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UN Week – 10/25/2010

October 31, 2010

by John and Douglas Carey, Editors, see

Contents of this issue: Professor Falk on Palestinians’ problems;

Myanmar elections approach.

Professor Falk on Palestinians’ problems.

On October 20th American Professor Richard Falk presented a report to the General Assembly in his capacity as Special Representative on Palestinian Territories. I know Falk. In the 1960s, he and I and a dozen or so other 40-something lawyers organized the Procedural Aspects of International Law Institute.

Our leader was the late Professor Richard B. Lillich of the University of Virginia Law School. Dick Falk was then teaching at Princeton. We each produced a book on some procedural aspect of international law. Mine, published in 1970, was entitled “UN Protection of Civil and Political Rights.” Syracuse University Press was the publisher.

Falk told the General Assembly on October 20th that the Government of Israel had failed to allow him to enter the country so as to study the situation inside the West Bank, East Jerusalem and Gaza. The same treatment, he said, was extended  to the Fact-Finding Mission on the Gaza Conflict, known as the Goldstone Report, and the fact-finding panel to investigate the flotilla incident of May 31, 2010.

Falk has been accused of being pro-Palestinian. Yet he said his mandate had been hampered, to some extent, by the Human Rights Council, which never acted on the proposal in his initial report that the mandate be reformulated to allow for the consideration of Palestinian, as well as Israeli, violations of international law. Additionally, while the Palestinian Authority had supplied helpful information, he had felt considerable pressure from it regarding his independence as a Special Rapporteur, particularly with respect to reporting on the situation within Gaza.

His report, Falk said, stated that the cumulative effect of the settlements, the security wall and the extensive settler-only road network had been to convert de jure “occupation” into de facto “annexation”. The extension of the Jewish presence in East Jerusalem by way of unlawful settlements, house demolitions and revocations of Palestinian residence rights made it difficult to envisage a Palestinian capital in East Jerusalem. “If the conditions on the West Bank and East Jerusalem are substantially irreversible for political and practical reasons, it becomes misleading and diversionary to continue adherence to the ‘two-state consensus’,” he said.

          Falk said, according to Save the Children UK, necessities like food and water had reached a “crisis point” in the West Bank, an area totally under Israeli military administration. Another important issue was the surge of settler violence against Palestinians, including attacks on mosques and the burning of olive trees.

          Falk referred to the welcome partial easing of the blockade on Gaza in the aftermath of the May 31st attack on the six-ship flotilla. According to the latest information, the entry of basic necessities to Gaza remained at one-third the level that existed prior to when the blockade was established in June 2007.  He called the blockade “a form of collective punishment”, adding that the fact-finding mission report also found that the attacks on the flotilla in international waters were contrary to international law and relied on excessive force.

Falk concluded by calling attention to two of the recommendations in his report that arose from his legal analysis of the occupation. “In particular, it is time, after 43 years, to acknowledge the intolerable burdens of ‘pro-longed occupation’ on a civilian population,” he said, urging a formal study of the human rights aspects of prolonged occupation. The other recommendation was to encourage UN support for both the effort to send humanitarian assistance direct to the people of Gaza in defiance of the blockade, and the Boycott, Divestment, and Sanctions Campaign, which sought to respond to Israel’s failure to uphold its international law obligations.

The representative of Israel also spoke, saying that the Falk report had been based on a one-sided and imbalanced mandate that did not conform to reality, prejudged key issues, contained errors of omission and distortions of fact and law, and advanced a one-sided political agenda. Israel was commit-ted to complying with the core human rights instruments it had ratified, but it could not cooperate with a Rapporteur whose mandate was inherently biased and unbalanced. On the mandate’s imbalance, Israel and Falk agree.

 “I have been accused of being one-sided, but the reality is one-sided and that is the essential insight,” Falk said.  He would welcome an opportunity for a debate about the substance of his report, the accuracy of which was beyond serious question. So stark was the situation that it was not a matter of reasonable controversy. It was disappointing that the United States did not recognize that what was happening in the occupied territories could not be reconciled with international law. The United States had been critical of the expansion of settlements, but settlement in itself was unlawful under the Geneva Conventions. It seemed important and central that the United Nations show the will to act on its own reports in addressing “this great symbolic and substantive struggle”. GA/SHC/3984.

