions were held on the situation in East Timor, the former Yugoslavia and Rwanda). Forty-seven out of 53 members of the Commission, including European states, supported the convening of the Special Session. More than 20 local and international NGOs participated in the hearings, in addition to state members of the Commission.

The report of the Special Rapporteur was presented to the Commission, and the final resolution was adopted by a roll-call vote of 19 votes to 16, with 17 abstentions. Those voting against the resolution included Canada, the Czech Republic, France, Germany, Guatemala, Italy, Japan, Latvia, Luxembourg, Norway, Poland, Portugal, Romania, Spain, the United Kingdom, and the United States.

In its final resolution (S-5/1, 19 October 2000), the UN Commission on Human Rights reiterated its view that Israel s policies in the 1967 occupied territories had risen to the level of war crimes and decided to:

(a) Establish, on an urgent basis, a human rights inquiry commission;

(b) Request the United Nations High Commissioner on Human Rights to undertake an urgent visit to the occupied Palestinian territories;

(c) Request the Special Rapporteurs of the Commission on Human Rights to carry out immediate missions to the occupied Palestinian territories and report the findings to the Commission on Human Rights.

November 2000:

Visit and Report of the UN High Commissioner on Human Rights

(UN Doc. E/CN.4/2001/114; 29 November 2000)

In the first half of November, Mary Robinson, UN High Commissioner on Human Rights visited the 1967 occupied Palestinian territories, Israel, Egypt and Jordan, to gather information about the ongoing violation of human rights. The question of whether this visit was mandated by the Fifth Special Session of the Commission on Human Rights remained unresolved as Israeli officials were ready to meet with Mary Robinson only in the framework of a private visit. In her report submitted to the General Assembly and the Secretary General at the end of November, the Commissioner characterized the human rights situation in the occupied territories as bleak. Moreover the Commissioner underlined the connection between the Israeli occupation and the massive violation of Palestinian rights.

"In the occupied Palestinian territories, discussions concerning the present crisis and its impact on human rights were linked to the reality of the occupation itself. That reality was described by Palestinians as one of grinding, petty humiliations, discrimination and inequalities which were ultimately dehumanizing. It was explained that the anger and frustration of the present Intifada stemmed from lack of implementation of the key United Nations resolutions, especially General Assembly resolutions 181 (II) and 194 (III) and Security Council resolution 242 (1967), the continuing encroachment on land for settlements, and what was perceived as a peace process which had not addressed the Palestinian claims of a State with East Jerusalem as its capital and some recognition of the right of return of refugees."

Detailing Israel s excessive use of force and denial of humanitarian access, the High Commissioner stated that "every effort should be made to explore the feasibility of establishing an international monitoring presence" in the occupied territories. She further emphasized that a peaceful and stable future in the region could only be achieved on the basis of a framework "conforming to the requirements of international human rights and humanitarian law. Full application of the international human rights standards set out in the Universal Declaration of Human Rights and the two Human Rights Conventions is essential." She further called for the High Contracting Parties to the 1949 Fourth Geneva Convention relative to the Protection of Civilians in Time of War to assume their responsibility under the Convention.

The High Commissioner also called for the protection of Palestinian economic rights, freedom of movement, and compensation for victims of unlawful use of force, including for the loss of property. In what otherwise was a fairly solid legal report, the High Commissioner oddly drew a distinction between settlements in densely populated Palestinian areas and those in other parts of the occupied territories. While the Commissioner called for a cessation of all settlement construction she specifically recommended the removal of the settlements in densely populated Palestinian areas, even though both types of settlements mentioned by the Commissioner are considered by the UN to be illegal under the Fourth Geneva Convention relative to the Protection of Civilians in Time of War.

The period leading up to the official UN Committee of Inquiry (October December 2000), was characterized by intensive Palestinian lobbying efforts aiming to affirm international law and UN resolutions as the basis for future dealing with the Israeli-Palestinian conflict in the medium term, and to achieve international protection of the of the Palestinian people under occupation in the short term. The message conveyed by the PLO, the PA and Palestinian NGOs in briefings, reports, and petitions was clear: Israel s massive use of violence against the popular Palestinian protest to the continuation of occupation after seven years of Oslo process required the determined intervention of the international community, especially the United Nations, in order to correct the legal framework of a peace process that had gone wrong.

