[Editor’s Note: This is the 2nd part of a two part article. Part I is General Assembly debates the Goldstone Report.]
I-UN General Assembly Resolution on the Goldstone Report
The Goldstone Report presents facts and evidence to document that there were substantial humanitarian and human rights violations, especially by Israeli decision makers and military personnel during the 22 day military attack on the people and institutions of the Gaza. The Report concludes that international law requires that criminal investigations be undertaken by both Israeli and Palestinian authorities.(1)
In addition to recommendations for the parties involved in the conflict, the Report makes specific recommendations for action by some of the organs of the United Nations and by the nations to uphold the obligations of international humanitarian and human rights law.(2)
Along with the endorsement for the Report, and the request that the Secretary General transmit the Report to the Security Council, the General Assembly Resolution mandated several additional actions. (3) These actions include:
1. The Resolution “calls upon the government of Israel to take all appropriate steps, within a period of three months, to undertake investigations that are independent, credible, and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the Fact-Finding Mission, toward ensuring accountability and justice.”
2. The Resolution “urges . . .the Palestinian side, within a period of three months, to undertake investigations that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the Fact-Finding Mission toward ensuring accountability and justice.”
3. The Resolution recommends to the Government of Switzerland, in its capacity as depository of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, to undertake the necessary steps as soon a possible to reconvene a Conference of High Contracting Parties to the Fourth Geneva Convention on measures to enforce the Convention in the Occupied Palestinian Territory, including East Jerusalem, and to ensure its respect in accordance with common article 1.
4. The Resolution requests the Secretary-General to report to the General Assembly, within a period of three months, on the implementation of the present resolution, with a view to considering further action, if necessary, by the relevant United Nations organs and bodies, including the Security Council.
5. The Resolution says that the General Assembly will remain seized of the matter, which means that the Report and its Implementation will remain on the General Assembly’s agenda.
The transmission of the Goldstone Report to the Security Council had been vigorously opposed by Israel. The action of the Secretary General carrying out the request to him by the General Assembly contained in UN Resolution A/RES/64/10 to transmit the Report to the Security Council has placed the Report officially before the Security Council. The Security Council is thus in a position to take action on the Goldstone Report in accord with its special obligations under the United Nations Charter.
II-Goldstone Report Recommendations for the Security Council
The Report has several particular recommendations for action by the Security Council.
The Report recommends that the Security Council under Article 40 of the UN charter require that Israel launch the appropriate investigations into the alleged violations that are described in the report and into any other serious violations that may come to its attention.
The Report has a similar recommendation to the Security Council with respect to investigations into violations and legal proceedings to be undertaken by the relevant authorities in Gaza.
The Report recommends that the Security Council establish “an independent committee of experts in international humanitarian and human rights law to monitor and report on any domestic legal or other proceedings undertaken by the Government of Israel in relation to the aforesaid investigations.” (Report p. 423, Para. 1969)
The Committee of Experts would report to the Security Council periodically. At the end of a six month period of time it would assess “the progress, effectiveness, and genuineness” of any Israeli domestic legal proceedings. Its question would be: Has Israel satisfied its obligations under international law to take appropriate action to ensure justice for the victims and accountability for perpetrators of violations?
Similarly, the Goldstone Report recommends that upon receipt of the Report, the Security Council should also require the Committee of Experts to assess any proceedings undertaken by relevant authorities in the Gaza Strip in relation to needed investigations of violations of human rights law. (Report p. 424, Para. 1969)
The Report includes additional recommendations to the Security Council and the General Assembly if the needed investigations are not carried out by Israel or by the appropriate authorities in Gaza, including the referral to the International Criminal Court (ICC), or the exercise of universal jurisdiction by states bound to uphold international human rights and humanitarian law.
Though the Report has been transmitted to the Security Council, the Council has yet to act on any of the Recommendations.
In response to a question about what the Security Council could be expected to do, Thomas Mayr-Harting, the Austrian Ambassador to the UN, who is the President of the Security Council for the month of November, said as soon as he received the Report from the Secretary General, he would circulate it to the members of the Security Council. He was not able to say what would happen after the Report was circulated. Speaking in his national capacity, however, he said he didn’t foresee any immediate action by the Council on the Report. (4)
If the Security Council does not carry out the recommended actions, the Report says that “the General Assembly may consider whether additional action within its powers is required in the interests of justice, including under its resolution 377 (V) on uniting for peace. (p. 425, Para. 1791c) Resolution 377 (V) Uniting for Peace. (5)
III-Uniting for Peace Resolution if Security Council Action Blocked
The Uniting for Peace Resolution notes that the blocking of urgent action by a permanent member of the Security Council does not relieve the members of the UN of their responsibility under the Charter. Under Article 24 of the UN Charter, members of the UN confer “on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”
In the event that Security Council fails to carry out such duties, the Uniting for Peace Resolution provides for the General Assembly to assume the responsibility. If the General Assembly is in session, a meeting is to be called. If the General Assembly is not in session, there is a procedure to call for an Emergency Session, which is to meet within 24 hours of the request.
