Reflections on the UN Inquiry Report on Palestine
International commission of inquiry on the protests in the Occupied Palestinian Territory (Commission) established pursuant to the UN Human Rights Council resolution was mandated to investigate the alleged violations of international human rights law (IHRL) and international humanitarian law (IHL) occurred in the context of large-scale Palestinian protests against Israeli occupation on and around 30 March 2018.
Following its investigation, the three-member Commission consisting of Santiago Canton (Argentina) (Chair), Sara Hossain (Bangladesh) and Kaari Betty Murungi (Kenya) published its report on 25 February 2019. Apart from its factual and legal determinations on the alleged violations, it has dealt with some aspects of international law.
In the first place, it reiterated that both IHRL and IHL were applicable during that situation. Moreover, it also determined that the law of international armed conflict (IAC) in the form of the law of occupation and that of non-international armed conflict (NIAC) were parallelly applicable during the conflict.
The Commission was primarily concerned about the right to life, though the right of peaceful assembly and freedom of expression were also considered. Given the gravity of assaults on the civilians, the right to life in such a volatile context drew special attention of the global audience.
Before digging further, it is pertinent to explore the differences between "right to life under IHL" and "right to life under IHRL". Under IHL, it is lawful to kill any person who is a combatant (in IAC), fighter (in NIAC), persons directly participating in hostilities, and incidental death arising lawful conduct of hostilities.
In respect of IHRL, it is lawful to kill any person who is posing an imminent threat to life or serious injury to others. In this report, both tests of "directly participating in hostilities" and "imminent threat to life or serious injury" have been simultaneously applied, which may be termed as a hybrid test of the right to life.
The Commission also settled a long-debated legal issue. While determining the legality of killing some individuals belonging to some armed groups, the Commission was required to deal with the issue of killing based on membership, not on his conduct.
Noting the divergence of opinions in this regard, the Commission adopted the view that the conduct of a member of an armed group, not mere membership is necessary to conclude the lawfulness of a certain act of killing under IHL.
Last notable development endorsed by the Commission is the customary nature of the protection of journalists under IHL. Though this protection has been codified in Article 79 of Additional Protocol I to the Four Geneva Conventions 1949 and subsequently placed in Rule 34 of the ICRC Customary Rule Study 2005, this Commission is the first international forum where this rule has been recognized as customary law.
This pronouncement will be a reference for those who are struggling with the protection of journalist all over the world, especially because many States including Israel have not ratified Additional Protocol I.
Given the nature of the subject matter of the Commission, it was presumable that the Commission would have to develop a novel approach for dealing with the complex situation of large-scale civilian protests in the situation of belligerent occupation.
Now with this report, hybrid model of the right to life is no longer an academic exercise, rather the Commission has created a precedent to deal with a similar type of situations involving civilians along with the non-distinguishable members of armed groups in the situation of armed conflict.
Quazi Omar Foysal is an independent researcher