Prime Minister Benjamin Netanyahu says that reading the United Nations report on Operation Protective Edge in the Gaza Strip is a waste of time, and one can assume that his reaction and that of others – who will declare the report biased and anti-Israel – won’t be based on actually reading it.
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An initial perusal indicates that an effort was made not to slant the report in favor of either side, and that it seriously examines suspected violations of the laws of war by both of them.
The report deals extensively with violations committed by Hamas last summer, stresses the real threat to Israelis’ security – and their feeling of security – that was posed by the rocket fire and underground tunnels, and addresses the continuous disruptions in the lives of residents in southern Israel.
The UN commission of inquiry, appointed by its Human Rights Council, dealt in detail with several incidents in which Israeli civilians were killed, and emphasized that most of the Palestinian fire was without guidance systems or was directed at major cities. All this was in violation of the principle of distinction, a basic tenet of humanitarian law that prohibits attacks that do not distinguish between combatants and civilians. Such attacks, the commission stressed, may amount to war crimes.
The panel even noted that the intent to attack Israeli civilians was made explicitly clear in public statements by Palestinian armed groups, and that there is no adequate mechanism for Palestinian investigations of violations of the law of armed conflict.
From a factual and legal perspective, the allegations against Israel in the report are more complex, but it’s interesting to see what the committee focused on. It stressed that it was concentrating on the newer elements of that phase in the conflict – not on patterns familiar from previous rounds.
The most central of the new elements identified by the investigators were the attacks on residential buildings in Gaza that led to the deaths of entire families, ground operations in which Israel levelled urban neighborhoods, and the attack tunnels on the Palestinian side.
The committee examined the Israeli attacks in light of the main principles of international humanitarian law: the principle of distinction; the principle of proportionality, which forbids an attack on a military target if harm to civilians or civilian property can be expected that is disproportionate to the concrete military benefit achieved; and the obligation to take precautionary measures to avoid civilian casualties.
The report’s authors stressed that the evidentiary standards they employed in their inquest constitute a “reasonable ground,” a standard lower than what is required in a criminal trial, which is why their report contains no conclusions regarding specific individual responsibility for war crimes, but only determines whether there is suspicion of such crimes.
One assumes that Fatou Bensouda, the chief prosecutor of the International Criminal Court at the Hague – with which the committee urged both sides in the conflict as well as the international community to cooperate – will read the report’s conclusions carefully, as they are liable to be the basis for her decision as to whether to move from a “preliminary examination” of the events in Gaza to a full-fledged investigation.
This decision is liable to be based on the commission’s concern that the Israel Defense Forces continued the same pattern of aerial and artillery attacks even after it was clear that these methods caused large numbers of civilian casualties and widespread destruction of civilian homes.
The burden is on Israel, the commission said, to explain what turns a house or a person inside it into a military target, and what the military advantage would be from an attack. In the absence of such explanations, it looks as if the principle of distinction was violated, raising the suspicion of a war crime.
In cases where the targets of the army may have been individuals linked to Hamas or another militant group, the panel clarified that proof is required to establish that the individual participated directly in the hostilities or was a member of organized armed groups, fulfilling a continuous combat function. Moreover, even in such cases, disproportionate attacks are forbidden – that is, attacks of the type that an IDF commander should have anticipated would cause widespread killing of civilians or damage to civilian property. After considering the circumstances and the data, the commission expressed concern that this principle was violated in a way that could constitute a war crime.
The “roof knock” procedure in which a small projectile is fired at a structure to warn its occupants to evacuate, does not resolve the problem, the panel determined. As an example of the limitations of this policy, it cited the case of a family of 22 people, including nine children, which was given just a few minutes to evacuate, when most of them were sleeping. Nineteen residents were killed in the subsequent attack.
One of the most important conclusions of the report is that although the devastating effect of the attacks on homes and other civilian property was abundantly clear during the fighting – these attacks continued. This conduct, according to members of the commission of inquiry, raises the concern that the strikes may have constituted military tactics reflective of a broader policy, approved at least tacitly by decision-makers at the highest levels of the Israeli government. Another concern was that Israel defines "military objective" much more broadly than is the norm in international law.
While the committee acknowledged the Israeli investigations into the events of Operation Protective Edge, it pointed to their deficiencies and noted that there was a need for an independent and impartial inquest.
Among the defects noted in the Israeli inquiries was the definition of "military objectives" in way that was inconsistent with international law, and the emphasis on noting the criminal responsibility of the field soldier without examining the overall policy.
These points may have implications for Bensouda’s decision on whether Israel is fulfilling the principle of complementarity, under which the ICC will not deal with an issue if the relevant country is conducting its own genuine investigation of it.
To sum up, the conclusions in the UN report both raise concerns of a problematic policy at the top, which defines "military objectives" differently than what is accepted under international law, and take issue with the Israeli approach according to which measures like the “roof knock” or calling on civilians to evacuate are enough to absolve Israel of responsibility. These statements, as well as the commission’s expressed concern that impunity prevails across the board for the violations of international humanitarian law and international human rights law allegedly committed by Israeli forces, hold up a mirror to Israel’s face.
If the country and its leaders decide, in the spirit of Netanyahu’s remarks, not look in the mirror at all, it is liable to face a comprehensive investigation in The Hague.