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UNITED
NATIONS
A

        General Assembly
Distr.
GENERAL
A/HRC/5/20
18 June 2007

Original: ENGLISH

HUMAN RIGHTS COUNCIL
Fifth session
Agenda item 2


IMPLEMENTATION OF GENERAL ASSEMBLY RESOLUTION 60/251
OF 15 MARCH 2006 ENTITLED "HUMAN RIGHTS COUNCIL"

Report of the High-Level Fact-Finding Mission to Beit Hanoun
established under resolution S-3/1*


* The annexes are reproduced as received in the language of submission only.



CONTENTS




Introduction

1. At its third special session, on 15 November 2006, the Council adopted resolution S-3/1 in which it, among other things, called for a High-Level Fact-Finding Mission (hereinafter High-Level Mission) to be established and for the mission to travel to the town of Beit Hanoun in the occupied Palestinian territory of Gaza, following Israeli military operations carried out there around 8 November 2006. The Mission was mandated, inter alia, to assess the situation of victims; address the needs of survivors; and make recommendations on ways and means to protect Palestinian civilians against any further Israeli assaults.

2. The President of the Council appointed Archbishop Desmond Tutu of South Africa to lead the High-Level Fact-Finding Mission, and Prof. Christine Chinkin of the United Kingdom of Great Britain and Northern Ireland as a member of the High-Level Mission. In accordance with the resolution, the Secretary-General and the United Nations High Commissioner for Human Rights provided all administrative, technical and logistical assistance required to enable the fact-finding mission to fulfil its mandate promptly and efficiently.


I. First attempt to travel to beit hanoun

3. The members of the Mission gathered in Geneva in early December 2006 and requested the cooperation of the Government of Israel in pursuing its mandate, in particular the granting of the necessary visas for the Mission (including Secretariat staff) to enter Israel. Awaiting a response, the High-Level Mission spent a week in consultations with various actors and receiving briefings from United Nations and other organizations working in the occupied Palestinian territory of Gaza and in Beit Hanoun in particular. A list of meetings and briefings held during this week appears as annex I to the report. The schedule of meetings planned for the High-Level Mission in Israel and Gaza appears as annex II.

4. On Monday 4 December, Archbishop Tutu met with the Permanent Representative of Israel to the United Nations Office at Geneva. During this meeting the Archbishop expressed the High-Level Mission’s desire to meet with both Palestinian and Israeli officials and non-governmental organizations with a view to hearing the views of all. The Archbishop also signalled that the Mission would need to leave Geneva on Sunday 10 December 2006 at the latest in order for him to return to Cape Town by 16 December to attend to previous commitments. A later departure for Israel would not allow for the Mission to be completed appropriately. Following the meeting with the Permanent Representative, visas to enter Israel were sought, indicating that the arrival in Israel would be 10 December. No formal response to the Mission’s request for visas was received (nor to date has been received) from the Israeli authorities, which for the Mission indicated a refusal to issue visas. Reluctantly, the Mission was abandoned. Archbishop Tutu wrote a letter to the Council dated 11 December 2006 (A/HRC/4/113) in which he outlined these developments and asked the President to bring them to the attention of members of the Council.

5. Once it became clear, in December 2006, that the High-Level Mission would not be permitted to travel to Beit Hanoun via Israel, the High-Level Mission considered the most appropriate means of giving effect to the mandate given to it by the Council. In doing so, the Mission took into account a number of factors, including the following:

(a) The events of early November 2006 in Gaza, and in Beit Hanoun in particular, required an investigation into possible serious human rights violations by Israel. The Council’s decision to dispatch the High-Level Mission to Beit Hanoun reflected its deep concern at the corroborated reports of the killing and injuring of civilians by the Israel Defense Forces (IDF). The information presented to the Mission during its briefings in Geneva in early December confirmed the gravity and urgency of the situation;

(b) The mandate of the High-Level Mission not only explicitly required that it “travel to Beit Hanoun” but that it “assess the situation of victims” and “address the needs of survivors”. Each of these elements required that the High-Level Mission have access to victims, survivors and witnesses in Beit Hanoun and elsewhere;