Palestinian NGO petition endorsed by some 60,000 individuals and organizations (November 2000 “ March 2001)

An Urgent Call to Mrs. Mary Robinson,
UN High Commissioner on Human Rights

WE , the undersigned, call urgently on Mrs. Mary Robinson to uphold, in full, the principles of the Universal Declaration of Human Rights, and of the International Covenant on Civil and Political Rights, on behalf of the Palestinian people, at this most critical and dangerous historical juncture. In particular, we call on her urgently to affirm Article #1 of the International Covenant on Civil and Political Rights, which calls for the inalienable right of all peoples to self-determination, and which continues to be grievously and systematically violated by Israel s occupation, and by its refusal to accept the right of return.

The right to self-determination and continued occupation stand in fundamental conflict. Continued occupation is the root cause of the present situation. It is the machinery of occupation which produces the systematic violation of the range of other individual and collective rights provided for by the Covenant, including the right to liberty and security of person, the right to freedom of movement, the right to control one s own natural resources, and others. It is the machinery of occupation which produces settlements, closures, checkpoints, home demolitions, land confiscation, destruction of crops, and wanton killings by settlers and occupation forces, which the Palestinian people have continued to endure even during the last 7 years under cover of the peace process.

Occupation can be maintained only by violence or the threat of violence. Instead of respecting the principles of human rights and international law, and acknowledging the Palestinian right to self-determination, Israel has declared war on the Palestinian people. It has openly unleashed an arsenal of military violence against them. In just six weeks, more than 200 Palestinians have been killed and over six thousand wounded. We demand a total end to the occupation. We appeal urgently to

the High Commissioner for Human Rights to call for the implementation of the Palestinian right to self-determination, and as a first step, to call for an international protection force for the Palestinian people, before continued violence against Palestinian society results in massive destruction for the second time in 52 years.

(Source: Media Alternative on Palestine/MAP and BADIL Resource Center)

Palestinian lobbying efforts, supported by the Emergency Conference of the League of Arab States (Qatar, 20-22 October 2000), were instrumental in mobilizing for the rapid response of the UN system (Special Rapporteur, Special Session/UN Commission on Human Rights, Mary Robinson s fact finding mission) between October “ December 2000. (1) Combined lobbying efforts by Palestinian and Arab representatives and the Non-Aligned Movement were instrumental also for the adoption of Mary Robinson s report by the UN Economic and Social Council (ECOSOC) as well as for the speedy mandating of the UN Commission of Inquiry in February 2001.

The Palestinian/Arab lobby could show additional achievements in the UN General Assembly which, in its 55 th plenary session in December 2000, adopted six resolutions on the Palestine question and the situation in the Middle East affirming the applicability of international law as a framework for resolving the Israeli-Palestinian conflict (GA Res. 9838, 1 December 2000). However, Palestinian lobbying efforts for rapid UN action towards the deployment of an international protection/monitoring force to the 1967 occupied territories failed due to persistent U.S./European objection in the UN Security Council. US and European objection remained firm, although Palestinian/Arab proposals and bridging proposals presented by the Non-Aligned Movement had been watered down progressively from full-fledged, armed protection forces to unarmed international observer/monitoring forces.

11 “ 18 February 2001:
The Human Rights Inquiry Commission Established by the UN Commission on Human Rights ( Dugard-Falk-Hussain Commission )

This Committee, established under the terms of the UN Commission on Human Rights Resolution S-5/1 (19 October 2000) and endorsed by the Economic and Social Council in its decision 2000/311 (22 November 2000), marked both the peak and “ for the time being - the end of the process of direct UN involvement in the shattered Israeli-Palestinian peace process. The terms of reference for the Committee were clearly spelled out in the Resolution:

¦to gather and compile information on violations of human rights and acts which constitute grave breaches of international humanitarian law by the Israeli occupying Power in the occupied Palestinian territories and to provide the Commission with its conclusions and recommendations, with the aim of preventing the repetition of the recent human rights violations;

