Key words: UN, Gaza, Israel
Modern international relations, even after the formal end of the era of block confrontation, are still characterized by a high level of conflict. The processes of globalization have led to an expansion of the circle of participants in regional and international disputes: they involve not only neighboring States, but also world powers that are not directly involved, as well as international and regional organizations that are increasingly active.
Over time, such organizations have accumulated a certain experience in solving crisis situations, which, in our opinion, is still insufficient for an adequate solution of most modern international conflicts.
If we talk about the United Nations, its methods of "responding" to a particular emerging crisis "adapt" to changing regional and international realities. Despite the existence of the Security Council , the main UN body responsible for world peace and security, special bodies, committees or commissions are created to respond or enforce when absolutely necessary. Over time, the need to make the UN's work more effective has led to other forms of crisis response.
There are several reasons for this scenario. One of the main reasons is that the configuration of crises has become noticeably more complex due to the increase in the number of their participants. This led to the fact that it became much more difficult to identify the guilty party.
Cases of situations involving polar opposite views on the causes and origins of the crisis and its perpetrators have led to the fact that international ad hoc mechanisms for investigating the circumstances of the conflict have become increasingly popular. The emergence and spread of such mechanisms was also facilitated by the fact that the international community was often forced to make its decisions under time constraints.
The main feature of such" on-the-spot " mechanisms is that an attempt is being made to conduct a relatively independent investigation with the aim of forming a more or less clear picture of what happened in the international community. This could help to avoid making erroneous decisions regarding the identification of the parties responsible for the conflict, the measures to punish them, and would help to effectively address the consequences of the crisis.
R. GOLDSTONE'S MISSION
A typical example of this kind was the creation of the UN Fact-finding Mission on the conflict in the Gaza Strip, which was established in the spring of 2009 in accordance with a resolution of the UN Human Rights Council (HRC). It is an independent body with a mandate to "investigate all violations of international humanitarian law, including in the field of human rights, that were committed as a result of military operations conducted in the Gaza Strip between 27 December 2008 and 18 January 2009".1
The mission was formed from four experts in international law, judicial proceedings, and criminal investigation: Richard Goldstone 2, Kristin Chinkin 3, Hina Gilani 4, and Desmond Travers 5. Starting its work, the head of the Mission, R. Goldstone, stated that in its activities, this specially created "situation-specific" body will be guided by the norms of general international law, international norms in the field of human rights and humanitarian law6.
The Mission's goal was to report to the Human Rights Council on incidents of violations of international humanitarian law during the winter war in Gaza. A very impressive amount of work was done: interviews were conducted with direct victims of violence, witnesses; a huge array of photo and video materials was analyzed, medical reports were studied, an expert assessment of the remains of weapons and ammunition collected at the sites of incidents was carried out, etc. Two trips to the Gaza Strip were conducted to study the situation "on the spot" (while representatives of the Mission were not allowed to enter any of the sites).
* Ad hoc (from lat. ad hoc - "for this purpose") "for a special purpose".
Israel, nor the West Bank) and two rounds of public hearings in Gaza and Geneva 7. In order to achieve greater objectivity, the Mission used first-hand information as the most important criterion for drawing conclusions. Data obtained from third parties were considered only as additional evidence.
The extensive report of the Goldstone Mission was presented in the fall of 2009 during the 12th session of the UN Human Rights Council in Geneva.
Based on a detailed description of the motives and consequences of the events investigated, the Mission came to an unexpectedly critical conclusion towards the Israelis.
It is that many aspects of Tel Aviv's policy towards the population of the Gaza Strip constitute or are the result of violations of international human rights and humanitarian law. Israel is accused of implementing a policy of blockade, which is essentially a deliberate collective punishment of the entire population of the strip.
The actions taken by Tel Aviv, which were presented as measures to isolate Hamas, were in fact, according to the authors of the report, systematic efforts to establish control over the process of Palestinian self-determination and create obstacles to this process, including by detaining political figures and members of the Government and punishing the population of Gaza for its alleged support HAMAS. As a result, this approach resulted in strikes on administrative buildings, in particular, on the Palestinian Legislative Council. The report states that although the Israeli Government has tried to portray its military operations as a response to rocket attacks in the exercise of its right to self-defense, Operation Cast Lead, 8 which killed more than 1,400 people and used prohibited weapons, as well as interrogations involving threats and torture Most of the attacks were aimed at targeting the entire population of Gaza.
According to the authors of the report, such a policy of Israel aims, among other things, to weaken the sector economically, which in the future will further complicate the process of its integration with the West Bank. The destructive impact of the operation on the situation of the Palestinian population, according to the authors, will have long-term consequences for the entire Middle East region, as well as have a destructive impact on the course of the Middle East settlement.