(c) The High-Level Mission carefully investigated the possibility of assessing the situation of victims and survivors by visiting places outside Israel and Gaza where those individuals may have been removed for medical treatment. Inquiries revealed that of 51 individuals injured in the incident at Beit Hanoun, all except 6 were treated in the occupied territory of Gaza. Of those six who were removed for treatment, three were hospitalized in Israel and three in Egypt. Clearly some of the victims of the attack were not among the dead or injured, for example, family members of those killed. For these individuals, the possibility of them leaving Gaza was extremely limited. It is fair to say that the continued military occupation of Gaza itself was the greatest factor frustrating the mission, preventing as it did victims of the Beit Hanoun incident from leaving the territory, and preventing the mission from entering Gaza. Thus, to meet with and assess the situation of victims and to address the needs of survivors, the mission had no choice but to travel to the occupied Palestinian territory of Gaza;

(d) Access to Gaza and to Beit Hanoun might have been possible via Egypt and the Rafah Crossing, thus obviating the need for official visas to enter Israel. The High-Level Mission investigated this possibility closely, and raised the issue with the Permanent Representatives of Egypt and Israel in Geneva, with United Nations actors in Gaza and with United Nations security officials. Ultimately the mission reluctantly accepted that entry via the Rafah Crossing was not feasible for a number of reasons:


6. The Permanent Representative of Israel proposed that the members of the High-Level Mission enter Israel in their personal capacities rather than as members of a mission constituted by the Human Rights Council. This proposal was rejected for a number of reasons, principal among them being the following:

7. It was - and remains - a matter of grave concern to the HLFFM that a duly mandated mission of the Human Rights Council would be prevented from addressing a critical human rights situation due to the non-cooperation of a concerned Government in respect of issuing visas. The High-Level Mission members expressed this concern in the clearest possible terms during a press conference held in Geneva on 11 December 2006.

8. On 22 March 2007, Prof. Chinkin made a statement to the Council at its fourth session reporting on the progress of the High-Level Fact-Finding Mission in implementing the resolution. That statement which covers the developments outlined above is annexed to this report (annex III).


II. Second attempt

9. Following the statement of Prof. Chinkin to the Council on 22 March 2007, the Council on 27 March 2007 adopted without a vote resolution 4/2. In that resolution the Council, inter alia, noted with regret that Israel, the occupying Power, has hindered the dispatching of the urgent fact-finding mission, and called for the implementation of resolution S-3/1, including the dispatching of the urgent fact-finding mission.

10. On 4 May 2007 Archbishop Tutu wrote to the Permanent Representative of Israel indicating that the High-Level Fact-Finding Mission would be able to travel to Beit Hanoun from 10 to 14 June 2007, and informing him that the High-Level Mission would need to know whether the Government of Israel would facilitate the Mission’s travel to Beit Hanoun via Israel at the very latest by Friday 25 May 2007. The Archbishop also asked whether the inquiry into the incident at Beit Hanoun announced by the IDF Chief of Staff had completed its work, and if so, whether a copy of its report could be provided to the High-Level Mission. He reiterated his desire that the mission be able to visit Beit Hanoun, as well as to visit Israel and meet with Israeli officials and other organizations. In a letter dated 1 June 2007, the Permanent Representative of Israel replied to Archbishop Tutu in terms which implied that the Government of Israel would not extend the necessary cooperation to the HLFFM. No response to the request for a copy of the IDF report was received.

11. The mission to Beit Hanoun was again cancelled. Other options for pursuing the mandate were canvassed, taking into account the considerations outlined in paragraphs 5 and 6 above, which had not significantly changed in the intervening six months. A further important factor was the severe deterioration in the security situation in Gaza in the first part of 2007.


III. Conclusions and recommendations

12. The members of the High-Level Fact-Finding Mission reiterate in the strongest terms their concern that a duly mandated mission of this Council has been and is being prevented from addressing a critical human rights situation due to the non-cooperation of a concerned Government. The Government of Israel has based its refusal to cooperate on claims of bias against Israel in resolutions emanating from the Council. The High-Level Fact-Finding Mission is in no position to evaluate these claims regarding either expertise or mandate. The High-Level Mission has, from the outset and in the clearest terms, indicated its desire to meet with and consider the situations and positions of the Government of Israel, non-governmental organizations and individuals within Israel. It is clear however that significant human rights violations resulted in Beit Hanoun from the activities of the Israeli Defense Forces on and around 8 November 2006. These events must be investigated by an independent, impartial and transparent process, preferably at the national level. The High-Level Mission’s mandate - focused on the needs of victims and survivors - is one response to these human rights violations.