The Inquiry Commission was composed of three international experts appointed by UN High Commissioner on Human Rights, Mary Robinson: Professor John Dugard (South African international expert on human rights law, Leiden University), Professor Richard Falk (American expert in international law, Princeton University) and Dr. Kamal Hussain (former Foreign Minister of Bangladesh). In February 2001, the UN Inquiry Commission toured the 1967 occupied Palestinian territories as well as Israel and was briefed by numerous Palestinian officials, experts and NGOs on both sides of the green line. The Committee did not hold meetings with Israeli officials because Israel had decided not to cooperate. Israel s Foreign Ministry deputy director-general for UN and international organizations argued that Israel had the moral right not to cooperate because the majority of states on the Commission on Human Rights voted against or abstained from voting on the resolution. Secondly, Israel argued that many of those who voted for it “ countries like Cuba, Sudan, Morocco, and Pakistan “ Israel does not consider beacons of human rights. Third, the Ministry stated that Committee member Richard Falk had recently written an academic article that demonstrated a strong bias against Israel. Finally the Ministry explained that the Committee was unnecessary due to the creation of a second committee as agreed at the Sharm al-Sheikh summit in October 2000. (2)

UN Inquiry Commission: Final Report results in new resolutions by the UN Commission of Human Rights

In its sixty page report submitted on 16 March 2001 (E/CN.4/2001/121) to the 57 th regular session of the UN Commission on Human Rights, the special UN Inquiry Commission emphasized the urgent need for international protection for the Palestinian people and gave special emphasis to the protection needs of Palestinian refugees.

The report covered the legal status of the conflict, Israel s excessive use of force, extra-judicial executions/political assassinations, settlements, and the deprivation of the enjoyment of economic and social rights (effect of closures, curfews, restrictions and movement, and destruction of property) and included a separate section which emphasizes the distinctive vulnerability of Palestinian refugees. The Commission of Inquiry further recommended that an adequate and effective international presence should be established immediately in the occupied Palestinian territories to monitor and regularly report on compliance with human rights and humanitarian law standards by all parties. The commission members also recommended that protection should be accorded in strict compliance with the 1949 Fourth Geneva Convention and that the High Contracting Parties to the Convention should act with urgency to establish an effective international mechanism for taking the urgent measures needed. The Commission members criticized the US veto of the UN Security Council resolution calling for international protection of the Palestinian people in the occupied territories.

Among its other recommendations the report noted that a comprehensive, just and durable peace should be guided at all stages by respect for human rights and humanitarian law and the full application of international human rights standards. Moreover, it should bring about the end of the Israeli occupation and realization of the right of the Palestinian people to self-determination. The report concluded that Israeli security forces (i.e., military and police) had used excessive and disproportionate force from the outset of the al-Aqsa intifada and recommended that Israeli forces should not resort to the use of rubber-coated bullets and live ammunition except as a last resort; that provision of protection for settlers cannot be used for preemptive shooting of unarmed civilians in areas near settlements or on access and bypass roads leading to settlements or for the destruction of Palestinian property; an immediate end to Israel s extra-judicial execution/assassinations; investigation and prosecution of persons found responsible for the use of lethal force or the excessive use of force which has caused death or serious injury; an immediate end to Israeli closures, curfews and other restrictions on freedom of movement; respect for Palestinian economic and social rights; an end to measures that amount to collective punishment; freedom of movement and safety for the provision of medical relief and treatment and in providing humanitarian assistance including that of UNRWA; special protection for children; and, free access to all places of worship and holy sites. (3)

Based on the report of the UN Inquiry Commission, the 57 th annual session of the UN Commission on Human Rights convening in Geneva in March-April 2001, adopted three resolutions: Resolution 2001/2 ( Situation in occupied Palestine ) affirming the Palestinian people s right to self-determination, including its right to sovereign statehood (48 in favor, 2 abstentions, 2 against: U.S. and Guatemala); Resolution 2001/7 ( Question of the violation of human rights in the occupied Arab territories, including Palestine ) reaffirming the applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of War to the 1967 Israeli occupied Palestinian and Arab territories and calling for international protection of the Palestinian people until the cessation of the Israeli occupation (28 in favor, 22 abstentions, 2 against: U.S. and Guatemala); and, Resolution 2001/8 ( Israeli settlements in the occupied Arab territories ). This Resolution, cosponsored by the European Commission members, reaffirmed the illegality of Israeli settlements and urged the Israeli government to cease its settlement activities in the occupied territories, including Jerusalem (50 in favor, 1 abstention, 1 against: U.S.).