Obviously, the main criterion adopted by the UN Mission to determine whether the loss of life in this case was a violation of international humanitarian law was the principle of proportionality.
After applying it to investigate the circumstances of the military operation, the Mission concluded that those who designed it proceeded from a policy of deliberately using disproportionately greater force, not against the enemy (Hamas), but against the "infrastructure of its support"9, which in practice meant the civilian population.
Although the report recorded that some of the dead took part in combat operations.-
and that the lack of unity among Palestinians, resulting in the confrontation between Fatah and Hamas, has negatively affected the human rights situation in the Palestinian territories, and that since April 2001, Palestinian armed groups have shelled Israeli territory, "terrorizing the civilian population", in general, the blame for violence in the region was laid on Tel Aviv. Israel has been accused of violating the Fourth Geneva Convention10, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women and fundamental principles of international humanitarian law.
Separately, the report highlighted the fact that the Israeli armed forces launched a strike against UN facilities, which is " completely unacceptable and undermines the Organization's ability to provide protection and assistance."
FATE OF THE REPORT
Thus, the factual part of the document is a detailed analysis of the facts of violations of international humanitarian law during the conflict in Gaza and identification of the guilty party. The second part of the document - "Conclusions and recommendations" - sets out possible scenarios for further actions of the international community, both at the regional and international levels.
The Mission's recommendations for further practical action on the report can be divided into three parts: for the Israeli authorities, for the Palestinian authorities, and recommendations for further discussion of the report within the UN. It was this part that caused the greatest resonance in the world community, since, according to the authors ' plan, the document was to be considered within the framework of the UN General Assembly (GA), the Security Council, and the International Criminal Court (ICC).
It is obvious that the transfer of the report from the HRC to other bodies of the UN system (GA, SC, ICC) would in practice mean a departure from the original idea of discussing this issue only within the framework of human rights protection. Moreover, the transfer of the topic to the General Assembly or the UN Security Council would mean its inevitable politicization.
Of course, representatives of Arab countries in the UN, the Non-Aligned Movement (NAM) and the Organization of the Islamic Conference (OIC) were extremely interested in such a development of events, since this provided an opportunity to once again "blow off steam" and criticize Israel.
However, to remove the issue from the framework of the HRC, it was necessary to adopt a resolution in the Human Rights Council setting out recommendations for referring the issue to other bodies of the UN system. The delegations of Palestine (which, by the way, is not a member of the HRC), Egypt (for NAM), Nigeria (for the African Group), Pakistan (for the OIC) and Tunisia (for the Arab Group) prepared a draft resolution on the human rights situation in the Occupied Palestinian Territory, including East Jerusalem. The resolution was voted on during the 12th special session of the UN Human Rights Council in October 2009.
The document condemned Israel's actions in the occupied Palestinian territories, supported the need for Israelis and Palestinians to conduct their own investigations, recommended that the UN General Assembly consider the report during its session, and also demanded that the UN Secretary-General submit a report on the implementation of the recommendations contained in the report to the next session of the HRC.11
Thus, the Mission's mandate, which initially consisted of an objective assessment of the causes and context of the" winter war " in Gaza, was significantly expanded. Russia supported the resolution, despite the fact that Moscow was not satisfied with the part of the document that recommended the transfer of the report to the UN General Assembly and the ICC. According to Russian diplomats, it is the HRC that is the optimal "platform", and the recommendations of its authors to consider the document in other UN bodies go beyond the Mission's mandate.12 Naturally, Israel and the United States actively opposed the resolution.
Having received the green light to further promote this story in the international arena, a group of determined Arab representatives achieved the adoption of a General Assembly resolution on the Goldstone report in November 2009.
The meeting, which was attended by the author of the article, was quite emotional: representatives of such countries as Syria, Saudi Arabia, Venezuela and, of course, Palestine made sharp speeches. When voting on the draft resolution, Russia abstained, explaining this decision by Moscow's rejection of those aspects of the document that called for continuing discussions on the draft resolution.-
I put it in the framework of the UN Security Council 13.
Thus, another step in politicizing the issue has been passed. The next step could be to consider the report in the Security Council, which Russia and the United States actively opposed. It should be noted, however, that this time the Arab delegates, who were determined to promote this issue, were not so eager to speed up the process of its consideration by the Security Council, since they were aware of the possible blocking of the relevant resolution by one of its permanent members.14
At the same time, Tel Aviv has done an impressive job in its own investigation of human rights violations during the Gaza War (in February 2010, the interim results of the Israeli investigation were published as an annex to the UN Secretary-General's report on this topic) .15 All that the Palestinians have managed to do so far (inter - Palestinian differences are making themselves felt) is to form a commission of inquiry, which, during its only meeting in January 2010, only managed to determine its composition and methods of work.
