UN Commission of Inquiry(Falk Commission) Emphasizes Urgent Need for International Refugee Protection

In a sixty page report submitted in March 2001 to the 57th Session of the UN Commission on Human Rights, the special UN Commission of Inquiry, established (Resolution E/CN.4/S-5/1, 19 October 2000) to investigate human rights violations committed by Israel in the occupied Palestinian territories, emphasized the urgent need for international protection for Palestinian refugees and the Palestinian people.

The report covers the legal status of the conflict, Israel's excessive use of force, extrajudicial executions/political assassinations, settlements, and the deprivation of the enjoyment of economic and social rights (effect of closures, curfews, restrictions and movement, and destruction of property in addition) and includes a separate section which emphasizes the "distinctive vulnerability" of Palestinian refugees.

The Commission of Inquiry report notes that "no other refugee community in the world is so excluded … from the protective mechanisms and responsibility of the United Nations High Commissioner for Refugees (UNHCR)" and concludes, on the basis of a legal analysis of the status of Palestinian refugees in internationalrefugee law, that urgent international efforts are required to extend UNHCR protection to Palestinian refugees under Article 1D(2) of the 1951 Convention Relating to the Status of Refugees. The Commission report further notes that while the question of the right of return is mostly beyond the scope of the Commission's mandate, a "comprehensive settlement must deal equitably with the issue of Palestinian refugees and their rightful claims" including those living outside of the occupied territories.

The Commission of Inquiry further recommends that an adequate and effective international presence should be established immediately in the occupied Palestinian territories to monitor and regularly report on compliance by all parties with human rights and humanitarian law standards. The commission members also recommend that protection should be accorded in strict compliance with the 1949 Fourth Geneva Convention and that the High Contracting Parties to the Convention should act with urgency to establish an effective international mechanism for taking the urgent measures needed

The Commission members criticized the US veto of the UN Security Council resolution calling forinternational protection of the Palestinian people in  the occupied territories. Among its other recommendations the report notes that a comprehensive, just and durable peace should be guided at all stages by respect forhuman rights and humanitarian law and the full application of international human rights standards.
Moreover, it should bring about the end of the Israeli occupation and realization of the right of the Palestinian people to self-determination.

 The report concludes that Israeli security forces (i.e., military and police) have used "excessive and disproportionate force" from the outset of the al- Aqsa intifada and recommends that Israeli forces should not resort to the use of rubber-coated bullets and live ammunition, except as a last resort; that provision of protection for settlers cannot be used for preemptive shooting of unarmed civilians in areas near settlements or on access and bypass roads leading to settlements or for the destruction of Palestinian property; an immediate end to Israel's extrajudicial execution/assassinations;

 investigation and prosecution of persons found responsible for the use of lethal force or the excessive use of force which has caused death or serious injury; an immediate end to Israeli closures, curfews and other restrictions on freedom of movement; respect for Palestinian economic and social rights; an end to measures that amount to collective punishment; freedom of movement and safety for the provision of medical relief and treatment and in providing humanitarian assistance including that of UNRWA; special protection for children; and, free access to all places of worship and holy sites.

Israel decided not to cooperate with the Commission of Inquiry, regarding its mandate and membership as "unbalanced" and the Commission itself unnecessary due to the existence of the "Mitchell" Committee.The "Mitchell" and "Or" Inquiries In addition to the UN Commission of Inquiry, two additional committees/commissions have been investigating the underlying causes of the al-Aqsa intifada. The "Mitchell" Committee, established in October 2000 by the United States, is scheduled to submit a report to US President Bush in the coming months. The Or Commission, a state commission of inquiry established by the Israeli government, continues hearings into uprising that occurred inside Israel at the beginning of the intifada. It is unclear if these committees/commissions will include reference to the situation of Palestinian refugees and internally displaced persons.

The Sharm al-Sheikh ("Mitchell") Fact- Finding Committee was established as a result of the US-brokered October summit between the PLO and Israel in Egypt. Unlike the clear terms of reference accorded to the UN Commission of Inquiry, the mandate of the Mitchell Committee is largely political in character and it is uncertain how much, if any, attention will be accorded to the rights of Palestinian refugees, although Committee members visited refugee camps in both Gaza and the West Bank during their visit to the occupied territories in March 2001.