By the time the UN Inquiry Commission presented its final report and the above resolutions were adopted by the UN Commission on Human Rights, international attention had already shifted away from the UN-led process towards the parallel process established by the United States on the basis of the 17 October 2000 Sharem al-Sheikh summit. As the UN process ran into a deadlock due to U.S. veto and European self-imposed impotence, the U.S. sponsored UN by-pass process gained considerable momentum and power.

II. The UN By-Pass : the Sharm al-Sheikh Process

As in the past, the United States, along with key European partners, attempted to sideline or emasculate efforts to resolve the current crisis within the framework of international law and UN resolutions.

During the Special Session of the UN Commission on Human Rights in October 2000, both France (speaking on behalf of the EU) and the United States voted against the resolution deploring Israel s violation of the human rights of the Palestinian people and calling for an international commission of inquiry. Echoing arguments first raised in 1947 during the General Assembly debate over the future of Palestine, both France and the U.S. claimed that this resolution, which set forth a legal framework and an agenda for international action, would only harm political efforts to bring the parties back to the negotiating table. Similar comments emanated from the UN Security Council in the context of the debate about the deployment of a international protection force in the 1967 occupied Palestinian territories. U.S. Ambassador Richard Holbrooke, known for his uncompromising stand during negotiations to end the conflict in the Balkans including support for the right of return of refugees, decried efforts to raise issues of principle in the Security Council as nothing more than rhetoric harmful to the Middle East peace process. Of the six resolutions adopted by the UN General Assembly in December 2000, the U.S. voted against 5 and abstained from the other. The United States delegate explained his votes noting that issues dealt with in the resolutions were the subject of negotiations which would only be complicated by the injection of the General Assembly. The U.S. further referred to the resolutions as unbalanced and outdated, stating, without consideration of international law, the Assembly should focus on creating a positive atmosphere, one where the two parties were encouraged to return to the negotiations. [The] resolutions could only complicate the efforts of the parties to achieve a settlement.

Oddly, however, even eminent UN figures, such as Secretary General Kofi Annan, have been reluctant to rely upon the clarity provided by international law and UN resolutions. In fact, by late November 2000, Annan appeared at times to be adrift in the sea of U.S. semantics. Referring to the continued confiscation and destruction of Palestinian property and expansion of settlements, Annan duly noted that These actions seriously complicate the discussions by the parties of the permanent status issues. Gone was any reference to international law and the plethora of UN resolutions calling for an immediate cessation of settlement activity and declaring Israeli policies to change the demographic character of the occupied territories as null an void. In a similar vein, Annan s approach to the deployment of international observers stands in marked contrast to general comments delivered a year earlier in his Report of the Secretary General to the Security Council on the Protection of Civilians in Armed Conflicts. Annan wrote then that, preventive deployment will be of particular value in situations where the legacy of past conflict has increased the risk of mass violations of human rights. In the Palestinian case, Annan has linked the deployment of an international protection force to the consent of the very party, Israel, which is not only responsible for the mass violations of human rights but is also considered as a belligerent occupying force. (4)

The Sharm al-Sheikh ( Mitchell ) Fact Finding Committee

The Mitchell Committee established by the United States during the Sharm al-Sheikh Summit in mid-October 2000 is to be seen in the context of U.S.-led efforts to resolve the current crisis outside the framework of international law and the United Nations. While the summit ended in a failure, because the U.S. and Israel refused to tackle the issues which had precipitated the Palestinian uprising, U.S. pressure did succeed to obtain acceptance by the Palestinian leadership of a committee of fact-finding appointed by then-President Clinton. Unlike the clear terms of reference accorded to the UN Inquiry Commission, the mandate of the Mitchell Committee was largely political in character.

During consultations on the Committee s composition, the U.S. and Israel rejected Palestinian proposals to include Nelson Mandela or any other prominent statesman with allegiances to anti-colonial struggles. Rather the Committee was composed of five members, who, unlike the UN Committee, have mostly a political or security background rather than experience in international law and human rights. The Committee was led by George Mitchell and Warren Rudman, former U.S. senators who had consistently supported Israeli governments while in office, and included former Turkish President Suleyman Demirel, who presided over the expansion of the Turkish-Israeli strategic partnership in the 1990s; Norwegian Foreign Minister Thorbjoern Jagland, and Javier Solana, the European Union s High Representative for the Common Foreign and Security Policy. The Committee also appointed an 8-member technical team headed by former U.S. Ambassador to Chad Larry Pope.

