Toby Cadman and the 9 Bedford Row International, London have been instructed by the Hemaya Centre for Human Rights in Gaza and the Arab Organisation for Human Rights UK, to draft and submit a report to the UN Commission of Inquiry into the 2014 Gaza conflict.
Following those instructions, a preliminary report has been presented to the U.N. Independent International Commission of Inquiry for the Occupied Palestinian Territories (COI), with a view to a full report being submitted during the upcoming U.N. Human Rights Council Session in March 2015.
A further report will also be submitted to the Prosecutor of the International Criminal Court requesting that a full investigation is initiated concerning the events surrounding “Operation Protective Edge”.
The report submitted provides an overview of the relevant issues including an analysis of the relevant international law that governs armed conflict.
The conclusion of the report is clear in that there are credible allegations of war crimes within the jurisdiction of the International Criminal Court having been committed by Israel and the Israeli Defence Force; instances of indiscriminate bombing, the clear deliberate targeting of civilians, and the wholly unjustifiable destruction of countless sites of civilian infrastructure with the sole purpose being that of destruction, and further, collective punishment of the Palestinian civilian population.
During the drafting of the report, no evidence could be found to support the premise that Israel acted within the confines of international law or that its actions were proportionate or in self-defence. Such a suggestion is without any proper basis.
It is therefore anticipated, on the basis of the voluminous material put before the U.N. Commission of Inquiry, that it must conclude that a prima facie case has been made out that requires the ICC to launch a formal investigation.
It is noted with some concern that the Government of Israel has refused to cooperate with the U.N. Commission of Inquiry and has attempted to frustrate its investigations by refusing to allow investigators into Gaza.
Rather than cooperating with a legitimate process mandated by the U.N. Human Rights Council, the Government of Israel has adopted a position of challenging the credibility of the Inquiry and its members, in particular challenging the appointment of Professor William Schabas, a leading expert in international law.
In this regard, we note the adverse developments announced on 2 February 2015, and it is hoped that the news of Professor William Schabas resigning as Chair of the Inquiry will not lead to any delay in the publication of the report.
We note the reasons of Professor Schabas and fully support his decision to step down in the interest of the integrity of the process. However, we are appalled by an apparent smear campaign that has sought to undermine this process from the outset and the timing of the challenge is clearly aimed at discrediting the conclusions reached by the remaining Commissioners that is likely to be highly critical of Israel’s role during Operation Protective Edge.
It is clear from the letter of resignation submitted by Professor Schabas to the President of the U.N. Human Rights Council that the issue upon which advice was provided to the Palestinian Liberation Organization is entirely distinct from the mandate of the U.N. Commission of Inquiry.
Advice was provided on the issue of UN recognition in 2012. It cannot be argued that this could taint any stance taken in respect of an inquiry into allegations of war crimes. The two issues are clearly distinct.
The timing of the challenge is of serious concern and it is noted that although Israel raised the issue, they waited until the investigatory stage of the inquiry had been completed and the drafting had begun on the report itself.
There is a clear inference that the complaint made by Israel was timed so as to attempt to sabotage the U.N. Commission of Inquiry in its entirety and seek to taint any findings that may be made.
Not content with refusing to engage with the Inquiry, Israel have clearly and quite deliberately taken steps so as to attempt to prevent accountability, and to prevent the undoubted victims of the conflict seeking that accountability.
These are not the actions to be expected of a democratic state that lauds itself as being one which protects the human rights of all.
The actions are that of a state that continues to act with impunity and refuses to be held accountable.
This development should not be allowed to cloud the real issues, those being the very clear and well documented allegations of war crimes, the 2,100 civilian casualties, and the tens of thousands of residents being displaced given the widespread damage caused.
We further note that Israel is still refusing to engage with the Inquiry, and as much as we accept that there is no legal obligation to do so, there is a clear moral obligation.
Israel is therefore called upon to cease its rhetoric and discharge its moral obligation in co-operating with the Inquiry rather than seeking to undermine and destroy an entirely legitimate and essential inquiry.
We further note that to maintain the position that the U.N. and therefore the Commission of Inquiry demonstrates bias against Israel is untenable.
Untenable as evidenced by the resignation of Professor Schabas. Once it became apparent that the integrity of the Inquiry’s work could be put in jeopardy, Professor Schabas, as an exemplary professional, voluntarily stepped down.
This evidences the independence of the Inquiry.
The international community is reminded that the mandate of the U.N. Commission of Inquiry is to investigate whether allegations of war crimes are credible. It would therefore be inappropriate to give undue attention to today’s events which are a clear underhand tactic.
The U.N. Commission of Inquiry is reminded that it is due to publish its findings at the March 2015 session of the U.N. Human Rights Council and it is therefore called upon to abide by that deadline.
Toby M. Cadman
Barrister-at-law Chambers of Anthony Berry QC
9 Bedford Row, London
Tel: +44 207 489 2727
Fax: +44 207 489 2828