This suggests that before the possible transfer of the issue to the UNSC 16, the parties will have to do an impressive amount of work to implement the recommendations of R. Goldstone, which may give the necessary time for the "passions" around this subject to subside. At the same time, the UN oversees a Committee of Independent Experts to monitor and evaluate Israeli and Palestinian investigations into human rights violations during the Gaza conflict.17
The first serious barrier to the transfer of the issue to the Security Council was raised during the next discussion of the issue within the framework of the HRC in March 2010. The active work of Russian diplomats conducted with European and Arab delegations in Geneva contributed to the fact that the HRC resolution adopted after the discussion did not refer to the need to transfer the issue to the Security Council.18
For Moscow, this result was important because it prevented the UN Security Council from becoming a platform for "letting off steam" on issues that were" urgent " for certain members of the international community, and also helped prevent the Council's functions from being diluted. This time, Russia voted in favor of the resolution, because the amendments made removed our main concerns and gave the text of the resolution a greater balance (as, among other things, the Russian representative stated in his speech following the vote) .19
A GROWING TREND
There is a growing concern about the tendency to use the UN, and especially the Security Council, as a mechanism for solving certain domestic political and purely propaganda tasks. In this regard, according to the Russian Foreign Ministry, it is important to put a barrier in the way of this growing trend. The Security Council's prerogative, according to Article 24 of the UN Charter, is to "maintain international peace and security"20 as a whole.
It is clear that the artificial politicization of the topic hinders a calm, professional analysis of the recommendations of R. Goldstone's report, which should be continued primarily within the framework of the HRC, since the plot directly concerns human rights violations. Despite the conclusions and recommendations contained in the report, which may or may not be accepted, it deals with particular violations of international humanitarian law in a particular conflict that occurred within the framework of an already existing and decades-long crisis.
According to Russian diplomats, the report should be considered in the relevant body - the UN Human Rights Council, and not in the Security Council, which deals with the Middle East settlement in general.
From a strategic point of view, the policy of rejecting the opportunistic behavioral model and ensuring a clear delineation of the powers of UN bodies, avoiding the erosion of their functions and mutual intrusion into their areas of competence ultimately meets the interests of all stakeholders and should continue to be one of the key points in approaches to the functioning of the entire UN system.
It should be recognized that the activities of the UN Fact-finding Mission in connection with the conflict in the Gaza Strip are only a special case of a more general, systemic problem.
The creation of the Mission, its functioning pattern, and the response of stakeholders to its work highlighted a whole range of related issues and demonstrated that such mechanisms can be an effective foreign policy lever both in the hands of the international community as a whole and individual States.
* * *
In recent years, similar forms of ad hoc response to various crises and conflict situations have become increasingly popular.
In this context, we can mention, for example, the international commissions to investigate the assassination of former Lebanese Prime Minister R. Hariri, the fight against impunity in Guatemala, 21 in connection with the assassination of former Pakistani Prime Minister B. Bhutto, the investigation of the tragic events of September 28, 2009 in Guinea, 22 the "International Independent Fact-Finding Commission". regarding the conflict in Georgia"
(the so-called "Tagliavini Commission", formed by the EU).
It is obvious that the international community has not yet developed clear criteria for such situations when the establishment of such "investigative" mechanisms seems justified. It is also not clear how and on what legal basis their work should be launched, the parameters of their functioning, the possible scope of competence and the levers of implementation of their recommendations should be determined.
The issue of qualified personnel support for the activities of such UN structures is also important. It seems that the idea of creating a group of experts to join the work of the commissions could be useful. These should be specialists who enjoy the trust of interested parties.
The issue of financing is also important here. It would be useful to avoid putting an additional burden on the UN regular budget, which is already experiencing serious difficulties. Perhaps the best scheme would be to set up trust-based voluntary funds, or allocate funds by States interested in establishing the facts (as was the case with the commission in connection with the murder of B. Bhutto).
But, probably, the main criterion is to ensure an independent format of activities. Only then will the commission's work be effective.
Systematization of the activities of ad hoc fact-finding commissions could help prevent more frequent attempts to involve the UN Security Council in the consideration of subjects that do not directly concern it, do not directly affect the maintenance of international peace and security, and give it a kind of investigative functions. At the same time, it would help to ensure that these issues do not fall out of the UN Security Council's field of view and remain under its "supervision". At the same time, there can be no question that if the activities of international fact-finding commissions are given a unified, uniform character, the UN's authority as a key structure for crisis resolution in the international arena will be undermined. In our opinion, this will only give the world organization, which is the UN, additional levers of influence and response to conflicts and problematic situations, and will help reduce international and regional tensions.