13. The High-Level Mission has not been able to fulfil its mandate of travelling to Beit Hanoun. This has largely frustrated its attempts to fulfil two of the three parts of its substantive mandate, namely: to assess the situation of victims, and to address the needs of survivors. Despite this, the High-Level Mission feels it can - and should - provide some conclusions and recommendations based on a large amount of information provided to it by a variety of reliable actors during its preparations for the attempted missions. This is especially so, given the complexity of the situation. These conclusions and recommendations are based on the mandate of the High-Level Fact-Finding Mission to make such recommendations, and on a desire of the members of the Mission to contribute to efforts to find peace in this troubled region exactly 40 years since the commencement of the occupation.

14. The information available suggests that the Israeli military operations in and around Beit Hanoun in November 2006 resulted in grave human rights violations. The loss of life and injuries to civilians have consequences under human rights law and international humanitarian law. Apart from the broader so-called “Autumn Clouds” operation of the IDF, the shelling of Beit Hanoun at around 5.35 a.m. on 8 November 2006 resulted in the deaths of 19 people (including 7 children), injury to 51 others and the destruction of housing. The damage to physical infrastructure from the shelling compounded the worsening situation in Beit Hanoun after a week of Israeli military operations. According to United Nations sources, at the time of the shelling most areas of the town were already without electricity and water, there had been extensive infrastructure damage, primary health-care services had ceased to exist, and 18 homes had been demolished, with a further 150 damaged. In addition to violations of the right to life, adequate housing and health, credible reports link Israeli action to violations of human rights relating to, inter alia, freedom of movement, food and education.

15. The High-Level Mission is fully cognizant of the fact that the bombing of Beit Hanoun occurred in a broader context of conflict, human rights violations and political impasse. The High-Level Mission realizes that time has passed since then and that the incident seems to have been overtaken by subsequent events in Gaza. However, the High-Level Mission considers the Beit Hanoun incident and its aftermath to be symptomatic of the apparently unending cycle of extreme violence and violations of civil, cultural, economic, political and social rights. As such its relevance continues. The High-Level Mission would like to use this opportunity to stress, as others have before it, that the process towards peace must operate within a framework of international law and be guided by respect for the Charter of the United Nations, international human rights law and international humanitarian law.

16. The bombing of Beit Hanoun resulted in the death and injury of civilians and as such raises the issue of protection of civilians in armed conflict. The High-Level Mission reiterates the position that the people of Gaza must be afforded protection in compliance with international law and, above all, the Fourth Geneva Convention on the protection of civilian persons in time of war, of 12 August 1949. The IDF must place at the centre of their decision-making and activities in the occupied Palestinian territories the consequences of the use of force on civilians. This includes the use of artillery in densely populated areas such as Gaza.

17. The Government of Israel claimed that the bombing of Beit Hanoun had occurred as a result of a “technical failure by the Israeli military” relating to aiming devices or radar, and expressed its regret for the loss of civilian life. The High-Level Mission recommends that Israel indicate publicly, and no later than the sixth session of the Council, the steps it has taken to ensure that an incident such as that at Beit Hanoun does not occur again.

18. The issues of accountability and impunity lie at the heart of incidents such as the bombing of Beit Hanoun. Regardless of whether the casualties at Beit Hanoun were caused by a mistake, recklessness, criminal negligence or were wilful, those responsible must be held accountable.

19. The lack of accountability for those firing Qassam rockets indiscriminately on civilian areas in Israel, as well as a lack of accountability for civilian deaths caused by Israeli military activities in Gaza have resulted in a culture of impunity on both sides. As in many other parts of the world, this culture of impunity begets further human rights violations. The High-Level Fact-Finding Mission calls on the Israeli and Palestinian authorities to ensure accountability for the commission of crimes, human right violations and violations of international humanitarian law. All incidents must be investigated in a prompt, transparent and independent manner, alleged perpetrators be prosecuted and those convicted be punished, and that appropriate avenues for adequate redress are offered to the victims. First steps would be an independent, impartial and public investigation into the bombing of Beit Hanoun and reparations for the loss of life and livelihood, injury, and damage to property. Similarly, a mechanism must be established to bring to account those responsible for the launching of rockets towards Israeli towns.

