1. The United Nations Human Rights Commission's Independent Commission of Inquiry on the 2014 Gaza Conflict began as a pathetic joke.
- Hamas Rejects Charges in UN Report, Salutes Condemnation of Israel
- UN Commission Finds Evidence of War Crimes by Israel, Hamas During 2014 Gaza War
- Israel Responds to Gaza War Report: UNHRC Has 'Singular Obsession With Israel'
The appointment of Professor William Schabas as its chair – an anti-Israel advocate so buffoonish that he called for Benjamin Netanyahu to be put on trial for war crimes committed during Operation Cast Lead, when Netanyahu was actually the leader of the opposition (!) – made the entire process a complete sham.
Characteristically for the UN, it tried to confer on the commission a smidgeon of stardust by adding human-rights lawyer Amal Alamuddin (more widely known as Mrs George Clooney) to the panel. But that only added to the farcical atmosphere, especially when it turned out that Ms. Alamuddin had not even been consulted on her appointment and subsequently refused to join.
At that point, the Israeli government's decision not to cooperate in any way with the commission and not even to allow it access to Israel and the territories was understandable, if perhaps misguided.
Schabas inevitably had to recuse himself when it transpired that he had in the past been paid as a legal consultant by the Palestine Liberation Organization. At that point, the commission passed into much abler hands. The track record of Mary McGowan-Davis, a former New York State Supreme Court justice and the measured and balanced tone of the report, which, in Schabas' absence, certainly bears her imprimatur, is testament to the government's mistaken policy of non-cooperation with the commission's investigation – certainly once Schabas had left.
McGowan-Davis' report (attempts by some Israeli spokespeople to continue call it the Schabas Report are destined to fail) is pretty scrupulous, focusing equally on the alleged wrongdoings of both sides, Israel and the Palestinians, and in some points even making points in Israel's favor. It is clear now that official Israeli cooperation could have made it more favorable to Israel and that not cooperating has almost certainly failed to achieve the desired goal of delegitimizing the report.
2. McGowan-Davis’ call for the international community to ensure that the findings of the report become the basis of a war-crimes investigation at the International Criminal Court is, of course, a blow to Israel, but it was hardly unexpected.
The fact that the report gave equal prominence to alleged war crimes committed by the Palestinian side, that the commission seems to have been interested in finding a rationale for Israel’s actions in Gaza and acknowledged that the warnings issued by the IDF before attacks in many cases saved lives, will be of little comfort.
Once again, the fact that the commission did not have any official Israeli version of the events to rely on means that, in cases where Israel seems to have behaved recklessly and wantonly, there is no counter-narrative or explanation – even when these exist. Israel is at a disadvantage here, since the government and the IDF both have addresses. In many cases, the alleged war crimes of the Palestinian side mentioned in the report are attributed to “armed groups” or to Hamas’ military wing, but it is unclear who, if anyone, has the responsibility for Palestinian actions in Gaza. The commission and much of the international community still holds Israel, a decade years after disengagement, ultimately responsible for Gaza, just as it holds it responsible for the West Bank.
The West Bank sections of the report are smaller and less prominent than the Gaza chapters, but could potentially cause Israel more damage, as they suggest that the prevalent use of firearms against Palestinian civilians in the West Bank may also be war crimes.
The bottom line of this report – beyond the possibility of war crimes indictments against Israelis and Palestinians for their actions during 51 days of fighting last summer – is yet further erosion of Israel’s case to perpetuate the West Bank occupation and not to reach a long-term solution for Gaza’s future.
3. The report is not free of omissions and mistakes, but at least from Israel’s perspective, its major flaws are the relatively cursory discussion of the way in which Hamas and Islamic Jihad launched their rockets (which are dealt with at length in the report) from within heavily populated civilian areas and the difficulty Israel faces in its efforts to reach some kind of ceasefire or long-term arrangement with the organization ruling Gaza – an organization which is still officially ideologically committed to Israel’s destruction.
The lack of details on the nature of Hamas’ conflict with Israel and its cynical use of Palestinian civilians (though the report does concede that there seems to have been cases in which Hamas used “human shields”) could be a manifestation of bias, but it is also a reflection of the impatience of the international community with Israel’s claims. For all the report’s balance, there is a sense going through it that the authors believe Israel, as a sovereign state with a well-equipped army and control over most of Gaza’s borders and all its airspace simply has a much higher degree of responsibility for safeguarding civilians lives, on both sides, than the Palestinian organizations, which, as the report notes, have little space to base their military operations outside of the cramped neighborhoods and refugee camps of Gaza. This may not seem fair to many Israelis, but it is pointless to expect the world to hold Israel and Hamas to the same standards.
4. While the report repeatedly blames the Palestinians for doing nothing to investigate allegation of war crimes on its own side and for lacking the mechanisms (and motivation) to do so, it does mention that the IDF’s legal corps, as well as the State Comptroller, have embarked on investigations into dozens of incidents in Gaza. However, the authors lambast Israel for the shortcomings of a process which is not independent from the IDF hierarchy and does not confirm to the norms of international justice. And, of course, for failing to yield anything more than a handful of indictments and relatively puny sentences.
Israel claims that there is no need for outside intervention, since its legal system is capable of investigating itself and claimants always have recourse to the Supreme Court to appeal decisions. In theory, that is true. In practice, however, impunity remains the norm all but for a small number of cases. The Israeli claim that the IDF is a moral army with just a few “rotten apples” has trouble standing up if these apples are not seen to have been removed from the barrel.
5. While the report is hugely interesting to all those interested in the Israel-Palestine conflict and the field of international justice and laws of warfare, it is impossible to gauge whether it will have any lasting impact. The Palestinians, who earlier this year joined the International Criminal Court (ICC), already set that ball rolling and while the report is probably already being read with interest by the prosecutors at The Hague, their machinations and order of priorities are opaque. Whether it will serve one day as the basis for indictments and whether Israeli (or Palestinian) figures are ever hauled up before the international court depends not only on the decisions of the ICC jurists, but also on political and diplomatic wrangling at the United Nations and the state of relations between Israel and the international community.
The outcome will be affected far more by whether there is any progress in the diplomatic process over the coming years and whether global crises divert the world's attention than by the validity of legal arguments and the findings of subsequent investigations. And Israel shouldn’t want that any way.
6. The biggest flaw in the report, of course, is its lack of context and the fact that it was commissioned by a body which allows some of the world's worst human rights abusers to sit in judgement. By any standard, the United Nations Human Rights Council has focused in a disproportionate manner on Israel its entire history. The biggest argument against it is the fact that no other conflict or military operation has ever been subjected to this level of legal scrutiny. True, it is a standard talking-point of hasbara but that doesn't mean it is without any merit.
Yes, this claim smacks of 'whataboutery' and is no excuse for any alleged wrongdoing committed by the IDF, but since this report is not just a legal opinion but also a document to be viewed in a wider context, it is legitimate to ask how Israel's actions would have been viewed if other wars of recent years - Iraq, Afghanistan, Syria and Russia-Ukraine – had received a similar level of legal scrutiny.
Once again, this shouldn't be an excuse, but this is the brutal reality of war and Israel has a legitimate grievance towards the UNHRC, which ensures that it is the only country in the world that is held up to any standard whatsoever.