1 Official website of United Nations Fact Finding Mission on the Gaza Conflict - http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/FactFindingMission. htm
2 R. Goldstone-Former Attorney General of the International Tribunals for the Former Yugoslavia and Rwanda (Jewish by origin).
3 K. Chinkin-Professor of International Law.
4 H. Jilani is a lawyer of the Supreme Court of Pakistan.
5 Colonel D. Travers is a member of the Board of Directors of the Institute of Criminology of Ireland.
6 A/HRC/12/48. Report of the United Nations Fact-finding Mission on the Gaza conflict - http://www.ohchr.org
7 In total, the Mission conducted 188 separate interviews, reviewed 300 reports, communications and other documents totaling more than 10,000 pages, over 30 videotapes and 1,200 photographs.
8 "Cast lead" is the code name for the Israeli military operation in the Gaza Strip that took place between December 27, 2008 and January 18, 2009.
9 A / NCS / 12 / 48...
10 Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949.
11 A/HRC/S-12/L.1. Draft resolution of the UNHRC entitled "Human rights situation in the Occupied Palestinian Territory, including East Jerusalem". - http://www.ohchr.org
12 Statement by Permanent Representative of Russia Vladimir Loshchinin at the 12th special session of the UN Human Rights Council in explanation of vote in connection with the adoption of the resolution "The situation of human rights in the Occupied Palestinian Territory, including East Jerusalem". Geneva, 15-16 October 2009 - http://www.mid.ru
13 Statement by Permanent Representative of the Russian Federation Vladimir Churkin in explanation of vote at the UN General Assembly on the issue of the UN Human Rights Council report. New York, November 5, 2009 - http://www.mid.ru
14 Decisions of the UN Security Council (except for procedural ones) require 9 votes out of 15, including the concurring votes of all permanent members (Russia, the United States, France, Great Britain and China). This means that each of the five permanent members of the Security Council has the right to veto decisions of the Council.
15 Follow-up to the Report of the United Nations Fact Finding Mission on the Gaza Conflict. Report of the Secretary-General - http://unispal.un.org/pdfs/A64651.pdf
16 According to Article 25 of the UN Charter, decisions of the Security Council are binding, which explains the desire to include the issue in the Security Council's agenda.
17 In the summer of 2010 UN High Commissioner for Human Rights N. Pillay has appointed 3 members of a Committee of Independent Experts to monitor and evaluate Israeli and Palestinian investigations into human rights violations during the winter war in Gaza. The appointment was made in accordance with the resolution "Follow-up to the report of the UN independent International Fact-finding mission on the Gaza conflict"adopted at the 13th session of the Human Rights Council. The Committee consists of the following experts: Christian Tomuskat (Chairman of the Committee), Professor Emeritus at Humboldt University (Berlin). Before becoming Head of the International Law Department at the University, he served as Director of the Institute of International Law at the University of Bonn; Mary McGowan Davis served as a judge of the Supreme Court and Federal Prosecutor of the State of New York. She trained judges and lawyers in Afghanistan, Iraq, Mongolia and Rwanda. She has worked as a consultant to the International Criminal Tribunal for Rwanda and the International Criminal Court; Param Coomaraswamy is a well-known lawyer and human rights expert. In 1994-2003. He served as Special Rapporteur of the UN Commission on Human Rights on the independence of judges and lawyers. The resolution provides for the Committee to provide a report on its activities during the meeting of the HRC.
18 Документ ООН A/HRC/13/L.30 - http://daccess-dds-ny.un.org/doc/UNDOC/LTD/G10/124/26/PDF/G1012426.pdf?Ope nElement
19 Statement by Permanent Representative of the Russian Federation Vladimir Loshchinin at the 13th session of the Human Rights Council on the adoption of the draft resolution "Follow-up to the report of the UN fact-finding Mission on the Gaza conflict" - http://www.geneva.mid.ru/speeches/speeches.html
20 UN Charter. UN website - http://www.un.org
21 The United Nations-led Joint Commission of Experts on Combating Relentless Violence and Impunity in the country was established in 2007 to combat illegal organizations accused of committing the worst wartime atrocities during the 36-year civil war that ended in 1996.
22 UN Secretary-General Ban Ki-moon has decided to establish an international commission of inquiry to investigate the tragic events in Guinea in September 2009 related to the Government's brutal crackdown on peaceful demonstrators, which resulted in the death of 150 people.
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