Initially, it appeared that Committee head George Mitchell was following a mediation strategy similar to that he had employed in Northern Ireland “ namely, trying to work with Israel and the PLO each on their own terms. For example, when Israeli officials demanded that the Committee not carry out its own investigations on the ground, the Committee assured Israel that its purpose was not to assign blame and that it would be preparing its report from its offices in the United States. This while Mitchell was, at the same time, assuring the Palestinian side that the Committee would engage in meetings and fact finding visits on the ground.

Unlike the UN Commission, the timetable of the Mitchell Committee was determined largely by Israel s domestic political considerations. For the first several weeks after the creation of the Committee was announced, Israeli officials demanded that the Committee delay its visit to the region until the Palestinian uprising had subsided. Israel further demanded that the Committee not undertake its own investigations on the ground but rather content itself with receiving official reports from Israel and the PLO. When the Israeli and Palestinian delegations returned to Washington, D.C. in late December for another round of U.S.-mediated talks, Israel once again attempted to obstruct the work of the committee, claiming that as long as the parties were talking there was no need to carry out investigations. The work of the Committee hit another snag in mid-January 2001 when Israel refused to cooperate with the technical team following a visit by the head of the team, Larry Pope, to the Haram al-Sharif without an Israeli government escort. Pope was subsequently recalled to Washington, and the five members of the Committee delayed their return to the region until after the Israeli elections on 6 February 2001.

In the meantime, Israeli government officials began to downplay the ability of the Committee to produce an objective assessment of the underlying causes of the intifada. The new government of Ariel Sharon referred to the Committee as an historic mistake and railed against Committee assurances that it would prepare a balanced report, claiming that it would reward Palestinian violence. Remarks by former Foreign Minister Shlomo Ben Ami are indicative of the official Israeli view. While testimony could be collected in Israel in an organized manner, stated Ben Ami in the Israeli daily Ha aretz (12 February 2001), this was not the case in the Palestinian Authority. A review of the PLO Negotiation Affairs Department submissions to the Mitchell Committee clearly refutes this view. (5)

In March 2001 and with some delay, the Mitchell Committee finally undertook its fact-finding mission in the 1967 occupied Palestinian territories. By 15 May, its final report was completed and presented to the PLO, Israel, the U.S. president and UN Secretary General Kofi Annan.

The Mitchell Report: Fact-Finding Report without Facts and Judgement (6)

Despite its mandate, one thing the Mitchell Committee did not do was find facts. The document specifically refuses to assign responsibility for the eruption and continuation of the violence (saying, we are not a tribunal ), and provides no independent opinion of its cause. Official Israeli and Palestinian viewpoints are summarized without commentary. One searches the report in vain for relevant information on casualties, weaponry, the forces using them, applicable international law and conventions or even the Israeli-Palestinian agreements that are in dispute. Absent such information, the report conveys the impression that the Committee was investigating a confrontation between two equal forces, each equally responsible for the violence. Israel s obstruction of the Committee, repeated appeals to Washington to disband it and formal suspension of cooperation are simply not mentioned. Rather, the Mitchell report uses terms such as violence (36 times) and terror(ism) (20 times) only in reference to the Palestinian side. In contrast, occupation is used four times (three times to describe a Palestinian point of view), while security refers to Israeli security only.

Within this context, the Mitchell Committee issued the following recommendations:

  • Immediate and unconditional cessation of violence;
  • Immediate resumption of security cooperation;
  • A meaningful cooling-off period to be followed by
  • Confidence-building measures; and,
  • Resumption of political negotiations.

As a confidence-building measure, the Mitchell report demands that the PA ¦ make a 100 percent effort to prevent terrorist operations and to punish perpetrators ¦ [and undertake] immediate steps to apprehend and incarcerate terrorists operating within the PA s jurisdiction. Such a formulation can only be interpreted as a call for mass repression of popular and/or organized resistance to continued Israeli occupation. The Committee does not call for an investigation of Israeli conduct in the 1967 occupied territories, despite numerous condemnations by the United Nations and international human rights groups of that conduct. The deployment of an international protection force is made conditional on Israeli approval. Moreover, there is no demand that the Israeli army withdraw its heavy equipment from the conflict, and no call for an Israeli redeployment to positions held prior to 28 September 2000. Rather, the report says the IDF should consider such moves, but only after the uprising has been terminated, security cooperation has resumed and the cooling-off period is completed. On the whole, the report allows only for a relationship between Palestinian violence and the Israeli response, ignoring the possibility of a connection between the conduct of the Israeli occupation and the intensity of the Palestinian uprising.

