The Gaza mission : implications for international humanitarian law and UN fact-finding
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Melbourne journal of international law, Vol. 13, no. 1, June 2012, p. 1-59
The Report of the United Nations Fact-Finding Mission on the Gaza Conflict was published more than two years ago. The UN Human Rights Council and the UN General Assembly endorsed the recommendations of the Report and requested both parties to undertake investigations on alleged violations, inter alia, of international humanitarian law. The parties to the conflict and two recent UN expert committees have published follow-up reports to the fact-finding. Nonetheless, in April 2011, the chair of the UN Fact-Finding Mission, Judge Goldstone, "retracted" from or "amended", some of the Report’s conclusions, in particular the allegations against Israel concerning its "policy" of deliberate and indiscriminate attacks against Palestinian civilians and their objects. The remaining members of the UN Fact-Finding Mission stood firm on their original findings and conclusions. This article looks at the credibility of this fact-finding process and the wider implications of the whole exercise to civilian immunity and UN fact-finding in light of subsequent developments and the core features of UN fact-finding. It particularly enquires into the doubts raised about the appropriateness and effectiveness of the use of UN fact-finding in such complex and long-standing cases including, in this case, where there is lack of genuine will to act by the parties concerned or a lack of binding mandate from the UN Security Council. It also explores the substantive and institutional implications of the exercise in enhancing and promoting civilian immunity during armed conflict in cases where the parties are unwilling to cooperate fully but may be subject to legal obligations owed to the international community as a whole.