20. The aftermath of the bombing of Beit Hanoun raised the issue of the right to access to emergency health care for injuries sustained by victims. The High-Level Mission notes reports of the dire situation of health care in Gaza. Assaults such as those in Beit Hanoun place increased stress on an already overstretched health system with negative consequences for the enjoyment of the right to health. The High-Level Mission would like to draw attention to the rights of victims to ongoing medical treatment, including access to counselling services.

21. The High-Level Fact-Finding Mission had hoped to be able to assess the situation of women victims and the needs of women survivors as the members of the mission are aware of the particular violations and other consequences of conflict situations that occur to women because they are women. The High-Level Mission recommends that all those responsible for guaranteeing human rights in Gaza and redressing violations take special account of the position of women victims and survivors.

22. The High-Level Mission is deeply concerned about addressing the seemingly intractable and unending cycle of human rights violations which impact the everyday lives of tens of thousands of Palestinian and Israeli civilians. To this end, the High-Level Mission recommends that a mechanism be established which, while learning from the experience of the many previous initiatives, seeks to build confidence and trust through focusing on the human rights of all. The broad contours of a such a mechanism could be that:

(a) It provides independent monitoring and assessment of the human rights situation of civilians in conflict in the occupied territory of Gaza and neighbouring Israel;

(b) The monitoring and assessment would be reported publicly with a view to promoting accountability and - ultimately - greater compliance with international human rights and humanitarian law;

(c) It be based on a principle of joint monitoring and assessment. To this end, a Commission of two individuals of high standing could be formed, one representing by proxy Palestine and one representing by proxy Israel;

(d) It build on (and fill the gaps in) existing monitoring of human rights violations;

(e) It be guaranteed access to the occupied territory and to Israel.

23. The members of the High-Level Mission would like to conclude this report with some observations on the broader situation in Israel and Palestine. As human beings, we belong together. We will not find safety or security in isolation or exclusion. Our individual security and freedom are inextricably linked to our respect for each other. Our experience has shown that security does not come from the barrel of a gun. It comes when we recognize and respect the human rights of all.

24. The members of the High-Level Fact-Finding Mission would like to express their gratitude to those organizations and individuals who provided information and support to the mission. They also express their deep appreciation for the support received from the High-Level Mission’s secretariat and the Office of the High Commissioner for Human Rights. Finally, the members of the mission express their deep admiration for those working under difficult conditions with civilians in conflict.



ANNEXES

Annex 1

Meetings of the HLFFM in Geneva, December 2006


· Permanent Representative of Israel
· Permanent Representative of Egypt
· Permanent Observer of Palestine
· High Commissioner for Human Rights
· President of the Human Rights Council
· World Health Organization
· UNCTAD
· UNWRA
· International Committee of the Red Cross
· OCHA
· Office of the United Nations High Commissioner for Human Rights
· United Nations Department of Safety and Security
· Human Rights Watch

Annex II

High-Level Fact-Finding Mission to Beit Hanoun

10-15 December 2006

Tentative schedule of appointments and visits











Annex III




CHECK AGAINST DELIVERY






Human Rights Council High-Level Fact-Finding Mission Established Under Resolution S-3/1



Statement of

Professor Christine Chinkin

member of the High-Level Fact-Finding Mission,

to the Fourth Session of

the United Nations Human Rights Council

Geneva, 22 March 2007


Mr. President

Excellencies

Ladies and gentlemen


1. Thank you for the opportunity to update the Council on the efforts of the High-Level Fact-Finding Mission established under Council Resolution S-3/1 to discharge its mandate. This update is provided on behalf of myself as a member of the Mission, and Archbishop Desmond Tutu, the Leader of the Mission. Archbishop Tutu sends his apologies for his inability to be with us today.

2. The High-Level Fact-Finding Mission was established by Resolution S-3/1 adopted on 15 November 2006 with a mandate to travel to the town of Beit Hanoun in the occupied Palestinian territory of Gaza following Israeli military operations carried out there around the 8th of November 2006. The Mission was mandated to, inter alia:


3. We were asked to report to the Council no later than the middle of December 2006 on progress made towards the fulfilment of its mandate.

