UN Watch rejects the findings expressed by the UN’s Gaza inquiry at their recent press conference, for the reasons described below.

The UN Human Rights Council’s commission of inquiry into Israel’s “assault” on “civilian protests” at the Gaza border held a press conference on Feb. 28th to release its initial report accusing Israel of “crimes against humanity” against so-called “peaceful” protesters.

For our initial analysis of the report, click here.

Below is UN Watch’s initial response to the press conference.

  1. COI investigation not “objective.” COI Chair Santiago Canton claimed the investigation was “objective,” and that it examined violations by all “duty bearers.” However, the COI report overwhelmingly criticizes Israel and ignores serious Hamas violations, including massive incitement to terrorism, the use of women and children as human shields, recruitment and training of child soldiers, and disguising Hamas fighters as civilians. The COI fails even to find Hamas responsible for the launching of incendiary kites, only criticizing Hamas for failing in its “due diligence obligations to prevent” the use of these incendiary devices. This shows that the investigation was not truly objective and did not seriously examine Hamas violations.

 

  1. COI investigation concerned only with “human life” of Palestinians, not Israelis. COI Chair Canton emphasized a few times that the COI was most concerned with protecting “human life.” However, the report considered only threats to Palestinian life, omitting any discussion or consideration of the threats to Israeli life, meters from the border fence. Furthermore, it incorrectly judged the threat to Israelis based on the after-the-fact effects of the border violence on Israelis, rather than looking prospectively at the potential for harm. For example, the report noted “No Israeli civilian deaths or injuries were reported during or resulting from the demonstrations…”; and “some [incendiary kites and balloons launched from Gaza] landed in empty educational institutions and private homes.” It appears the COI required Israelis to be killed or injured in order for it to conclude that Israelis were in danger.

 

  1. COI findings based on incomplete data. COI member Sara Hossain claimed the COI’s research was based on “verified data.” In response to a question on this topic, COI Chair Canton responded that data was verified by checking it with witnesses and participants. However, verifying the accuracy of video footage with Palestinian witnesses provides only half the story. It does not take into account the Israeli side at all (e., what were the consideration for that particular use of live fire). Since the COI did not have cooperation from the Israeli government, its conclusions concerning specific cases can have been based only on partial and incomplete data. We note that submissions from Israeli NGOs cannot substitute for data exclusively in the hands of the IDF. This deficiency should have been prominently noted in the report. Furthermore, even if all the video footage reviewed by the COI is deemed authentic, the COI’s analysis must take into consideration the many surrounding circumstances going on at that particular time and place which might not appear in the video (e.g., visibility conditions due to heavy smoke from tire burning, the victim’s activity in the minutes leading up to being shot, crowd dynamics, proximity to Israeli communities, etc.).

 

  1. COI ignored evidence of weapons among so-called peaceful protesters. COI Chair Canton stated: “We found two or three instances of armed individuals, but we didn’t find all along the investigation we conducted, we didn’t find cases of violence, and arms, and people with arms.” Likewise, COI member Hossain stated: “We didn’t find the use of arms along the protests anywhere except in those two incidents that we mentioned.” Given the extensive amount of publicly available open source data on weapons among the protesters, including preparation of explosives, IEDs at the fence, weapons found on rioters who crossed the fence, etc. (see, e.g., here, here, here, here, here, and here) this statement shows that the Commissioners either did not conduct a thorough investigation of the events, or deliberately misrepresent the evidence.

 

  1. COI interpreted its mandate narrowly to avoid addressing instances of militant activity at the fence. While the COI purported to investigate “every killing” (Hossain’s words) regardless of when or where it occurred, indicating a desire to hold Israel accountable to the maximum extent, in all other respects it viewed its mandate narrowly as limited to activity occurring only on protest days at the five officially designated protest sites. This, notwithstanding that incidents, including border infiltrations and cross-border attacks, occurred throughout the period at other sites along the border fence, and at other days and times. Thus, the report deliberately omits relevant material concerning militant activity along the border fence. COI Member Hossain even acknowledge this deficiency: “We acknowledge that hostilities did continue during this time and there were many other incidents, but we actually haven’t looked at those in the context of this investigation.”

 

  1. COI members evade questions about consultations with military experts. The COI members responded evasively as to what, if any, military experts they consulted. COI Chair Canton stated that the COI consulted with “the most relevant legal experts on international humanitarian law and international human rights law in the world,” but indicated that no Israeli military expert provided testimony. At the same time, COI Member Hossain stated that they did consult with “Israeli military experts.” The COI should identify the military experts with whom it consulted.

 

  1. COI misrepresents IDF investigations. The COI criticized Israel’s internal review procedures on the basis that to date Israel has opened only five criminal investigations. The COI did not mention that these five criminal investigations concern eleven fatalities, and made it sound like the IDF has investigated only five deaths. COI member Hossain said: “according to our findings there are far more than five people who have been killed, and very many who have been injured… as far as we know there are no investigations by any authority in Israel into those incidents.” This is directly contradicted by the IDF website, that its internal fact-finding mechanism investigates each and every death with a priority for incidents involving children, medical personnel and journalists. Criminal investigations are opened only in cases where the Military Advocate General (MAG) has decided there is a reasonable suspicion of criminal misconduct. Most of the cases are still under review. In this regard, COI Chair Santiago Canton provided no support for his statement that “Israel is well within reasonable time to conduct thorough investigations on all the cases we presented in the report.” Indeed, the COI’s own investigation is incomplete and inconclusive as it ignored relevant data, such as involvement of victims in militant activity along the border fence, and did not have access to crucial classified IDF data. In criticizing IDF investigations, the COI also ignored challenges faced by the IDF in fact-gathering, including its inability to access the scene, and lack of cooperation from Palestinian witnesses and health care providers.

 

  1. COI absolves Hamas of responsibility for harm to so-called protesters. COI Chair Canton absolved Hamas of all responsibility for the safety of Gazans along the border fence because “to put the responsibility on the de facto authority” would violate the assembly rights of Palestinians who should be able to decide for themselves “whether they want to participate in those demonstrations.” According to Canton, Hamas’s only responsibility is to provide Gazans with information about what is happening at the fence, so that their decision on whether to participate will be sufficiently “informed.” This approach completely ignores the fact that the border fence separates two hostile entities engaged in an ongoing armed conflict, and that anyone approaching the fence places themselves in grave danger. While the right to “peaceful assembly” is enshrined in international human rights law, restrictions on this right are permitted for “national security, or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” (ICCPR Art. 21). Certainly, Hamas would not have violated anyone’s rights to assembly, if it had insisted demonstrators must maintain a safe distance from the fence. Instead, Hamas actively lifted the access restrictions that had been put in place for the safety of Gazans to allow the “march of return” to take place at the fence itself, knowing, expecting, and wanting the IDF to respond forcefully so that it could achieve a media victory. By absolving Hamas of responsibility here, the COI legitimizes Hamas’s illegal tactics, and its cynical exploitation of Palestinian civilians.

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