Hadar Goldin is the victim of a humanitarian cease-fire

As trustees of human rights and international humanitarian law, all UN institutions and its representatives have a responsibility to see that those legal obligations are respected and implemented.

By MICHAL COTLER-WUNSH
“Misdar Hadar” and the Goldin family protest the UN’s inaction on the return of Hadar Goldin's remains outside of the United Nations complex in Armon Hanetziv in Jerusalem (photo credit: ESTI DESIOVOV/TPS)
“Misdar Hadar” and the Goldin family protest the UN’s inaction on the return of Hadar Goldin's remains outside of the United Nations complex in Armon Hanetziv in Jerusalem
(photo credit: ESTI DESIOVOV/TPS)
In August 2014, Hadar Goldin was abducted and killed during a UN- and US-mandated, EU-supported, humanitarian cease-fire. In a cynical abuse of the brokered cease-fire, and in clear violation of international humanitarian law, Hamas has been holding Hadar Goldin’s remains ever since. Four years have passed, and the UN has not taken responsibility or held those in standing violation of international humanitarian law to account.
The UN and its representatives have a categorical duty to implement international humanitarian standards indiscriminately. Selective application of legal norms, in this context and in general, undermines the very principles which they were meant to uphold and protect. The UN and its regional representatives have a fundamental responsibility to the promotion and protection of human rights, to the compliance with humanitarian law obligations, and to combating the culture of impunity. All these three arise in the case and cause of Hadar Goldin.
If the UN is to be true to its own commitments, it must safeguard the adherence to and protection of basic human rights. If the UN is to be true to its own duties, it must ensure that fundamental humanitarian law obligations continue NOT to be violated, but to be respected. If the UN is to be true to its own responsibilities, it must cease to enable, and must actively combat, the culture of impunity. If the UN is to be true to its very raison d’etre, it must demand the immediate and unconditional return of Hadar’s remains for burial, in accordance with basic moral principles, Jewish and Islamic Laws and  international humanitarian standards.
The standing violation of human rights and international humanitarian law, and the four-year resounding silence that ensued, enable a culture of impunity. Continued failure to hold those responsible for this violation to account empowers the very forces that are de facto responsible for the humanitarian situation in Gaza. Hadar Goldin was not a victim of the war in Gaza, but rather a victim of the “humanitarian cease-fire” brokered and sponsored by the UN.
Following Hamas’s violation of the cease-fire, then-UN secretary-general Ban Ki-moon issued an official statement, condemning the violation of a mutually agreed humanitarian cease-fire by Hamas in the strongest terms. He expressed shock and profound disappointment by these developments, stressed that the acts of Hamas constitute a grave violation of the cease-fire, and added that such moves call into question the credibility of Hamas’s assurances to the UN. He demanded the immediate and unconditional release of the captured soldiers.
On December 22, 2017, the United Nations Security Council held a special session on international humanitarian law and the repatriation of the remains of Hadar Goldin and Oron Shaul, who was also abducted and murdered by Hamas during the 2014 Gaza war. This historic hearing of the UN Security Council was co-hosted by the United States and Ukraine. At the hearing, former justice minister and attorney-general of Canada, Prof. Irwin Cotler, described the clear violation of international law and its implications.
IN RESPONSE, UN member states unanimously expressed their solidarity and demanded the return of the remains of Goldin and Shaul. They highlighted that the refusal to repatriate the remains of murdered soldiers constitutes an egregious violation of the most fundamental principles of human rights and human dignity that underpin humanitarian law. Participants reaffirmed that the secretary-general and international organizations must work to secure the return of the remains, lest the international community itself indulge a culture of impunity in defiance of UN norms.
Apart from these clear and explicit condemnations and the declaratory demands made of Hamas, absolutely nothing has changed.
When it comes to promoting and protecting human rights, to ensuring compliance with humanitarian law obligations, and to combating the culture of impunity, declarations are simply not enough. The “rules-based international order” relies on genuine promotion and protection of fundamental human rights. It depends on profound and indiscriminate insistence of compliance with international humanitarian law obligations. It is contingent upon uncompromising resolve to combating cultures of impunity.
As trustees of human rights and international humanitarian law, all UN institutions and its representatives have a responsibility to see that those legal obligations are respected and implemented.

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In view of its inherent commitment to human rights, international humanitarian law and the combating of impunity, it could be expected that UN institutions generally and the regional representative specifically – Nickolay Mladenov, UN special coordinator for the Middle East peace process and UN representative to the Palestine Liberation Organization and the Palestinian Authority – lead the struggle for the return of Hadar Goldin.
It would be expected that they ensure and safeguard the families’ right to perform the most basic final act of human dignity, the right to proper burial. It would be expected that they assert that the first step to improving the humanitarian situation in Gaza is the repatriation of the captured soldiers.
Unequivocal demand for Goldin’s immediate and unconditional return constitutes a first and necessary step to remedying the ongoing disregard for human rights, to the standing violations of international humanitarian law, and to the enabling and empowering of a culture of impunity. Such leadership would signal, both locally and to all those watching, that a regime which disrespects the rule of law so blatantly will be held to account.
It would clarify that any parties that do not stand up to such regimes are de facto aiding and abetting and are themselves complicit and accountable. It would elucidate that continued, defiant violations of foundational principles, evidencing an abiding disregard, disrespect and denunciation of UN values, institutions, and norms, will not be accepted or tolerated. Finally, it would serve to create or return the necessary trust in the system, declaring that it is unacceptable to abuse humanitarian values, institutions, and norms, including “humanitarian cease-fires” to create victims.
The writer is a PhD candidate in law at the Hebrew University of Jerusalem, a research fellow at the International Institute for Counter-Terrorism and a board member of Tzav Pius.


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