Last week, the United Nations Human Rights Council adopted a resolution, S-21, creating a "commission of inquiry" to investigate human rights violations in the Gaza war. Nowhere does the resolution mandate that the commission conduct a fair, impartial and balanced investigation. This was not a drafting error.
S-21, without any fact-finding, renders a verdict against Israel. It declares that the Israeli military operations in the Gaza Strip have constituted "widespread, systematic and gross violations of international human rights and fundamental freedoms."
It further states as fact that Israel engaged in "disproportionate and indiscriminate attacks" on civilians. For good measure, S-21 also recites every grievance of Palestinians, even the ones unrelated to human rights violations in the current Gaza conflict, from Palestinian prisoners to the occupation of the West Bank to East Jerusalem. Conspicuously, it nowhere mentions Hamas and in just one sentence only indirectly mentions the rockets the militant group launched against Israel that provoked the conflict in the first place.
This is not the first exercise by the Human Rights Council in show-trial justice, where even well-intentioned investigators come to grief.
Following the Gaza war in 2008-09, the council established a fact-finding mission whose initial terms similarly declared Israel guilty of human rights violations. A respected South African jurist, Richard Goldstone, agreed to lead the investigation on more neutral terms and concluded that Israel had intentionally targeted civilians, citing in particular the deaths of a large Palestinian family as a result of an Israeli bomb.
But a subsequent Israeli military investigation determined that these tragic deaths were not deliberate but the result of an Israeli officer's failure to properly interpret a drone image. This caused Goldstone to reject his own report's conclusion about Israel's intentions and policy toward civilians. He criticized Israel for not cooperating with his investigation, despite its improved mandate, but he also said: "If I had known then what I know now, the Goldstone Report would have been a different document."
The council's S-21 resolution constitutes a major embarrassment to the Obama administration, which reversed the George W. Bush administration's policy of U.S. nonparticipation in the council after its creation in 2006, because of its repeated focus on Israel while downplaying human rights abuses elsewhere.
In 2007, for example, even U.N. Secretary General Ban Ki-moon, hardly a defender of Israel, expressed disappointment that the council had singled out "only one specific regional item" for its attention. In 2008, the council appointed as its special rapporteur on the question of Palestine an American scholar, Richard Falk, who had compared Israel's treatment of Palestinians with the Nazis' treatment of Jews during the Holocaust. According to Elliott Abrams, who served in foreign policy positions in several Republican administrations and is a strong council critic, since 2006 the council has passed 50 anti-Israel resolutions, almost the same number of human rights resolutions as it passed against the rest of the world.
The U.S., by virtue of being the largest contributor to the U.N., is now the council's largest funder, which means that American taxpayer dollars will probably be supporting a biased investigation of Israel. That money, needless to say, can be put to better use.
True, without the U.S., there would have been no votes against S-21, which was backed by such human rights stalwarts as China, Russia and Cuba (the European countries abstained). But, as S-21 shows, the Obama administration's participation has not fundamentally changed the council.
The defenders of U.S. participation in the council, such as James Traub, a columnist for ForeignPolicy.com, point to what they call "small victories," such as the council's criticism of regimes in Libya and Syria and its requirement that Sri Lanka's government investigate civilian deaths in its war against Tamil insurgents. But these modest achievements are not worth paying the moral price of having our name on the door of an organization while it conducts what is essentially a propaganda exercise on behalf of Hamas.
Hamas, which the council sees no reason to censure in its new resolution, makes no pretense that it has been trying to kill as many Israeli civilians as possible within the limits of its rockets' accuracy. Israel, pronounced guilty by S-21, went to significant lengths to avoid unnecessary Palestinian civilian deaths, including calling inhabitants of a house to warn them of an imminent missile strike and providing the Israel Defense Forces commanders with precise coordinates for more than 500 schools, mosques and hospitals, some of them discovered to be storage sites for Hamas rockets, to avoid unnecessarily hitting them.
Whether Israel could have done more to prevent Palestinian civilian deaths is a fair question — and it deserves a fair and impartial investigation. Under the best of circumstances — as seen in the Goldstone inquiry — a human rights investigation in the Israeli-Palestinian conflict requires near superhuman thoroughness and objectivity. Suffice it to say, these will not be the hallmarks of an investigation conducted by a commission of inquiry appointed under S-21.
Gregory J. Wallance, a former federal prosecutor, is a lawyer and writer in New York. He is on the board of the not-for-profit organization Advancing Human Rights.
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