4. The Council has before it a letter from Archbishop Tutu to the President of the Council dated 11 December 2006. This letter sets out the events surrounding the appointment of the members of the High-Level Fact-Finding Mission, its work in Geneva prior to 11 December 2006, and the ultimate failure of Israel to provide the Mission with the necessary official visas for it to carry out its mandate.

5. The members of the Mission would like to reiterate here four points made in that letter.


6. Let me reiterate that the decision of the Mission to abandon attempts to travel to Beit Hanoun for want of visas was not taken lightly. The Mission was led to believe - by official and media statements - that visas would be granted. Indeed despite visas not being issued by 4 p.m. on Friday the 8th of December, the Mission continued to wait for a response until the evening of Saturday the 9th of December, when airline and other arrangements - including those for the very full schedule of planned interviews in both Israel and Gaza - were finally cancelled.

Mr. President, distinguished delegates

7. It was - and remains - a matter of grave concern to us that a duly-mandated mission of this Council would be prevented from addressing a critical human rights situation due to the non-cooperation of a concerned Government in respect of issuing visas. We expressed this concern in the clearest possible terms during a press conference held in Geneva on Monday the 11th of December.

8. Once it became clear that the Mission would not be permitted to travel to Beit Hanoun via Israel on the 10th of December as planned, I and Archbishop Tutu considered the most appropriate means of giving effect to our mandate. In doing so, we took into account a number of factors, including the following:

9. Let me say here that the Mission was aware that another fact-finding mission in relation to the incidents at Beit Hanoun had been established by the General Assembly on the 17th of November 2006. Informal consultations were held at the Secretariat level to ensure that the two Missions’ visits to Beit Hanoun did not occur on the same days. We understand that the General Assembly Mission was also not provided with the necessary cooperation of Israel, and consequently did not travel to Beit Hanoun nor has it produced a report.

Mr. President


10. In light of these factors, the Mission concluded that the failure by Israel to issue the necessary official visas frustrated the very core of our mandate. Without travelling to Beit Hanoun and meeting the victims and survivors, the Mission would not be in a position to independently assess their situation nor to formulate recommendations for protection in the future. The option of interviewing victims in third countries was not feasible for - as I have noted earlier - only six of the victims were hospitalized outside Gaza and only three of those outside Israel.

11. Although a significant amount of information on the Beit Hanoun situation was provided to the Mission in Geneva, the Archbishop and I concluded that a substantive report relying on second-hand information and insights was not envisaged in the clear wording of Resolution S-3/1, which explicitly asked the mission to travel to Beit Hanoun, meet with victims and survivors, undertake assessments and make recommendations on the basis of these.

12. That said, the information provided suggests that the Israeli military operations in and around Beit Hanoun in November 2006 resulted in grave human rights violations. The documented loss of life and injuries to civilians have consequences not only under human rights law but also under international humanitarian law. Apart from the broader so-called “Autumn Rains” operation of the Israeli Defence Force, the shelling of Beit Hanoun around 5.35 a.m. on the 8th of November 2006 resulted in the deaths of 19 people (including 7 children) and injury to 51. Sixteen of those killed were members of the same family. Beyond possible violations of the right to life, numerous credible reports link Israeli action to violations of human rights relating to health, food, housing and education. The damage to physical infrastructure from the shelling of Beit Hanoun compounded the worsening situation in the town after a week of Israeli military operations. According to United Nations sources, at the time of the shelling most areas of the town were without electricity and water and there had been extensive infrastructure damage, primary health-care services had ceased to exist, and 18 homes had been demolished, with a further 150 damaged.

Mr. President

Distinguished delegates

13. The seriousness of the allegations relating to Israeli military activity in and around Beit Hanoun last November should not be understated. In order to ascertain what happened and to assess the situation of those affected, the international community - through the Human Rights Council - decided to send an independent fact-finding mission to the town. To date this has not been possible. Despite the passing of time and the consequent possible loss of evidence, the members of the Mission feel strongly that the need remains for an investigation as requested by the Council with a view to formulating recommendations for the protection of the human rights of individuals in the area.

14. On behalf of Archbishop Tutu, I would like to express our appreciation to those individuals and organizations who provided us with briefings on the situation in Beit Hanoun, as well as those who had agreed to assist and meet with us in Gaza and in Israel.

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