Legal mechanism, like one in Syria, could have assisted in investigation and prosecution of lower-level criminal perpetrators in the occupied Palestinian territories who the ICC is unlikely to focus on
Palestinian Authority President Mahmoud Abbas listens while US President Donald Trump speaks in New York in September 2017 (Brendan Smialowski/AFP)
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A UN Human Rights Council (HRC) resolution that would have established a mechanism to help with the investigation of crimes committed in the occupied Palestinian territories was watered down following backroom pressure from the US, a US official and a source briefed by a European diplomat told Middle East Eye.
The final wording of the resolution, adopted by the council this week, invites the UN General Assembly only “to consider establishing” such a body.
However, earlier drafts of the resolution would have seen the establishment of the mechanism, an initiative that experts say has been powerful in the investigation of serious crimes in Syria and Myanmar.
Before the resolution passed, the chairs of the US House Foreign Affairs Committee and Senate Foreign Relations Committee suggested in a 31 March letter to UN Secretary-General Antonio Guterres that any member state or UN entity supporting such a mechanism could face US sanctions.
"Make no mistake, any HRC member state or UN entity that supports an Israel-specific [international investigative mechanism] in any form will face the same consequences as the ICC faced for its blatant overreach and disregard for sovereign prerogatives," the letter said.
However, it is clear from publicly available drafts that the mechanism’s establishment had been deleted from the resolution, along with details about how it would operate, several days before their letter was sent.
A US official told MEE that the resolution was changed as a result of US pressure that is understood to have happened at the highest levels of the Palestinian Authority (PA).
“We successfully convinced the Palestinian Authority to water down the resolution requesting a fact-finding mission,” the official said on condition of anonymity because they were not authorised to comment.
They added that the draft was changed to "consider establishing".
The PA and Palestinian mission in Geneva did not respond to requests for comment.
Going after lower-level perpetrators
There are several ongoing efforts in the occupied Palestinian territories that the legal mechanism would have complemented and assisted, but it also would likely have chartered new ground.
There is the International Criminal Court’s (ICC) investigation into war crimes and crimes against humanity in Israel and Palestine since 13 June 2014.
There is also the Commission of Inquiry (COI) on the occupied Palestinian territory, including East Jerusalem, and Israel - established by the HRC to investigate alleged violations of international humanitarian law leading up to and since 13 April 2021.
Each of these investigations is looking at similar crimes but has different objectives and, therefore, different approaches, said Balkees Jarrah, associate director of the International Justice Program for Human Rights Watch.
The ICC is focused on senior officials and commanders and will only be able, as a result of its workload and limited resources, to focus on a handful of cases, Jarrah said.
The COI seeks to draw attention in more real time to events and make recommendations to the international community about how to address abuses it is documenting, but it may also assist with criminal investigations and prosecutions.
“I think the key is that the mechanism would have contributed to and shared material with jurisdictions looking at all levels of perpetrators,” Jarrah said.
The standard for such a mechanism, she said, would be quite high because its objective is to be useful in a court of law.
The work of the International, Impartial and Independent Mechanism, which was established for Syria in 2016, has been used by criminal justice authorities in Sweden, Germany and France to assist with the prosecutions of Syrian officials.
“The Syria example demonstrated the utility that this kind of team has in facilitating criminal cases,” Jarrah said.
Two former Palestinian officials told MEE that they were not surprised that the Palestinian Authority had caved to the Americans over the creation of a similar mechanism.
“I’m not surprised at all,” said one of the officials.
He pointed to the PA’s messaging after the ICC issued warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant last November.
The PA, he said, had suggested that it was PA President Mahmoud Abbas’ quiet diplomacy with international organisations that had led to the warrants and, in a dig at Hamas, that significant gains could be achieved for Palestinians without “getting a genocide against us”.
But if the PA was truly invested in pursuing accountability at the ICC, then it would have taken action in the past few months that it has not, the former official said.
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“Why wouldn’t the PA put pressure on countries to arrest Netanyahu? Why wouldn’t you summon the ambassadors of France and Italy and Greece when they open their airspace for Netanyahu to go to the UN?” he said.
The former official said it was difficult to understand the PA’s motivation but speculated that it might be that officials were “trying not to let the Americans have an excuse to endorse annexation” of the West Bank - an announcement anticipated within weeks.
“But the thing is that they are not getting any assurances on anything,” he said.
It is unclear, however, what leverage the PA could use. The occupied West Bank's economy is in free fall, and the US has suspended much foreign aid to the PA.
Meanwhile, the PA is widely seen as a corrupt Israeli collaborator by Palestinians in the occupied West Bank, factors that increase its reliance on European countries for legitimacy.
The second former official said that, without elections for 17 years, the PA’s legitimacy “is in the hands of the Israelis”.
“Their existence is linked to the occupation, as has become clear, and they are absolutely unable to do anything to break their relationship with it,” he said.