Unlike the UN Commission, the timetable of the Mitchell Committee has been determined largely by Israel's domestic political considerations. Israel has repeatedly pressed the Committee to postpone its mission until the PLO/ PA calls for and brings an end to the popular uprising in the occupied territories. Israel halted cooperation with the Committee following an unaccompanied visit by the then head of the Committee's technical team to the Haram al- Sharif in mid-January. The Committee was further requested to delay its mission until after a new government was established following Israeli elections in February 2001.

Israeli government officials have constantly downplayed the ability of the Committee to produce an objective assessment of the underlying causes of the intifada. The new government of Ariel Sharon has referred to the Committee as an historic mistake and railed against Committee assurances that it will prepare a "balanced" report, claiming that it would "reward Palestinian violence." Remarks by former Foreign Minister Shlomo Ben Ami areindicative of the official Israeli view. While testimony could be collected in Israel in an organized manner, stated Ben Ami in the Israeli daily Ha'aretz (12 February 2001), this was not the case in the Palestinian Authority. A review of the PLO Negotiation Affairs Department submissions to the Mitchell Committee clearly refutes this view.

Following its long-delayed March visit to the region, the Mitchell Committee is expected to complete its report by the end of April or the beginning of May. The report of the UN Commission of Inquiry has provided a clear international law framework for investigating and analysis of the underlying causes of the al-Aqsa intifada and the massive violation of Palestinian rights since September 2000. The findings of the Mitchell Committee report should be interpreted within this legal framework.

Israel's continued claim that it is not responsible for creating the conditions that led to the outbreak of the uprising and that is has responded with restraint raises several obvious questions: 1) why has the Israeli government obstructed the work of the Mitchell Committee (and refused to cooperate with the UN Commission); and, 2) why does Israel object to international law as an objective framework for investigation of the al-Aqsa intifada (not to mention the Palestinian-Israeli conflict)? The Or Commission was established by the Israeli government in accordance with the 1968 Commission of Inquiry (COI) Law on 8 November 2000 "to investigate the clashes, which involved security forces and Arab and Jewish citizens of Israel."

The Commission replaced a vaguely-defined and ill-fated "Commission of Examination" established in October and opposed by the Higher Follow-up Committee for Arab Affairs (comprised of Palestinian Arab members of the Knesset and Palestinian mayors and communities leaders).

The mandate of the Commission to investigate "the conduct of inciters and organizers, participants in the events [of October 2000 in which 13 Palestinian citizens of Israel were killed] from all sectors and security forces" has been heavily criticized because it predetermined that 'incitement' was an established fact and wrongly confused the role of a state Commission (i.e., to investigate state authorities in cases in which their behavior created a loss of trust by the public) with that of the Attorney General (i.e., to investigate criminal offenses and initiate prosecutions). Moreover, the Commission has refused requests to publish the terms of reference and procedures of its work as required under the 1968 COI Law.

The Or Commission has been beset by numerous problems since its inception. Family members of Palestinians killed in October, and Adalah - The Legal Center for Arab Minority Rights in Israel which is acting on behalf of the Higher Follow-up Committee and the victims' families as legal counsel, received no formalnotice that the Commission would begin hearings on 19 February 2001. Requests by Palestinian witnesses to give testimony and have questions translated into Arabic were initially denied.

Families of the victims were denied access to autopsy reports until mid-March. The autopsy reports contradicted initial police testimony on the use of live ammunition. Testimony given by police, journalists and one civilian about the severity of the situation on the 1 and 2 October contradict statements given to the Israeli press in November. Given the problems faced by the Commission, staff of Adalah traveled to Britain and Northern Ireland to examine lessons learned during the inquiry into the 1972 Londonderry riots ("Bloody Sunday") in which 13 Irish Catholics were killed by police and soldiers.

Jurists who participated in the Bloody Sunday inquiry suggested that it was important that families of the victims be given legal representation while the families' lawyers be permitted to examine all the material submitted to the commission and to cross-examine witnesses. Reviewing the mandate of the Or Commission, jurists in Britain and Northern Ireland concluded that it was a recipe for failing to uncover the truth.
The Commission postponed hearings in late March after several scuffles between family members of the victims and Israeli police during Commission testimonies. By law the Commission's final report must be made public, though portions of the report may be determined classified.