The UN Human Rights Council published on September 13th a report, A/HRC/15/51, on implementation of the Goldstone report, A/HRC/12/48. Nearly four out of the 17 pages are devoted to Israel’s actions. For example:

 “31. On 20 June 2010, the Government of Israel announced a new policy in relation to border closures and restrictions on passage through border crossings with the Gaza Strip. In connection with this announcement, a list detailing items that were banned or otherwise restricted from entering Gaza was released. According to the new list, the entry of arms and muni-tions and ‘dual-use’ goods and items would be subject to specific permission by the Government. Moreover, construction items and materials were to be allowed entry only for projects authorized by the Palestinian Authority and implemented by the international community. Since the announcement of the new policy, new food and productive items have been allowed into Gaza and the volume of imports has increased steadily. A total of 696 truckloads of goods entered Gaza between 20 and 26 June 2010, immediately after the announcement, a six per cent increase compared to the weekly average of 553 truckloads that entered in 2010 prior to the announcement. In the week between 18 and 24 July 2010, the number of truckloads reached 979; by 7 August 2010, the number stood at an average of 1006 truckloads per week. However, this figure only represents 36 per cent of the weekly average of the first five months of 2007, before the imposition of the blockade. Approvals have also been given for a number of additional United Nations projects in the vital areas of education and health. Israel continues to prohibit all exports from Gaza.”

 Myanmar elections approach.

The process leading to elections on November 7th , could not be called inclusive or independent, the UN Special Rapporteur on the situation of human rights in Myanmar told the press on October 21st.

“It is clear that the process is flawed,” said Tomás Ojea Quintana following his presentation of his report to the General Assembly’s 3rd (Social, Humanitarian and Cultural) Committee. Because of the non-inclusive framework, it appeared that the elections themselves would neither be free nor fair, Mr. Quintana said, although he declined to predict what would happen in the next few weeks.

What was clear, said Quintana, was that key stakeholders were not being heard, minorities were not being encouraged to participate, registration of candidates was expensive, domestic media were restricted, foreign media were banned and the Government was campaigning in a way that discour-aged opposition, adding that there had been no improvement since his August report. No prisoners of conscience had been released.

Quintana called for a genuine dialogue among all stakeholders in the country. For that purpose, and to send a signal that the Government was serious about holding genuine elections, he called on the Government to release all prisoners of conscience, including Daw Aung San Suu Kyi, the leader of the National League for Democracy (NLD), who has been under house arrest for much of the past two decades.

Also critical for the democratic transition, which he stressed did not end with the elections, were justice and accountability. He said those factors were the keys to national reconciliation in all post-conflict situations, and it was the responsibility of the Government to address them.

If the Government failed in that responsibility, the international community had the right to become involved, he maintained. It was for that reason, he explained, he had called for a commission of inquiry on possible crimes against humanity in the country, which had stirred up controversy.  Such a commission, he emphasized, should not be seen as a way to punish the Government but to prevent impunity and help prevent further abuses.

Asked by several correspondents what kind of pressure the Government might respond to, he said he was working for consensus and a coordinated strategy between UN officials and members of the Association of Southeast Asian Nations (ASEAN), to ensure genuine elections as well as justice and accountability.

It was particularly important for the United Nations to have a unified message, he said. To that end, he had met with the Secretary-General’s Special Adviser on Myanmar, Vijay Nambiar, as well as the High Commissioner of Human Rights, Navi Pillay; both of whom, he said, were receptive. In addition, he called for the UN system to pay close attention before, during and after the elections.

He affirmed that the representative of the United States had expressed support for a commission of inquiry. Mr. Quintana would not, however, say plainly that there were crimes against humanity committed because such a conclusion required legal standards and specific facts. “That’s why I’m saying to the international community, if the possibility of this exists then you need to take action.”

He said the General Assembly might call, in a resolution, for the provision of assistance in establishing a commission of inquiry. He noted that the Government had replied in discussions about transitional justice that it had mechanisms on the ground to receive complaints of human rights violations.

A commission, he said, could help such mechanisms to become more reliable. Up to now, he had envisioned the commission as a fact-finding body, but the inquiry panel on Sri Lanka could be a model. It was important to involve the Government at this point in its formation, if possible.

Asked if he had had contact with Ms. Suu Kyi, he said that during his visit to Myanmar in February 2010, he had requested a meeting but the Government did not accept his request, and so the information he had on her was the same that everyone else had. His position remained that she was a prisoner of conscience and must be released immediately.

There was certainly, he said, no commitment from the Government that she would be released the day her sentence seemed to end, on 13 November — a week after the planned elections — and no confirmation if that was really the end date of her sentence. A substantive decision could not be expected from the courts, which, in his experience, had little independence.

He said that in general, he received a good amount of cooperation from the Government during his visit. He was able to visit many parts of the country as well as conduct private interviews with prisoners of conscience.  He had expressed appreciation for such cooperation, but made it clear that it was not enough — there had to be improvement in human rights.

He said the Muslim minority should also be involved in the process of justice and accountability. He would not predict any sort of violence during the elections, including the border areas, reiterating that it was important for the international community to pay close attention.

Finally, he noted that he had previously put forward his opinion, based on consultations with the Special Rapporteur for Business and Human Rights, that any company doing business in Myanmar should be made aware that human rights were being compromised there and that they might consider their personal responsibility.

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