IV-Voting Pattern Members of Security Council and General Membership Compared on GA Resolution
A comparison of the general pattern of voting in the General Assembly for the endorsement of the Goldstone Report by the 192 members of the General Assembly with the pattern of votes by the 15 members of the Security Council on the General Assembly resolution provides an indication of the sentiment among the members of the Security Council to act on the recommendations in the Goldstone Report.
The voting pattern of the 15 member Security Council varied greatly from the voting pattern of the 192 member General Assembly on the resolution in the General Assembly endorsing the Goldstone Report. This comparison reveals the sharp divergence between the two organs of the UN.
Compare the following:
General Assembly Voting Results on GA Goldstone Report Resolution (Total membership 192)
To support the Resolution: 114 members
To Oppose the Resolution: 18 members
Abstaining from Voting: 44 Members
Not Voting: 16 Members
Members of Security Council Voting on GA Goldstone Report Resolution (Total Membership SC is 15)
To support the Resolution: 5 members
To Oppose the Resolution: 1 member
Abstaining from Voting: 9 Members
Not Voting: 0 Members
A majority (114) of the 192 UN member states voted Yes for the GA Resolution, but that included only a minority (5) of the 15 members of the Security Council.
The five who voted to support the GA Resolution: China, Turkey, Mexico, Vietnam, and Libya.
The one who voted in opposition: the US
The nine who abstained from voting: Britain, France, Russia, Austria, Croatia, Burkino Faso, Uganda, Costa Rica, and Japan
Given the difference in voting patterns between those member nations who are on the Security Council and those who are not, it is likely that there will be a significant difference between the actions that can be undertaken by a majority of the membership of the General Assembly, as compared with the actions that are likely to be taken in response to the Goldstone Report recommendations by the 15 members of the Security Council.
Though the authors of the Goldstone Report deemed it appropriate that the Security Council be asked to carry out the recommended actions which are within its powers, the Report also refers to alternative processes like “Uniting for Peace” that are available to the General Assembly, if the Security Council remains blocked from carrying out its obligations.
V-Credibility of International Law and the UN at Stake
The debate that has been raging over the issues raised by Operation Cast Lead and subsequently by the Fact-Finding investigation and subsequent Goldstone Report demonstrates that there are significant differences in how the rule of law is regarded by different member nations of the United Nations and how it is practiced in different organs of the UN like the Security Council and the General Assembly.
The Goldstone Report has raised many important issues, but one of the main outcomes it foresees is that, if the international community fails to be able to enforce a credible rule of law, the credibility of the international community and of the United Nations will be called into question. Describing this dilemma, the Goldstone Report explains (p.420-421, Para. 1957):
“The Mission was struck by the repeated comment of Palestinian victims, human rights defenders, civil society interlocutors and officials that they hoped that this would be the last investigative mission of its kind, because action for justice would follow from it. It was struck, as well, by the comment that every time a report is published and no action follows, this ‘emboldens Israel and her conviction of being untouchable’. To deny modes of accountability reinforces impunity, and tarnishes the credibility of the United Nations, and of the international community. The Mission believes that these comments ought to be at the forefront in the consideration by Member States and United Nations bodies of its findings and recommendations and action consequent upon them.”
Notes:
1) The Report is available online. The url is
http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/FactFindingMission.htm
2) See pages 422-429, Para. 1967-1979 of the Goldstone Report for the conclusions and recommendations.
3) There are a series of principles that have been established which such an investigation should fulfill. These are “that authorities must act on their own motion, act with independence, be effective and prompt.” (See Report, p. 389. Para. 1809)
4)Media Stakeout: Press statement on the situation in Afghanistan. Informal comments to the Media by the President of the Security Council and Representative of Austria, H.E. Mr. Thomas Mayr-Harting on the situation in Afghanistan and the Middle East, including the Palestinian question. November 6 2009, 5:55 – 7:33.
[Webcast: Archived Video – 10 minutes ]
http://webcast.un.org/ramgen/ondemand/stakeout/2009/so091106pm3.rm
5) General Assembly Resolution A/RES/377(V) A 3 November 1950 377 (V). Uniting for Peace. See Ronda Hauben, “The World Has Been Watching”, OhmyNews International, January 6, 2009.