In a seeming break with its otherwise uncritical adoption of Israel s positions, the Mitchell report states that Israel should freeze all settlement activity, including the natural growth of existing settlements, and notes that the kind of security cooperation desired by [ Israel] cannot for long coexist with settlement activity. However, also here no reference is made to the numerous relevant UN resolutions and international conventions, and the report fails to specify whether the freeze should be temporary or permanent, and whether or not it includes settlements in eastern Jerusalem. On the resumption of Israeli-Palestinian negotiations, the Mitchell report simply abdicates responsibility, concluding that it is not within our mandate to prescribe the venue, the basis or the agenda of negotiations.

The Domination of the UN By-Pass : Back to Oslo

The Mitchell Committee and the report s various sponsors make no secret of their determination to revive the Oslo peace process that has been shattered to its foundations by the events since 28-29 September 2000. In the absence of a mechanism proposed by the Mitchell report, the U.S. administration has re-engaged with the Middle East crisis through its new Assistant Secretary of State for Near East Affairs, William Burns, and CIA Director George Tenet. Based on the experience of the past and given the unfavorable balance of power, it is not unlikely that concerted U.S. and European pressure, welcomed by the Israeli government, will put back on the track a process, whose legal framework and political assumptions cannot succeed to bring about a durable and just peace in the region.

The failure of the international community in general, and the United States and Europe in particular, to uphold the rule of law also in the context of the current crisis has reaffirmed a situation where Israel is allowed to operate above the law and beyond investigation. In the meantime, the renewed international commitment to the doomed Oslo process means that nine months after the beginning of the al-Aqsa intifada - and with over 500 Palestinians killed, tens of thousands injured, and millions of dollars of damage to private and public Palestinian property - the rule of law remains to be applied; the Palestinian people continue to suffer from Israel s ongoing occupation and brutal policies to repress Palestinian demands for their rights, including self-determination and the right of return; and, a just, comprehensive and durable solution to the Israeli-Palestinian conflict remains elusive. A current assessment of the situation, as reflected in the results of Palestinian diplomatic and lobbying efforts as well as recent international commissions of inquiry in the context of al-Aqsa intifada, suggests that also this popular uprising will fail to bring about the desired fundamental changes of international policy in the short term. A long-term effort aimed at affirming the legitimacy of Palestinian resistance and rights is therefore the only alternative option. Such concerted effort, sustained by the Palestinian leadership and the community, including its NGOs, must work to expose and delegitimize the unconditional U.S.- support of Israeli violations of international law and UN resolutions in all international fora, and explore further and take advantage of all UN mechanisms which would allow bypass of the U.S. veto in the Security Council.

Footnote and references

  • Lobby efforts of the Palestinian community inside 1948 Palestine/Israel also forced the Israeli government to establish an official, domestic commission of inquiry ( Or Commission ) into the circumstances of the killing of 13 Palestinian citizens by Israeli police forces. For further information and detailed analysis of the Or Commission see the website of Adalah “ The Centre for Arab Minority Rights in Israel, www.adalah.org
  • Jerusalem Post, 17-1-2001.
  • To read the entire UN Commission of Inquiry report (E/CN.4/2001/121) see the website of the UN High Commissioner on Human Rights ( www.unhchr.ch ). The three resolutions issued by the 57the session of the UN Commission on Human Rights (E/CN.4/RES/2001/2, 7, and 8) can be found on the same website.
  • For additional analysis on the US and European position, see: Lessons Learned or Mistakes Repeated The International Community and 52 Years of Israeli-Palestinian Conflict in: Al-Majdal, No 8 (December 2000) and BADIL Occasional Bulletins No 3 (November 2000). www.badil.org
  • To view submissions of the PLO Negotiation Affairs Department to the Mitchell Committee see, www.nad-plo.org . )
  • Major parts of this section are quoted from: MERIP Press Information Note 59, The Mitchell Report: Oslo s Last Gasp by Mouin Rabbani, June 1, 2001)

Source: ATF Shu‘un Tanmawyyeh Issue 24


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