A/HRC/10/20
page 4
I. INTRODUCTION
1.
The present report does not have benefit from a recent mission to Gaza. Such a mission
was planned and attempted in mid-December 2008, but was not carried out due to the denial of
entry to the Special Rapporteur on the situation of human rights in the Palestinian territories
occupied since 1967. The mission to Gaza was to include a visit to the West Bank and
East Jerusalem, and was supposed to commence with a scheduled meeting with the President of
the Palestine Authority, Mahmoud Abbas. Entry was denied on 14 December 2008; the Special
Rapporteur was detained in a facility close to Ben Gurion Airport, then expelled from Israel the
day after. Such a refusal to cooperate with a United Nations representative, not to mention the
somewhat humiliating treatment accorded (detention in a locked and dirty cell with five other
detainees, and excessive body search), has set an unfortunate precedent with respect to the
treatment of a representative of the Human Rights Council, and more generally of the
United Nations itself. This precedent should be seriously challenged for the sake of both the
mandate and, more broadly, to ensure that in future Member States accord appropriate respect
and cooperation with official United Nations missions and activities. One possible form of
challenge would be to seek an advisory opinion from the International Court of Justice as to the
applicability of the Convention on the Privileges and Immunities of the United Nations. Since
such an approach, even if undertaken, would not produce a result in the near future, it would also
be important to seek a modification as soon as possible to the position of Israel via diplomatic
channels.
2.
The expulsion of the Special Rapporteur made information gathering on the ground
impossible. In the light of resolution S-9/1 adopted by the Human Rights Council at its ninth
special session, the report will focus on the main international law issues raised by Israeli
military operations commencing on 27 December 2008 and ending on 18 January 2009. It also
considers implications for international criminal law, and discusses the underlying debate as to
whether the attacks themselves were violations of the Charter of the United Nations and
international law. This broader inquiry is perhaps not strictly within the ambit of the mandate as
a distinct subject matter, but its resolution bears directly on the interpretation of alleged
violations of international humanitarian and human rights law, which in turn underpin
contentions of war crimes and crimes against humanity, as well as implications for
accountability and individual criminal responsibility.
II. INTRODUCTORY CLARIFICATIONS
3.
A conceptual complexity arises from the nature of the participants in this conflict with
respect to international law. International law governing the use of force has developed over time
to regulate the behaviour of States in their relations with one another. Without questioning in any
way the unity of the Occupied Palestinian Territory, it is important to recall that Gaza is sealed
off from the rest of occupied Palestine and is not directly represented, given its present
administrative structure, in international diplomatic arenas, such as during the donors conference
held at Sharm el-Sheikh in March 2009 or in the United Nations. At the same time, the purposes
of international law governing force is concerned with the protection of peoples and the
preservation of peace, a sentiment echoed in Article 2, paragraph 4, of the Charter extended
beyond relations among States by the phrase “or in any other manner inconsistent with the
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